by Philip Dray
An early adherent of the “scientific management” movement, which he had named, Brandeis believed along with its founder, Frederick Taylor, that “prosperity for the employer cannot exist through a long term of years unless it is accompanied by prosperity for the employee.”84
In 1908, Brandeis had made legal history in a labor-related case before the Supreme Court, Muller v. Oregon.85 Muller, owner of a laundry, had been fined $10 by the state of Oregon for making a female employee work more than the ten-hour day allowed under state law; he appealed the case all the way to the nation’s highest court, which affirmed his conviction. In direct contradiction of Lochner’s prohibition of the issuance of state regulations regarding the workplace, Muller decreed that women’s maternal responsibilities made long hours of work potentially injurious and that, as the bearers of children, women workers’ physical well-being was a matter of public interest, and could be state-regulated. Brandeis’s contribution was to file a brief with the Court that included extensive data on the abuse of women workers generally, the first time social science and factual data had been joined to advance a legal argument. The “Brandeis Brief,” as it was known, would serve as a model for similar forms of legal advocacy in the twentieth century, most notably in the 1954 school desegregation case, Brown v. Board of Education.
Brandeis was eager to help his friend Lincoln Filene in resolving the 1910 cloak makers’ strike, but warned that he did not believe in the closed shop the ILGWU was demanding, as he feared such a policy would only tip the balance of power too greatly in favor of labor unions. He made two trips to New York before the ILGWU agreed not to insist on it. Of German-Jewish heritage, Brandeis had expected to find the more recently arrived immigrant Jews from Russia and Eastern Europe timid, easily dominated people. Instead he was awed by the garment workers he met, self-possessed young men and women who managed to be articulate despite their struggles with a new language and who appeared unintimidated by their shop superiors.
To appease those rank-and-file garment workers most loyal to the closed shop concept, Brandeis invited their representatives to join the group of twenty factory owners and ILGWU leaders whom he convened. He suggested that easier matters of disagreement between labor and management be dealt with first, in order to create a sense of collaboration among the participants. When the closed shop topic was finally raised the owners cried foul, for they had thought it was to be off-limits; some union men, dissatisfied with what seemed Brandeis’s moderate agenda, also seemed ready to bolt the meeting, but he presented a creative middle position—not an open or closed shop but what he called a “preferential shop,” one in which owners would give preference to hiring union men where qualified union hires were available. The owners were willing to accept this, but the ILGWU, caught off guard by the new proposal, abruptly ended the conference. In adjourning, Brandeis asked that the parties maintain those agreements that they had managed to reach in order to have a starting point for a future conclave.
Back home in Boston, Brandeis persisted at tooling with the language of the “preferential shop” to make it more palatable to the ILGWU, even as the union continued to resist the concept. However, pressure on the stalled negotiations grew in early August when the owners announced their intention to start importing replacement workers, who would work under the protection of “special detectives.” Fights and confrontations along picket lines had already become a fixture of the strike, and there had been numerous arrests. Unlike the strike of 1909, this time there were no vulnerable young women being harassed, so the ILGWU did not benefit from similar public outrage; instead the media began to criticize the union’s obstinacy. The one bright spot was that there was a new mayor in New York, William Jay Gaynor, who was less tolerant of rough police tactics than his predecessor, McClellan. “The world does not grow better by force or by the policeman’s club,” Gaynor had once said, and he promptly ordered the police to stay away from the strike demonstrations, insisting that peaceful picketing was a protected right.
While the ILGWU cheered Gaynor’s stand, the owners reacted by obtaining a temporary court injunction against the ILGWU, complaining that their business premises were at risk from gangs of strikers; the injunction threatened to shatter the pursuit of any agreement. With rank-and-file unionists giving no sign of relinquishing their demand for a closed shop, Brandeis contacted several influential New Yorkers who did extensive business with the garment manufacturers, including banker Jacob Schiff; Louis Marshall, a corporate lawyer and chief of the American Jewish Committee; Herbert Lehman of Lehman Brothers; and banker Felix Warburg. They agreed to at least help get the owners and union men back to the bargaining table.
