Toulmin Essay

656 The Journal of American History December 2017

doi: 10.1093/jahist/jax313 © The Author 2017. Published by Oxford University Press on behalf of the Organization of American Historians. All rights reserved. For permissions, please e-mail: [email protected].

Birth of the U.S. Colonial Minimum Wage: The Struggle over the Fair Labor Standards Act in Puerto Rico, 1938–1941

Anne S. Macpherson

In May and June 2016 the U.S. Congress passed, and President Barack Obama signed, a debt-restructuring bill for Puerto Rico that permitted first-time workers under age twenty-five in the nonincorporated territory to be paid as little as $4.25 per hour for up to four years, on the decision of the appointed debt oversight board. House Republicans would have allowed all Puerto Rican workers to be paid this wage, while congressional Democrats fought the differential as unfair and extraneous to the debt issue. Obama ceded easily to the prospect of a lower minimum wage in Puerto Rico to begin what he saw as a too-long-delayed debt-restructuring process that, while primarily serving the interests of creditors, might limit further damage to Puerto Rico’s education and health services. Nobody seemed to know that the U.S. minimum wage had been lowered in Puerto Rico during a more formative moment of conflict, with the ready consent of an earlier Democratic president.1

In May and June 1938 the 75th U.S. Congress passed, and President Franklin D. Roo- sevelt signed, the Fair Labor Standards Act (flsa), which established a minimum wage for nonagricultural workers in interstate commerce and applied it to “any Territory or pos- session of the United States.” Intended to prevent a wage differential in the South, uni- versalism resulted in over one hundred thousand Puerto Rican workers being covered by the law, at least half of them women and most earning well under the twenty-five-cents per-hour statutory minimum. Two years of bitter struggle over flsa enforcement and amendment pitted employers in the sugar, needlework, and tobacco industries against a largely pro–New Deal mass-labor movement in Puerto Rico, and involved a variety of federal-cum-imperial actors. That struggle resulted in the more conservative 76th Con- gress amending the law by extraordinary means; Roosevelt’s prompt approval created a Special Industry Committee (sic) empowered to recommend lower minimum wages in Anne Macpherson is an associate professor of history at the College at Brockport, State University of New York. She wishes to thank Francisco Scarano, the co-panelists Teresita Levy and Geoff Burrows and the commentator Antonio Gaztambide Géigel at the 2013 Association of Caribbean Historians meeting; the interlibrary loan librarian Laura Emerson and the research assistants Linda Webber, Karin Torres Peña, and Joclyn Wallace; Aldo Lauria Santiago, Walter J. Oleszek, Jamie Spiller, and the many New Deal historians who fielded queries; and the JAH anonymous readers for transformational feedback and editorial staff for superb guidance and support. This research was sup- ported by grants from United University Professionals and the College at Brockport.

Readers may contact Macpherson at [email protected].

1 Puerto Rico Oversight, Management, and Economic Stability Act, Pub. L. No. 114-187 (2016). The Ameri- can Federation of Labor–Congress of Industrial Organizations opposed the debt-restructuring bill. Hurricane Ma- ria decimated Puerto Rico on September 20, 2017, throwing all government services and spending into question.

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Puerto Rico and the U.S. Virgin Islands. The colonial minimum wage was born when the sic’s needlework recommendations took effect in December 1940, allowing cuts from thirty cents per hour to as low as 12.5 cents per hour; the differential lasted until 1983. Congressional opposition came almost solely from the American Labor party representa- tive Vito Marcantonio, who advocated for Puerto Rican workers in the territory and in his New York district. What mattered to Roosevelt, who never promoted including the territories in the flsa, was working with the rising anti–New Deal coalition as global war threatened U.S. interests and allies, and as the need to militarize Puerto Rico over- whelmed earlier New Deal plans for economic reform in the territory.2

This essay tracks the struggle over the flsa in Puerto Rico from 1938 to 1941 and how it gave birth to the colonial minimum wage, following the interactions of capital, labor, territorial politicians, the Wage and Hour Division (whd) in the U.S. Department of Labor, the federal courts, and Congress. The commitment to formal empire and thus the subordination of colonial citizens shared by most New Dealers and their opponents made a colonial differential likely. That likelihood increased as congressional conserva- tives gained leverage, as the influence of the Congress of Industrial Organizations (cio) slipped, and especially as war preparations accelerated and Puerto Rico became vital to the defense of the Americas. Yet prodifferential forces were repeatedly stymied as the struggle took unexpected turns, revealing key imperial officials’ support for enforcement, the growth of cio-linked organized labor in Puerto Rico, and—crucially—residual liberal New Deal strength in Congress.

U.S. historians can enrich and transform the historiography by treating the United States as an imperial metropole, researching the histories of the nonincorporated territo- ries and integrating them into their narratives and explanatory frameworks. Such inclu- sion can shed light on metropolitan struggles over the flsa, cio factionalism, and the re- lationship between the New Deal and conservatives in the period between the Roo sevelt recession (1937–1938) and 1941. Inclusion also facilitates comparison with other impe- rial nations’ labor policies during the Great Depression and other colonial labor strug- gles, furthering the internationalization of U.S. history while simultaneously bringing the New Deal period more squarely into “the imperial turn” in that history. No other impe- rial power in the Caribbean responded to the crisis of the Great Depression with univer- sal minimum-wage legislation in the metropole or the colonies; the U.S. reversal in 1940 tends to confirm the African historian Frederick Cooper’s argument that universal labor rights are incompatible with empire.3

2 U.S. Congress, House, Conference Report to Accompany S. 2475 Fair Labor Standards Act of 1938, H.R. Rep. No. 2738, 75 Cong., 3 sess., June 11, 1938, sec. 3(c), p. 2. An estimated 107, 865 workers were covered by the Fair Labor Standards Act (flsa), including 50,000 home needleworkers, 20,000 shop needleworkers, 16,000 sugar mill workers, and 15,000 tobacco workers. See Government of Puerto Rico Department of Labor, Annual Report of the Commissioner of Labor Submitted to the Governor of Puerto Rico, 1938–39 (San Juan, 1939), 33. Congressional Record, 76 Cong., 3 sess., June 21, 1940, pp. 8857–67; U.S. Department of Labor, Wage and Hour Division, “Findings and Opinion of the Administrator in the Matter of the Recommendations of the Special Industry Committee for Puerto Rico for Minimum Wage Rates in the Needlework Industries in Puerto Rico, Nov. 15, 1940,” box 3 “Needlework Industries,” Records of the Wage and Hour and Public Contracts Divisions, rg 155 (National Archives and Re- cords Administration, New York, N.Y.). On the militarization of Puerto Rico since early 1939, see Jorge Rodríguez Beruff, Strategy as Politics: Puerto Rico on the Eve of the Second World War (San Juan, 2007). On the other territories, see William G. Whittaker, “Minimum Wage in the Territories and Possessions of the United States: Application of the Fair Labor Standards Act,” March 2008, Congressional Research Service Report RL30235, https://digital.library .unt.edu/ark:/67531/metadc812675/.

3 On the need for U.S. historians to conceptualize empire, see Bartholomew H. Sparrow, The Insular Cases and the Emergence of American Empire (Lawrence, 2006); and Paul A. Kramer, “Power and Connection: Imperial

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Before the histories of the nonincorporated territories are leveraged to shed light on met- ropolitan or cross-national patterns, they must be understood on their own terms. To take Puerto Rico seriously as part of the U.S. past and present is not to subsume it within U.S. history or historiography; Puerto Rican history is a field that speaks to African di- aspora, and to Caribbean, Latin American, Spanish imperial, and U.S. historiographies while retaining its specificity. Analysis of U.S. formal empire begins with understanding the nonincorporation doctrine, the “novel, even revolutionary constitutional doctrine” that emerged from the deeply racist U.S. Supreme Court Insular Cases (1901–1922). This doctrine makes the relationship between the federal government and the non- incorporated territories colonial, and institutionalizes colonial difference and inferiority. It defines the territories as belonging to but not part of the United States. Congress has plenary powers over the territories under the Territorial Clause of the Constitution and can hold them in permanent limbo, never admitting them as coequal states, and allow- ing only select constitutional protections. As the legal scholars Christina Duffy Burnett and Burke Marshall argue, this “meant that Congress could now employ the means of colonial government toward an end other than statehood—that is, as an end in itself.” In the Foraker Act (1900) and the Jones-Shafroth Act (1917), Congress structured an undemocratic colonial government for Puerto Rico, with strong executive veto powers over legislation. Governors, appointed until 1948, took direction from the Bureau of Insular Affairs in the War Department until 1934, then from the Division of Territories and Island Possessions (dtip) in the Interior Department. Puerto Rico remains a non- incorporated territory, despite being renamed a commonwealth in 1952. The territories do not enjoy representative government at the federal level, having only a nonvoting del- egate or resident commissioner in the House of Representatives. Their residents are not part of the electorate to which legislators are supposedly responsive when making statute law, while the Congress in which they have no vote decides whether federal legislation applies to them. Any branch of the federal government can overrule territorial law. The nonincorporation doctrine “revived a hierarchy of membership in the American polity,” Burnett argues, by creating the category of noncitizen nationals that applied to Puerto Rico until 1917 and still applies to American Samoa. The imposition of U.S. citizenship on Puerto Ricans in 1917, intended to quash proindependence opinion on the eve of war, was, for the first time, separated from a promise of statehood: “As a result, Puerto

Histories of the United States in the World,” American Historical Review, 116 (Dec. 2011), 1348–91. A few New Deal and labor historians have grappled with the topic of Puerto Rico. See Eileen Boris, “Needlewomen under the New Deal in Puerto Rico, 1920–1945,” in Puerto Rican Women and Work: Bridges in Transnational Labor, ed. Alta- gracia Ortiz (Philadelphia, 1996), 33–54; Laura Briggs, Reproducing Empire: Race, Sex, Science, and U.S. Imperialism in Puerto Rico (Berkeley, 2003); and Geoff Burrows, “The New Deal in Puerto Rico: Public Works, Public Health, and the Puerto Rico Reconstruction Administration, 1935–1955” (Ph.D. diss., Graduate Center, City University of New York, 2014). Comparative works on the New Deal that do not engage questions of empire are Daniel T. Rodgers, Atlantic Crossings: Social Politics in a Progressive Age (Cambridge, Mass., 1998); Alonzo L. Hamby, For the Survival of Democracy: Franklin Roosevelt and the World Crisis of the 1930s (New York, 2004); and Vivien Hart, Bound by Our Constitution: Women, Workers, and the Minimum Wage (Princeton, 1994). For work that invigorates “overspecialized conversations” via cross-national comparison, see David Thelen, “Of Audiences, Borderlands, and Comparisons: Toward the Internationalization of American History,” Journal of American History, 79 (Sept. 1992), 432–33. On the “imperial turn,” see Kramer, “Power and Connection,” 1365. For the British and French Carib- bean cases, see O. Nigel Bolland, The Politics of Labour in the British Caribbean: The Social Origins of Authoritari- anism and Democracy in the Labour Movement (Kingston, 2001), 212–378; and Jacques Dumont, L’amère patrie: Histoire des Antilles françaises au xx siècle (Bitter fatherland: History of the French Antilles in the twentieth century) (Paris, 2010), 176. Frederick Cooper, Decolonization and African Society: The Labor Question in French and British Africa (Cambridge, Eng., 1996). For a study that discusses Puerto Rico, but not the flsa, and in which empire is not conceptually central, see Kiran Klaus Patel, The New Deal: A Global History (Princeton, 2016), 1–9, 161–67.

