J. Warren Madden
Encyclopedia
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.
, 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 tort
s, 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 becoming Dean at the University of Pittsburgh School of Law
in 1921. 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.
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.
, 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.
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.
On March 21, the press reported that a study by four NLRB regional directors highly critical of Madden's administration of the Board had been suppressed (an action Madden vehemently denied).
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.
The Smith Committee investigation had a lasting effect on labor law in the U.S., and the Smith bill was the basis for the Taft-Hartley Act
of 1947.
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 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."
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.
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.
. He and his wife, Margaret L. Madden, lived in San Francisco, California
, where he taught at the Hastings College of the Law
.
J. Warren Madden died in his sleep of natural causes on February 17, 1972. He was survived by his wife and four children.
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
lawyer
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
, judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
, civil servant, and educator. He served on the United States Court of Claims
United States Court of Claims
The Court of Claims was a federal court that heard claims against the United States government. It was established in 1855 as the Court of Claims, renamed in 1948 to the United States Court of Claims , and abolished in 1982....
and was the first Chair of the National Labor Relations Board
National Labor Relations Board
The National Labor Relations Board is an independent agency of the United States government charged with conducting elections for labor union representation and with investigating and remedying unfair labor practices. Unfair labor practices may involve union-related situations or instances of...
(serving from 1935 to 1940). He received the Medal of Freedom in 1947.
Early life
Joseph Warren Madden was born in the unincorporated town of Damascus in Waddams Township, IllinoisWaddams Township, Stephenson County, Illinois
Waddams Township is located in Stephenson County, Illinois. The population was 807 at the 2010 census, down from 872 at the 2000 census. The unincorporated communities of McConnell and Damascus are located in the township, and once New Pennsylvania was located here also.On March 6, 1848 the...
, on January 17, 1890. His father was a somewhat wealthy farmer. He received his bachelor's degree
Bachelor's degree
A bachelor's degree is usually an academic degree awarded for an undergraduate course or major that generally lasts for three or four years, but can range anywhere from two to six years depending on the region of the world...
from the University of Illinois, and his law degree from the University of Chicago Law School
University of Chicago Law School
The University of Chicago Law School was founded in 1902 as the graduate school of law at the University of Chicago and is among the most prestigious and selective law schools in the world. The U.S. News & World Report currently ranks it fifth among U.S...
in 1914. His legal specialties were domestic relations
Domestic relations
In the common law tradition, the law of domestic relations is a broad category that encompasses:* divorce;* property settlements;* alimony, spousal support, or other maintenance;* the establishment of paternity;...
, property law
Property law
Property law is the area of law that governs the various forms of ownership in real property and in personal property, within the common law legal system. In the civil law system, there is a division between movable and immovable property...
, and tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
s, and he had no background in labor law
Labour law
Labour law is the body of laws, administrative rulings, and precedents which address the legal rights of, and restrictions on, working people and their organizations. As such, it mediates many aspects of the relationship between trade unions, employers and employees...
.
He entered private practice. He left his practice to teach law at the University of Oklahoma College of Law
University of Oklahoma College of Law
The University of Oklahoma College of Law is an ABA-certified law school located on the University of Oklahoma campus in Norman, Oklahoma. Currently, the College of Law has an enrollment of 527 law students....
, and in 1917 he was appointed a professor of law at the Moritz College of Law
Moritz College of Law
The Ohio State University Moritz College of Law is a public law school and charter member of the Association of American Law Schools. According to the 2010 U.S. News & World Report rankings, the Moritz College of Law is 35th in the nation overall and is in the top ten among public law schools. The...
at Ohio State University
Ohio State University
The Ohio State University, commonly referred to as Ohio State, is a public research university located in Columbus, Ohio. It was originally founded in 1870 as a land-grant university and is currently the third largest university campus in the United States...
. He was a visiting professor of law at the University of Chicago Law School, Stanford Law School
Stanford Law School
Stanford Law School is a graduate school at Stanford University located in the area known as the Silicon Valley, near Palo Alto, California in the United States. The Law School was established in 1893 when former President Benjamin Harrison joined the faculty as the first professor of law...
