J. Warren Madden
|Joseph Warren Madden|
J. Warren Madden at his desk at the NLRB, June 1937
January 17, 1890|
Damascus, Waddams Township, Stephenson County, Illinois, U.S.
|Died||February 17, 1972
San Francisco, California, U.S.
|Occupation||Lawyer; federal government employee; federal judge|
|Spouse(s)||Margaret L. Madden|
J. Warren Madden, born Joseph Warren Madden, (January 17, 1890 – February 17, 1972) was an American lawyer, judge, civil servant, and educator. He served on the United States Court of Claims and was the first Chair of the National Labor Relations Board (serving from 1935 to 1940). He received the Medal of Freedom in 1947.
Joseph Warren Madden was born in the unincorporated town of Damascus in Waddams Township, Illinois, on January 17, 1890. His father was a somewhat wealthy farmer. He received his bachelor's degree from the University of Illinois, and his law degree from the University of Chicago Law School in 1914. His legal specialties were domestic relations, property law, and torts, and he had no background in labor law.
He entered private practice. He left his practice to teach law at the University of Oklahoma College of Law, and in 1917 he was appointed a professor of law at the Moritz College of Law at Ohio State University. He was a visiting professor of law at the University of Chicago Law School, Stanford Law School, and Cornell Law School. He briefly served as a special assistant in the office of the United States Attorney General in Washington, D.C., in 1920. A rising star in legal education circles, he also served briefly as Dean of the West Virginia University College of Law before being added to the faculty of the University of Pittsburgh School of Law in 1927. During this time, he served on several federal commissions, including an arbitration panel which settled a strike by 1,800 streetcar conductors in Pittsburgh, Pennsylvania, in 1934. He also served on Pennsylvania Governor Gifford Pinchot's Commission on Special Planning in Industry, the Pittsburg Regional Labor Board, and a West Virginia state commission which revised and codified that state's public statutes.
In 1935, President Franklin D. Roosevelt named Madden the first Chair of the newly formed National Labor Relations Board (NLRB). His name had appeared on a list developed by Senator Robert F. Wagner and Secretary of Labor Frances Perkins. Madden supported the expanded powers of the NLRB; he had observed the operations of the labor clauses of the previously existing National Industrial Relations Act, which were often stymied by employer refusal to negotiate with union representatives who didn't work for them. He was later to say of this period, "It was all very frustrating."
During his time on the NLRB, Madden was often opposed by the American Federation of Labor (AFL), which believed that Madden was using the National Labor Relations Act (NLRA; the primary federal law governing labor relations in the U.S.) and the procedures and staff of the NLRB to favor the AFL's primary competitor, the Congress of Industrial Organizations (CIO). The NLRB and NLRA were under intense pressure from employers, the press, Congressional Republicans, and conservative Democrats. From the time it was established in August 1935, management lawyers had challenged the constitutionality of the NLRA and the authority of the NLRB to act. The Justice Department and NLRB legal staff wanted the Supreme Court to rule as quickly as possible on the constitutionality of the NLRA. But the Board and Justice Department also realized that the Court's Lochner era legal philosophy made it unlikely that the Court would uphold the Act. Subsequently, Madden strove to resolve minor cases before they could become court challenges, and worked to delay appeals as long as possible until the best possible case could be brought to the Court. The Supreme Court eventually upheld the NLRA in National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1 (1937), and Madden personally argued the case (along with NLRB General Counsel Charles H. Fahy and Charles Edward Wyzanski, Jr., a special assistant in the office of the United States Solicitor General) before the Court. The ruling marked the Court's abandonment of Lochner era jurisprudence and led to a series of cases upholding New Deal legislation.
Madden continued to strategically guide the NLRB's legal efforts to strengthen the courts' view of the NLRA and the Board's actions. Through the efforts of Madden and NLRB General Counsel Charles H. Fahy, the Supreme Court reviewed only 27 cases between August 1935 and March 1941, even though the Board had processed nearly than 5,000 cases since its inception. The Supreme Court enforced the NLRB's rulings in 19 cases without modifying them, enforced them with modification in six more, and denied enforcement in two cases. Additionally, the Board won all 30 injunction and all 16 representation cases before the lower courts, a rate of success unequalled by any other federal agency.