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Ricans became a population of American citizens subject to U.S. sovereignty but without a clear or permanent relationship to the rest of the United States.” The nonincorporation doctrine placed the pro-flsa labor movement at a structural disadvantage in influenc- ing metropolitan New Dealers, particularly as both resident commissioners in 1938 to 1941 were among the deradicalized anti-flsa leaders of the territory’s Partido Socialista (ps, Socialist party) and its American Federation of Labor (afl)–affiliated Federación Libre de Trabajadores (flt, Free Federation of Labor). They were increasingly unpopular with their members but convinced pivotal legislators and officials that they represented all organized labor.4

The nonincorporation doctrine constrained but did not extinguish Puerto Rican agen- cy within the U.S. imperial system, which César Ayala and Rafael Bernabe describe as combining “relative liberalism and colonial subordination.” Puerto Rican elites and work- ers routinely sought to influence metropolitan officials, legislators, and organizations. The dual character of U.S. imperialism sharpened as New Deal relief, reconstruction, and la- bor reforms, though more limited than in the metropole, contrasted with the autocratic regime of Gov. Blanton Winship (1934–1939). Winship and the ruling legislative coali- tion of the ps and the probusiness Partido Unión Repúblicano (pur, Republican Union party) severely repressed the Partido Nacional (Nationalist party)—which had assassinat- ed the police commissioner in 1936—notably in the insular police massacre of twenty- one unarmed Nationalists in 1937. They also fought virtually all New Deal initiatives other than federal relief, especially sugar quota cuts, the 1934–1935 needlework wage code, and the Puerto Rican Reconstruction Agency. They tried to undermine New Deal- ers’ alliance with opposition Partido Liberal (Liberal party) figures, particularly the dtip director Ernest Gruening’s relationship with Carlos Chardón and Luis Muñoz Marín, the authors of a plan for land reform and agricultural diversification. Workers aimed to accel- erate and expand New Deal reforms; thousands abandoned the ps and the flt in disgust, forming independent or cio-linked unions. In the territory and in New York City, Puerto Ricans embraced “the evolving social rights . . . promised by the New Deal,” for concrete benefits and for equal citizenship. In fighting for flsa enforcement and universalism, co- lonial citizen-workers resisted racial, gender, and imperial hierarchies within “the category of citizenship derived from labor” and sought to keep labor rights in the forefront of the New Deal. Ignoring the flsa’s constitutional basis in the federal government’s power to regulate interstate commerce, Puerto Rican workers claimed the new minimum wage as their citizenship right and anticipated New Deal support. The exercise of agency within the imperial system produced an intense struggle over the flsa in Puerto Rico. Some of the whd’s first decisions were about Puerto Rico, the first affirmation of the flsa’s

4 To emphasize the imperial relationship, this essay uses the terms metropole, metropolitan, territory, and territorial over geographical terms such as continental or insular, while recognizing that to most Puerto Ricans the island and its archipelago are their homeland, not merely an appendage of the United States. Because everyone involved in the struggle over the flsa in Puerto Rico was an American citizen, this essay distinguishes between “metropolitan Amer- icans” and Puerto Ricans. On “revolutionary constitutional doctrine,” see Sparrow, Insular Cases and the Emergence of American Empire, 5. Christina Duffy Burnett and Burke Marshall, “Between the Foreign and the Domestic: The Doctrine of Territorial Incorporation, Invented and Reinvented,” in Foreign in a Domestic Sense: Puerto Rico, Ameri- can Expansion, and the Constitution, ed. Christina Duffy Burnett and Burke Marshall (Durham, N.C., 2001), 1–3, 11–13. Emphasis in original. Foraker Act, 31 Stat. 77; Jones-Shafroth Act, 39 Stat. 951. On Puerto Ricans becom- ing American citizens subject to U.S. sovereignty, see Christina Duffy Burnett, “Empire and the Transformation of Citizenship,” in Colonial Crucible: Empire in the Making of the Modern American State, ed. Alfred W. McCoy and Francisco A. Scarano (Madison, 2009), 338–41; and César Ayala and Rafael Bernabe, Puerto Rico in the American Century (Chapel Hill, 2007), 57–58, 162–78.

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constitutionality stemmed from a lawsuit filed by a United States–owned sugar company in Puerto Rico, and the first and only major rollback of the law was the 1940 amendment allowing colonial minimum wages.5

The birth of the colonial minimum wage cannot be fully understood within the domi- nant historiographical narrative of bitter domestic conflict in the late 1930s between the rising conservative coalition and a New Deal stalemated or even in retreat. Certainly, con- servatives benefitted from the court-packing scandal, recession, the weakening and frac- turing of the cio, and the failed purge of conservative Democrats; made gains in the 1938 midterm elections; and acted to “aggressively . . . dismantle the New Deal” and silence left-leaning New Dealers. But the flsa issue that New Dealers and their conservative op- ponents battled over was not the colonial differential but rather coverage for significant categories of mostly metropolitan workers; here, New Dealers actually prevailed in 1939, thanks to a “powerful coalition of reformers, trade unionists, and labor administrators” and nimble Democratic House leaders, and again in 1940. Passage of the flsa in 1938 tends to be downplayed or even dismissed in varying accounts of late New Deal holds and gains; the successful congressional defense of metropolitan workers’ flsa coverage has been rarely analyzed for 1939, and not at all for 1940. Attending to the early imple- mentation of the flsa with the nonincorporated territories in mind reveals this success and how it inadvertently prolonged wage universalism, made parity for the colonies more difficult to erase, and buoyed pro-flsa Puerto Rican workers and their allies. The colonial differential resulted not simply from conservative leverage—although conservative Dem- ocrats led the final desperate push that midwifed the colonial minimum wage in 1940— but from leading New Dealers beginning its gestation in an early 1939 bill and from the absence of any powerful metropolitan coalition defending colonial citizens’ minimum wages. Minimum-wage parity for the territories was important to virtually no New Deal- ers, even those beginning to chafe at Roosevelt’s concessions “to conservative forces in the name of the war effort,” certainly not to the growing prointervention wing of the cio led by Sidney Hillman, and to only some of the cio president John L. Lewis’s increasingly

5 Ayala and Bernabe, Puerto Rico in the American Century, 27. On agency within the imperial system, see Solsi- rée del Moral, Negotiating Empire: The Cultural Politics of Schools in Puerto Rico, 1898–1952 (Madison, 2013); and Teresita A. Levy, Puerto Ricans in the Empire: Tobacco Growers and U.S. Colonialism (New Brunswick, 2015). On Blanton Winship, the legislative coalition, and Nationalists, see Ayala and Bernabe, Puerto Rico in the American Century, 95–116; and Rodríguez Beruff, Strategy as Politics, 161–205. On workers, see Antonio Lauria-Perricelli, “Puerto Rico in the 1930s,” in Revisiting Caribbean Labour: Essays in Honour of O. Nigel Bolland, ed. Constance R. Sutton (New York, 2005), 6, 12; and Blanca Silvestrini de Pacheco, Los trabajadores puertorriqueños y el Partido Socialista (1932–1940) (Puerto Rican workers and the Socialist party [1932–1940]) (San Juan, 1978). I have trans- lated into English quotations from Spanish sources. On New Deal social rights, see Lorrin Thomas, Puerto Rican Citizen: History and Political Identity in Twentieth-Century New York City (Chicago, 2010), 5–6, 9. On citizen rights and labor, see Premilla Nadasen, “Citizenship Rights, Domestic Work, and the Fair Labor Standards Act,” Journal of Policy History, 24 (no. 1, 2012), 75. On the commerce clause, see Hart, Bound by Our Constitution, 7–10. On the struggle over the flsa, see Silvestrini de Pacheco, Los trabajadores puertorriqueños y el Partido Socialista, 130–46; and Manuel R. Rodríguez, “La Reforma Liberal en el contexto colonial: El Nuevo Trato y el Fair Labor Standards Act in Puerto Rico, 1938–1940” (Liberal reform in the colonial context: The New Deal and the Fair Labor Standards Act in Puerto Rico, 1938–1940) (Master’s thesis, University of Puerto Rico–Río Piedras, 1996). For English-language Puerto Rican scholarship that sidelines the late 1930s and the flsa, see Thomas G. Matthews, Puerto Rican Politics and the New Deal (Gainesville, 1960); Ángel Quintero Rivera, Workers’ Struggle in Puerto Rico: A Documentary His- tory (New York, 1976); Miles Galvin, The Organized Labor Movement in Puerto Rico (Rutherford, 1979); Arturo Morales Carrión, Puerto Rico: A Political and Cultural History (New York, 1983); Ayala and Bernabe, Puerto Rico in the American Century; and Manuel R. Rodríguez, A New Deal for the Tropics: Puerto Rico during the Depression Era, 1932–35 (Princeton, 2010). For works that illuminate the late 1930s but misunderstand the flsa, see Gabriel Vil- laronga, Toward a Discourse of Consent: Mass Mobilization and Colonial Politics in Puerto Rico, 1932–1948 (West- port, 2004); and Rodríguez Beruff, Strategy as Politics.

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isolated antiwar loyalists. Roosevelt’s push for war preparations gained bipartisan support, shifting Puerto Rico decisively from the deeply conflictual arena of domestic economic and labor policy, in which the territory was an afterthought, to the increasingly consen- sual arena of military policy, in which it was a priority by late 1938. Consensus went be- yond the immediate need to militarize Puerto Rico, encompassing a settled commitment to formal empire and to colonial difference via inferior political rights and social benefits. Minimum-wage universalism, an anomaly in New Deal colonial policy that did not result from deliberate progressive campaigning, quickly became a political irritant and possibly even an ideological threat when leading New Dealers were singularly focused on “pacify- ing [the] colony for war.”6

Puerto Rico in the flsa, and the flsa in Puerto Rico

The complex legislative history of the flsa, which tracked the New Deal’s shifting strength between early 1937 and mid-1938, is well established. Key to the struggle over the law in Puerto Rico was that, to prevent a southern wage differential, the final bill called for a universal minimum. This unleashed “a storm of protest on the floor of the House.” Yet the inclusion of the territories, which the executive branch apparently op- posed, went unmentioned, even by Resident Commissioner Santiago Iglesias Pantín, a founder of the flt in 1899, who soon supported the amendment. Opponents of univer- salism expected to win back explicit differentials in conference committee, but instead a compromise, noted in section 8(c) of the act, allowed regional “competitive conditions as affected by transportation, living, and production costs” to be considered when decid- ing how far above the universal minimum to set industry minimums. The law created the office of a whd administrator, empowered to inspect and investigate and to appoint industry committees with equal representation from labor, employers, and the public. The committees were to gather data, hold hearings, and recommend the highest mini- mum wages possible that would not “substantially curtail employment in the industry.”

6 For a work that identifies a progressive, vigorous New Deal in the late 1930s, see Meg Jacobs, Pocketbook Poli- tics: Economic Citizenship in Twentieth-Century America (Princeton, 2005). For a more cautiously optimistic inter- pretation, see Jason Scott Smith, A Concise History of the New Deal (Cambridge, Eng., 2014). For works that see a weakened but not defunct New Deal, see William E. Leuchtenburg, Franklin D. Roosevelt and the New Deal, 1932– 1940 (New York, 1963), esp. 272; James T. Patterson, Congressional Conservatism and the New Deal: The Growth of the Conservative Coalition in Congress, 1933–1939 (Lexington, Ky., 1967); Anthony J. Badger, The New Deal: The Depression Years, 1933–1940 (Chicago, 1989); and Roger Biles, The South and the New Deal (Lexington, Ky., 1994). For works that see a New Deal in retreat and a virtually meaningless flsa, see Nelson Lichtenstein, Labor’s War at Home: The cio in World War II (Cambridge, Eng., 1982); Steve Fraser, “The ‘Labor Question,’” in The Rise and Fall of the New Deal Order, 1930–1980, ed. Steve Fraser and Gary Gerstle (Princeton, 1989), 55–84; Steven Fraser, Labor Will Rule: Sidney Hillman and the Rise of American Labor (Ithaca, 1991); and Alan Brinkley, The End of Reform: New Deal Liberalism in Recession and War (New York, 1995), esp. 143. The two works that shed light on the period of initial implementation are Eileen Boris, Home to Work: Motherhood and the Politics of Industrial Home- work in the United States (Cambridge, Mass., 1994), 278–82, 286–87, esp 287; and George E. Paulsen, A Living Wage for the Forgotten Man: The Quest for Fair Labor Standards, 1933–1941 (Selinsgrove, 1996), 139–47. On the lower territorial minimum, see Peyton K. Elder and Heidi D. Miller, “The Fair Labor Standards Act: Changes of Four Decades,” Monthly Labor Review, 102 (July 1979), 12, 15; and Boris, “Needlewomen under the New Deal in Puerto Rico,” 50. For mention of Puerto Rico in this period, see Paulsen, Living Wage for the Forgotten Man, 140, 147; Willis J. Nordlund, The Quest for a Living Wage: The History of the Federal Minimum Wage Program (Westport, 1997), 64–65; and Alida J. Castillo-Freeman and Richard B. Freeman, “When the Minimum Wage Really Bites: The Effect of the U.S.-Level Minimum on Puerto Rico,” in Immigration and the Work Force: Economic Consequences for the United States and Source Areas, ed. George J. Borjas and Richard B. Freeman (Chicago, 1992), 178. On the political struggle of the 1970s that restored minimum-wage parity, see Galvin, Organized Labor Movement in Puerto Rico, 162–64. Rodríguez Beruff, Strategy as Politics, 261.