, and Cornell Law School
Cornell Law School
Cornell Law School, located in Ithaca, New York, is a graduate school of Cornell University and one of the five Ivy League law schools. The school confers three law degrees...
. He briefly served as a special assistant in the office of the United States Attorney General
United States Attorney General
The United States Attorney General is the head of the United States Department of Justice concerned with legal affairs and is the chief law enforcement officer of the United States government. The attorney general is considered to be the chief lawyer of the U.S. government...
in Washington, D.C., in 1920. A rising star in legal education circles, he also served briefly as Dean
Dean (education)
In academic administration, a dean is a person with significant authority over a specific academic unit, or over a specific area of concern, or both...
of the West Virginia University College of Law
West Virginia University College of Law
The West Virginia University College of Law is the professional school for the study of law at West Virginia University in Morgantown, West Virginia. The law school was established in 1878 as the first professional school in the state of West Virginia...
before becoming Dean at the University of Pittsburgh School of Law
University of Pittsburgh School of Law
The University of Pittsburgh School of Law was founded in 1895, and became a charter member of the Association of American Law Schools in 1900...
in 1921. During this time, he served on several federal commissions, including an arbitration panel which settled a strike by 1,800 streetcar
Tram
A tram is a passenger rail vehicle which runs on tracks along public urban streets and also sometimes on separate rights of way. It may also run between cities and/or towns , and/or partially grade separated even in the cities...
conductors in Pittsburgh, Pennsylvania
Pittsburgh, Pennsylvania
Pittsburgh is the second-largest city in the US Commonwealth of Pennsylvania and the county seat of Allegheny County. Regionally, it anchors the largest urban area of Appalachia and the Ohio River Valley, and nationally, it is the 22nd-largest urban area in the United States...
, in 1934. He also served on Pennsylvania Governor Gifford Pinchot
Gifford Pinchot
Gifford Pinchot was the first Chief of the United States Forest Service and the 28th Governor of Pennsylvania...
's Commission on Special Planning in Industry, the Pittsburg Regional Labor Board, and a West Virginia
West Virginia
West Virginia is a state in the Appalachian and Southeastern regions of the United States, bordered by Virginia to the southeast, Kentucky to the southwest, Ohio to the northwest, Pennsylvania to the northeast and Maryland to the east...
state commission which revised and codified that state's public statutes.
NLRB service
In 1935, PresidentPresident of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
Franklin D. Roosevelt
Franklin D. Roosevelt
Franklin Delano Roosevelt , also known by his initials, FDR, was the 32nd President of the United States and a central figure in world events during the mid-20th century, leading the United States during a time of worldwide economic crisis and world war...
named Madden the first Chair of the newly-formed National Labor Relations Board (NLRB). His name had appeared on a list developed by Senator
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
Robert F. Wagner
Robert F. Wagner
Robert Ferdinand Wagner I was an American politician. He was a Democratic U.S. Senator from New York from 1927 to 1949.-Origin and early life:...
and Secretary of Labor
United States Secretary of Labor
The United States Secretary of Labor is the head of the Department of Labor who exercises control over the department and enforces and suggests laws involving unions, the workplace, and all other issues involving any form of business-person controversies....
Frances Perkins
Frances Perkins
Frances Perkins , born Fannie Coralie Perkins, was the U.S. Secretary of Labor from 1933 to 1945, and the first woman appointed to the U.S. Cabinet. As a loyal supporter of her friend, Franklin D. Roosevelt, she helped pull the labor movement into the New Deal coalition...
. 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
American Federation of Labor
The American Federation of Labor was one of the first federations of labor unions in the United States. It was founded in 1886 by an alliance of craft unions disaffected from the Knights of Labor, a national labor association. Samuel Gompers was elected president of the Federation at its...