Madden's stewardship of the NLRB came under increasing attack, however. Section 9(b) of the NLRA authorized the Board to determine the appropriate bargaining unit, but did not specify what standards to use to make that determination. The AFL had long preferred craft unionism, whereby workers were organized into unions on the basis of craft, trade, or skill. But other unions sought to organize workers on an industry-wide basis (industrial unionism) to create more powerful unions as well as to take advantage of changes in the workplace that mass production and increases in corporate size were making. The intense philosophical differences led the AFL to eject those organizations advocating industrial unionism, and these unions formed the CIO in November 1936.
AFL opposition to the "Madden Board" grew. Initially, the NLRB held in 1937 that workers themselves should determine whether they wished to be organized by craft or industry, a compromise acceptable to both the AFL and the CIO. But in 1939, the Board held in American Can Co., 13 NLRB 1252 (1939) that a unit's history of collective bargaining could overrule democratic self-determination. The decision deeply angered the AFL, which had sought to carve out three craft-based unions from the larger bargaining unit. The NLRB also upset the AFL when in 1938 it upheld an industry-wide bargaining unit that favored the CIO-affiliated International Longshore and Warehouse Union over the AFL-affiliated International Longshoremen's Association. The AFL, never a strong proponent of the NLRA, had proposed amending the law in early 1936. The "Madden Board's" actions led it to adopt a resolution in October 1937 condemning Madden's administration of the NLRB and the NLRA. It adopted another resolution in October 1938 charging the NLRB and Madden with perverting the law and harboring prejudice against craft unions.
In June 1938, the House Un-American Activities Committee (led by Chairman Martin Dies, Jr.) heard testimony from AFL leader John P. Frey, who accused Madden of staffing the NLRB with communists. The allegations were true, in at least one case: Nathan Witt, the NLRB's executive secretary and the man to whom Madden had delegated most administrative functions, was a member of the Communist Party of the United States. Witt had extensive influence among the staff, was close to Board Member Edwin S. Smith, and had influenced procedural matters on the Board in favor of the CIO in at least a few instances. Secretary Perkins prevailed upon President Roosevelt to speak with Madden, and the President demanded an impartial administration of the law.
When Member Donald Wakefield Smith's term on the Board expired, Roosevelt put William M. Leiserson (Chairman of the National Mediation Board and a conservative Democrat) on the NLRB in his place on July 1, 1939. Leiserson forced Madden to appoint a personnel director and a trial examiner to reduce Witt's power, and unsuccessfully sought Witt's dismissal and a significant reduction in the Board's legal staff. Over the next six months, Madden abandoned his formerly expansive interpretation of the NLRA and began switching back and forth between the liberal position represented by Member Edwin S. Smith and the conservative position advocated by William M. Leiserson.
The Smith Committee
On July 20, 1939, Republicans and conservative Democrats formed a coalition to push through the House of Representatives a resolution establishing a Special Committee to Investigate the National Labor Relations Board (the "Smith Committee"), chaired by conservative, anti-labor Rep. Howard W. Smith of Virginia. In testimony before the Smith Committee in December 1939, Leiserson strongly attacked Madden's administration of the NLRB.
On March 7, 1940, the Smith Committee proposed legislation which would have abolished the NLRB, reconstituted it, and radically amended the NLRA. Leiserson came out in favor of the changes, and accused Madden of administrative incompetence. President Roosevelt opposed the bill, although he conceded that perhaps the Board's membership should be expanded to five from three.
The Smith bill won several early tests in the House, which also voted to substantially cut the NLRB's budget. Smith won a snap vote in the House Rules Committee permitting him to bring his bill directly to the floor for a vote and bypass the committee process (where Roosevelt and his House allies had intended to bottle up the bill). In an attempt to defuse the legislative crisis, Madden fired 53 staff and forced another five to resign, and decentralized the NLRB's trial process to give regional directors and field agents more authority. But the House easily passed the Smith bill by a vote of 258 to 129 on June 7, 1940. To protect the NLRB, Roosevelt convinced Senator Elbert D. Thomas, chair of the Senate Committee on Education and Labor, to hold no hearings or votes on the bill, and the legislation died.
In 1940, President Roosevelt nominated Madden for a seat on the U.S. Court of Claims. Roosevelt briefly considered Madden for the seat being vacated by Francis Biddle on the Third Circuit Court of Appeals (Biddle was being nominated to be U.S. Attorney General). But Roosevelt's confidantes were urging the president to "dump Madden" as a political liability and because the previous year's opposition had made Madden's reappointment a political impossibility. Madden entered political limbo: His five-year term as an NLRB Member expired on August 27, 1940, but Roosevelt did not reappoint him or anyone else to the position. On October 9, Secretary of Labor Perkins announced Madden would go to Canada to study that country's problems in boosting defense production. Finally, on November 15, 1940, President Roosevelt nominated Harry A. Millis to the post of Chair of the NLRB, and nominated Madden to a seat on the U.S. Court of Claims.