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The administrator could hold hearings on recommendations before issuing wage orders. Almost 11 million American workers were covered when the law came into effect on October 24, 1938. Dealing with violations of the law was a cumbersome process that made everyone dependent on the courts. Workers could sue for back pay under the act, but enforcement was (and is) weak.7

flsa scholars show how the law’s constitutional grounding and political pressure ex- cluded most women and metropolitan racial “minorities,” but miss the inclusion of Puer- to Ricans, at least half of them women and many something other than “white” in their own or others’ minds. The whd estimated that of the three hundred thousand workers in the forty-eight states, the District of Columbia, and Puerto Rico who should get a pay hike to the statutory minimum of twenty-five cents per hour when the law came into ef- fect, forty-two thousand, or 14 percent, were in Puerto Rico. Covered industrial home- workers were not included in these conservative estimates; given Puerto Rico’s dispropor- tionate number of homeworkers, the real percentage was certainly higher. Of the 690,000 American workers who would see a pay hike to the statutory minimum of thirty cents per hour from October 1939, forty thousand, or 5.8 percent, were in Puerto Rico. The whd admitted that compliance in Puerto Rico was minimal, arguing that “the great majority” of the forty thousand “were receiving . . . well under 30 cents an hour,” and it is likely that many more than forty thousand of the estimated 104,100 Puerto Rican workers covered by the flsa were paid illegally low rates. Even accepting the conservative estimates of 14 percent in 1938 and 5.8 percent in 1939, Puerto Ricans were markedly overrepresented among covered workers who would see a pay raise in October of those two years, as the territory’s 1.87 million people in 1940 were just 1.4 percent of the total population of the forty-eight states, the District of Columbia, and Puerto Rico. The flsa would have a huge impact on an economy in which home needleworkers (the vast majority in the industry) earned up to four cents per hour, female factory needleworkers earned between $3 and $5 per week, female tobacco destemmers earned $2.59 per week, male tobacco destemmers earned $4.76 per week, and sugar mill workers earned eleven cents per hour.8

7 On the protest on the House floor, see John Forsythe, “Legislative History of the Fair Labor Standards Act,” Law and Contemporary Problems, 6 (Summer 1939), 464–90, esp. 481; Jonathan Grossman, “Fair Labor Standards Act of 1938: Maximum Struggle for a Minimum Wage,” Monthly Labor Review, 101 (June 1978), 22–30; Howard D. Samuel, “Troubled Passage: The Labor Movement and the Fair Labor Standards Act,” ibid., 123 (Dec. 2000), 32–37; Paulsen, Living Wage for the Forgotten Man, 117–29; and Landon R. Y. Storrs, Civilizing Capitalism: The Na- tional Consumers’ League, Women’s Activism, and Labor Standards in the New Deal Era (Chapel Hill, 2000), 184–96. On executive branch opposition, see Daniel Paul Gitterman, “Redistributing Earnings? The American System of Shared Powers and the Fair Labor Standards Act, 1938–1998” (Ph.D. diss., Brown University, 1999), 92–96. On curtailing employment, see U.S. Congress, House, Conference Report to Accompany S. 2475 Fair Labor Standards Act of 1938, H.R. Rep. No. 2738, 75 Cong., 3 sess., June 11, 1938, sec. 8(b), p. 6. On the Administrator and Industry Committees, see ibid., secs. 4 and 5, pp. 3–4. On competitive conditions, see ibid., sec. 8(c), p. 6. On the number of workers covered, see U.S. Department of Labor, Interim Report of the Administrator of the Wage and Hour Divi- sion for the Period August 15 to December 31, 1938 (Washington, 1939), I-19. On the role of the courts, see Ruth O’Brien, “‘A Sweatshop of the Whole Nation’: The Fair Labor Standards Act and the Failure of Regulatory Union- ism,” Studies in American Political Development, 15 (Spring 2001), 47–48.

8 On the complexities of racial labeling and identity by and of Puerto Ricans, see Jorge Duany, Puerto Rican Nation on the Move: Identities on the Island and in the United States (Chapel Hill, 2002), 236–60; Ileana Rodri- guez-Silva, Silencing Race: Disentangling Blackness, Colonialism, and National Identities in Puerto Rico (New York, 2012); and Gervasio Luis García, “I Am the Other: Puerto Rico in the Eyes of North Americans, 1898,” Journal of American History, 87 (June 2000), 39–64. On the biases of the flsa, see Vivien Hart, “Minimum-Wage Policy and Constitutional Inequality: The Paradox of the Fair Labor Standards Act of 1938,” Journal of Policy History, 1 (July 1989), 319–43; and Hart, Bound by Our Constitution, 151–72. Boris, Home to Work, 273–304; Suzanne B. Met- tler, “Federalism, Gender, and the Fair Labor Standards Act of 1938,” Polity, 26 (Summer 1994), 635–54; Phyllis Palmer, “Outside the Law: Agricultural and Domestic Workers under the Fair Labor Standards Act,” Journal of Pol-

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The news that the flsa covered the territories arrived in a deeply divided and volatile Puerto Rico. The alliance of New Dealers and Liberals had foundered over each side’s responses to the Nationalist challenge, renewed in an attempt on Winship’s life in July 1938. Winship, the ps-pur coalition, and Gruening were losing favor with the Roosevelt administration, especially Secretary of the Interior Harold Ickes, while rising conflict between the pur and the ps was threatening their alliance. The overlapping leaderships of the ps, the flt, and the territorial Department of Labor were struggling to maintain political unity and relevance as their control over labor eroded. Employers and the pur were enraged by the rising labor threat, Nationalist violence, and New Deal regulations. Workers were reeling from 65 percent unemployment, sharply lower real wages and higher prices for food—80 percent of it imported from the United States—which inten- sified malnutrition and illness, and a new salt tax to fund the tourism bureau. They were keenly aware of employer profits and violation of labor contracts and laws, the rightward shift of the ps and the flt, and the Nationalists’ and Liberals’ loss of political traction. Their increasingly pro–New Deal politics—Puerto Rican Communists adopted an an- tifascist Popular Front policy—peaked in a massive five-week port strike in early 1938 that, with support from the cio-affiliated National Maritime Union (nmu), brought the territory’s trade-dependent economy to its knees. Muñoz Marín, a former Liberal sena- tor whose newspaper supported the strike, founded the Partido Popular Democrático (ppd, Popular Democratic party) in mid-1938. Despite ppd ambivalence about the flsa, some pro-flsa workers gravitated to the party, which narrowly won the 1940 legislative elections. For workers, the flsa’s minimum wage promised some resolution to the per- vasive crisis; for employers and their political allies, the minimum wage made everything worse. 9

Anti-fsla Forces

Opposed to the flsa were Governor Winship; his successor, Adm. William D. Leahy; dtip director Gruening, a progressive imperial reformer who became reactionary in re- sponse to Nationalist violence; employers and the pur; three key Socialists—the resident commissioners Iglesias Pantín and Bolívar Pagán and territorial Commissioner of La- bor Prudencio Rivera Martínez; and those flt leaders who succumbed to pressure from these three or who feared capital flight. Some Socialists sought to replace the flsa with the extension to all workers of the 12.5 cents per hour territorial minimum wage for women. Anti-flsa arguments, never overtly about race or gender, were that employers in Puerto Rico could not pay twenty-five cents per hour because of low worker productiv- ity and high business costs compounded by New Deal cuts to Puerto Rico’s sugar quota in the U.S. market and by competition from low-wage Asian needlework facilitated by the 1936 U.S.-Switzerland trade agreement; sugar- and tobacco-processing workers were

icy History, 7 (Oct. 1995), 416–40; O’Brien, “‘Sweatshop of the Whole Nation,’” 33–52; Storrs, Civilizing Capital- ism, 177–205. U.S. Department of Labor, Interim Report of the Administrator of the Wage and Hour Division for the Period August 15 to December 31, 1938, I-19. On the majority of workers receiving less than 30 cents per hour, see U.S. Department of Labor, Wage and Hour Division Annual Report for the Calendar Year 1939 (Washington, 1940), 34–39, esp. 36. On wage rates, see James L. Dietz, Economic History of Puerto Rico: Institutional Change and Capi- talist Development (Princeton, 1986), 135–81.

9 Ayala and Bernabe, Puerto Rico in the American Century, 33–73; 95–116; Dietz, Economic History of Puerto Rico, 79–181; Morales Carrión, Puerto Rico, 212–41; Rodríguez Beruff, Strategy as Politics,163; Silvestrini de Pa- checo, Los trabajadores puertorriqueños y el Partido Socialista, 121–46.

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agricultural and, thus, exempt; home needlework should be exempt; and the law was unconstitutional. The flsa, they claimed, was worsening unemployment and burdening already inadequate federal relief rolls. Hostile to the New Deal regulatory state, they were fighting to preserve a low-wage high-profit colonial political economy and cast their op- ponents as dangerous radicals.10

Anti-flsa forces’ arguments and tactics garnered the attention of New Deal leaders increasingly concerned with war preparations, including nurturing Pan-American re- lations. Roosevelt was receptive. Leahy, a longtime friend of Roosevelt with whom he shared a deep commitment to U.S. naval expansion and empire, wrote that “quiet sup- port from President Roosevelt” prevented “Labor Union leaders” from “impos[ing] con- tinental wage scales” in Puerto Rico. More obviously, Winship, Rivera Martínez, Gruen-

10 Robert David Johnson, “Anti-imperialism and the Good Neighbour Policy: Ernest Gruening and Puerto Ri- can Affairs, 1934–1939,” Journal of Latin American Studies, 29 (Feb. 1997), 89–110. When Santiago Iglesias Pantín died, his son-in-law Bolívar Pagán replaced him. For representative anti-flsa documents, see Vicente León Jr. to Ernest Gruening, June 23, June 25, 1938, folder Labor-Wages and Hours Law–General, part 1, May 25, 1938, to Feb. 11, 1939, box 922 “Puerto Rico Labor, Hours, and Wages,” Office of Territories, Classified Files, 1907–1951, rg 126 (National Archives and Records Administration, College Park, Md.). Blanton Winship to Elmer Andrews, Nov. 10, 1938, ibid. On Socialists and the territorial minimum wage, see “Rivera Martínez pide ley de salario míni- mo para industrias no cubiertas por nueva Ley Federal,” (Rivera Martínez requests minimum wage law for indus- tries not covered by the new federal law) La Democracia (San Juan), Aug. 9, 1938, p. 1. Reciprocal Trade Agreement between the United States and Switzerland, Jan. 9, 1936, Foreign Relations of the United States Diplomatic Papers, 1936 (5 vols., Washington, 1936), II, 855–58. On resistance to New Deal regulation, see Rodríguez, “La Reforma Liberal en el contexto colonial,” 106–7.

The geographic relationship of Puerto Rico to the Eastern Seaboard of the United States (particu- larly to Washington, D.C., and New York City) is shown here in the top map. The main Puerto Rican urban centers mentioned in this essay, and the territory’s proximity to neighboring islands, are shown in the lower map. Maps by James Zollweg.

