Yellow Dog Contract

A yellow dog contract is a type of agreement wherein an employee agrees not to become a member of a labor union in exchange for employment with the company that drafted the agreement. Yellow dog contracts are, for the most part, illegal. Yellow dog contracts were used up until the 1930s as a way to stop employees from organizing union protests, and to provide a way for employers to pursue legal action against those who did. However, yellow dog contracts have become increasingly unenforceable since the passage of the Norris-LaGuardia Act in 1932. To explore this concept, consider the following yellow dog contract definition.

Definition of Yellow Dog Contract

Noun

1. A now-illegal agreement between an employer and employee wherein an employee agrees not to join a union.

Origin

1915-1920       Americanism

What is a Yellow Dog Contract

A yellow dog contract is an illegal agreement that an employer makes with an employee wherein the employee agrees not to join up with the company’s labor union. For example, “yellow dog contract” is a metaphor that is used to refer to the employee who is signing the document, as in, “What person would be such a ‘yellow dog’ as to reduce himself to signing away his constitutional rights just to have a job.” In more modern terms, a yellow dog clause refers to a non-compete clause that an employer can put into an employment contract. By signing such a contract, the employee agrees not to work for a direct competitor in the future – something that would ultimately harm his current employer.

A yellow dog contract was beneficial to the employer because it gave the employer legal recourse in the event his employees engaged in a mutiny against the company. In 1932, a new philosophy was being floated around that the government should stay out of employees’ right to organize. This brought about the passage of the Norris-LaGuardia Act and the end of yellow dog contracts being legally upheld.

History of Yellow Dog Contract

The history of the yellow dog contract goes back to the 1870s. It started with a written agreement, referred to as an “infamous” or “iron-clad” document, that contained an anti-union pledge. By signing the agreement, an employee would agree not to join his trade’s union. Beginning in 1887 with New York, sixteen states declared it to be a criminal act for an employer to force his employees to agree not to join a union.

However, during the final years of the 19th century, and into the first years of the 20th, these anti-union declarations became less important. By this point in the history of the yellow dog contract, the agreements had been around for so long that workers no longer felt like they had to uphold them, and union organizers didn’t even give them a second thought.

By the early 20th century, the only trades that still dabbled in yellow dog contracts were the coal mining and metal industries. Further, it was no longer an employee’s membership in a union that was prohibited, but his participation in the activities that required an employee’s membership in a union as a prerequisite.

In 1910, a national strike was organized by the International United Brotherhood of Leather Workers on Horse Goods. However, the strike ultimately failed, with a significant number of employers requiring promises, both written and verbal, from their employees that the latter would leave and stay out of unions as a condition of going back to their jobs.

In the spring of 1921, the “yellow dog” term was first published in publications that catered to the those who belonged to labor unions. The editor of the United Mine Workers’ Journal spoke for many when he commented:

“This agreement has been well named. It is yellow dog for sure. It reduces to the level of a yellow dog any man that signs it, for he signs away every right he possesses under the Constitution and laws of the land and makes himself the truckling, helpless slave of the employer.”

By 1932, the Norris-LaGuardia Act had forbidden yellow dog contracts from existing within the private sector. However, they were still allowed in the public sector, including within federal jobs, up until the 1960s. This is when the history of the yellow dog contract met its end, as all yellow dog contracts from that point on were to be considered unlawful and unenforceable.

Norris-LaGuardia Act

The Norris-LaGuardia Act, also referred to as the “Anti-Injunction Bill,” is a federal law that was passed in 1932. The Norris-LaGuardia Act declared yellow dog contracts to be illegal, and barred federal courts from ruling on labor disputes that are of a nonviolent nature. Further, it prevented the federal government from interfering with a worker’s right to join a trade union if he so desired. The Norris-LaGuardia Act gets its name from its Republican sponsors: Senator George W. Norris from Nebraska, and New York Representative Fiorello H. La Guardia.

There are three provisions of the Norris-LaGuardia Act. In particular, the Act aims to:

• Protect a worker’s right to self-organization and liberty
• Take jurisdiction away from the federal courts insofar as issuing orders on nonviolent, labor-related disputes
• Criminalize yellow dog contracts

Yellow Dog Contract Example Involving a Company that Broke the Law

An example of a yellow dog contract can be found in a case that was heard by the Supreme Court of the United States in 1915, 12 years after the state of Kansas passed a law intended to encourage employees to unionize. The law barred employers from attaching conditions to their jobs that an employee must refuse to join a union, or to cease participating in one, before working for their companies. However, 12 years later, Coppage – an employer – added a clause to his employment contracts that forced employees to give up their right to join a labor union upon accepting employment.

In adding this “no joining” clause to his contracts, Coppage was violating the state law that prohibited any and all forms of anti-union contracts. This case is an example of yellow dog contracts being in violation of the Fourteenth Amendment – specifically the Amendment’s Due Process clause.

The issue then became whether a state could prevent an employer from making employment with his company conditional upon the candidate’s status as a member of a union. Coppage was ultimately found guilty of violating Kansas state law, and a fine was levied upon him, with imprisonment being an alternative punishment. Coppage appealed to the Supreme Court of the State of Kansas, and the judgment was affirmed. Coppage then pursued the case to the Supreme Court of the United States.

The Court ultimately reversed the lower courts’ decisions, holding that both parties to a contract have the right to terminate the employment “at will,” and for any reason. The employee is entitled to refuse the employment opportunity if he values his membership to a union over the position that is being offered to him. The Court noted that a candidate’s decision to accept a position while abstaining from joining a union is not actually an infringement upon his freedoms. Both the employee and the employer are free to determine how their relationship will proceed, if it will at all.

Said the Court:

“To ask a man to agree, in advance, to refrain from affiliation with the union while retaining a certain position of employment, is not to ask him to give up any part of his constitutional freedom. He is free to decline the employment on those terms, just as the employer may decline to offer employment on any other; for “It takes two to make a bargain.” Having accepted employment on those terms, the man is still free to join the union when the period of employment expires; or, if employed at will, then at any time upon simply quitting the employment. And, if bound by his own agreement to refrain from joining during a stated period of employment, he is in no different situation from that which is necessarily incident to term contracts in general. For constitutional freedom of contract does not mean that a party is to be as free after making a contract as before; he is not free to break it without accountability. Freedom of contract, from the very nature of the thing, can be enjoyed only by being exercised; and each particular exercise of it involves making an engagement which, if fulfilled, prevents for the time any inconsistent course of conduct.”

And further:

“In the operation of its property it may employ such persons as are desirable, and discharge, without reason, those who are undesirable. It is at liberty to contract for the services of persons in any manner that is satisfactory to both. No legislative restrictions can be imposed upon the lawful exercise of these rights.”

This case therefore becomes an example of a yellow dog contract that was ultimately successful, in that the employer creating it was permitted to continue creating them and forcing employees to abide by them. However, it is important to note that this case was heard years before the passage of the Norris-LaGuardia Act.

Related Legal Terms and Issues

• Judgment – A formal decision made by a court in a lawsuit.
• Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.