Matthew Dimick challenges the idea that the Wagner Act was a gift to labor power that was only later undermined.
Recently, Eric Blanc has revisited the debate over the passage of the Wagner Act and its consequences for the US labor movement. Blanc has evidently already rejected the “liberal” version of this story elsewhere, which claims “that labor law reform was solely the product of electoral and legislative initiatives.” Now, he contests the “radical” account of the Wagner Act’s passage, singling out Michael Goldfield in particular, but also mentioning others in the “U.S. Left,” including “groups like Socialist Alternative and authors like Charlie Post.” According to Blanc, Goldfield “argues that the Wagner Act ‘was the product of large-scale social unrest in general and of intense struggles by workers.” And its primary goal, he contends, was ‘to constrain, limit and control the increasingly militant labor movement.’” Instead, Blanc asserts, “[B]oth working-class insurgency and government-level initiatives were essential for winning the bill.” Moreover, the goal of the Wagner Act was not to constrain or control, but “to boost workers’ collective bargaining power.” That the Wagner Act is now an affirmative obstacle to the revitalization of the labor movement “stem[s] not from the Wagner Act itself, but from the changes made to labor law by a reactionary political counter-offensive begun in 1938.”
In this response to Blanc’s substack, I concentrate on three points. First, Blanc’s characterization of Goldfield’s (or others’) accounts of the Wagner Act as owing its passage solely to worker insurgency is a straw man. Second, Blanc also contests the claim that the Wagner Act’s intent was to constrain, limit, and control the labor movement. But Blanc’s attempt to separate the “true” and “good” Wagner Act from its subsequent evolution is uncompelling. His case rests on asserting that its anti-worker “evolution was not a necessary product of the Wagner Act itself.” But we have never known any other Wagner Act than the amended and interpreted labor law we have now. And a close look at the Wagner Act’s text and its judicial constructions show that anti-worker interpretations are not simply random or external to the Act itself. More importantly, the question is not whether the Wagner Act was good or bad for the labor movement, but what kind of labor movement a statist regime of labor relations is likely to foster. I argue it is not one that will safeguard labor movement autonomy and independence. Finally, Blanc ignores how exceptional the US is to feature a deeply state-interventionist form of labor relations. Other labor movements, and especially the Nordic ones, have flourished because the state has not directly intervened in the capital-labor relationship. I address each of these points in turn.
First, Blanc attacks a straw man. In a number of places, he attributes to Goldfield and others the claim that worker insurgency “was the only major factor at play” in explaining the passage of the Wagner Act. Blanc writes that “both working-class insurgency and government-level initiatives were essential for winning the bill.” Last I checked, “government-level initiatives” are needed to pass any legislation in Congress, pro-worker or anti-worker. Anyone who has read the US Constitution or who has watched Schoolhouse Rock understands this. So, any argument—Goldfield’s or anyone else’s—for the Wagner Act’s passage has to already assume that the balance of electoral forces will be more or less favorable. Blanc in fact concedes that Goldfield acknowledges “conjunctural factors” and “intervening variable[s],” such as the 1934 federal elections.
What then is the real issue? Goldfield’s view, at least as I interpret it, is that the Wagner Act, even with a favorable balance of electoral forces, may not have passed without a substantial upsurge of worker militancy, not that worker insurgency was the “only” cause of the Act’s passage. This is hardly a trivial claim because, for many people, especially liberals, the state, being the font of all rights and justice, is perfectly capable of passing pro-worker legislation, independent of any action or inaction undertaken by the working class. Indeed, the assumption is often that a pro-worker legal framework must precede any kind of worker insurgency. This view implies that workers are weak and powerless in the absence of a state which wields its monopoly of violence on behalf of workers. It also often entails the notion that the state is the Alpha and Omega of political legitimacy, as if workers require authorization from a higher authority before they undertake action in defense of themselves—or are reckless, irresponsible, and morally deficient without the tutelage of a paternal government. So, the only real issue, in my view, is whether worker protest was a “but for” cause of the Wagner Act’s passage.
Even if worker insurgency was not the “only” cause of the Wagner Act’s passage, why give it such emphasis, relegating other, equally necessary causal factors to the status of “conjunctural” or “intervening”? This actually opens up some extraordinarily difficult philosophical questions about the nature of causality. To avoid getting bogged down in such a discussion, we can simplify with an analogy. For those who take a position like Goldfield’s, worker insurgency was like the match that lit the campfire. When we ask what started the fire, we immediately think of the match. We do this knowing at least implicitly that fuel and oxygen are also important—indeed, essential—for starting the fire. But, in a certain sense, these other causal factors are ubiquitous, in the background, even assumed—oxygen in particular. What we often want to know is which of these causes was most proximate to the effect? Which factor most closely preceded in time the effect we want to explain? Without the match, the fire would not have started, even though wood and oxygen were in abundance. For those who contest the paternal state perspective, worker insurgency is the spark that caused the Wagner Act’s passage.