Once reseated, the group returned to Brandeis’s preferential shop idea. It was subjected to extensive comment and retooling before a final, painstakingly worded version won agreement from both sides:
The manufacturers agree that as between union men and nonunion men of equal ability to do the job, they will employ the union men … the preferential union shop is a shop in which union standards prevail and the union man is entitled to the preference. This preference shall consist in giving employment to union men as long as they are obtainable.86
The union could go away feeling it had won a closed shop, since it was confident it would always be able to supply union workers. But the owners also got what they wanted—an arrangement that was not a closed shop and mandated no formal recognition of the ILGWU. When some rank and file continued to resist the agreement and refused to return to work, the judge who had ruled on the injunction declared the strike illegal and banned picketing under its terms. His hand forced by the law, Mayor Gaynor then instructed his police to arrest pickets, which they did as soon as the strikers tested the ban. The ILGWU itself also acted to suppress its more intractable members, taking the strike vote away from the rank and file and instead having two hundred shop stewards cast votes on the Brandeis compromise. On the evening of September 2, the ILGWU voted to approve the preferential shop, which had now been joined to the other agreements Brandeis had obtained in the earlier meetings and which was being called the “Protocol of Peace.” In addition to the preferential shop, the protocol set hours and wages superior to what garment workers had previously enjoyed, did away with charges to workers for supplies and electricity, established committees of owners and workers to monitor working conditions and hear grievances, and banned strikes and lockouts for the duration of the contract.
Between the strike settlement of February 1910 and the signing of the “Protocol of Peace” that fall, New York garment workers had managed to make headlong strides within the context of the new paradigm of industrial relations. Their example of solidarity, nonviolence, and use of the conference system had helped stabilize the American workplace; unions, workers, and businesses everywhere would benefit as a result. In early 1911, however, an unimaginable disaster would vanquish the New York garment trade and reveal why Brandeis’s accomplishment, and the willingness of labor and capital to bargain cooperatively toward realizable goals, was little more than a promising beginning.
THE TRIANGLE SHIRTWAIST COMPANY was adamant in its resistance to industrial democracy. Staving off the ILGWU through both the 1909 and the 1910 strikes, it had managed to keep its order books filled and its sewing benches manned by young workers, many recent immigrant arrivals. By spring 1911, with the previous two years’ labor unrest quieted and business returning to normal, the firm, located in the top three floors of the Asch Building at Greene Street and Washington Place, was operating at full capacity. Because it was nonunion, the shop observed no weekly limits on hours, nor did it grant a half day on Saturdays. So it was that on Saturday, March 25, there were between six hundred and seven hundred employees present in the Triangle factory and its offices when, at 4:40 p.m., a fire, likely the result of a discarded cigarette, started in the corner of an eighth-floor workroom where scraps of unused fabric were collected.
At first the blaze appeared containable. Five preci
ous minutes passed as workers tried to smother the flames before someone called in an alarm, but by then it was too late for an orderly evacuation. Panic ensued as workers tried to flee amid upended sewing machines and tangled electrical wires. The door to the stairway had been locked from the outside, so most attempted to escape by means of the one functioning elevator. The employees in the executive offices on the tenth floor, notified by phone from the eighth, were able to exit from the roof to a New York University law school building next door. Those on the ninth floor were less fortunate. They had the least warning and no way to get out as the fire rapidly engulfed the building’s upper floors.
