Portside

Ninety years ago this summer, Congress passed legislation hailed at the time and for many years after as “labor’s Magna Carta.”

The Wagner Act—or, more formally, the National Labor Relations Act—was the product of Depression-era concern about the social and economic effects of industrial unrest manifest in city wide general strikes, factory take-overs, and many violent confrontations between workers trying to form unions and the police or private security forces defending the interests of anti-union employers.

The architects of the Wagner Act were New Deal Democrats. They knew that a new national labor policy was needed to promote collective bargaining as a peaceful alternative to such unregulated labor-management conflict. Its other intended benefit, as labor historian Jefferson Cowie points out, was “boosting worker purchasing power and consumption in order to stimulate the economy” amid the Great Depression.

For the first time in U.S history, employers were prohibited from interfering with workers’ right to unionize. The Act created a new federal agency–the National Labor Relations Board (NLRB)–to defend this right and deter management from engaging in unfair labor practices that discouraged organizing and contract negotiations.

Boosting Wages

Workers gained legal recourse against employer retaliation even if their now “protected concerted activity” to improve wages, hours, and working conditions–was not aimed at securing an NLRB-conducted representation election or formal collective bargaining rights.

What followed was an acceleration of organized labor’s great leap forward in the 1930s. As Cowie recounts in his book, The Great Exception, U.S. unionization spread from “the obscure bailiwicks of craft to the new mass production industries—auto, rubber, steel, and electrical manufacturing.” More militant unions affiliated with the Congress of Industrial Organizations (CIO) broke dramatically with the American Federation of Labor (AFL), which had long shunned “unskilled” workers, particularly those who were black or female.

The renewed sense of possibility among millions of workers, their new legislative support from Congress and the White House, and younger, left-leaning leaders “all commingled to produce a rare moment when American unions won enormous gains…”

Even a U.S. Supreme Court, still dominated by conservatives, “temporarily abandoned its own deep history of opposition to the collective interests of working people and upheld the constitutionality of the Wagner Act in 1937.” By the early 1950s, about one out of every three workers in America was a union member.

A Nonagenarian 

Ninety years after President Franklin Roosevelt signed the NLRA into law on July 5, 1935, this statutory encouragement of collective bargaining is under assault and showing its age. For decades, the percentage of private sector workers in unions has been sliding back to pre-New Deal levels. It now stands at 6%, the lowest level since 1900, while overall union density (still propped up public sector labor organization) is down to 10 percent of the workforce.

As a study by the Economic Policy Institute documented, the steady erosion in private sector unionism is the direct result of “corporate practices and legal strategies that have undercut the ability of workers to organize and bargain.”

‘Structural weaknesses in the law, exacerbated by anti-union amendments to the NLRA in 1947 and aided by a series of rulings by the NLRB and courts, have allowed employers to interfere in and defeat efforts by their workers to organize unions and to face no real consequences for doing so. The full effect of these trends can be seen  by analyzing how dramatically new unionization fell in the 1970s—a trajectory from which the labor movement has never recovered.”

 One would think that corporate America would declare victory, given that the imbalance in power between labor-management that the NLRA tried to correct is so much in its favor again today. Instead, big business is moving in for the kill, as part of a broader Trump Administration attack on the “administrative state.”

This is a multi-prong effort that includes rolling back favorable Board decisions and policy memos issued during the tenure of NLRB General Counsel Jennifer Abruzzo, a Biden appointee, who was replaced, as expected, when Trump returned to office. One big business-backed group—the misnamed “Coalition for a Democratic Workplace”—is urging Attorney General Pam Biondi to declare 15 case precedents no longer binding, a process that, when done legally, requires a new board majority to reverse earlier opinions, one by one, as new cases permit.

To keep the five-member Board in Washington from having a quorum of three in the meantime, Trump illegally fired Gwynne Wilcox, before her full term expired. This dispute is headed toward a Supreme Court already signaling that it may be willing to reverse a New Deal-era case (Humphrey’s Executor v. United States) that has long provided appointees to independent agencies with protection against being fired at will by a new president.

Relitigating the New Deal?