Although the Senate Judiciary Committee favorably reported Madden's nomination to the floor (almost without discussion or comment), Republican Senators Robert A. Taft and Arthur H. Vandenberg, along with other Republicans, attempted to hold up the nomination on procedural grounds as a means of expressing their anger at what they believed was Madden's pro-labor administration of the National Labor Relations Act. Senator Taft intended to deny Madden's nomination a vote on the Senate floor, arguing that the Judiciary Committee had approved the nomination via telephone voice vote and telegram rather than at a face-to-face meeting. But Senator John E. Miller (chair of the Judiciary subcommittee which had approved the nomination in a face-to-face conference) and Senate Majority Leader Alben W. Barkley both defended the practice, noting it had been used many times before without question. Taft then attacked Madden for four hours on the Senate floor, declaring Madden had "no judicial temperament whatsoever" and that he had perpetrated a "gross perversion of justice" while head of the NRLB. After a struggle to obtain a quorum, the Senate was able to resolve itself for business and voted 36-to-14 to approve Madden's nomination to the bench.
Although J. Warren Madden had served on the NLRB for only five years, at least one observer concluded that Madden "chose to make a record of vigorous enforcement of the Act unmatched in the history of administrative agencies."
Judge Madden was permitted to temporarily leave the bench in 1945 to assist the War Department and the United States Army in various legal capacities associated with the Allied administration of occupied Germany in the wake of World War II. He was appointed Associate Director of the legal staff of the Office of Military Government, United States in 1946, and for his service received the Medal of Freedom in 1947. Madden was part of a three-person panel which reviewed Alfried Krupp's appeal of his conviction for crimes against humanity at the Subsequent Nuremberg Trials; Madden and his colleagues successfully recommended against overturning Krupp's conviction. He also was part of a team which traveled with Generals Dwight Eisenhower and Lucius D. Clay to the Potsdam Conference to provide legal assistance.
Later legal career
Judge Madden returned to the bench after his service in Europe. Among his more notable opinions were a 1956 decision in which he held that The Jockey Club was not exempt from taxation because it was a "business league." Judge Madden was often designated to sit on various United States courts of appeals when workload or vacancies threatened to impede an appellate court's function or his expertise was required. In 1958, sitting on an appellate court, Judge Madden wrote an opinion which held that U.S. courts had no jurisdiction over claims by American banks that they had lost money in the Russian Revolution of 1917.
Retirement and death
Judge Madden retired from the U.S. Court of Claims in 1961, assuming senior status. He and his wife, Margaret L. Madden, lived in San Francisco, California, where he taught at the Hastings College of the Law.
- "President Names New Labor Board." New York Times. August 24, 1935.
- "Confirms Madden Over Taft Protest." New York Times. January 3, 1941.
- "Judge J. Warren Madden Dead." New York Times. February 19, 1972.
- Freidel, Frank; Louchheim, Katie; and Dembo, Jonathan, eds. The Making of the New Deal: The Insiders Speak. Reprint ed. Cambridge, Mass.: Harvard University Press, 1984. ISBN 0-674-54346-7
- Gross, James A. Reshaping of the National Labor Relations Board: A Study in Economics, Politics, and the Law. Albany, N.Y.: SUNY Press, 1981. ISBN 0-87395-516-1
- "Madden a Law Professor." New York Times. August 24, 1935.
- Bernstein, Irving. The Turbulent Years: A History of the American Worker, 1933-1941. Paperback ed. Boston: Houghton-Mifflin Co., 1970. ISBN 0-395-11778-X (Originally published 1969.)
- Chasse, J. Dennis. "John R. Commons and His Students: The View From the End of the Twentieth Century." In The Institutionalist Tradition in Labor Economics. Dell P. Champlin and Janet T. Knoedler, eds. Armonk, N.Y.: M.E. Sharpe, 2004. ISBN 0-7656-1287-9
- Starrett, Agnes Lynch (1937). Through One Hundred and Fifty Years: The University of Pittsburgh. Pittsburgh, PA: University of Pittsburgh Press. p. 351. Retrieved October 2, 2013.
- Tomlins, Christopher L. The State and the Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880-1960. Reprint ed. New York: Cambridge University Press, 1985. ISBN 0-521-31452-6
- Frederick, David C. Rugged Justice: The Ninth Circuit Court of Appeals and the American West, 1891-1941. Raleigh, N.C.: University of California Press, 1994, p. 203. ISBN 0-520-08381-4
- Stark, Louis. "Both A.F.L. and C.I.O. Hit at National Labor Board." New York Times. October 14, 1937.