The Triangle’s practice of locking the exit doors to the stairway from the outside to deter workers from leaving early, taking unapproved breaks, or stealing fabric was a crucial element in the disaster. The sole elevator, crowded with those trying to flee the eighth floor, never made it to the ninth, where hundreds were stranded. As the fire roared upward through the building, thirty women from the ninth floor, seeing that the elevator was not going to reach them, jumped down on top of the car, where their burned, crushed remains were later found. A lone flimsy interior fire escape proved woefully inadequate, a fire marshal later noting it would have taken three hours to empty the factory’s hundreds of employees by that method.87
It was several minutes before passersby outside noticed the conflagration high overhead. A policeman, one of the first on the scene, saw a bundle fall to the street and assumed someone in the factory was trying to save valuable cloth from a fire; it took several moments, and the arrival of more “bundles,” before he realized they were human bodies. “Oh! They are jumping! They are jumping!” exclaimed two distraught young women who encountered the WTUL’s Rose Schneiderman on nearby lower Fifth Avenue.88 Schneiderman raced to the Triangle in time to see firemen and their machines roar into Washington Place; however, because neither their ladders nor their water hoses reached beyond the sixth floor, the men could only watch helplessly, along with an awed crowd that had gathered, as the people stranded high above climbed out onto the window ledges. Shouted instructions from the firemen were ignored, and would have been futile in any case. Alone, or in small groups, some holding hands, the workers leaped, smoke and flames licking at their clothes from the windows behind them. A few tried without success to grasp the extended fire ladders. So great was the force of the victims’ descent that tarpaulins, horse blankets, and other impromptu efforts by firemen below to catch the jumpers had no effect; they fell and lay broken upon the pavement.
“I looked upon the heap of dead bodies and I remembered these were the shirtwaist makers,” a reporter lamented. “I remembered their great strike of last year in which these same girls had demanded more sanitary conditions and more safety precautions in the shops. These dead bodies were their answer.”89
As hellish as were the scenes of carnage on the street, the devastation awaiting police and would-be rescuers inside the factory was overwhelming. Dozens of victims, burned beyond any hope of recognition, were huddled together near the elevator door and by the locked stairway; several had attempted to hide from the fire in a closet. Coins were strewn about the floor, for the young women had received their weekly pay minutes before the fire broke out; some could only be identified by the names written on their pay envelopes. One hundred forty-six people, mostly young women garment workers whose average age was nineteen, had perished.
The next day stunned relatives and survivors mutely examined the lists of the dead and missing. There were numerous Tessies. There was a Gussy, a Fannie, two Yettas, and a Sophie. Julia Aberstein died holding her pay packet, which contained $7.50; a Mrs. Rosen had $352 tied around her ankle inside a stocking; Becky Nerberger, nineteen, of Clinton Street, had leaped from a window, lived a few hours with severe burns and a broken leg, and died in New York Hospital. An unidentified man known as “Number 4” was described as twenty-five years old, smooth shaven, with black hair, a brown striped coat, and black patent leather shoes. “Number 11” was a woman, five feet two inches tall, wearing white bead earrings, white underwear, and a signet ring with the initials T.L. Finally, there were those never to be known, their remains so grossly charred and disfigured, they offered no hope of identification. Relatives crowded the makeshift morgue set up on a pier on East Twenty-sixth Street, where the overtaxed police had been forced to enlist an army of derelicts to help carry in the dead.
The city reeled for days, all other news pushed aside by the disaster, but grief changed to anger as details filtered out about exits that had been locked and inadequate safety measures. The terrible loss of life had been avoidable. “Two of our demands were for adequate fire escapes and for open doors from the factories to the streets,” Rose Sabran, a survivor, said of the company’s resistance to the strike agreements. “But the bosses defeated us and we didn’t get the open doors or better fire escapes. So our friends are dead.”90
At mass protest meetings the outrage was palpable. “There was a time when a woman worked in the home with her weaving, her sewing, her candle making,” declared suffragist Anna Shaw at Cooper Union. “All that has been changed. Now she can no longer regulate her own conditions, her own hours of labor. She has been driven into the market with no voice in the laws and powerless to defend herself.”91
On April 2 an audience of thirty-five hundred packed the Metropolitan Opera House, rented by the WTUL to memorialize the victims. “I would be a traitor to those poor burned bodies if I were to come here to talk good-fellowship,” warned Rose Schneiderman in the day’s most forceful remarks. Memorable for her shock of red hair and diminutive height (she stood under five feet), Schneiderman was destined to become the voice of the Triangle Fire’s dead. She told the good men and women at the Opera House:
We have tried you, citizens! We are trying you now and you have a couple of dollars for the sorrowing mothers and brothers and sisters by way of a charity gift. But every time the workers come out in the only way they know to protest against conditions which are unbearable, the strong hand of the law is allowed to press down heavily upon us…. I can’t talk fellowship to you who are gathered here. Too much blood has been spilled. I know from experience it is up to working people to save themselves.92
Better prepared to “save themselves,” at least in the short term, were the two owners of the Triangle factory, Isaac Harris and Max Blanck. Their trial in December 1912 on charges of first- and second-degree manslaughter took place amid still-volatile public sentiment: that the two villains be found guilty and harshly punished was a prospect awaited eagerly by virtually all New Yorkers. Families of the dead were especially riled that Harris and Blanck, in the eighteen months since the fire, had been allowed to carry on with their shirtwaist business, using a building on University Place not far from the Asch Building; they had hardly missed a production deadline.
