On this day in 1935 President Franklin D. Roosevelt signed the pro-labor National Labor Relations Act, also called the Wagner Act or NLRA, into law, which established the National Labor Relations Board and gave the unions the right to organize for the purpose of collective bargaining. At the time, AFL leader William Green and future CIO president John L. Lewis called the law labor’s “Magna Carta.” One scholar, Karl Klare, heralded the Wagner Act as “the most radical piece of legislation ever enacted by the United States Congress.” The bill led to an era, albeit a rather short-lived one, of union and federal regulatory power, giving workers the legal right to strike, the right to be protected from discrimination on the basis of their union activity, and the right to enter into collective bargaining agreements, all regulated and enforced by the National Labor Relations Board. Scholars have noted the dramatic increase in the number of labor unions after the Wagner Act’s passage as one measure of the bill’s success.
However, the law was a short-lived victory for unions. As Dorian T. Warren (gated article) has argued, since its inception the National Labor Relations Board has lacked adequate power to monitor and enforce labor law effectively because of a comparatively weak federal administrative apparatus and its regulatory capture by business groups. Especially following the passage of the pro-business 1947 Taft-Hartley Act, unions were subsequently retrenched by employers. Although President Harry Truman vetoed Taft-Hartley, Congress passed the bill over the president’s veto. Truman explained his position to the American public:
I vetoed this bill because I am convinced it is a bad bill. It is bad for labor, bad for management, and bad for the country.
It is unfair to the working people of this country. It clearly abuses the right, which millions of our citizens now enjoy, to join together and bargain with their employers for fair wages and fair working conditions.
The bill is deliberately designed to weaken labor unions. When the sponsors of the bill claim that by weakening unions, they are giving rights back to individual workingmen, they ignore the basic reason why unions are important in our democracy. Unions exist so that laboring men can bargain with their employers on a basis of equality. Because of unions, the living standards of our working people have increased steadily until they are today the highest in the world.
A bill which would weaken unions would undermine our national policy of collective bargaining. The Taft-Hartley bill would do just that. It would take us back in the direction of the old evils of individual bargaining. It would take the bargaining power away from the workers and give more power to management.
Terry Moe has argued (gated article) that in the years following Taft-Hartley there was a relative equilibrium until the 1970s because business and labor groups faced a legislative stalemate, with neither side possessing the political power to push a major legislative initiative for reform. Both sides therefore consigned themselves to working within the NLRB, primarily focusing influencing presidential appointments of members to the NLRB. The business-labor equilibrium, however, was threatened beginning in 1970s. First, unemployment and inflation led unions to place greater value on labor law reform and aggressively sought changes. This, in turn, led business groups to reject compromises. The next wave of change came with President Ronald Reagan and conservatives with an ideological mission to dramatically shrink the government. President Reagan made nominations to the NLRB who were far more anti-union than even business was comfortable with.
Examining the Wagner Act from a perspective beyond the union-business relationship, Paul Frymer has documented that the bill was far less helpful for African American workers. As Frymer explains (gated article):
The act was passed at a time when the New Deal legislative agenda was dependent on southern Democrats in Congress for its success, limiting the reach of New Deal programs to help African Americans. Labor legislation, such as the NLRA and the Fair Labor Standards Act, excluded large portions of African American workers, most notably by denying statutory protection to agricultural and domestic workers, effectively excluding roughly two-thirds of the black workforce population.
So, what to make of the NLRB in light of the 2012 election? Moe argues that although Congress and the President have ideas about what labor policy should look like, they will not spend time on labor policy unless they foresee political consequences for failing to do so. Just as the NLRB was highly politicized during the Reagan administration, so it has been under President Obama. According to Warren, the Democratic Party and President Obama were convinced that reform to redress increasing employer hostility to workers’ rights and unionization efforts, and the ineffectiveness or disinclination of the NLRB to redress this hostility, was essential to survival of both the Democratic Party and unions, a key Democratic constituent. For example, some advocates hoped that President Obama would help pass the Employee Free Choice Act or a compromise version of the bill, making it more difficult for companies to engage in union busting, but the administration didn’t take action. The administration did not enact executive orders that would prohibit federal contractors who engage in illegal union busting from receiving federal contracts. The high water mark for the President on labor relations was a controversial rule passed by the NLRB in December 2011 giving all employees who have petitioned for an election the right to vote in a timely manner and without the impediment of needless litigation.
President Obama has faced sharp partisan divides with Republicans in Congress, relegating labor reform beyond grasp. Republicans in the Senate have blocked the president’s nominations to the NLRB in attempts to effectively shut down the Board. (The Supreme Court ruled in 2010 that two members does not constitute a quorum, and thus without more than two members, the NRLB would not be able to continue to make rules.) President Obama subsequently used his recess appointment powers earlier this year to place Department of Labor Attorney Sharon Block, labor lawyer Richard Griffin, and NLRB counsel Terence Flynn on the National Labor Relations Board. Republicans were outraged by the use of this power, despite the fact that Ronald Reagan and George H.W. Bush each made three recess appointments to the NLRB, while George W. Bush made seven such appointments. The NRLB was further politicized in May when Terrence Flynn, a Republican, resigned from the Board, effective July 24, for leaking sensitive information to the co-chair of the Labor Policy Advisory Committee to Mitt Romney’s presidential campaign. The AFL-CIO called on Romney to remove the adviser, Peter Schaumber (a former NLRB Chairman nominated by President George W. Bush), from his campaign and he subsequently stepped down.
The bottom line: whether President Obama or Mitt Romney is elected in November, we’re likely to continue to see sharp partisan divisions over labor policy that are largely reflective of the coalitional bases of the Democratic and Republican parties. Furthermoe, with such partisan and ideological divisions, labor reforms will also remain beyond grasp until either side has a clear partisan majority in the White House and Congress.