- Gall, Gilbert J. Pursuing Justice: Lee Pressman, the New Deal, and the CIO. Albany, N.Y.: SUNY Press, 1999. ISBN 0-7914-4103-2
- Schlesinger, Jr., Arthur M. The Age of Roosevelt, Vol. 2: The Coming of the New Deal. Paperback ed. New York: Mariner Books, 2003. (Originally published 1958.) ISBN 0-618-34086-6
- Morris, Charles J. The Developing Labor Law: The Board, The Courts, and the National Labor Relations Act. 2d ed. Washington, D.C.: BNA Books, 1983. ISBN 0-87179-405-5
- Cushman, Barry. Rethinking the New Deal Court: The Structure of a Constitutional Revolution. Paperback ed. New York: Oxford University Press, 1998. ISBN 0-19-512043-4; Gillman, Howard. The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence. New ed. Durham, N.C.: Duke University Press, 1993. ISBN 0-8223-1642-0
- Stern, Robert L.; Horsky, Charles A.; Morse, David A.; and Freund, Paul A. "The Solicitor General." In The Making of the New Deal: The Insiders Speak. Frank Freidel, Katie Louchheim, and Jonathan Dembo, eds. Reprint ed. Cambridge, Mass.: Harvard University Press, 1984. ISBN 0-674-54346-7
- Hoffer, Peter Charles; Hoffer, William James Hull; and Hull, N.E.H. The Supreme Court: An Essential History. Lawrence, Kan.: University Press of Kansas, 2007. ISBN 0-7006-1538-5
- Galenson, Walter. The CIO Challenge to the AFL: A History of the American Labor Movement. Cambridge, Mass.: Harvard University Press, 1960. ISBN 0-674-13150-9; Zieger, Robert H. The CIO, 1935-1955. Reprint ed. Chapel Hill, N.C.: University of North Carolina Press, 1997. ISBN 978-0-8078-2182-4
- Horowitz, David A. America's Political Class Under Fire: The Twentieth Century's Great Culture War. Florence, Ky.: Routledge, 2003. ISBN 0-415-94690-5
- Globe Machine & Stamping Co., 3 NLRB 294 (1937).
- Shipowners' Ass'n of the Pacific Coast, 7 NLRB 1002 (1938), enf'd American Federation of Labor v. National Labor Relations Board, 308 U.S. 401 (1940).
- "Reds Start Count of Allies in Federal Jobs And Push Participation in C.I.O., Frey Says." New York Times. January 10, 1938; "Communists Rule the C.I.O., Frey of A.F.L. Testifies." New York Times. August 14, 1938; "High Federal Aides Are Linked to Reds at House Hearing." New York Times. August 18, 1938; "Green Pushes Fight on 2 NLRB Members." New York Times. August 24, 1938; "Council of A.F.L. Backs Dies Inquiry." New York Times. September 2, 1938; Stark, Louis. "A.F.L. Report Asks NLRB Power Be Cut." New York Times. October 10, 1938.
- Lambert, Josiah Bartlett. "If the Workers Took A Notion": The Right to Strike and American Political Development. Ithaca, N.Y.: Cornell University Press, 2005. ISBN 0-8014-8945-8
- Halpern, Martin. Unions, Radicals, and Democratic Presidents: Seeking Social Change in the Twentieth Century. Santa Barbara, Calif.: Greenwood Publishing Group, 2003. ISBN 0-313-32471-9
- Stark, Louis. "Leiserson Picked for Labor Board." New York Times. April 25, 1939; "Leiserson Named to Place on NLRB." New York Times. April 26, 1939.
- "Leiserson in Feud at National Labor Relations Board Hearing." New York Times. December 12, 1939; "Leiserson States Labor Board Case." New York Times. December 12, 1939; Catledge, Turner. "Labor Board Inquiry a Forecast of Others." New York Times. December 17, 1939.
- Atleson, James B. Labor and the Wartime State: Labor Relations and Law During World War II. Urbana, Ill.: University of Illinois Press, 1998. ISBN 0-252-06674-X
- Among the changes proposed: Removal of many of the guarantees of collective bargaining from the Wagner Act's preamble, denial of legal protections to sitdown strikers and agricultural workers, removal of the requirement that employers must bargain with unions, making the General Counsel independent from the Board, abolition of the Board's economic research unit, enhanced employer free speech rights, introduction of the right of employers to seek an election among their workers, and removal of the Board's authority to engage in bargaining unit determination. See: Bernstein, The Turbulent Years: A History of the American Worker, 1933-1941, 1970, p. 670.