(AFL), which believed that Madden was using the National Labor Relations Act
National Labor Relations Act
The National Labor Relations Act or Wagner Act , is a 1935 United States federal law that limits the means with which employers may react to workers in the private sector who create labor unions , engage in collective bargaining, and take part in strikes and other forms of concerted activity in...
(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
Congress of Industrial Organizations
The Congress of Industrial Organizations, or CIO, proposed by John L. Lewis in 1932, was a federation of unions that organized workers in industrial unions in the United States and Canada from 1935 to 1955. The Taft-Hartley Act of 1947 required union leaders to swear that they were not...
(CIO). The NLRB and NLRA were under intense pressure from employers, the press, Congressional Republicans
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...
, and conservative Democrats
Democratic Party (United States)
The Democratic Party is one of two major contemporary political parties in the United States, along with the Republican Party. The party's socially liberal and progressive platform is largely considered center-left in the U.S. political spectrum. The party has the lengthiest record of continuous...
. 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
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
and NLRB legal staff wanted the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
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
Lochner era
The Lochner era is a period in American legal history in which the Supreme Court of the United States tended to strike down laws held to be infringing on economic liberty or private contract rights, and takes its name from a 1905 case, Lochner v. New York. The beginning of the period is usually...
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
National Labor Relations Board v. Jones & Laughlin Steel Corporation
National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1 , was a United States Supreme Court case that declared that the National Labor Relations Act of 1935 was constitutional...
, 301 U.S. 1 (1937), and Madden personally argued the case (along with NLRB General Counsel Charles H. Fahy
Charles H. Fahy
Charles Fahy served as Solicitor General of the United States and later as a United States federal judge on the United States Court of Appeals for the District of Columbia Circuit....
and Charles Edward Wyzanski, Jr.
Charles Edward Wyzanski, Jr.
Charles Edward Wyzanski, Jr. was a United States federal judge.Born in Boston, Massachusetts, Wyzanski received an A.B. from Harvard College in 1927 and an LL.B. from Harvard Law School in 1930...
, a special assistant in the office of the United States Solicitor General
United States Solicitor General
The United States Solicitor General is the person appointed to represent the federal government of the United States before the Supreme Court of the United States. The current Solicitor General, Donald B. Verrilli, Jr. was confirmed by the United States Senate on June 6, 2011 and sworn in on June...
) before the Court. The ruling marked the Court's abandonment of Lochner era jurisprudence and led to a series of cases upholding New Deal
New Deal
The New Deal was a series of economic programs implemented in the United States between 1933 and 1936. They were passed by the U.S. Congress during the first term of President Franklin D. Roosevelt. The programs were Roosevelt's responses to the Great Depression, and focused on what historians call...
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
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
and all 16 representation cases before the lower courts, a rate of success unequalled by any other federal agency.
AFL opposition
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 unionismCraft unionism
Craft unionism refers to organizing a union in a manner that seeks to unify workers in a particular industry along the lines of the particular craft or trade that they work in by class or skill level...
, 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
Industrial unionism
Industrial unionism is a labor union organizing method through which all workers in the same industry are organized into the same union—regardless of skill or trade—thus giving workers in one industry, or in all industries, more leverage in bargaining and in strike situations...
) 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
International Longshore and Warehouse Union
The International Longshore and Warehouse Union is a labor union which primarily represents dock workers on the West Coast of the United States, Hawaii and Alaska, and in British Columbia, Canada. It also represents hotel workers in Hawaii, cannery workers in Alaska, warehouse workers throughout...
over the AFL-affiliated International Longshoremen's Association
International Longshoremen's Association
The International Longshoremen's Association is a labor union representing longshore workers along the East Coast of the United States and Canada, the Gulf Coast, the Great Lakes, Puerto Rico, and inland waterways...
. 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
House Un-American Activities Committee
The House Committee on Un-American Activities or House Un-American Activities Committee was an investigative committee of the United States House of Representatives. In 1969, the House changed the committee's name to "House Committee on Internal Security"...
(led by Chairman Martin Dies, Jr.
Martin Dies, Jr.