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ing, needlework employers such as the pur legislator Maria Luisa Arcelay, and tobacco growers and processors lobbied the whd administrator Elmer Andrews relentlessly in fall 1938. They soon influenced Andrews’s attitude toward amending the flsa and continued to shape whd hearings and rulings. Gruening and the Puerto Rico Chamber of Com- merce blamed the flsa for rising unemployment, which they suggested could contribute to violent unrest in Puerto Rico that could undermine the Good Neighbor Policy. The territorial legislature passed anti-flsa resolutions that Iglesias Pantín and others commu- nicated to Congress and Roosevelt, while Iglesias Pantín likely influenced the New Jersey representative and House Labor Committee chair Mary Norton, on whose committee he served. National City Bank–owned Eastern Sugar Associates filed suit in the U.S. Dis- trict Court of Puerto Rico (dcpr) alleging that sugar mill workers were exempt and that the flsa was unconstitutional. Far less visible in the imperial metropole were capital’s pervasive noncompliance, partial strike, and threats against workers, unions, and labor lawyers—especially those bold enough to file back-pay suits. Employers and pur leaders recommended Robert Claiborne, a businessman and lawyer from Virginia who resided in Puerto Rico, for the job of whd territorial representative and counsel, but turned on him for taking enforcement seriously. Claiborne’s and Marcantonio’s efforts to raise awareness in Washington of employer behavior were pointedly ignored.11

Tasting victory in H.R. 5435, the bill to amend the flsa, anti-flsa forces galvanized in the spring and summer of 1939 before and after the bill died on the House floor in early June. They bullied the flt executive into supporting the bill, influenced the whd’s decision to fire Claiborne in March, and pursued his disbarment to kill back-pay suits he began filing for worker clients. Dismayed by Winship’s departure, they easily secured the support of Leahy and of the Utah Democratic senator William King, who, allied with U.S. sugar producers in Puerto Rico, spearheaded the Senate’s approval of a separate ter- ritorial amendment in August. Territorial employers formed the Puerto Rico Economic Delegation, which sent representatives to Washington to speak to the Apparel Industry Committee, shaped that committee’s decision to keep Puerto Rico wages at the thirty- cents-per-hour floor, and influenced the new Interdepartmental Committee on Puerto Rico. Yet from September 1939 to May 1940 anti-flsa momentum stalled. The House was not moving on the Senate bill, Eastern Sugar Associates lost its case; Gruening, An- drews, and Iglesias Pantín were out of the picture; Claiborne continued to bring suits; and the whd, under the new leadership of Col. Philip Fleming, began to address violations of the law. In spring 1940 panicked employers apparently bribed three needlework union

11 William D. Leahy, “A Sailor’s Adventures in Politics: Puerto Rico 1939–40,” in Las memorias de Leahy (The memories of Leahy), ed. Jorge Rodríguez Beruff (San Juan, 2002), 172. For an early example of lobbying, see Win- ship to Andrews, Aug. 22, 1938, folder dtip-Wages and Hours, part 1, box 922 “Puerto Rico Labor, Hours, and Wages,” Office of Territories, Classified Files, 1907–1951. On relations with Latin America, see Ernest Gruening to Harold Ickes, Dec. 20, 1938, folder of 400 Puerto Rico Jan.–June 1939, box 25 “of 400 Appointments, Puerto Rico Jan.–June 1939 to Jan.–April 1942,” Official File 400, Franklin D. Roosevelt Papers as President (Franklin D. Roosevelt Library, Hyde Park, N.Y.); and “Puerto Rico Scores Cuban Concessions,” New York Times, Dec. 12, 1938, p. 13. On the territorial legislature, see Miguel A. García Méndez to Franklin D. Roosevelt, March 14, 1939, folder dtip-Wages and Hours, part 2, Feb. 17, 1939–, box 922 “Puerto Rico Labor, Hours, and Wages,” Office of Territories, Classified Files, 1907–1951. On the Eastern Sugar Associates case, see Department of Labor, Wage and Hour Division Annual Report for the Calendar Year 1939, 61. For Robert Claiborne’s recommendations, see docu- ments 69, 70, 72, 74, 76, 83, Aug. 27–Sept. 6, 1938, folder XII, box 4, Ruby Black Collection (Center for Histori- cal Research, University of Puerto Rico–Río Piedras). On Robert Claiborne’s and Vito Marcantonio’s efforts, see Vito Marcantonio to Andrews, March 17, 1939, folder Puerto Rico Wages and Hours, box 55, Vito Marcantonio Papers (Manuscripts and Archives, New York Public Library, New York).

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leaders in order to cite one non-flt proamendment union. The May 1940 recommital of a revised H.R. 5435 was a major blow to anti-flsa forces.12

Pro-flsa Forces

A broad swath of workers from the docks and in transportation, sugar, needlework, and tobacco occupations fought for the enforcement and preservation of the flsa with the help of Claiborne, Marcantonio, and Muñoz Marín. Non-flt unions formed or grew, and flt locals went renegade, especially in the sugar industry. Key unions were the Asociación de Chóferes (Público Drivers’ Association; públicos were private vehicles that moved people along regular routes), Unión de los Dependientes y Empleados de los Muelles (Union of Checkers and Dock Office Workers), Unión Protectora de los Desempleados (upd, Protective Union of the Unemployed), and Federación Insular de los Trabajadores de la Industria de la Aguja (fitia, Insular Federation of Needlework- ers). In May 1940 forty-two unions formed the Confederación General de Trabajadores (cgt, General Confederation of Workers), a cio-affiliated rival to the flt, spurred in part by the momentum of the flsa back-pay movement. cio-linked metropolitan organiz- ers had a slight presence, beginning with the nmu on the docks and spreading into the sugar industry, possibly enabled by the cio president Lewis’s strategy of strengthening labor movements across the Americas as an alternative to war. Hillman’s Textile Workers Organizing Committee (twoc) and the International Ladies’ Garment Workers Union (ilgwu) had no presence. Pro-flsa workers argued that they deserved the same mini- mum wage as all other American citizens covered by the flsa and that their wages were so low and the cost of living so inflated that they could not stay off relief or provide for their families. They maintained that rising unemployment was due to capital strikes and non-flsa factors, given that compliance with the law was minimal, that proamendment Socialist leaders were in the pockets of business, that flsa-affected industries were profit- able enough to pay the universal minimum, and that the law was central to New Deal reforms that they wanted to accelerate and expand.13

12 On H.R. 5435, to amend the 1938 Fair Labor Standards Act, see Congressional Record, 76 Cong., 1 sess., May 11, 1939, p. 5458; and ibid., 76 Cong., 3 sess., April 25, 1940, p. 5035. On the Federación Libre de Trabajadores (Free Federation of Labor), see Silvestrini de Pacheco, Los trabajadores puertorriqueños y el Partido Socialista, 137–38. On Robert Claiborne’s firing, see Andrews to Robert Claiborne March 14, 1939, folder March 1–14, 1939, box 5, Papers of Robert Watson Claiborne (Special Collections, University of Virginia Library, Charlottesville); and “Rob- ert W. Claiborne hace graves acusaciones” (Robert W. Claiborne makes serious allegations), El Mundo (San Juan), March 22, 1939, p. 1. On the push for Robert Claiborne’s disbarment, see Robert Claiborne to Virginia Claiborne, March 7, 1940, folder March 1940, box 5, Claiborne Papers. On William D. Leahy, see Rodríguez Beruff, Strategy as Politics, 63–93. William Leahy to Ickes, Sept. 18, 1939, folder 9-8-76-Labor-Strikes, box 921 “9-8-77, Puerto Rico, Labor, Strike,” Office of Territories, Classified Files, 1907–1951. On William King, see Congressional Record, 76 Cong., 1 sess., March 23, 1939, pp. 3173–74; Ibid., May 29, 1939, p. 6282; Ibid., June 1, 1939, pp. 6473–75. On the Puerto Rico Economic Delegation, see “Statement Made before the Committee by the Economic Delega- tion from Puerto Rico at Washington DC,” May 31, 1939, pamphlet, in vol. Interdepartmental Committee on Puerto Rico, box 825 “9-8-59, Puerto Rico, Social and Economic, General and Interior Department,” Office of Territories, Classified Files, 1907–1951. On the defeat of Eastern Sugar Associates, see La Democracia (San Juan), Sept. 26, 1939, pp. 1, 3, 14. Ernest Gruening left to become governor of Alaska, Elmer Andrews resigned in mid- October, and Iglesias Pantín died in December. On the Wage and Hour Division (whd) under Philip Fleming, see Paulsen, Living Wage for the Forgotten Man, 144–47. On bribery, see Sergio Kuilen to Marcantonio, June 2, 1940, telegram, folder Puerto Rico Wages and Hours, box 55, Marcantonio Papers.

13 Silvestrini de Pacheco, Los trabajadores puertorriqueños y el Partido Socialista, 130–45; Rodríguez, “La Reforma Liberal en el contexto colonial,” 123–34; Villaronga, Toward a Discourse of Consent, 46–58. On the connection of the Confederación General de Trabajadores (General Confederation of Workers) to the back-pay movement, see Guillermo López Vasquez to Marcantonio, May 21, 1940, folder Puerto Rico General Correspondence, box 55,

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Workers engaged in over one hundred mostly collective pro-flsa actions in addition to their back-pay suits and their 240 individual and union complaints to the whd from October 1938 to June 1940. They fought against violations and the threat of amendment by leaving the flt, forming new unions, filing complaints, holding local and island-wide mass meetings, proposing contracts, striking, and launching back-pay suits. They fre- quently wrote articulate messages in Spanish and English, communicating their griev- ances and demands to Claiborne, Marcantonio, Roosevelt, Ickes, Andrews, Congress, the cio and afl leaderships, and the Puerto Rican press. Even so, their ability to influence leading New Dealers was limited by domestic politics and imperial structures. Roosevelt was distancing himself from cio rank-and-file militancy, while Lewis was distancing him- self from Roosevelt; cio organizers in Puerto Rico from the Communist-led nmu had no sway. Hillman, possibly influenced by Roosevelt, actively undermined wage universalism for Puerto Rico. In Apparel Industry Committee hearings he admitted ignorance, urged avoidance of Puerto Rican issues, and seconded a motion to leave only Puerto Rican needleworkers at the thirty-cents-per-hour minimum from October 1939. Puerto Rican workers could deliver no congressional votes to Roosevelt in securing his legislative agen- da and relied too much on Marcantonio, Claiborne, and cio leaders to influence Con- gress and the whd. They were unable to send delegates to whd hearings in Washington, so whd staff and members of industry committees either did not realize or could deny knowledge of how large and representative the pro-flsa labor movement was. Marcan- tonio’s efforts to convey this in the House could not compete with the official voices of anti-flsa governors and resident commissioners.14

The pro-flsa labor movement blossomed from early 1939, too late to prevent the ter- ritorial amendment’s inclusion in H.R. 5435, though benefiting from the bill’s failure. In February the upd’s 557-delegate convention approved a comprehensive economic and pro-flsa memorial and then marched on the territorial legislature to present it. In April, twenty thousand Eastern Sugar Associates workers struck for a week, winning twenty- five cents per hour. Action continued through that summer, including increased num- bers of back-pay suits and a ppd-sponsored postcard campaign to Marcantonio opposing

Marcantonio Papers. On Congress of Industrial Organizations involvement, see John Rogan to Marcantonio, April 29, 1940, folder Puerto Rico Wages and Hours, ibid.; and Rodríguez Beruff, Strategy as Politics, 329. On John Lew- is’s pan-American strategy, see Lichtenstein, Labor’s War at Home, 30. The International Ladies’ Garment Workers Union abandoned its mid-1930s organizing in Puerto Rico, discriminated against Puerto Ricans in New York City locals, and colluded in the institutionalization of the colonial minimum wage during Puerto Rico’s post–World War II industrialization. See Andrés Matías-Ortíz, “Ambivalent Solidarities: Homeworkers, Needlework Unions, and the ilgwu in Puerto Rico, 1930–1940” (Master’s thesis, University of Wisconsin, 2001); and Galvin, Organized Labor Movement in Puerto Rico, 157. For a typical pro-flsa worker statement, see Unión Protectora de Desemplea- dos–Mayagüez (Protective Union of the Unemployed––Mayagüez) to Roosevelt, Feb. 13, 1939, folder Wages and Hours Adm., box 55, Marcantonio Papers.

