Can Labor Still Use the Wagner Act?

Amid the political turmoil of this tumultuous year, a significant historical anniversary passed all but unnoticed. Eighty years ago, on April 12, 1937, the U.S. Supreme Court upheld the constitutionality of the National Labor Relations Act (NLRA)—the Wagner Act—which had been signed into law in 1935. Before the court delivered its decision in NLRB v. Jones & Laughlin, most observers believed that it would overturn the act, as it had other crucial pieces of New Deal legislation, including the National Industrial Recovery Act (NIRA), which it consigned to oblivion by unanimous vote. When a 5–4 majority instead validated the Wagner Act, doing so just two months after the successful Flint sit-down strike had won a union contract at General Motors, and just weeks after U.S. Steel voluntarily recognized a steelworkers union, the court confirmed that the United States had entered a new era.


Although time would reveal significant weaknesses in the Wagner Act’s provisions—such as the costly nature of its exclusion of agricultural, domestic, and government workers from its protections—few disputed that it changed the character of the United States. The act helped a resurgent labor movement win a say over working conditions for millions of workers. In the process, it helped democratize the nation. Even the hobbling amendments of the 1947 Taft-Hartley Act did not seem to dim the significance of that achievement. After Taft-Hartley’s passage, young Archibald Cox, then a rising star in labor law, believed that collective bargaining, with its “roots in the ideals of self-rule and government according to law,” was “certain to grow, at least as long as there survives the political democracy on whose achievement it has followed.”

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Nor is there reason to suppose the Supreme Court will help matters as it did eighty years ago. Today’s Court instead seems bent on interring the last legal vestiges of the New Deal labor order. In the case of Janus v. AFSCME, which the Court will decide in the coming term, the right of public-sector unions to collect “agency fees” from the workers they represent is being challenged. Opponents argue that government workers’ unions are merely political vehicles, and therefore granting them the right to collect agency fees infringes on the rights of workers who might not share the politics of the union that represents them. The case threatens to overturn a forty-year-old precedent, Abood v. Detroit Board of Education (1977), which recognized the unions’ rights to collect such fees in the interest of orderly workplace governance wherever state law allowed the practice.
If the Janus case overturns Abood, it would freeze the collection of fees from all state and local government workers, devastate union finances, and weaken unions in a sector where they still retain significant influence. Since nearly half of all union members work for government, this would constitute a catastrophic setback to organized labor as a whole. It would also deal a potentially fatal blow to a central principle of the Wagner Act: the idea that unions ought to serve as democratic instruments of workplace governance.

https://www.dissentmagazine.org/article/can-labor-still-use-wagner-act-janus-right-to-work