- A Wagner Act for Today:Save the Preamble but Not the Rest?
Joseph A. McCartin offers in this issue a deeply informed, perceptive, at times elegant review of the scholarly assessments of the Wagner Act, stretching from the "postwar celebrants" to the 1970s New Left, from critical legal studies skeptics to the present-day embrace of Christopher L. Tomlins's prescient 1985 rotten-to-the-core analysis. "In 2010," McCartin concludes, the act "began to noticeably loosen its grip on the imaginations of labor intellectuals," and "a consensus has taken shape" around the need for a "new, twenty-first-century Wagner Act." McCartin too is ready for a new labor law, though he rightly cautions that in the clamor for this or that legislative fix we not forget the necessity for worker mobilization and favorable public opinion before any "significant reform" can be won.1
In a final section of the essay, McCartin applies "lessons of the last Wagner Act to the next" and draws our attention to the act's inspiring preamble. Fighting for a "big new vision," he believes, even if a "losing fight," can play an "educative role" and "serve as the starting point for action when the opportunity arises." He identifies three "essential elements" in the Wagner Act preamble "worthy of emphasis": its "vision of political economy," its protection of "organizing rights in ways that promoted worker bargaining power," and its importation of "basic tenets of democracy . . . into the workplace."2
In McCartin's view, we should foreground the act's economic and collective orientation, not its nod to individual and human rights. The act was "less about ensuring freedom of association than about empowering workers to bargain," he observes. And he warns against "would-be reformers" who see "labor's problem today as being primarily rooted in the law's failure to protect the 'right to organize' " and who "promote workers' freedom of association" in ways that "risk exacerbating the problem of how to enhance workers' bargaining power." For McCartin, rights [End Page 43] language can be part of the problem, and the labor movement's reliance on "the right to organize" in the Employee Free Choice Act left it vulnerable to employer counterattack.
I applaud much of what McCartin has to say. I have long been a fan of the Wagner Act preamble, and at the 2010 National Labor Relations Board (NLRB)/George Washington School of Law Symposium on the National Labor Relations Act, titled "The NLRA at 75," I offered an account of the intellectual origins of the preamble and the subversive labor traditions it embodied.3 At the same time, the rest of the act, I concluded in the early 1990s, perpetuated fundamentally flawed, outmoded assumptions about work, workers, and labor-management relations; we needed a radical makeover of labor law, not merely a few nips and tucks.
In 1992, Karen Nussbaum, then Director of the US Women's Bureau, asked me for a research paper on labor law reform and women workers. She feared President Clinton's Commission on the Future of Worker-Management Relations would pay insufficient attention to the workplace representational needs of women and those in "women's jobs"—a sector filled with workers now dubbed "precarious" or "non-standard." She was right. But as I found out, the act was failing almost everyone: men as well as women, those in "core" jobs as well as those on the "periphery."
I presented my findings in 1993 at labor law reform conferences called by the AFL-CIO and the US Department of Labor and at other, more solely academic venues. The 1935 Wagner Act was a creature of its times, I argued; its Taylorist, industrial-union premises were problematic from the onset, and subsequent amendments only sealed its irrelevancy. The act defined workers narrowly, limiting coverage to a minority group of waged "dependent employees" in industrial-type occupations, and it enshrined an organizing and representational model ill suited to those who moved from job to job or worked in settings without a "boss." lf the majority of workers were to have access to collective voice and power once again, we needed, at minimum, a law...