14 On complaints to the whd, see Department of Labor, Annual Report of the Wage and Hour Division for the Fis- cal Year Ended June 30, 1940 (Washington, 1941), 152, 156, 164. For examples of workers’ gatherings, see Unión Protectora de los Desempleados Cabo Rojo flyer advertising Feb. 23, 1939, assembly, folder Press Releases, box 26, Claiborne Papers; and needleworkers’ strike coverage, El Mundo (San Juan), Sept. 5–19, 1939. For examples of worker writing, see Clarín Obrero, Aug. 11, 1939, newsletter of the Mayagüez Needleworkers’ Union, folder Press Releases, box 26, Claiborne Papers; Manuel Marrero, Caguas sugar mill union, to Marcantonio, May 13, 1940, folder Wages and Hours Adm., box 55, Marcantonio Papers; and La Unión Local de Trabajadoras de la aguja (Taller Morris E. Storyk) [Local needleworkers union of the Morris E. Storyk factory], San Juan, to Marcantonio, Jan. 20, 1940, folder Puerto Rico Wages and Hours, ibid. For Sidney Hillman’s quotation, see “Apparel Industry—Meeting on June 14, 15, 16, 1939, of Industry Committee No. 2,” p. 106, box 14 “Industry Committees’ Files, Sept. 1938– Jan. 1942, No. 2 Apparel Industry, Briefs and Other Data,” Records of Industry Committee Investigations, rg 155 (National Archives and Records Administration, College Park).

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the sugar industry’s exemption. In September 1939 eight thousand fitia needleworkers struck for a week, aiming to secure an industry-wide contract for twenty-five cents per hour, with support from many other unions. Days later the upd staged a mammoth gath- ering in San Juan to deliver a memorial welcoming Governor Leahy with demands for jobs, food relief, flsa wages, tax and land reform, the extension of Social Security and

Included in the Popular Democratic party’s newspapers, antiexemption postcards such as this one (signed by or for the pro–Fair Labor Standards Act [flsa] worker José M. Ramírez of the sugar municipality Manatí) were to be signed and sent to Congressman Vito Marcantonio. The text reads: “It is my wish that the flsa not be eliminated with respect to sugar industry workers.” Courtesy Vito Marcantonio Papers, New York Public Library, New York.

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the National Labor Relations Board to Puerto Rico, and economic diversification. Leahy remained proamendment, but labor momentum continued with complaints to the whd, back-pay suits, the formation of a back-pay committee encompassing dozens of new unions, and the founding of the cgt. Setbacks did occur: Eastern Sugar Associates broke its commitment to pay twenty-five cents per hour, the needlework strike failed, the upd split in March 1940 as a Communist leadership took over, and the fitia leadership caved to proamendment forces. After the territorial amendment passed, the movement struck for a high colonial minimum wage and to have tobacco-processing workers covered.15

Pro-flsa workers’ three middle-class allies shaped the struggle but were unable to counter the New Deal leadership’s inherent and strategic bias toward a territorial amend- ment and differential. Muñoz Marín, who aimed to replace the pur-ps coalition as Wash- ington’s ally, supported the law only when strong pro-flsa worker sentiment manifested and limited support to coverage of male sugar workers. Still, from March 1939 his free newspaper El Batey promoted workers’ awareness of their new rights and invited them to join the struggle. El Batey and Muñoz Marín’s mainstream newspaper La Democracia car- ried clip-out postcards opposing the exemption of sugar, preaddressed to Marcantonio to help him influence Congress. In 1940 Muñoz Marín focused more exclusively on the ppd election campaign. Claiborne, who had represented women pursuing voting rights in the U.S. Virgin Islands in the mid-1930s, became a hero to pro-flsa workers and a thorn in the whd’s side as he poured himself into explaining and enforcing the law. He met with employers and worker delegations, issued press releases, gave radio addresses and speeches in Spanish to worker gatherings, and tried to educate his whd bosses about Puerto Ri- can realities. He and Marcantonio exchanged information frequently through 1939 and 1940. As a labor lawyer bringing back-pay suits he crisscrossed Puerto Rico preparing workers’ affidavits and supporting their unions. He tried to prevent the Mayagüez strike as fitia’s lawyer, but needlework employers rejected the proposed contract. Even when mired in disbarment troubles, he tried to conclude back-pay cases and to influence the sic to set a high colonial minimum wage. Marcantonio’s victory in New York’s 18th District, centered in East Harlem, where many Puerto Ricans had settled, was a rare progressive gain in the 1938 midterm elections. An anti–Tammany Hall Republican in Congress in 1935 and 1936, he was the sole American Labor party member of Congress during most of his 1939–1950 tenure. Prolabor and proindependence, he became Puerto Rican work- ers’ unofficial congressman. He condemned Andrews for ignoring Claiborne’s reports of violations and requests for resources and protection, pressed for Winship’s dismissal, ar- gued for the justice of wage universalism and its value to Pan-American relations, worked with Claiborne to build the antiamendment case, and tried to help him fight disbarment. His actions encouraged the pro-flsa movement, but he had few allies in the less progres- sive, more anti-Communist, more prowar 76th Congress and was unable to prevent the territorial amendment’s inclusion in H.R. 5435, build an antiamendment voting bloc

15 On the two Unión Protectora de los Desempleados (upd, Protective Union of the Unemployed) events, see “La Ley de Horas y Salarios,” (The Hour and Wage Law) El Batey (San Juan) (no. 1, March 1939), 2; El Mundo (San Juan), Sept. 16–22, 1939; and La Democracia (San Juan), Sept. 6–22, 1939. On the Eastern Sugar Associates strike, see “Puerto Rico Strike Ends,” New York Times, April 12, 1939, p. 10. On the needlework strike, see Enrique de Orbeta to Leahy, Sept. 11, Sept. 13, and Sept. 15, 1939, folder 214, box 287, Governor’s Office Records (Gen- eral Archives of Puerto Rico, San Juan). On the public debate, see La Democracia (San Juan), Feb. 6, 1940, pp. 1, 8. On the upd split, see José Antonio Huertas et al., Feb. 6, 1940, folder 1054, box 59-A, Non-Profit Organizations, Department of State Collection (General Archives of Puerto Rico).

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This antiamendment cartoon appeared on the front cover of the May 16, 1940, issue of La Chispa (The spark), the newsletter of Federación Insular de los Trabajadores de la Industria de la Aguja (the Insular Federation of Needleworkers), based in Mayagüez, Puerto Rico. In the image, a vigilant Congressman Vito Marcantonio interrupts the resident commissioner Bolívar Pagán and a generic “tallerista” (needlework factory owner) as they prepare to stab the “Ley de Horas y Salarios” (the Fair Labor Standards Act). Courtesy Vito Marcantonio Papers, New York Public Library, New York.

16 For works that recognize Marcantonio’s but not Robert Claiborne’s importance, see Silvestrini de Pacheco, Los trabajadores puertorriqueños y el Partido Socialista, 136, 141; and Rodríguez, “La Reforma Liberal en el contexto colonial,” 64, 129. On Luis Muñoz Marín, see “Manifestaciones de hambre en la isla” (“Hunger demonstrations in the island”) La Democracia (San Juan), Oct. 28, 1938, p. 3; “Designación de Clairborne bien agogida en la isla”

prior to House debates, or change enough minds through his floor speeches; he was ulti- mately out-maneuvered.16

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Executive Branch

The executive branch was distinctly unfriendly to pro-flsa forces that expected New Deal support. In the fall of 1938, employer complaints, territorial unemployment, the in- creasing likelihood of war, and planning for the Pan-American conference in December dominated thinking about Puerto Rico. In 1939 Ickes increasingly focused on ousting Gruening, Winship, and the pur. The dtip under Gruening was proamendment and under Acting Director Ruth Hampton focused on extending parts of the Social Secu- rity Act to Puerto Rico. Roosevelt’s actions were consistent with Leahy’s claim that the president had undermined the flsa in Puerto Rico: he forwarded most pro-flsa Puerto Rican correspondence to Gruening and had Andrews read Gruening’s December 1938 memo about the flsa compounding Puerto Rico’s economic problems, especially un- employment. Roosevelt requested $3 million and received $1 million in additional relief funding, but it would be extremely odd if he was not also aware of the New Deal lawyer Benjamin Cohen’s preparation of H.R. 5435, Secretary of Labor Frances Perkins’s ap- proval of it, and Gruening’s specific approval of the territorial amendment. It is striking that Andrews informed Roosevelt of the bill’s readiness in March 1939 at the same mo- ment that Congress—where the importance of Puerto Rico to Roosevelt’s defense plans was well understood—approved $9.14 million for the Isla Grande naval and air base near San Juan. In May 1939 the Interdepartmental Committee on Puerto Rico, led by the economist Erich Zimmerman with representatives from the Interior, State, Agriculture, and Labor Departments and the Tariff Commission, was created at the suggestion of the Puerto Rico Economic Delegation. The committee did not visit Puerto Rico and submit- ted its report in September 1940, but its proamendment position was likely known earlier in Washington. The report argued that Congress should never have included Puerto Rico in the flsa since it caused a crisis and hurt the competitiveness of the needlework industry, and it blamed poverty on the high birth rate. Commissioner of Labor Statistics Isador Lubin, a member of the Interdepartmental Committee on Puerto Rico, took a proamendment position even as Fleming, the second whd administrator—who was not a New Dealer—strengthened enforcement in Puerto Rico.17

(“Claiborne’s appointment well received in the island”) ibid., Nov. 2, 1938, p. 1; and El Batey (San Juan) (no. 1, March 1939). On Robert Claiborne’s appointment, see press release, Oct. 29, 1938, whd Administrator, vol. 1, R-1 to R-99, box 1 “Press Releases, Aug. 18, 1938–Sept. 28, 1940,” Records of the U.S. Department of Labor, Wage and Hour Division, rg 155 (National Archives and Records Administration, College Park). On union leader admiration, see Amador Santos to Roosevelt, Jan. 23, 1939, folder dtip-Wages and Hours, part 1, box 922 “Puerto Rico Labor, Hours, and Wages,” Office of Territories, Classified Files, 1907–1951. On Robert Claiborne’s travels and meetings, see flyer from J. Santiago Rivera, president of Central Roig’s Unión Protectora Trabajadores, Feb. 1939, folder Press Releases, box 26, Claiborne Papers; La Noticia (Caguas), Feb. 16, 1939, folder 1939 Newspaper Clippings, ibid. On Robert Claiborne’s interactions with Washington, see Robert Claiborne to whd Assistant Ad- ministrator A. L. Fletcher, Jan. 25, Jan. 26, Feb. 15, 1939, folder January–February 1939, box 4, ibid. On Robert Claiborne’s back-pay suits, see Acting Governor José Colóm to Winship, July 26, 1939, folder “Part 10: Incoming Cablegrams and Radiograms from Puerto Rico, July 1, 1939 to Dec. 29, 1939,” box 2 “1937–1940, Cables Re- ceived from Puerto Rico, 1934–1940,” General Files, rg 126 (National Archives and Records Administration, Col- lege Park); and Central Rio Llano workers’ authorization of legal action, Aug. 13, 1939, folder July–August 1939, box 5, Claiborne Papers. On the Mayagüez mediation attempt, see Unión Aguja telegram to Robert Claiborne, Sept. 1, 1939, folder September 1939, ibid.; and El Mundo (San Juan), Sept. 14, 1939, p. 6. On fall 1940 settle- ments, see Robert Claiborne to Virginia Claiborne, Nov. 28, 1940, folder October–November 1940, box 6, Clai- borne Papers. On Marcantonio’s relationship with Puerto Ricans, see Thomas, Puerto Rican Citizen; and Felix Ojeda Reyes, Vito Marcantonio y Puerto Rico: Por los trabajadores y por la nación (Vito Marcantonio and Puerto Rico: For the workers and the nation) (San Juan, 1978).