Martin Dies, Jr. was a Texas politician and a Democratic member of the United States House of Representatives. His father, Martin Dies, was also a member of the United States House of Representatives.-Biography:...
) heard testimony from AFL leader John P. Frey
John P. Frey
John P. Frey was a labor activist and president of the American Federation of Labor's Metal Trades Department during a crucial period in American labor history.-Early life:...
, who accused Madden of staffing the NLRB with communists
Communism
Communism is a social, political and economic ideology that aims at the establishment of a classless, moneyless, revolutionary and stateless socialist society structured upon common ownership of the means of production...
. The allegations were true, in at least one case: Nathan Witt
Nathan Witt
Nathan Witt was an American lawyer who is best known as being the Secretary of the National Labor Relations Board from 1937 to 1940...
, 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
National Mediation Board
The National Mediation Board is an independent agency of the United States government that coordinates labor-management relations within the U.S...
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 RepresentativesUnited States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
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
Howard W. Smith
Howard Worth Smith , Democratic U.S. Representative from Virginia, was a leader of the conservative coalition who supported both racial segregation and women's rights.-Early life and education:...
of Virginia
Virginia
The Commonwealth of Virginia , is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" after the eight U.S. presidents born there...
. 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.
On March 21, the press reported that a study by four NLRB regional directors highly critical of Madden's administration of the Board had been suppressed (an action Madden vehemently denied).
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
United States House Committee on Rules
The Committee on Rules, or Rules Committee, is a committee of the United States House of Representatives. Rather than being responsible for a specific area of policy, as most other committees are, it is in charge of determining under what rule other bills will come to the floor...
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
Elbert D. Thomas
Elbert Duncan Thomas was a Democratic Party politician from Utah. He represented Utah in the United States Senate from 1933 until 1951.-Biography:...
, chair of the Senate Committee on Education and Labor, to hold no hearings or votes on the bill, and the legislation died.
The Smith Committee investigation had a lasting effect on labor law in the U.S., and the Smith bill was the basis for the Taft-Hartley Act
Taft-Hartley Act
The Labor–Management Relations Act is a United States federal law that monitors the activities and power of labor unions. The act, still effective, was sponsored by Senator Robert Taft and Representative Fred A. Hartley, Jr. and became law by overriding U.S. President Harry S...
of 1947.
Nomination battle
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 BiddleFrancis Biddle
Francis Beverley Biddle was an American lawyer and judge who was Attorney General of the United States during World War II and who served as the primary American judge during the postwar Nuremberg trials....
on the Third Circuit Court of Appeals
United States Court of Appeals for the Third Circuit
The United States Court of Appeals for the Third Circuit is a federal court with appellate jurisdiction over the district courts for the following districts:* District of Delaware* District of New Jersey...
(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
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
to study that country's problems in boosting defense production. Finally, on November 15, 1940, President Roosevelt nominated Harry A. Millis
Harry A. Millis
Harry Alvin Millis was an American civil servant, economist, and educator and who was prominent in the first four decades of the 20th century. He was a prominent educator, and his writings on labor relations were described at his death by several prominent economists as "landmarks"...
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
United States Senate Committee on the Judiciary
The United States Senate Committee on the Judiciary is a standing committee of the United States Senate, of the United States Congress. The Judiciary Committee, with 18 members, is charged with conducting hearings prior to the Senate votes on confirmation of federal judges nominated by the...
favorably reported Madden's nomination to the floor (almost without discussion or comment), Republican Senators Robert Taft
Robert Taft
Robert Alphonso Taft , of the Taft political family of Cincinnati, was a Republican United States Senator and a prominent conservative statesman...
and Arthur H. Vandenberg
Arthur H. Vandenberg
Arthur Hendrick Vandenberg was a Republican Senator from the U.S. state of Michigan who participated in the creation of the United Nations.-Early life and family:...
, 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
John E. Miller
John Elvis Miller was a Democratic Party politician from Arkansas who represented the state in the United States House of Representatives from 1931 until 1937, and in the United States Senate from 1937 until 1941....