The most damning charge against the partners was that they had locked the stairway doors in violation of existing safety codes, trapping the victims. Their defense attorney, Max D. Steuer, however, was successful at diminishing the impact of eyewitness testimony in a series of tough cross-examinations, chiefly by suggesting that young immigrant girls were not reliable in their recollections of what had occurred as a result of their sheer panic during the event and their severe emotional distress afterward. Steuer also managed to create sufficient doubt as to whether either Harris or Blanck had known that the stairway doors were locked at the time of the fire.
To universal disappointment both men were acquitted. As one juror, echoing the defense’s argument, told a reporter, “I cannot see that anyone was responsible for the disaster. It seems to me to have been an act of the Almighty…. I think the girls who worked there were not as intelligent as those in other walks of life and were therefore the more susceptible to panic.”93 In 1915 civil suits against the owners were settled, with the surviving families receiving $75 per victim, although about $100,000 in private donations had also made its way to them.94
> The catastrophe at Triangle Shirtwaist was one of a number of horrific big-city fires in the early years of the new century—Chicago’s Iroquois Theater Fire of 1903; the burning of the excursion boat General Slocum in New York’s East River in 1904—all characterized by a callous disregard for fire safety and the deaths of hundreds of innocent people. These incidents inevitably prompted speeches and editorials decrying the greed and callousness that permitted such disasters, accompanied by vows of reform that went unfulfilled. Triangle Shirtwaist was destined to be the exception. The cataclysm had demonstrated in ghastly terms the absurd cruelty of the judicial sensibility that had shaped Lochner. By shaming business’s tired argument that it had the right to police itself, the Triangle Fire became the impetus for one of labor’s signature achievements in the Progressive Era, a crusade to enact enforceable laws to curb industrial negligence.
ON MARCH 24, 1911, coincidentally the day before the Triangle Fire, the New York Court of Appeals had quashed the state’s workers’ compensation law in the case of Ives v. South Buffalo Railway Co., terming it “plainly revolutionary” for its attempt to place liability on employers in cases of industrial accidents. Anger over the Ives ruling was of course intensified by the glaring employer misconduct at Triangle Shirtwaist.
The question at the heart of Ives—who bore the responsibility for illness or injury workers received on the job—was as old as the republic. Early-nineteenth-century law governing the relationship between employer and employee had been colored by the ideology of free labor: a hiring was an agreement between independent entities. Employees took the risk of injury as part of this “contract,” while employers accepted blame only in instances of extreme company negligence, and then usually with paltry restitution to victims or their survivors. Lemuel Shaw, the New England jurist who in Commonwealth v. Hunt in 1842 ruled that labor unions were not illegal conspiracies, decided that same year in Farwell v. Boston and Worcester Railroad Corporation that employment contracts clearly left the risk and responsibility for workplace health and safety to employees. This arrangement, Shaw suggested, would help motivate workers to remain alert to workplace dangers. When a job did pose heightened risk, as in mines or on the railroads, he reasoned, the degree of peril would be reflected in higher wages, thus compensating the worker for chancing the hazard. Shaw’s views mirrored the contemporary view that the possibility of injury was the understandable danger a free individual accepted in taking a job.95
