Whither the Wagner Act: On the Waning View of Labor Law and Leviathan

Abstract

The National Labor Relations Act’s (NLRA) well-documented weaknesses in substance and enforcement, combined with legislators’ inability to adapt the Act to the modern economy, have understandably created many cynics in the field of labor law. Beginning in the late 1970s, legal scholars have almost unanimously derided the NLRA and the agency which administers it, the National Labor Relations Board (NLRB), for failing to prevent rampant anti-union conduct by employers and the collapse of the union formation process through the Board’s election machinery. This “ossification” of the law, as it has come to be known, is considered to be a key contributor to the United States’ private-sector unionization rate declining from its mid-century high of 35 percent to a mere six percent in recent years. Some research indicates that it may be the leading cause.

While most scholars have generally lamented the diminishing relevance of the NLRA or the squandering of its transformational potential, others have questioned the labor movement’s preoccupation with obtaining favorable federal legislation. This clustering of academics and activists are skeptical not only of unions’ current reliance on the state for assistance in reversing its fortunes, but of the very decision of New Deal-era politicians to pass the NLRA amidst the high point of worker insurgency and radical organizing in the 1930s. To these commentators, the NLRA represented a deliberate attempt by government officials to “constrain, limit, and control the increasingly militant labor movement,” by which political and economic elites successfully diffused any latent challenges to the capitalist system of production and channeled unions’ energies into a bureaucratic and legalistic regime of regulation. In this telling, the purported rights and protections provided under the Wagner Act constitute an original sin of sorts that labor has never atoned for. By substituting the NLRB’s administrative apparati for solidarity-generating strike tactics, then, “what the State offered workers and their organizations was ultimately no more than the opportunity to participate in the construction of their own domination.”

This Article seeks to correct a narrative that has indulged to the point of excess. It argues that Senator Robert Wagner was justified in crafting a national labor policy from the barbaric conditions which accompanied pre-New Deal union organizing. Wagner’s crusade to convert the state from an impediment to a facilitator of collective bargaining was “the most dramatic statutory assault on corporate prerogatives in American history,” and it represents the rare instance where a political elite pursued an ambitious economic agenda on behalf of labor and succeeded in the teeth of ferocious internal and industrial opposition. While Wagner’s victory should have little bearing on the substance or merits of modern reform proposals, and this Article takes no position on any recommended path forward for the law, the story of the NLRA’s creation and an examination of the NLRB’s early history casts significant doubt on any theory of union growth that treats the state as a uniformly enervating force on the American labor movement.

Note: The author is a field attorney in the National Labor Relations Board’s Indianapolis regional office. This Article represents the opinions and views of the author alone, and does not constitute, nor should it be construed as, representing the views of the National Labor Relations Board, its General Counsel, or any of its Regional offices.