Second, Blanc makes an argument about the intended effects of the Wagner Act that is very difficult to sustain. He argues against the view that the Wagner Act was intended to “constrain, limit and control” an insurgent workers movement. However, this line of attack puts him in an impossible balancing act. On the one hand, he wants to credit the Wagner Act for helping build a broad and (moderately?) powerful labor movement in the post-WWII decades. On the other hand, he is forced to acknowledge that the corruptions of the Wagner Act that currently hobble the labor movement set in shortly after its passage. In several places he designates 1938—merely three years after the Wagner Act became law, and only one year after the Supreme Court resolved doubts about its questioned constitutionality—as the year in which anti-labor interpretations of the Wagner Act came to infect US industrial relations. Seemingly, the Wagner Act was essential for the success of the postwar labor movement—even though it has also been riddled with fatal flaws for 84 years of its 87-year existence.
Blanc only partially tries to resolve this conundrum by repeating the claim that this subsequent anti-worker “evolution was not a necessary product of the Wagner Act itself.” Identifying flaws in the Act, Blanc says, “conflate[s] potential problems with inevitable problems.” In this, Blanc adopts the perspective of those who see the original, unblemished, and pristine Wagner Act as “radical” and unalloyedly pro-worker. It’s a difficult perspective to accept because it requires us to believe in a Wagner Act that has never really existed. To the extent that the Blanc endorses the radicalness of the Wagner Act’s “true” intentions, it is impossible to assert the priority over some imagined “origin” of any piece of legislation apart from its subsequent interpretation, elaboration, and evolution. The Wagner Act is what it is only because of this subsequent development. More to the point, stating counterfactually that the Wagner Act could have been interpreted and applied in a more consistently pro-worker fashion is supremely unhelpful. So what? Again, we only have the Act that history has given it to us, not as we wished it could be. The only really important questions are (1) what determined the Act’s actual less-than-pro-worker evolution, and (2) can we expect anything different if we were to attempt the experiment again today? The answer to either question is not likely to be encouraging.
If it is wrong to treat the subsequent evolution of the Wagner Act as inevitable and predetermined, it is equally fallacious to see its anti-worker elaboration as some random and extraneous event standing outside the Act. We can easily concede that the Wagner Act could have been interpreted in more pro-worker ways. But it is equally clear that anti-worker interpretations of the Act are totally consistent with the Act and its “intentions”—whatever those were. Just take a look at the self-stated purposes and goals of the Wagner Act itself. The Act’s first section, its “Findings and Policies,” identifies the “burdening or obstructing [of] commerce” as the main ill that the Act is meant to remedy—not vanishing worker power, not weak union density, not even industrial autocracy (Senator Wagner’s stump speeches and press editorials notwithstanding). To the extent that income inequality is a concern, it is cast in technocratic, Keynesian language. The Wagner Act acknowledges the “inequality of bargaining power” which “tends to aggravate recurrent business depressions, by depressing wage rates and the purchasing power of wage earners…” It is therefore hardly extraneous or random that anti-labor NLRB and federal appellate court opinions are littered with the “goals” and “values” of “stability” and “reducing industrial strife.” Those are literally what the Act itself says its goals are.