17 Ickes to Gruening, April 12, 1939, folder dtip-Wages and Hours, part 1, box 922 “Puerto Rico Labor, Hours, and Wages,” Office of Territories, Classified Files, 1907–1951; and Rodríguez Beruff, Strategy as Politics, 188–95,

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The first whd administrator was ambivalent, at best, about wage parity in the non- incorporated territories. Andrews, a civil engineer and formerly the New York State in- dustrial commissioner, had his antidifferential reputation undone by frequent meetings with Winship and “a large number of delegations representing various Industries in the Island,” especially needlework. He indicated his openness to a territorial wage differential in September 1938. He soon yielded to pressure from tobacco growers and processors by ruling exempt “areas of production” where the “first processing” of farm goods occurred in establishments with seven or fewer employees—thus beginning the exemption of thou- sands of rural Puerto Rican tobacco destemmers—and by holding a hearing on whether to designate the entire island an “area of production.” In early 1939 he ignored Clai- borne’s reports and requests, ordered him to cease public appearances, fired and replaced him, and lifted the size limit on exempt tobacco processing. The act forced him to rule sugar-processing workers and home needleworkers covered, but he delayed implementing requirements that employers keep records on industrial homeworkers. Andrews provided statistics to help write the territorial amendment into H.R. 5435, and he recommended it privately and publicly. By the time he resigned in October, the territorial amendment had failed in the House as part of H.R. 5435 but passed in the Senate as a separate bill, and both the Apparel Committee and the Hat Industry Committee had recommended leaving Puerto Rican workers at the thirty-cents-per-hour minimum wage. In August he named Charles Wood, a lawyer with New Deal labor reform experience, to Claiborne’s old post, but Wood did not strongly defend the flsa until forced by Fleming.18

The Apparel Committee’s process began under Andrews and concluded under Flem- ing. It held hearings in spring 1939, including those where Hillman and National Con- sumers League (ncl) members voted in favor of using section 8(c) of the flsa to create a trial version of the colonial differential by leaving only Puerto Rican needleworkers, most of them women, at what Landon Storrs terms the “stingy statutory minimum.” The com- mittee announced its recommendations in June; Fleming later held repeated and lengthy

209–12. On Social Security, see E. Garrido Morales to Leahy, March 18, 1940, folder 200, box 1799, Governor’s Office Records. On the Gruening memo and relief funding, see Gruening to Ickes, Dec. 20, 1938, folder of 400 Puerto Rico Jan.–June 1939, box 25 “of 400 Appointments, Puerto Rico Jan.–June 1939 to Jan.–April 1942,” Of- ficial File 400, Roosevelt Papers; and Congressional Record, 76 Cong., 1 sess., March 22, 1939, pp. 3112–13, 3123– 25. On Isla Grande naval and air base funding, see Rodríguez Beruff, Strategy as Politics, 116. On Benjamin Cohen and Frances Perkins, see Andrews to Roosevelt, March 14, 1939, folder of 400 Puerto Rico Jan.–June 1939, box 25 “of 400 Appointments, Puerto Rico Jan.–June 1939 to Jan.–April 1942,” Official File 400, Roosevelt Papers. Staff Report of the Interdepartmental Committee on Puerto Rico, Sept. 9, 1940, pp. 3, 4, 13, 15, folder Conditions- Interdepartmental Comm.-1939-Zimmerman Report, box 825 “9-8-59, Puerto Rico, Social and Economic, Gener- al and Puerto Rico, Social and Economic, Interior Department,” Office of Territories, Classified Files, 1907–1951.

18 For a work that ignores the Puerto Rican uproar in arguing that Andrews enjoyed a “honeymoon” with com- pliant employers and led “outstanding” enforcement, see Paulsen, Living Wage for the Forgotten Man, 135, 138. For a work that ignores the Puerto Rican uproar in arguing that the National Consumers League (ncl) was quickly “exasperated” with Andrews, see Storrs, Civilizing Capitalism, 202. On lobbying, see Department of Labor, Interim Report of the Administrator of the Wage and Hour Division for the Period August 15 to December 31, 1938, IV-11. On Andrews’s 1938 decisions and his discussions of “areas of production” and “first processing,” see press releases, Sept. 30, Oct. 20, Nov. 25, 1938, whd Administrator, vol. 1, R-1 to R-99, box 1 “Press Releases, Aug. 18, 1938–Sept. 28, 1940,” U.S. Department of Labor Wage and Hour Division Records. On the treatment of Robert Claiborne, see Fletcher to Robert Claiborne, Feb. 17, 1939, folder February 1939, box 4, Claiborne Papers. On Andrews’s support for the amendment, see Andrews to Mary Norton, March 31, 1939, folder Norton, Hon. Mary T., New Jersey, 1938, box 1 “Congressional Leaders,” Correspondence with Members of Congress, 1938–52 Collection, rg 155 (National Archives and Records Administration, College Park). For the tobacco ruling, see press release, Feb. 25, 1939, whd Administrator, vol. 1, R-1 to R-99, box 1 “Press Releases, Aug. 18, 1938–Sept. 28, 1940,” U.S. Department of Labor Wage and Hour Division Records. On Charles Wood’s appointment, see press release, Aug. 10, 1939, ibid.

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hearings on the recommendations in Washington. The pro-flsa movement missed this crucial opportunity to present its case—even in writing—but metropolitan employers spoke against a colonial differential on the grounds of unfair competition. Territorial employers submitted written arguments, and Governor Leahy and Commissioner of La- bor Rivera Martínez both appeared. ilgwu representatives, concerned with competition, forcefully questioned their data, suggested that needlework was profitable enough to pay higher wages, and mentioned high food prices in Puerto Rico. Fleming’s staff was un- impressed by prodifferential arguments, and, unlike Andrews, Fleming did not support amendments to the law. But in May 1940 Fleming approved the recommendations that left only Puerto Rico at the thirty-cents-per-hour minimum wage, perhaps because he felt that the statutory hike from twenty-five to thirty cents per hour was provocative enough, officially because higher rates would increase unemployment.19

Fleming’s support for the flsa in Puerto Rico likely stemmed less from his experience with the Army Corps of Engineers in the Panama Canal zone and the Philippines or from any labor sympathies than from a technocratic commitment to effective enforcement. Appointed by Roosevelt to make the whd efficient, his reorganization increased the vol- ume and speed of inspection, response to complaints, and charges of violations. Despite deliberate underresourcing from Congress, he assigned a few new inspectors and lawyers to Puerto Rico—though their numbers paled in comparison with the approximately fif- teen thousand hired as defense construction workers through the Works Progress Ad- ministration from 1939 to 1940—and ordered Wood and other staff to help Claiborne with back-pay suits, to request court injunctions against firms in violation, and to refer difficult cases to U.S. Attorney Cecil Snyder for criminal prosecution. Fleming also urged Judge Robert Cooper of the dcpr to dismiss charges that Claiborne had inappropriately listed some workers in back-pay suits. Fleming’s firmness bore fruit from April to October 1940, a period during which Cooper dropped the charges, and when the first injunctions were issued and the first criminal charges were laid against sugar and needlework employ- ers. The territorial amendment passed in June 1940, putting the whd’s efforts to defend the flsa into direct tension with the new policy. Fleming, devoted to the letter of the law, responded by pressuring Cooper to issue an industry-wide injunction on needlework to force employers to pay thirty cents per hour until wage orders for colonial minimums came into effect.20

19 On ncl members’ success in raising metropolitan wages, see Storrs, Civilizing Capitalism, 202. On Industry Committee hearings and recommendations, and on Fleming’s refusal to support amendments, see U.S. Department of Labor, Wage and Hour Division Annual Report for the Calendar Year 1939, 83–84, 129. On Fleming’s hearings, see “Official Report of Proceedings before Wage and Hour Division of the Department of Labor in the Matter of Hearing to Consider the Recommendations of Industry Committee No. 2 for the Apparel Committee, Washington D.C., November 21st, 1939,” pp. 982–1032, Apparel Industry-Transcript of 11/21/39 Hearing on Recommen- dations of Industry Committee No. 2, box 23 “Industry Committees’ Files, Sept. 1938–Jan. 1942, No. 2 Apparel Industry Briefs and Other Data,” Records of Industry Committee Investigations; “Official Report of Proceedings before Wage and Hour Division of the Department of Labor in the Matter of Hearing to Consider the Recommen- dations of Industry Committee No. 2 for the Apparel Committee, Washington D.C., November 21st, 1939,” pp. 5365–5615, Apparel Industry-Transcript of 1/9/40 Hearing, ibid.; and “Official Report of Proceedings before Wage and Hour Division of the Department of Labor in the Matter of Hearing to Consider the Recommendations of In- dustry Committee No. 2 for the Apparel Committee, Washington D.C., November 21st, 1939,” pp. 6114–33, Ap- parel Industry-Transcript 3/15/40, ibid. On wage order, see press release, May 17, 1940, whd Administrator, vol. 8, box 4 “Press Releases, Aug. 18–Sept. 28, 1938,” U.S. Department of Labor Wage and Hour Division Records.

20 On Fleming’s background see “Philip B. Fleming, 1911,” West Point Association of Graduates, https://apps .westpointaog.org/Memorials/Article/4936/. On Fleming’s attention to Puerto Rico, see Fleming to Marcanto- nio, Oct. 24, 1939, folder Puerto Rico Wages and Hours, box 55, Marcantonio Papers; and Department of Labor, Wage and Hour Division Annual Report for the Calendar Year 1939, 101, table 13. On the resulting court action, see

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The Courts

The dcpr and the First Circuit Court of Appeals were drawn into the struggle over the flsa from 1939, though there was no meaningful punishment of violators until 1940, which helped obscure the intense local struggle over enforcement from those considering the territorial amendment. Judge Cooper, who had presided over the dcpr since 1934, was the anti–New Deal former governor of South Carolina, spoke no Spanish, and treat- ed Puerto Rican workers as racially inferior; Nationalists tried to assassinate him in 1937. He cultivated a côterie of business-friendly lawyers, including Walter Newsome, who represented several employers as defendants in back-pay suits filed by Claiborne. Cooper ceded to New Deal forces when pressed, but, for the most part, he colluded in the non- enforcement of the flsa. He engaged in endless delay tactics, such that he heard only one of Claiborne’s roughly thirty suits before Congress passed the territorial amendment, and thus prevented the establishment of a legal track record of employer noncompliance. He harassed and intimidated Claiborne, his partners, and clients directly and via employer lawyers, and executed disbarment proceedings against Claiborne. Albert Lévitt, a pro- gressive Republican law professor, husband of the National Women’s Party leader Elsie Hill, and a former judge in the U.S. District Court of the U.S. Virgin Islands, defended Claiborne against disbarment. He and Marcantonio publicized Cooper’s behavior in the metropole and sought his impeachment. Claiborne knew that back-pay suits would face difficulty in Cooper’s court but believed that legal action, more than striking, would benefit labor. He also pleaded with the whd and Snyder to defend the flsa in the courts and via inspections.21

Legal action began in February 1939, when Eastern Sugar Associates filed suit to stop enforcement of the flsa in its sugar mills, to force Andrews to exempt the mills as “areas of production,” and to challenge the law’s constitutionality. Cooper surprised everyone by rejecting all of the company’s arguments in a September ruling, but likely did so to avoid a successful appeal that would expose his political bias, while knowing that sugar compa- nies could violate the law at will. Eastern Sugar Associates appealed, and the First Circuit upheld Cooper’s ruling in February 1941. Claiborne and his partners filed the first back- pay suits in July 1939. By March 1940 he had twenty-six cases in the needlework, sugar,

“Firmas industriales denunciadas en la Corte Federal” (Industrial firms accused in federal court), El Mundo (San Juan), April 23, 1940, p. 1; “Wage and Hour Law Vigorously Enforced,” clipping, Puerto Rico World Journal, April 22, 1940, folder Newspaper Clippings 1940–49, box 26, Claiborne Papers; and “Wage and Hour Law Defendants Bailed,” clipping, Puerto Rico World Journal, April 23, 1940, ibid. For the whd regional attorney Philip Herrick’s motion to dismiss charges, see Robert Claiborne to Wood, Feb. 16, 1940, folder Claiborne, box 1, Marcantonio Papers. On defense employment, see Rodríguez Beruff, Strategy as Politics, 363.

