Monday, May 19, 2014

Anne Freeling Schlezinger (1910-1978)

[Long-time readers will recall that my examination in American Legal History includes a biographical essay.  For the last few years, I’ve chosen female lawyers who worked in the New Deal (on whom see Karen's article, Portia's Deal).  This year’s essay is a bit longer, as I also asked students to relate the view of the National Labor Relations Board it provides to the emergence and consolidation of the New Deal regime.]

Anne Freeling was born in greater Boston in 1910 to two Jewish immigrants from the Ukraine.  She graduated from high school but then went to a secretarial school rather than college.  Thereafter, she worked as a secretary during the day and, at night, attended Northeastern's law school, where the instruction was by lectures, treatises and quizzes.  As she later wrote in her diary, “I convinced myself all through law school that, unlike so many other girl graduates, l would do something with my law education.”  But when she graduated in 1933, she continued working as a secretary–by this time, at the eminent Boston law firm Ropes & Gray. 

One of the firm’s lawyers was Charles E. Wyzanski, Jr., a magna cum laude graduate of the Harvard Law School in 1930.  Through his mentor Felix Frankfurter, Wyzanski became Solicitor of the Department of Labor in 1933.  That summer he asked Freeling to serve as his secretary.  Although she had voted for Herbert Hoover in 1932, after a few attempts she obtained the requisite endorsement from a Massachusetts Democrat and started in August.

Although Freeling passed the Massachusetts bar and Wyzanski had told her that “the job would amount to whatever I could make of it,” her duties were overwhelmingly secretarial and clerical.  Her diary reveals that she had what today’s youths might term “feelings” for her boss, which added to the frustrations of the job.  Once, for example, she wrote that after Wyzanski’s “usual procedure of ridiculing any suggestions coming from me,” he nonetheless “decided to follow them” anyway.  [For Wyzanski's view of Freeling, see the update at the end of this post.]

In 1935, Wyzanski moved from the Labor to Justice, where he argued high-profile cases before the Supreme Court, including two in which the Supreme Court upheld the National Labor Relations Act (NLRA).  The first public acknowledgment of Freeling’s legal work came in October 1936, when Wyzanski insisted that her name appear on the brief in Seminole Nation, a landmark of federal courts law; the next month, at his urging, she was admitted to the bar of the Supreme Court “so that there would be no question of my appearing on briefs.” Wysanski’s “compliments are the more appreciated because of the rarity,” she recorded in her diary.

Gratifying though this was, when her boss returned to Ropes & Gray in 1937, she chose not to follow him.  Instead, she joined the review division of the National Labor Relations Board (NLRB) in September 1937.  (Presumably, Nathan Witt, who hired her, was impressed by her knowledge of the findings needed to uphold the board's orders under the Commerce Clause, which she would have acquired in helping Wyzanski's write his briefs in the Wagner Act Cases.)  “At long last I have achieved my ambition to be a lawyer,” she wrote in her diary.  “[T]o start at the bottom as a lawyer required some sacrifice and difficulty,” but she was “sure I shall be happy in my choice–if only I can make the grade.”

The NLRA created “unfair labor practices,” the violation of which made employers liable for, say, the reinstatement of workers and back pay.  One of Freeling’s cases is illustrative.  In May 1937, the American Radiator Company abruptly closed one of its factories while an affiliate of the CIO was attempting to organize it.  If the company did so for normal business reasons–such as insufficient demand for its products–it did not violate the NLRA.  If it closed the plant to avoid negotiating with the union–that is, if it “locked out” its workers–the company did violate the act.  An NLRB trial examiner conducted a lengthy hearing on this issue in the fall of 1937, after which he decided that American Radiator had not locked out its workers.  He sent his intermediate report and a 2,500-page transcript of the hearing to NLRB headquarters in Washington, DC.