Also swinging for the fences in future appearances before the Supreme Court are lawyers for anti-union employers who, as UC Berkeley Law Professor Diana Reddy warns, are trying to “relitigate the New Deal.” This takes the form of recent labor case appeals in which management is arguing that “the NLRB is rife with constitutional infirmities, afflicting its administrative law judges, its remedies, and potentially its inherent structure.”

Abruzzo, who is back working for my union, the Communications Workers of America (CWA), remains a forceful public advocate for the Wagner Act as a “pro-worker statute that elevates workers’ rights above any other interests: corporate, employer, union, whatever.” In testimony on Capitol Hill earlier this month, she condemned Trump’s unlawful—and still being contested– firing of Wilcox, which left the five-member board without enough appointees to fully function.

“Who is benefitting from this dysfunction?” the former NLRB general counsel asked. “Not workers, but employers, who may feel further emboldened to violate the law with impunity and retaliate against their workers who are unionizing or otherwise acting together to make their work lives better, because there is no functioning Board to hold them accountable for lawbreaking activity.”

A Bipartisan Problem

For as long as I’ve been involved in the labor movement, the NLRB has displayed some degree of dysfunction. Every Democrat elected to the White House in the last six decades–ie Jimmy Carter, Bill Clinton, Barack Obama, and Joe Biden–promised to fix that problem, but failed to deliver major reform.

In 1975, as a cub reporter for the United Mine Workers Journal, I did an assessment of the state of “Union Busting and the Law” in the Appalachian coal fields based on interviews with non-union miners. They had “won the right to organize forty years ago’ but were already having trouble asserting that right “because the Labor Board won’t do its job.”

Among the UMW’s suggestions for “legal and policy changes” fifty years ago was bigger financial penalties against employers who fired workers for organizing, more use of federal court injunctions to get the latter reinstated quicker, denying federal contracts to firms which violated the NLRA, tougher sanctions for bad faith bargaining, and faster certification of new bargaining units based on majority card signing, rather than just NLRB elections.

Despite the Democratic Party’s pro-labor platform on paper, better legislative history on workers’ rights, and reliance on union funding, no recent Democratic president–with the exception of Carter in 1977–got anywhere close to enacting such changes. All of them improved NLRB enforcement through pro-labor appointments, more favorable administrative rule-making, and key rulings against management in individual cases–with Biden’s Administration doing best in all three categories under Abruzzo’s activist leadership.

Overcoming fierce management opposition to statutory change–and, in the Carter era, a Senate filibuster– was always left to organized labor itself and its few reliable allies on Capitol Hill. Corporate Democrats in the White House never put labor law reform ahead of business-backed legislative priorities like deregulation, privatization, or trade liberalization, with minimal protection for workers negatively impacted by it.

Early in Barack Obama’s first term, there was strong majority support, in both the House and Senate, for passage of the Employee Free Choice Act (EFCA). But his administration prioritized healthcare reform, over EFCA, and did not push for Senate rules reform that would have made progressive legislation, of any sort, more achievable.

Democratic Party Posturing

Per usual, while safely out of power, Congressional Democrats are once again posturing as great fans of an AFL-CIO omnibus bill called the Protecting the Right to Organize (PRO) Act.

Want a political reality check on how much corporate Dem support there is for actually strengthening federal labor law—for example, by curbing the ability of 27 states to impose open shop conditions on private sector bargaining units (as the PRO Act would do)?

In Colorado, earlier this month, that state’s Democratic governor, Jared Polis, vetoed legislation passed by Democratic majorities in the legislature that would have repealed Colorado’s own “right to work” law. Unions must now seek repeal this legacy of the anti-union Taft Hartley Act of 1947 via a popular referendum next year.

Unlike the PRO Act, EFCA focused more narrowly, if no less controversially, on allowing workers to by-pass contested NLRB elections and create a new bargaining unit if a verified majority in it signed union cards (aka “card check recognition”).

EFCA would also have discouraged bad faith bargaining by employers on first contracts by authorizing arbitrator-imposed wage and benefit improvements that would have given fledgling unions like Starbucks Workers United a foot in the door, to build for the future. Instead, 13,500 workers in more than 600 locations, who have voted for union representation since 2021, are still struggling for a first contract. The company’s well-financed resistance to that goal is orchestrated by Littler Mendelson, a notorious union-busting law firm.