21 Cases originating in Puerto Rico did not make it to the Supreme Court and so go unmentioned in Jerold Waltman, “Supreme Court Activism in Economic Policy in the Waning Days of the New Deal: Interpreting the Fair Labor Standards Act, 1941–1946,” Journal of Supreme Court History, 31 (March 2006), 58–80. On Robert Cooper’s background, see “Robert Archer Cooper, 1934–1947,” United States District Court for the District of Puerto Rico, http://www.prd.uscourts.gov/?q=node/196. On Cooper’s racism, see Robert Claiborne to Virginia Claiborne, March 7, 1940, folder March 1949, box 5, Claiborne Papers. On Cooper’s delay tactics, see Robert Claiborne to Virginia Claiborne, May 30, 1940, folder May 1940, box 6, ibid.; and Guillermo López to Cooper, May 4, 1940, folder Puerto Rico General Correspondence, box 55, Marcantonio Papers. On Walter Newsome, see Robert Clai- borne to Marcantonio, March 4, 1940, folder March 1940, box 5, Claiborne Papers. On Cooper’s role in Robert Claiborne’s disbarment, see Albert Lévitt, “Appeal of Robert W. Claiborne in the matter of Disbarment Proceed- ings (1st Cir. 1941) (No. 3650), Feb. 10, 1941,” pp. 5–6, Claiborne folder, box 1, Marcantonio Papers. On Al- bert Lévitt’s background, see “Albert Lévitt Papers,” collection guide, p. 11, http://cisupa.proquest.com/ksc_assets/ catalog/9084.pdf. “Marcantonio Seeks Cooper Impeachment,” clipping, Puerto Rico World Journal, Nov. 21, 1940, folder October–November 1940, box 6, Claiborne Papers.

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transportation, and tobacco industries—worth almost half a million dollars and involving over twenty thousand workers—and a few more followed. Workers were frequently fired and blacklisted for joining these suits, some of which were settled, without Claiborne’s knowledge, for pennies on the dollar by desperate plaintiffs. From December 1939 to February 1940 Cooper and Newsome distracted Claiborne with charges filed by New- some on behalf of Ades Brothers needlework company and Bernard Schwartz tobacco company, alleging that Claiborne had named workers in suits who had not given him au- thority to do so. Cooper rushed Claiborne into the Ades Brothers needlework company show-cause hearing in Mayagüez in January 1940. The transcript was not made part of the court record; Cooper and Newsome’s secrecy likely stemmed from most of Newsome’s witnesses siding with Claiborne on the stand, stating that they had signed Newsome’s af- fidavits out of fear. Cooper set the Bernard Schwartz tobacco company show-cause hear- ing in San Juan in February on short notice; Claiborne brought ten workers from Caguas prepared to testify for him, and Newsome withdrew the charges. Cooper dropped the needlework company charges in May.22

From March to September 1940 Cooper played a double game. On the one hand, he co- operated with the whd as Fleming stiffened his local staff’s spines. He found for the work- ers in a whd-filed back-pay suit in June. He granted whd demands for injunctions against three needlework companies in May, June, and July, and then against seventy-one compa- nies in early September. These injunctions tied up the companies’ products as “hot goods,” banned their shipment to the metropole until back pay was resolved, required them to pay a thirty-cents-per-hour wage until the colonial minimum came into effect, and sometimes required the reinstatement of unfairly fired workers. Cooper let Snyder file criminal charges requested by the whd against Maurice Ades of Ades Brothers needlework company, the managers of a Puerto Rican–owned sugar mill, and the owners of the Caribbean Embroi- dery Cooperative, and issued an arrest warrant for Ades and one of the mill’s managers. On the other hand, Cooper made sure that Ades was not taken into custody or required to post bail in person; his case was still pending before Cooper in February 1941. Further, Cooper ruled in September 1940 that the Caribbean Embroidery Cooperative was genuine and thus exempt from the flsa. (Bypassing him, the whd won an injunction in October from the U.S. District Court for the Southern District of New York to stop the shipment of fraudulent Puerto Rican cooperatives’ goods. The whd also appealed and, in November 1941, the First Circuit Court of Appeals reversed Cooper’s decision.) Cooper apparently colluded with Newsome to use the Mayagüez hearing transcript to launch disbarment pro- ceedings against Claiborne for unprofessional conduct. Lévitt accused Cooper and New- some of conspiring during the sensational July 1940 disbarment trial in San Juan, which two whd leaders from Washington attended while in town to plan for the sic’s work, but in August Cooper ordered Claiborne suspended from the practice of law for twelve months by December 1, 1940, at the latest. Lévitt repeated his accusations in his brief to the appeals

22 For the Eastern Sugar Associates case, see Bowie v. Gonzalez, 117 F. 2d 11 (1st Cir. 1941). On filings, see Rob- ert Claiborne to Virginia Claiborne, July 21, 1939, March 30, 1940, folder July–August 1939, box 5, Claiborne Papers. On workers caving, see Robert Claiborne to Marcantonio, May 29, 1939, folder May 1940, box 6, ibid.; and Snyder to Robert Claiborne May 28, 1939, ibid. On the Ades Brothers needlework company and the Bernard Schwartz tobacco company charges, see Robert Claiborne to Virginia Claiborne, Dec. 23, Dec. 25, Dec. 29, 1939, folder December 1939, ibid.; Bobby [Robert Jr.] Claiborne to Virginia Claiborne, Jan. 4, 1940, Folder January– February 1940, ibid.; Robert Claiborne to Virginia Claiborne, Jan. 6, 1940, ibid.; Robert Claiborne to Marcanto- nio, Jan. 8, 1940, ibid.; and Robert Claiborne to Virginia Claiborne, Feb. 24, 1940, ibid. On Cooper dropping the charges, see “Claiborne Hearing Set,” New York Times, May 2, 1940, p. 11.

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court, but it affirmed Cooper’s decision in April 1941. In Cooper’s courtroom the embat- tled labor rights strand of the New Deal came face to face with southern conservatism. Clai- borne and his clients lost, but Fleming’s whd was beginning to put Cooper and employers on the defensive just as Congress approved the territorial amendment.23

Congress

When the struggle over the flsa in Puerto Rico came to Congress, the size, militancy, and message of the pro-flsa labor movement in the territory and even Fleming’s principled enforcement of the law for Puerto Ricans mattered little. Congressional struggles over the flsa in Puerto Rico involved few protagonists, indicating indifference, ignorance, or strategic silence. Marcantonio was the principal advocate for preserving the flsa mini- mum wage in Puerto Rico, receiving moments of support from a few House Democrats and Republicans. Resident Commissioners Iglesias Pantín and Pagán and House La- bor Committee chair Norton led House efforts to pass the territorial amendment, with support from the virulently anti–New Deal Georgia Democratic representative Edward Cox, who likely saw a territorial differential as a precedent for the South. In the Senate, King and the Colorado senator and chair of the Senate Appropriations Committee Alva Adams—both otherwise hostile to Roosevelt—led the proamendment charge unop- posed. The amendment was part of H.R. 5435, a bill to amend the flsa in several ways, which aroused prolonged debate in May and June 1939 and April to May 1940 among large numbers of House members concerned with coverage for industrial homeworkers and especially 1.5–2 million food and tobacco-processing workers. Farm-bloc efforts led by conservative Democrats to reduce coverage of food and tobacco- processing workers were so confusing and controversial that H.R. 5435 died on the House floor in 1939 and was recommitted to the House Labor Committee in 1940. This delayed the territorial amendment, which first passed the Senate as a separate bill, S. 2682, and finally passed the House in June 1940, when Adams’s committee attached it to a bill, H.J. Res. 544, that New Dealers wanted to vote for.24

Norton was a pioneering female legislator with a strong prolabor record who had steered the flsa through Congress in 1937 and 1938. Yet her May 1939 justification of the territorial amendment articulated the New Deal belief in inherent colonial difference: “In the administration of the law the Administrator has found that its rigid application to Puerto Rico and the Virgin Islands has created hardship. It is factually true that work- ing conditions in those territories are far different—are governed by climatic conditions,

23 On the back-pay ruling, see press release, June 19, 1940, whd Administrator, vol. 9, box 5 “Press Releases, Aug. 18, 1938–Sept. 28, 1940,” U.S. Department of Labor Wage and Hour Division Records. On injunctions and criminal charges, see U.S. Department of Labor, Wage and Hour Division Annual Report for the Calendar Year 1940 (Washington, 1941), 98–99, esp. 98; and U.S. Department of Labor, Wage and Hour Division Annual Report for the Calendar Year 1941 (Washington, 1942), 56, 58. On the treatment of Maurice Ades, see Robert Claiborne to Virginia Claiborne, April 22, 1940, folder April 1940, box 5, Claiborne Papers. On the cooperatives injunction, see “Injunction against N.Y. Firm to Close Cooperatives in P.R.,” clipping, Puerto Rico World Journal, Oct. 10, 1940, pp. 1–2; folder Newspaper Clippings 1940–49, box 26, ibid. On Cooper’s reversal, see Fleming v. Palmer, 123 F.2d 749 (1st Cir. 1941). On the disbarment order, see “Puerto Rico Court Suspends Attorney,” New York Times, Aug. 9, 1940, p. 7.

24 On H.R. 5435, see Congressional Record, 76 Cong., 1 sess., May 11, 1939, p. 5458; and ibid., 76 Cong., 3 sess., April 25, 1940, p. 5035. On S. 2682, see ibid., 76 Cong., 1 sess., June 22, 1939, p. 7681. On H.J. Res. 544, see S. Rep. No. 1754 (1940), ibid., 76 Cong., 3 sess., June 21, 1940, pp. 8857–67. On the 1939 fight over the flsa as a New Deal loss, see Patterson, Congressional Conservatism and the New Deal, 315.

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living conditions, and general economic factors at distinct variance with those in [the] continental United States.” She let the New Deal off the hook in concluding that “it is im- possible to prescribe rigid standards for working conditions in the Territories such as are suitable for [the] continental United States.” Marcantonio excoriated the amendment as “the stamp of approval” for the “ruthless and arrogant nullification” of the flsa in Puerto Rico, condemned Winship and Andrews, and praised Claiborne. He argued that sugar could pay, that needlework “chiselers” should not exist, that Puerto Rican workers op- posed the amendment, and that approving it would be “perpetuating this abysmal wage slavery . . . the worst system of exploitation that exists under the American flag,” and would jeopardize “our entire good-neighbor policy toward Latin America.” Iglesias Pantín criticized Claiborne and the flsa, defended Winship and the flt’s record on labor rights, and embraced the amendment. After the bill died, King introduced S. 2682, presumably to help U.S. sugar companies in Puerto Rico; the Senate passed it without discussion in August 1939 and referred it to Norton’s committee, which ignored it and delayed action on a revised H.R. 5435. New Dealers’ desire to avoid reopening Pandora’s box explains their inaction on H.R. 5435, but why they did not seize the opportunity to pass S. 2682 and thus achieve the territorial amendment separately is unclear. Perhaps Roosevelt chose to see if nonenforcement, military spending, and Leahy’s governorship would calm busi- ness and labor without having to revisit the law; or antidifferential actors in metropolitan needlework had influence; or the outbreak of World War II distracted from all else. If S. 2682 was being held up as a bargaining chip, it was not to extract resources for militariz- ing Puerto Rico, which Congress was providing willingly.25

The spring 1940 House battle over H.R. 5435 was intense, but New Dealers largely bested conservatives. Cox’s majority on the House Rules Committee exercised the com- mittee’s “extraordinary authority” to extract bills from standing committees to bring H.R. 5435 to the floor, together with two alternative bills. A bitter fight over process was linked to the issue of food- and tobacco-processing workers’ flsa coverage. The Georgia Democratic representative Robert Ramspeck withdrew his alternate bill and re- nounced his support for a southern wage differential, while North Carolina Democratic respresentative Graham Barden’s alternate bill was defeated. When H.R. 5435’s defense of coverage for food-processing workers was undercut by a successful amendment that redefined agriculture, New Dealers initiated and won a 205–175 recommital vote. That all three bills—the New Deal’s H.R. 5435 and the conservatives’ Ramspeck Bill and Barden Bill—included the territorial amendment speaks to the expendability of terri- torial Americans’ equal labor rights to New Deal and conservative legislators. Norton repeated her “colonial difference” speech, contradicting her mantra that no American citizen should receive below thirty cents per hour. Resident Commissioner Pagán argued that Puerto Rico’s “peculiar conditions” necessitated the amendment: high population density, scarce raw materials, sugar quota cuts, and foreign needlework competition. Appealing to fiscal conservatives, he argued that the amendment would restore employ- ment and shrink relief rolls. Marcantonio enumerated the sugar industry’s profits, argued

25 On Mary Norton see “Norton, Mary Teresa, 1975–1959,” U.S. House of Representatives: History, Art, and Ar- chives, http://history.house.gov/People/Detail/19024?ret=True. On Norton’s belief in “inherent colonial difference,” see Congressional Record, 76 Cong., 1 sess., May 11, 1939, pp. 5458, 5466, 5476–77; and ibid., June 5, 1939, pp. 6620–22. On S. 2682, see ibid., 76 Cong., 3 sess., Aug. 1, 1939, p. 10648. On Leahy’s conflicts with the Partido Unión Repúblicano (Republican Union party)–Partido Socialista (Socialist party) coalition and on defense spend- ing in Puerto Rico from 1939, see Rodríguez Beruff, Strategy as Politics, 261–99, 351–79.