One might have thought the next stop for the file would be the three members who made up the board itself.  So numerous and lengthy were the cases raining down upon the NLRB, however, that it had created a review division to handle them.  Supervised by slightly more senior (and left-of-center) lawyers, review attorneys digested the records and present them orally to the board members, who did not read the records themselves.  Employers could request oral argument before the board but were not present when review attorneys presented their cases.  After reaching a decision, the board directed the review attorney to draft an opinion for its approval.

In time, the review division grew to 105 lawyers (91 male; 14 female), who had at most “a relatively limited amount of experience.”  A journalist called the review attorneys “juvenile jurists” and thought them “lacking in the practical experience and the judicial temperament which customarily are believed to be essential to the painstaking analysis of evidence.” For example, Julius Schlezinger (1912-1999), with whom Freeling was paired in one of her first cases, was a 1935 graduate of the Ohio State University’s law school, where he had been a law review editor and helped found a legal aid clinic.  His first legal job was in the Rural Electrification Administration, and he had come to the NLRB only a few months before Freeling.

In the American Radiator dispute, Freeling, like most review attorneys, felt unconstrained by the trial examiner’s report and reviewed the entire record herself.  (She later said both that she took into account that the trial examiner had observed the witnesses’ demeanor and that she made up her own mind about witnesses’ credibility when it seemed “so clear to me [as] to be beyond question.”) She digested the testimony, reviewed it with her supervisor, and, in June 1938, presented it to the board, carefully stating evidence for and against a lockout.  After examining a few exhibits but not the testimony, the board decided to accept the trial examiner’s finding and tasked Freeling with writing an opinion stating that no lockout had occurred.  While she was doing so, word arrived that the company had reopened its plant but not rehired some of the employees who had tried to organize the union.  The board reconsidered the case, decided that a lockout had occurred after all, and had Freeling write an opinion saying as much.  Yet when the company challenged the board’s order in a federal circuit court that did not apply the substantial evidence standard deferentially, the NLRB settled rather than “get licked in toto” (as one of its lawyers put it).

Freeling’s personal life also changed.  While at the Labor Department, she told her diary, “as for boyfriends, there are simply not any.”  The move to Justice brought lunches and dates with the brilliant young lawyers of the Solicitor General’s staff and other offices.  Some were duds.  Harold Rosenwald, for example, preferred to spend an evening discussing Wyzanski rather than dancing.  For a while, she counted Arnold Raum as a boyfriend, but when a marriage proposal arrived in November 1938 it came not from him but from her coworker at the NLRB, Jules Schlezinger.  For months, Freeling put him off.  “I am very fond of him,” she confided to her diary, “but somehow I cannot picture him as my husband forever and ever.”  Jules was two years her junior, not as good a lawyer as her Harvard-trained dates, and “somewhat lacking in culture and refinement,” but he was also “sweet and kind” and tolerated her “silly moods.”  They married on September 1, 1939.  “He is a bit on the lazy side, and somewhat untidy,” she observed a month later.  “But then so am I.”  Both were members of the Washington chapter of the National Lawyers Guild (NLG).  Jules would serve as chapter president; Anne was less active and found little of interest in its lengthy discussions of the Spanish Civil War and other causes of the left.
                   

Testifying before the Smith Committee (LC)
Freeling remained Anne Freeling within the NLRB and became Mrs. Julius Schlezinger elsewhere.  In January 1940 she gained unwanted recognition when a special committee of the House of Representatives, chaired by the anti-administration Virginia Democrat Howard W. Smith, grilled her for two days, mostly on the American Radiator case.  Observers noted that although women lawyers were a decided minority of review attorneys, the first six called to testify were female.  A congressmen later drew the intended lesson.  Although the “fine young ladies” were “wonderful . . . to look at,” odds were that “none of them ever changed a diaper, hung a washing, or baked a loaf of bread.”  Certainly, none “had any judicial or industrial experience to qualify her for . . . writing opinions on which the jobs of hundreds of thousands of men depend.” 