(chair of the Judiciary subcommittee which had approved the nomination in a face-to-face conference) and Senate Majority Leader
Party leaders of the United States Senate
The Senate Majority and Minority Leaders are two United States Senators who are elected by the party conferences that hold the majority and the minority respectively. These leaders serve as the chief Senate spokespeople for their parties and manage and schedule the legislative and executive...
Alben W. Barkley
Alben W. Barkley
Alben William Barkley was an American politician in the Democratic Party who served as the 35th Vice President of the United States , under President Harry S. Truman....
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
Quorum
A quorum is the minimum number of members of a deliberative assembly necessary to conduct the business of that group...
, 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."
Wartime service
Judge Madden was permitted to temporarily leave the bench in 1945 to assist the War DepartmentUnited States Department of Defense
The United States Department of Defense is the U.S...
and the United States Army
United States Army
The United States Army is the main branch of the United States Armed Forces responsible for land-based military operations. It is the largest and oldest established branch of the U.S. military, and is one of seven U.S. uniformed services...
in various legal capacities associated with the Allied
Allies of World War II
The Allies of World War II were the countries that opposed the Axis powers during the Second World War . Former Axis states contributing to the Allied victory are not considered Allied states...
administration of occupied Germany in the wake of World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
. He was appointed Associate Director of the legal staff of the Office of Military Government, United States
Office of Military Government, United States
The Office of Military Government, United States was the United States military-established government created shortly after the end of hostilities in occupied Germany in World War II. Under General Lucius D...
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
Alfried Krupp von Bohlen und Halbach
Alfried Felix Alwyn Krupp von Bohlen und Halbach , often referred to as Alfried Krupp, was a convicted war criminal, an industrialist, a competitor in Olympic yacht races and a member of the Krupp family, which has been prominent in Germany since the early 19th century.The family company, known...
appeal of his conviction
Krupp Trial
The Krupp Trial was the tenth of twelve trials for war crimes that U.S. authorities held in their occupation zone at Nuremberg, Germany after the end of World War II....
for crimes against humanity
Crime against humanity
Crimes against humanity, as defined by the Rome Statute of the International Criminal Court Explanatory Memorandum, "are particularly odious offenses in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings...
at the Subsequent Nuremberg Trials
Subsequent Nuremberg Trials
The Subsequent Nuremberg Trials were a series of twelve U.S...
; 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
Lucius D. Clay
General Lucius Dubignon Clay was an American officer and military governor of the United States Army known for his administration of Germany immediately after World War II. Clay was deputy to General Dwight D. Eisenhower, 1945; deputy military governor, Germany 1946; commander in chief, U.S....
to the Potsdam Conference
Potsdam Conference
The Potsdam Conference was held at Cecilienhof, the home of Crown Prince Wilhelm Hohenzollern, in Potsdam, occupied Germany, from 16 July to 2 August 1945. Participants were the Soviet Union, the United Kingdom, and the United States...
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 ClubThe Jockey Club
The Jockey Club, formed on February 9, 1894, is the keeper of The American Stud Book. It came into existence after James R. Keene spearheaded a drive in support of racehorse trainers who had complained about the Board of Control that governed racing in New York State.-History:On its formation, The...
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
United States courts of appeals
The United States courts of appeals are the intermediate appellate courts of the United States federal court system...
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 statusSenior status
Senior status is a form of semi-retirement for United States federal judges, and judges in some state court systems. After federal judges have reached a certain combination of age and years of service on the federal courts, they are allowed to assume senior status...
. He and his wife, Margaret L. Madden, lived in San Francisco, California
San Francisco, California
San Francisco , officially the City and County of San Francisco, is the financial, cultural, and transportation center of the San Francisco Bay Area, a region of 7.15 million people which includes San Jose and Oakland...
, where he taught at the Hastings College of the Law
University of California, Hastings College of the Law
University of California, Hastings College of the Law is a public law school in San Francisco, California, located in the Civic Center neighborhood....
.
J. Warren Madden died in his sleep of natural causes on February 17, 1972. He was survived by his wife and four children.