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that the amendment would “add to the vileness of our imperialism in Puerto Rico,” and posed the crucial question: “Why discriminate against Puerto Rican workers?” He con- tested Pagán’s claims to speak for Puerto Rican labor and proposed to list all the “labor unions in Puerto Rico which have written to me to keep up the fight” for equal rights under the flsa. Tellingly, his motion to strike the territorial amendment from H.R. 5435 was defeated; just 78 Members (17.9 percent) bothered to vote and only twenty-six (5.9 percent) voted with Marcantonio. For just these unnamed twenty-six of the 205 who voted to recommit the bill, it mattered that Puerto Rican as well as metropolitan work- ers retain their flsa rights.26

Action to save the territorial amendment again came from the Senate. King attached it to a bill to facilitate admission of Virgin Islanders to St. Elizabeth’s psychiatric hospital in Washington, D.C. While that awaited House action, Adams’ Appropriations Commit- tee attached it to H.J. Res. 544, the vitally important Work Relief and Relief Appropria- tions Bill for 1941. As part of a bill that congressional New Dealers valued, the territorial amendment’s fate was sealed. House managers formally ceded in conference committee— probably quite readily—so that in the up or down vote on June 21, 1940, Marcantonio and his few allies had to vote against national relief funding, or against minimum-wage parity for Puerto Rico, or abstain. Marcantonio condemned the “gang of racketeers” who had lobbied for the amendment, as well as King, the entire Senate, and the House con- ference committee managers. “The fact that this unusual and inordinate procedure was resorted to demonstrates conclusively the weakness of the case of the labor exploiters who were behind this amendment,” he raged, and called for an investigation of “the vicious lobby that put this thing over on the Congress of the United States by this most fantastic procedure.” A final procedural twist concluded Congress’s decisive role in the struggle. An obvious lack of a quorum existed in the House for the vote on H.J. Res. 544, but no member made a point of order about this while the vote was pending, and such a point of order was made only after intervening business. Thus, even though the division de- manded after the voice vote revealed the absence of a quorum (76 in support, 46 against), a call of the House yielded 396 members answering, and the vote was validated. Just 17.5 percent of the House voted for H.J. Res. 544, but none of its opponents pressed for a re- corded vote. The colonial minimum wage was ultimately made possible by a division vote on a bill to which the territorial amendment was arguably not germane, and with only a technical quorum. Roosevelt, preoccupied with France’s surrender to Nazi Germany and the threat of a French fleet in the Caribbean, signed the bill five days later.27

26 Walter J. Oleszek, Congressional Procedures and the Policy Process (Washington, 1996), 153. On the fight over process, see Congressional Record, 76 Cong., 3 sess., April 25, 1940, pp. 5035–52; and ibid., April 26, 1940, p. 5121. For Robert Ramspeck’s argument, see ibid., pp. 5128–29. For Bolívar Pagán’s argument, see ibid., p. 5148. For Marcantonio’s argument, see ibid., pp. 5154–55. For Graham Barden’s argument, see ibid., p. 5343. On the defini- tion of agriculture amendment, see ibid., May 1, 1940, pp. 5347–59. For Marcantonio’s amendment, see ibid., pp. 5361–65. For the recommital vote, see ibid., May 3, 1940, pp. 5500–5501.

27 On H.R. 9576, see Congressional Record, 76 Cong., 3 sess., May 29, 1940, p. 7081. On H.J. Res. 544, see ibid., June 21, 1940, pp. 8857–67. Supporting Marcantonio during the debates were Bruce Barton (Republican- N.Y.), Matthew Dunn (Democrat-Pa.), Hamilton Fish (Republican-N.Y.), Frank Fries (Democrat-Ill.), and John Taber (Republican-N.Y.). For Marcantonio’s reactions to these bills, see ibid., May 30, 1940, p. 7249; and ibid., June 21, 1940, p. 8865. On the attachment of the territorial amendment to H.J. Res. 544, see U.S. Depart- ment of Labor, Wage and Hour Division Annual Report for the Calendar Year 1940, 113–14. Walter J. Oleszek to Anne Macpherson, Oct. 2, 2014, e-mail (in Anne Macpherson’s possession). The Senate managers in conference committee were Alva Adams (Democrat-Colo.), Kenneth McKellar (Democrat-Tenn.), Carl Hayden (Democrat- Ariz.), James Byrnes (Democrat-S.C.), Frederick Hale (Republican-Maine), and John Townsend Jr. (Republican- Del.). The House managers were Edward Taylor (Democrat-Colo.), Clarence Cannon (Democrat-Mo.), Clifton

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679Birth of the U.S. Colonial Minimum Wage

The nine-member sic appointed by Fleming, including the metropolitan labor lead- ers Sherman Dalrymple and David Dubinsky, held hearings on needlework in San Juan in September. Employers, Claiborne, and workers from the flt and fitia testified. The committee recommended fairly low rates (12.5 to 18 cents per hour for handwork, 20 to 22.5 cents per hour for machine work), but employer representatives had wanted far low- er wages and were furious that the amendment had not validated customary rock- bottom pay. Fleming’s reaction to the recommendations shows that he believed the industry could afford, and workers desperately needed, higher wages than those recommended but that it was not politically possible to achieve higher minimums. He mobilized extensive data to demolish pro-differential and low-minimum-wage arguments, but merely asserted that the recommended rates were “the highest . . . which . . . will not substantially curtail em- ployment.” He issued needlework wage orders to take effect on December 2, 1940, but in 1941 slowed the sic’s work to prolong the thirty-cents-per-hour minimum for other covered workers, and successfully appealed Cooper’s ruling on fraudulent cooperatives. He also reversed Andrews’s exemption of rural tobacco-processing workers and thus re- stored this mostly female work force to flsa coverage. This put tobacco destemmers on a legal par with sugar mill workers and raised their minimum from the territorial 12.5 cents per hour to the sic-recommended twenty cents per hour. No mere technocrat by 1941, Fleming demonstrated some political skill in mitigating the effects of H.J. Res. 544 on Puerto Rican workers.28

Conclusion

This essay places “the question of [formal] empire at the heart of metropolitan histo- riography.” In so doing it shows that in 1939 and 1940 residual New Deal strength prevented a massive congressional rollback of the New Deal’s last major labor reform, with the notable exception of the territorial amendment and colonial minimum wage. It shows that this exception was made more likely by the commitment to formal empire shared by most New Dealers, key metropolitan labor leaders, and the anti–New Deal coalition—a commitment revealed and intensified as Puerto Rico’s military importance increased and as Roosevelt gained conservative support for war preparations. The par- liamentary maneuvering that ultimately birthed the colonial minimum wage succeeded because almost all New Dealers and their opponents accepted the institutionalization of territorial Americans’ difference and inferiority via the nonincorporation doctrine. It was

A. Woodrum (Democrat-Va.), Louis Ludlow (Republican-Ind.), J. Buell Snyder (Republican-Pa.), Emmet O’Neal (Democrat-Ky.), and George Johnson (Democrat-W.Va.).

28 On Special Industry Committee membership, votes, and recommendations, and on Fleming’s reactions, see U.S. Department of Labor, Wage and Hour Division, “Findings and Opinion of the Administrator in the Mat- ter of the Recommendations of the Special Industry Committee for Puerto Rico for Minimum Wage Rates in the Needlework Industries in Puerto Rico, Nov. 15, 1940,” 18. U.S. Department of Labor, Wage and Hour Division, “Public Hearing before the Special Industry Committee for Puerto Rico on the Question of Minimum Wage Rates for Employees in the Puerto Rican Needlework Industries, Sept. 26, 27, 28, 1940, San Juan, Puerto Rico,” box 1 “Needlework Industry Hearings,” Records of the Special Industry Committees for Puerto Rico, rg 155 (National Archives and Records Administration, New York). On employer anger, see “New Needle Wages Stir Puerto Rico,” New York Times, Oct. 3, 1940, p. 2. On 1941 wage orders, see U.S. Department of Labor, Wage and Hour Division Annual Report for the Calendar Year 1941, 12. On tobacco processing, see U.S. Department of Labor, Wage and Hour Division, “Findings and Opinion of the Administrator, October 6, 1941, in the Matter of the Recommen- dations of the Special Industry Committee for Puerto Rico for Minimum Wage Rates in the Leaf Tobacco and the Miscellaneous Handwork Division of the Needlework Industries in Puerto Rico,” p. 8n13, entry 18, box 2 “Miscel- laneous Handwork Division,” Records of the Special Industry Committees for Puerto Rico.

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680 The Journal of American History December 2017

constitutionally normal, culturally acceptable, and politically convenient to annul wage parity for Spanish-speaking, mostly nonwhite, often-female colonial citizens who had no vote at the federal level. The upd–Caguas president Guillermo López Vasquez, leader of a 406-worker back-pay suit for mostly female tobacco destemmers that Claiborne had filed and that Cooper was refusing to hear, captured the bitterness of the situation for pro-flsa Puerto Rican workers who had embraced the New Deal: “And thinking that if the United States is involved in the present war, I together with my young brothers shall be obliged to take the rifle to defend those interests by which together with my family, mother, brothers, and my people, I have been miserably exploited.” Yet despite proamendment forces’ overwhelming advantages, achieving the colonial minimum wage was not straightforward. Congressional New Dealers—most unintentionally—Puerto Rican workers, Claiborne, Marcantonio, Muñoz Marín, Fleming—all deliberately—and even Judge Cooper made proamendment forces’ path to victory steeper, longer, and more tortuous than they had expected.29

How might U.S. historians of the flsa, labor, and the New Deal build on this essay and other scholarship on U.S. formal empire in the 1930s and 1940s? They could explore Puerto Rican and U.S. Virgin Islanders’ individual and union complaints to the whd, or the full extent of nmu organizers’ activities in Puerto Rico or of New York-based Puerto Ricans’ pro-flsa militance. They could determine if discussions took place within the cio, the ncl, or the twoc about whether and how to ally with territorial labor move- ments, and, if so, how race and gender figured in them. Historians could compare Puerto Rican workers’ robust record of pro-flsa actions with that of various metropolitan work- ers between 1938 and 1941 to identify what conditions fostered local organizing around minimum-wage issues even as national organizing slumped. Definitive evidence about why New Deal leaders ignored S. 2682, whether they backed Fleming’s enforcement ef- forts, and whether they deliberately let conservatives lead the final push that created the colonial minimum wage could further illuminate New Deal strategy at the nexus of do- mestic conflict and shared imperialism. Whatever questions U.S. historians of the 1930s and 1940s pursue, information about the nonincorporated territories must be allowed to challenge and transform existing narratives and explanations. Assessments of the nature, trajectory, and enduring legacies of the New Deal—and of the extent and limits of its conflicts with conservatives—cannot ignore its imperial character.

29 Alfred W. McCoy, Francisco A. Scarano, and Courtney Johnson, “On the Tropic of Cancer: Transitions and Transformations in the U.S. Imperial State,” in Colonial Crucible, ed. McCoy and Scarano, 6–7. López Vasquez to Marcantonio, May 21, 1940, folder Puerto Rico General Correspondence, box 55, Marcantonio Papers.

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