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Yellow Dog Contract

court law union labor

An employment agreement whereby a worker promises not to join a LABOR UNION or promises to resign from a union if he or she is already a member.

Until the 1930s, employers were able to use a variety of measures to prevent employees from joining labor unions. One of the most effective was the yellow dog contract, which frequently forced employees to either sign an agreement not to join a union or be fired. Courts upheld the legality of yellow dog contracts and frequently struck down state laws that sought to outlaw them. The enactment of the WAGNER ACT in 1935 (29 U.S.C.A. § 151 et seq.) finally put an end to these types of agreements.

The U.S. Supreme Court's hostility to efforts by government to outlaw the yellow dog contract was rooted in the concept of "liberty of contract." Near the end of the nineteenth century, the Court used the DUE PROCESS provisions of the Fifth and Fourteenth Amendments to the U.S. Constitution to strike down federal and state laws regulating business. These amendments provide that no government was to "deprive any person of life, liberty, or property, without due process of law." The Court interpreted this prohibition to include the negotiating of terms of employment between an employer and an employee.

Therefore, in Adair v. United States, 208 U.S. 161, 28 S. Ct. 277, 52 L. Ed. 436 (1908), the Court struck down a federal law that protected union members by prohibiting yellow dog contracts and the discharge or blacklisting of employees for union activities. In his majority opinion Justice JOHN HARLAN presumed that there was equal bargaining power between an employer and an employee, and that the law was an unreasonable intrusion on personal liberty and property rights, as guaranteed by the FIFTH AMENDMENT.

When Kansas enacted a law prohibiting yellow dog contracts, the Court declared the law unconstitutional under the FOURTEENTH AMENDMENT as an infringement of freedom of contract. Coppage v. Kansas, 236 U.S. 1, 35 S. Ct. 240, 59 L. Ed. 441 (1915).

The Wagner Act of 1935 gave employees the right to join unions and to bargain collectively with their employers. Congress outlawed the yellow dog contract and other UNFAIR LABOR PRACTICES on the part of employers, finding that these practices were contrary to public policy. Existing yellow dog contracts were declared unenforceable by the courts. The Supreme Court's upholding of the constitutionality of the Wagner Act in NLRB V. JONES & LAUGHLIN STEEL CORP., 301 U.S. 1, 57 S. Ct. 615, 81 L. Ed. 893 (1937), meant the end of the yellow dog contract.

FURTHER READINGS

Cushman, Barry. 1992. "Doctrinal Synergies and Liberal Dilemmas: The Case of the Yellow-Dog Contract." Supreme Court Review (annual).

Ernst, Daniel. 1989. "The Yellow-Dog Contract and Liberal Reform, 1917–1932." Labor History 30 (spring).

CROSS-REFERENCES

Labor Law; Substantive Due Process.

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