But many ordinary workers chafed under the paternal rule of the labor “experts”; and some major sweatshop operators refused to join in the “protocol” system. On March 25, 1911, one of those unorganized shops—the Triangle Shirtwaist Factory, occupying three upper floors of a building on Washington Place in Greenwich Village—burst into flames when a stray match ignited poorly stored cotton scraps.
Workers on the ninth floor had been locked in by owners, as an “anti-theft” measure. They suffocated, burned to death, fell to the street from a collapsing fire escape, or jumped to their deaths to avoid the flames.
The death toll was 146, 123 of them women.
After the fire, historian Greenwald explained, the Progressive vision that birthed “protocolism” underwent a fundamental change. Voluntarism, private ordering, and harmony hadn’t worked. It was time for reformers to invoke the coercive power of the state. The state of New York announced a State Factory Investigating Commission, which exposed the callous indifference to worker safety common in the unorganized factories.
The commission’s chair and co-chair were state legislators Robert Wagner and his co-chair, Al Smith. The two, Greenwald wrote, were “obscure Tammany Hall hacks” when named to the commission. The commission’s work, however, transformed both: Smith would be the Democratic presidential nominee in 1928, while Wagner, a labor champion in the U.S. Senate for two decades, sponsored the National Labor Relations Act, known also as the Wagner Act.
The FAA can be seen as a remnant of pre-Triangle fire “protocolism”—born out of the needs of merchant capitalists for a private, voluntary way of resolving disputes over contracts to manufacture, buy, and sell goods. As one proponent explained at the time it was considered, the “fundamental conception is to enable business men to compose their disputes expeditiously and economically … “
During the early ‘20s, the bill’s sponsors repeatedly explained that the act would not cover labor matters. Stanford Law School legal historian Amalia Kessler told me, “It’s pretty clear that [Charles Bernheimer, chief lobbyist for the Act and a ‘protocol’ veteran] was not eager to have his organization involved in labor arbitration.” In Outsourcing Justice: The Rise of Modern Arbitration Laws in America, a comprehensive history of the FAA’s drafting, Loyola University law professor Imre Szalai wrote, “The intentions behind the Federal Arbitration Act are clear with respect to labor disputes,” he wrote. Arbitration clauses in employment contracts, he concluded, were not to be covered by the act.
Ten years later, the New Deal 75th Congress passed the Wagner Act. The decade between the two measures was a dark one: Coolidge-era prosperity collapsed into the Great Depression. Unemployment, about 4 percent in 1925, soared to nearly 25 percent in 1933, then subsided only to about 20 percent in 1935. Wages fell and working conditions deteriorated. Workers still on the job demanded union representation, better job security, and higher wages—and representation was often the hardest-fought issue. Electrical workers shed blood in the streets of Toledo, Ohio; longshoremen on the San Francisco waterfront paralyzed the nation’s Pacific ports; and a Teamsters strike in Minneapolis-St. Paul was so turbulent that the state’s governor placed the cities under martial law. Some sober observers worried that the United States was swirling into revolution or dictatorship.