What you don’t know about the Wagner Act

What stance does the National Labor Relation Act, the main federal law regarding union rights, take towards workers joining unions? A long-held article of faith held by unions and their allies is that the NLRA encourages unionization. As I argue in a new paper for the Competitive Enterprise Institute, “The Forgotten History of the Wagner Act,” this was not the intention of New York Senator Robert Wagner, author of the 1935 law. He intended the law to be neutral and argued workers should be free to make up their own minds.

President Joe Biden has often claimed that expanding unionization was something that existing law required him to do. “Since 1935, when the National Labor Relations Act was enacted, the policy of the federal government has been to encourage worker organizing and collective bargaining, not to merely allow or tolerate them,” Biden said on April 26, 2021.

He’s hardly alone in this belief. “The stated purpose of the National Labor Relations Act is to encourage collective bargaining,” the late AFL-CIO President Richard Trumka told the Senate Health Education Labor and Pensions Committee in May 2019

This is contrary to the repeated claims of Wagner. Throughout the congressional debate over the law, which is known as the “Wagner Act,” the senator said his legislation sought to craft a balance between affirming the right of workers to collectively bargain and insuring that workers were not coerced into joining unions they did not wish to belong to.

“The free choice of the worker is the only thing I am interested in,” he said during the during the 1934 Senate hearings. During an exchange with one witness, Dr. Paul Brissenden, professor of economics Columbia University, Wagner thundered, “this propaganda which has been pretty widespread, that the purpose of this act is to impose some particular union upon the manufacturers of the United States, as a matter of fact, I want to know whether you agree with me that this bill does not do anything of this kind except that it does make a worker a free man so he may decide whether he wants a union or not, and, if he wants one, what particular union he wants to represent him, or whether he wants to remain unorganized.” Brissenden concurred.

The nub of unions’ and the Biden administration’s argument regarding the NLRA is that the text of the law itself says the policy of the government is “encouraging” collective bargaining. The relevant section in the NLRA, as currently amended, is this: “It is declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.”

So, yes, the word is mentioned in the law. Note however that this follows a long preamble about eliminating “certain substantial obstructions to the free flow of commerce.” This is a reference to the labor riots that happened throughout 1934. The country was still struggling to get out of the Great Depression. Congress was eager to see the end to the strikes that were keeping the economy stuck in neutral. Creating a process for letting management and workers sit down and negotiate a collective bargaining deal was seen a way out of that dilemma.

So, Congress was suggesting collective bargaining as a solution but, crucially, only in cases where “substantial obstructions to the free flow of commerce” were happening. Otherwise, the law affirms workers’ “full freedom of association,” a freedom that it pointedly does not say requires the existence of a union.

The NLRA was actually corrective legislation meant to fix the 1933 National Industrial Recovery Act, which had also granted workers collective bargaining rights. This had an unexpected side-effect. Many corporations, large and small, created company-backed unions and enticed workers to join them. These company unions had an obvious conflict-of-interest, since they were unlikely to push for worker benefits beyond what management would allow.

“[A]mbiguities of language and the absence of enforcement powers [in the NIRA] have enabled a minority of employers to deviate from the clear intent of the law and to threaten our entire program with destruction,” Wagner said in a March 11, 1934 New York Times op-ed. His NLRA legislation would “clarify and fortify” the labor provisions of the existing law.

Wagner, in short, sought to affirm the right of workers to have a union, while preventing them from being corralled them into one against their wishes. “The free choice of the worker is the only thing I am interested in,” he said.