- A Wide View of the Wagner Act at Eighty
Joseph A. McCartin has given us an eloquently framed and sweeping history of scholarly assessment of the Wagner Act in this issue. He has done so not simply as a historiographical exercise but rather—as he has done throughout his career as a scholar and director of the Kalmanovitz Initiative for Labor and the Working Poor—in order to help erect a platform of knowledge from which we can assess the terrain and decide, where do we go from here? In this brief response, I offer three observations concerning the uniqueness of the act, its isolation from other employment laws, and the importance of its progeny, in an effort to further McCartin's project of making sure we "draw the right lessons from the Wagner Act and its eighty-year history."1
First, while others have noted the unique nature of the rights created by the Wagner Act—that they are collective rather than individual rights and rights to establish minimum working conditions rather than directly to enjoy such conditions—the Wagner Act is also uniquely bifurcated. This bifurcation is reflected in the roles of the National Labor Relations Board (NLRB). The NLRB functions like a labor court, adjudicating allegations that the rights created by the act have been violated. That role is similar to the role played by judges in enforcing other major pieces of minimum employment standards legislation; for example, the Fair Labor Standards Act of 1938 and Title VII of the Civil Rights Act of 1964. But the NLRB also plays an entirely unique role, administering a process through which workplace governance is potentially restructured and the ideal of "industrial democracy" described by McCartin actualized.2
The act appears to promise employees, in its central Section 7, a right "to bargain collectively through representatives of their own choosing."3 But, in fact, the act has never vested such a right in employees. Rather, it created a process through which employees can obtain workplace representation. The AFL's first general counsel, [End Page 49] Joseph Padway, observed before a House committee in 1939, "The peculiar part about this law as distinguished from ordinary legislative procedure in Government, which requires . . . the Congressman from a district to be elected, is that it does not require employees in a plant to select a bargaining agent." Padway continued, "In your district, . . . they have an election for Congress, but they have got to vote for a Congressman. They cannot vote 'No.' . . . Under the National Labor Relations Act they can vote 'No.' They can vote 'We do not want a Congressman.' "4 Despite declaring "the policy of the United States" to encompass "encouraging the practice and procedure of collective bargaining,"5 from its inception, the act required that employees choose representation for that purpose and not simply their representatives.
That initial design was critical, because it means that every workplace (outside a portion of the construction industry6) is born without employee representation and that continuous organizing is needed just to maintain the status quo. In the fourth quarter of 2014, just over seven hundred thousand employees lost their jobs due to what the Bureau of Labor Statistics labels "establishment deaths."7 Assuming that rate of job loss was consistent over the course of the year and that it is consistent across union and nonunion firms, almost three-quarters of a million employees had to obtain representation in 2014 simply to maintain a constant percentage of private-sector employees who are represented.
And the peculiar nature of the "right to . . . representatives of their own choosing" also permitted and, indeed, surely hastened the transformation of what has gradually become the only means of requiring an employer to recognize employees' chosen representative8—the NLRB-supervised election—into a contest between employer and union. In 1942, the NLRB stated, "An election is not a contest between a labor organization and the employer of the employees being polled, and participation by an employer in a preelection campaign as if he were a contestant is an interference with the employees' right to bargain collectively through representatives 'of their own choosing.' "9 Indeed, two years earlier, the...