A journalist covering the hearings portrayed her as being indecisive in the American Radiator dispute.  After the board first heard the case, he wrote, “Miss Freeling began to wonder if there was indeed equity” in a decision favoring the company.  She “changed her recommendations and the board yielded easily.”  The journalist failed to note a remark made by a Republican congressman at Freehling’s hearing. After pointing out that she had not held a job classified as legal until she joined the NLRB, he observed, “You have been serving as a professional lady since that time.  We have all sorts of professional ladies.”

In November 1940, FDR named Harry A. Millis, a labor economist, as NLRB chairman.  With the support of another centrist board member (and labor economist), Millis promptly reformed the board’s procedures.  The trial examiners’ intermediate reports became the basis for the NLRB decisions.  Review attorneys did not present their own versions of cases but merely indicated where intermediate reports lacked support in the record or were otherwise incorrect.  Each board member had his own legal assistant to review the intermediate reports and the review attorneys’ memoranda thereon.  These changes, Millis later wrote, made possible a “more efficient use . . . of the experienced trial examiners.”

Anne and Jules Schlezinger could not have children and adopted an infant son, Ira, in March 1942.  “Jules now not only wants to help take care of Ira but actually does much of the work,” Anne noted a few months later.  Still, it fell to her to hire a nanny.  Although she worried about spending enough time with her son, she also liked “concerning myself with professional problems and collecting regular and substantial paychecks.”  She remained a review attorney until Jules was drafted in 1943, at which time she took leave from the NLRB.

After Jules returned safely from the war, Anne reclaimed her job as review attorney, only to see the Taft-Hartley Act abolish the review division in 1947.  Under Taft-Hartley, each board member was to hire his own staff of legal assistants to review records.  Anne and the other review attorneys moved into these positions.  Millis, who had already left the NLRB, disapproved.  “It was thought that, by giving each Board member whatever legal assistants were needed, the Board could function more in the manner of courts, and perhaps that the Board member personally would review the record and write draft opinions,” he wrote.  But “the analogy to a court” disregarded “the character of the work of the Board, its great volume, and the fact that board members are not ordinarily chosen for training and experience which would qualify them as ... circuit court judges.”  Under the new procedures, a substantial backlog soon developed.

Jules left his government job to start his own firm in 1953, after the anticommunist Senator Joseph McCarthy, learning of Jules’s leadership of the NLG and association with Communists at the NLRB, demanded to see his personnel file.  Despite “the hostility toward those who remain from an earlier administration,” Anne continued as a legal assistant to a board member, because, as she put it, “I cannot see myself going into private practice.”  When a Republican majority fired her in 1954 for associating with leftists during the New Deal, she fought back and won reinstatement.  As the years passed, however, she grew bored with the job and set her sights on becoming a trial examiner.  Despite Jules’s unhappiness about the traveling it required, she finally became one in 1968.  A later change in nomenclature made her an Administrative Law Judge.  It was as “Judge” Schlezinger, then, that she died of cancer in 1978, survived by Jules and Ira.

[I have yet to examine Anne Freeling Schlezinger’s diaries, deposited at the Arthur and Elizabeth Schlesinger Library on the History of Women in America in Cambridge, Massachusetts.  Instead, I used a published selection, Pulling It All Together: A Diary by One of America's First Jewish Women Judges, edited by Ron Duncan Hart (Santa Fe, NM: Gaon Books, 2011).  I also consulted Marishka DeToy's "Procedure v. Personnel: How Different Views of the National Labor Relations Board Impacted the Smith Committee Hearings and Subsequent Reform," a paper she wrote as a student in my New Deal Legal History Seminar at Georgetown Law.]

Update:  After writing this post, I found in my notes Charles E. Wyzanski, Jr.'s view of Anne Freeling in a letter to his parents, dated August 1, 1933: “It occurred to me that Miss Freeling, who used to be at Ropes, Gray and who is a member of the bar, might be available for my secretarial post.  She is by no means attractive, but I know that she is efficient, and I believe that her experience in a large office would fit her for reorganizing my badly run secretarial staff.  Moreover, she is a member of the bar and so might be more intelligent than a regular stenographer.”

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