Also consider more specific judicial constructions of the Act. It is painfully apparent that any statutory grants of rights given to workers necessarily come with some kind of conditions and tradeoffs. As I have written elsewhere, the very rights that the NLRA granted to labor have been used to limit worker self-activity. A good example is found in the Supreme Court decision NLRB v. Fansteel Metallurgical Corp. In that case, workers had launched a sit-down strike in response to the employer’s unfair labor practices, namely, sponsoring a company-dominated, “independent” union (a violation of current section 8(a)(2)) and employing a “labor spy” against the bona fide union (which coerced, restrained, or otherwise interfered with the workers’ Section 7 rights, a violation of current Section 8(a)(1)). In response to the sit-down strike, the employer terminated the workers and had them evicted from the factory with the help of the local sheriff. The Supreme Court denied the enforcement of the Board’s order to reinstate the workers because, although workers had engaged in concerted activity in response to the employer’s unfair labor practices, the seizure of the employer’s property made their activity “unprotected.” The most telling part of the majority’s opinion is its beginning statement following the recitation of the facts of the case. Chief Justice Hughes wrote, “For the unfair labor practices of [the employer] the Act provided a remedy. Interference in the summer and fall of 1936 with the right of self-organization could at once have been the subject of complaint to the Board.” Notice how the very same rights granted by the Wagner Act served as justification for the Court’s holding. It was not necessary for the workers to seize the employer’s factory in response to the employer’s unfair labor practices because the Act already provided a procedure and remedy for the employer’s malfeasance. Current scholarly opinion sees this decision as an example of employer common-law “property rights” trumping workers’ statutory labor rights. There is truth in this view, but the Court’s rationale cited here is completely independent of whatever we might think of the “sanctity” of property rights. Indeed, current law gives workers who engage in concerted activity in response to an employer’s unfair labor practices more protection than to workers who engage in “ordinary” economic strikes (for example, for higher wages). But, on this “already existing remedy” reasoning, the Court would be more than justified in going further. Thus, the same rights established by the Wagner Act have been cited as justification for depriving concerted activities of protection.
Moreover, while Fansteel illustrates the kind of reasoning that uses the Wagner Act’s rights and remedies to limit concerted activities, it is hardly an isolated example. Not only do several other board and judicial decisions rely on similar reasoning, but we also see this rationale at play on constitutional and legislative levels. Consider American Communications Association v. Douds, the Supreme Court case that upheld the constitutionality of the anti-communist oaths required of union officials by the Taft-Hartley Act. As noted in that case, the Wagner Act grants unions significant privileges, including the authority to bargain exclusively on behalf of workers which, among other things, prevents the employer from undermining the union by bargaining separate “sweetheart” deals with individual workers or other unions. But because this grant comes with the government’s formal and official authorization, strings are necessarily attached. As the Court explained, “[P]ower is never without responsibility. And when authority derives in part from Government’s thumb on the scales, the exercise of that power by private persons becomes closely akin, in some respects, to its exercise by Government itself.” Thus, the powers that the Wagner Acts conferrs on unions, including through the government’s certification process (note: whether through card check or NLRB-supervised vote), entitles the government to regulate the internal affairs of labor unions. The government’s grant of protections and privileges to unions transforms them from private associations into public entities—and thereby makes them legitimate objects of public (read, state) control and regulation.
These kinds of reasons—the citation of labor rights or union powers in order to curtail other worker activity—also holds even with regard to the Taft-Hartley Act. Although Taft-Hartley prohibited a litany of different forms of worker activities and organizing, as Christopher Tomlins shows in his The State and the Unions, many if not most of these were prefigured through Board decisions that withdrew protection from them. For example, Taft-Hartley banned most strikes where the object is getting the employer to recognize the union as the bargaining agent of the employees. But even before the Taft-Hartley Act prohibited such strikes, the NLRB had already withdrawn protection for workers who had engaged in them. The reasoning, even if implicit, is not difficult to fathom. The Board already provides a preferred method of recognition, through the auspices of its own certification procedures. The government-provided right therefore justifies removing protection for strike action with the same goal.
It matters little how well or poor we believe this reasoning is, or whether we think that the Wagner Act could have been interpreted in a more pro-worker way. In a constitutional regime premised on the very notion of the formal equality of individuals (not contesting, exploiting, and unequal classes), the belief that a piece of labor legislation would be consistently amended and interpreted in one-sidedly pro-worker fashion is pure fantasy. To come to the main point, there is more than enough in the Wagner Act itself to justify the form it has come to take. Whether this was the form that the drafters of the Wagner Act intended is beside the point. Legislative “intentions,” which in any case cannot be reliably identified, matter little when the text itself speaks so plainly.
To zoom out even one step further, Blanc does not seem to be aware that “constrain[ing], limit[ing], and control[ling]” the labor movement and “boost[ing] workers’ collective bargaining power” are not mutually exclusive objectives. A “strong” labor movement—depending on how power is defined—can help the stability and reproduction of capital, even if individual capitalists bemoan it. The issue here is not whether the Wagner Act was pro-worker or anti-worker. The issue is whether we will have government-regulated unions or autonomous worker unions. For the reasons given, an interventionist labor law regime is more likely to result in the former than in the latter. When the law creates a procedure for workers to address their workplaces grievances—which is, after all, one of the functions of rights—it necessarily replaces worker’s “own” form of “dispute resolution”: collective action. Therefore, regardless of how well intended the legislation is, the actual effect is for the law to substitute for workers’ endemic and unruly response the orderly, rational—and enervating—process of the law.
