Requiem for the Wagner Act
On July 5, 1935, President Franklin D. Roosevelt signed the National Labor Relations Act (NLRA) into law. Known as the Wagner Act, after its author, New York’s Sen. Robert Wagner, the NLRA’s passage followed decades of agitation by workers and reformers who demanded protection of workers’ rights to organize and bargain collectively. During its first decade, the NLRA did more to redistribute political and economic power in the United States than any other act of government since Emancipation. The labor movement was a marginalized force in American politics and society before the 1930s. Thanks in large part to the NLRA, by the mid-1940s, unions were firmly established in the nation’s basic industries, and organized labor had reached unprecedented levels of influence and legitimacy. Organized labor in turn played a crucial role in pushing the nation toward becoming a multiracial democracy in the postwar era.
Today, it requires an exercise of considerable historical imagination to recall what a breakthrough the NLRA once represented, for on the 90th anniversary of its enactment it has been reduced to the status of a dead letter. As Donald Trump pushes through the most radical reconstruction of the federal government’s role in American life since Roosevelt’s New Deal, the ignominious fate of the NLRA, which is in effect being euthanized by the actions of Trump’s administration and the Supreme Court, has been overshadowed by many other headline-grabbing setbacks to progressivism. Yet the ignominious fate of the NLRA symbolizes better than any other development just how thoroughly the New Deal order has now been reduced to ruins and how hard the fight will be to rebuild a decent democratic society.
The road to this nadir was long. Many historians date the NLRA’s decline to its amendment by the Taft-Hartley Act of 1947, legislation that began to swing power back toward employers. Over the span of decades, other developments combined to further erode the act’s efficacy: Successive court rulings chipped away at its protections; employers reorganized their businesses, using subcontracting, franchising, the employment of temporary workers, and offshoring to insulate themselves from the demands of the workers whose labor made them wealthy; others simply disregarded the act’s prohibitions against firing workers who try to unionize, shrugging off its meager penalties. Employers’ growing resistance to unionization, visible most recently in Starbucks’s refusal to sign union contracts with the hundreds of coffee shops where baristas have elected union representation, eventually drove the unionization rate of the nation’s workers down from 35 percent in the early 1950s to under 10 percent today, the lowest level since the NLRA’s enactment.
Hopes for the act’s resuscitation briefly rose during the Biden administration, thanks to his appointments to the National Labor Relations Board (NLRB): Gwynne Wilcox, the only Black woman ever to sit on the Board, and Jennifer Abruzzo, arguably the most effective general counsel in its history. But these hopes were decisively dashed by the 2024 election. One week into his second term, Trump fired both women, despite Wilcox having been approved by the U.S. Senate for a term set to run to August 2028. While Wilcox was briefly restored to office by a district court judge, the Supreme Court reinstated Trump’s firing order. Lacking a three-member quorum, the NLRB has been unable to reach decisions on disputed issues. Should Trump place a third member on the Board—and a recent leak by the U.S. Chamber of Commerce suggests he is about to do so—this will simply enable a Republican-controlled Board to begin actively tearing down the Biden Board’s admirable work.
Meanwhile, lawsuits threaten to completely undermine the NLRA’s enforcement powers. Should the Supreme Court settle the suit occasioned by Wilcox’s firing by ruling in Trump’s favor, it will ensure that members of the NLRB (and similar federal regulatory boards) will lose their independence and become subject to presidential removal without cause. On another legal front, Elon Musk and other employers have filed suits contending that the NLRB’s enforcement actions, which are and have always been appealable in federal courts, deprive their companies of their rights to a jury trial. If upheld by the courts, that charge would snarl federal court dockets and paralyze all NLRB enforcement.
For more than 60 years, organized labor vainly sought legislation that would update the NLRA, streamline its administration, and increase the penalties on those who violated its provisions. In 1965, 1978, 1994, and 2009-2010, efforts to enact labor law reform were blocked by Republican-led Senate filibusters. Like all previous attempts, the most recent effort at reform, the Protecting the Right to Organize (PRO) Act, also failed to come to a vote in the Senate during the Biden presidency.
This long and repetitive history suggests that it is now imperative for unions to abandon the fantasy that labor law reform can open the door to the preservation and resurgence of the labor movement. Reforming the NLRA would not only require electing a president who makes such a reform a top priority. It would also require winning control of both houses of Congress with a Senate majority of at least 60 votes, and finding a way to reorient or circumvent a Supreme Court whose six Republican appointees now constitute the most pro-employer court since the 1920s.
Labor law reform will not precede and enable the revival of organized labor. Rather, organized labor’s revival must precede and enable labor law reform. If unions fail to take that lesson from the present facts, then it is all but certain that the labor movement that remains when the NLRA’s centenary arrives ten years from now will represent the thinnest sliver of workers ever claimed by a movement that professes to speak for all America’s wage-earners.
To appropriately mark the Wagner Act’s 90th anniversary, then, unions should conclude that the act is already dead and begin to behave accordingly. They should engage in the kinds of struggles, including mass civil disobedience, that made the act’s passage possible in the first place. By doing so, they will at least have some hope of opening a way where none currently exists for the passage of 21st-century legislation that protects workers’ capacity to organize and bargain collectively. By waging that fight, labor might also inspire other progressive forces to join them in the long struggle to build a just and democratic social order from the rubble in which we now sit.
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Joseph A. McCartin is professor of history at Georgetown University and president of the Labor and Working-Class History Association.