- "Ramspeck Attacks NLRB to Roosevelt." New York Times. December 30, 1939; "Republicans Urge Abolition of NLRB." New York Times. March 3, 1940; Dorris, Henry N. "Smith Committee Asks End of NLRB, Revised Labor Law." New York Times. March 8, 1940; Stark, Louis. "House Quickens Labor Act Battle." New York Times. March 17, 1940; "Jackson Is Urged to Prosecute NLRB." New York Times. March 19, 1940.
- "Leiserson Favors Shake-Up of NLRB." New York Times. March 17, 1940; Stark, Louis. "Leiserson Balks at NLRB Decision." New York Times. March 20, 1940.
- "President Opposes Smith NLRB Changes." New York Times. March 13, 1940.
- Stark, Louis. "Methods of NLRB Indicted in Study Made By Own Men." New York Times. March 22, 1940; "NLRB Head Denies Shelving Report." New York Times. March 23, 1940.
- "NLRB of Five Men Again Wins in Test." New York Times. March 21, 1940; Dorris, Henry N. "House Votes Rises for NYA and CCC, NLRB Cut Is Upheld." New York Times. March 29, 1940; Stark, Louis. "House Unit Gets NLRB Bill Dissent." New York Times. April 10, 1940.
- "Smith Moves to Get NLRB Bills to Floor." New York Times. April 14, 1940; "Rival Labor Bills Put Before House." New York Times. April 20, 1940.
- "NLRB Dismisses 53, 5 Quit, in Fund Cut." New York Times. May 25, 1940; "Field Men to Rule for Labor Board." New York Times. May 26, 1940.
- Dorris, Henry N. "Sweeping Changes in Labor Act Voted by House, 258-129." New York Times. June 8, 1940.
- "Jackson, Biddle Get Higher Posts." New York Times. January 5, 1940.
- Stark, Louis. "Showdown Near on Madden's Post." New York Times. August 21, 1940; "Renaming of Madden to NLRB Predicted." New York Times. August 24, 1940; "No Decision on Madden." New York Times. August 27, 1940; "Pleas for Madden Are Said to Persist." New York Times. August 30, 1940; Stark, Louis. "General Shake-Up In NLRB Weighed." New York Times. September 6, 1940; Stark, Louis. "President Leans to Keeping Madden." September 24, 1940.
- "Madden Will Study Canada Labor Data." New York Times. October 10, 1940.
- "Dr. Millis Slated to Head the NLRB." New York Times. November 7, 1940; Hurd, Charles. "Roosevelt Names Dr. Millis to NLRB, Replacing Madden." New York Times. November 16, 1940.
- "Favors Madden for Judge." New York Times. November 28, 1940.
- "Vandenberg Again Blocks Madden Job." New York Times. December 3, 1940; "Longest Congress idles last 3 Days." New York Times. December 31, 1940.
- "Vote of the Senate Confirming Madden." Associated Press. January 3, 1941.
- Gross, Reshaping of the National Labor Relations Board: A Study in Economics, Politics, and the Law, 1981, p. 23.
- Silber, Norman Isaac. With All Deliberate Speed: The Life of Philip Elman: An Oral History Memoir. Ann Arbor, Mich.: University of Michigan Press, 2004. ISBN 0-472-11425-5
- "Herman Phleger: Sixty Years in Law, Public Service and International Affairs." Interview conducted in 1977 by Miriam Feingold Stein. Regional Oral History Office. The Bancroft Library. University of California, Berkeley. Berkeley, Calif.: Regents of the University of California, 1979. Accessed 2010-02-08; "Judge J. Warren Madden Dies." Monterey Peninsula Herald. February 19, 1972.
- Manchester, William. The Arms of Krupp: The Rise and Fall of the Industrial Dynasty That Armed Germany at War. Reprint ed. Boston: Back Bay, 2003. ISBN 0-316-52940-0; Maguire, Peter H. Law and War: An American Story. New York: Columbia University Press, 2000. ISBN 0-231-12050-8
- Huston, Luther A. "Turf Group Loses Tax Refund Suit." New York Times. February 1, 1956.
- Lewis, Anthony. "Bank Loses Plea on Russian Fund." New York Times. June 13, 1958.
- Judge Madden on Law Faculty." New York Times. April 23, 1961.