Finally, like most parochial US observers, Blanc just simply assumes that other countries, Nordic countries especially, rely on a heavy dose of state intervention for successful labor movements (whatever that means). He says, “Experience in Canada, Europe, and especially the Nordic countries, showed that with the help of a mass social democratic party, increased state intervention into labor relations could be an instrument for building powerful, united, left-oriented movements of working people.” Unfortunately, this claim is just simply false. A look at Swedish labor history (as well as other European countries’) shows that their capital-labor settlements had more to do with the state not intervening.
Most observers of Swedish politics pine for the Swedish Social Democrats’ long tenure in power following World War II. Certainly, much can be credited to this electoral success, including the construction of Sweden’s famed welfare state. It must therefore be the case, or so one is easily led to believe, that such dominance has also translated into “increased state intervention into labor relations,” with strong worker rights and a powerful enforcement regime. But this would be a gross misunderstanding of Swedish labor legislation. Swedish labor relations are governed, not by a piece of legislation backed up with the state’s monopoly of violence, but with an agreement—a “private” framework agreement, if you will—concluded by the peak union and employer associations. The Saltsjöbaden Agreement, or December Agreement, was signed in 1938 by Sweden’s National Trade Union Federation and the Swedish Confederation of Employers. “The agreement established a cooperative body, the Arbetsmarknadsnämnden, outlined grievance procedures, set limits on actions that might endanger national interests, and acted as the foundation for a system of labor market conflict resolution remarkably free of governmental interference or legislation. For decades it was central in a series of fundamental labor market agreements and functioned reasonably well.” With the global economic crises of the 1970s and the rise of neoliberalism, tensions between unions and the employers’ association have surfaced and legislative interventions are no longer unknown. But the relative absence of state intervention largely continues to define the nature of Swedish labor relations. For example, like several other European countries, Sweden lacks a statutory minimum wage. Instead, minimum wages are established in broad collective agreements and enforced not though state coercion but the threat of concerted worker activity. Importantly, Swedish unions are loath to hand over power to the government.
Much the same can be said for other Nordic countries, including Denmark and Norway. But we also see a preference for state nonintervention in other European countries. In the United Kingdom, the legal system governing unions and collective bargaining was known as collective laissez-faire. The name is apt, because during the postwar period when British labor unions were at their strongest, the state mostly did not intervene in labor relations. Instead, unions—and employers—relied on their own economic power. There were of course exceptions to this principle, but to dwell on them would be to obscure the most important feature of British labor relations. Even Germany has a name for the principle that an area of collective bargaining should remain free from state intervention. The name is Tarifautonomie and its importance is such that it is embodied in the German constitution.
This is not to deny that a big dose of state intervention can build a “powerful, united, left-oriented” labor movement (setting aside for the time being what that exactly means). Australia is perhaps the best example of a strong labor movement that benefitted from the heavy hand of the state on labor’s side of the collective bargaining scale. (It should also be acknowledged that the Australian labor movement has paid dearly for the repeal of this pro-labor regime and the cyclical reenactment and re-repeal the country has since experienced.) Rather, the claim that “state intervention into labor relations could be an instrument for building powerful, united, left-oriented movements of working people” is more the exception than the rule.
* * *
Eric Blanc has again raised the question, “What led to the passage of the Wagner Act?” Ultimately, however, this question is a sideshow. The real stakes are found in Blanc’s second question: “Was the Wagner Act good for the labor movement?” As the second section of this post explored, it is hard to separate administrative, judicial, legislative, and constitutional decisions unfavorable to workers from the Wagner Act, including its stated goals and objectives. Overall, I believe the Act as interpreted—the only Wagner Act that has really existed—has been negative for key indicators of union power, such as union density and bargaining level coverage. But let me offer a few broader observations in this conclusion. First, I suspect that unions’ own internal organization—the “business unionism” that I believe is largely a product of a history of narrow and fragmented union organization—is more responsible for current union weakness than the current regime of labor law. Second, standard measures of union power, such as density and coverage, are not the only way of evaluating labor movement “success.” What do we want more? A strong movement, with lots of members, that march at the behest of powerful political elites? Or a labor movement capable of independent initiative, creative action, and the exercise of autonomous forms of power? I suggest that any statist labor relations regime, regardless of how well it increases union density or coverage, is more likely to foster the former kind of labor movement than the latter.
Matthew Dimick, a member of United University Professions Local 2190 NYSUT/AFT, teaches law at the University at Buffalo School of Law and does research on law and political economy, Marx, and critical theory.