The National Labor Relations Act Is Anti-Strike Legislation

Nate Holdren explains how the very legislation that gave workers the right to strike also ensured strikes would become less frequent.

While the National Labor Relations Act is described as giving workers the right to strike, it is actually anti-strike legislation. It is generally thought of as pro-worker and pro-union, but in fact it’s only selectively pro-union – it is pro- specific kinds of unions — something which I think is not noticed more often because many people think of unions in a simplistic, relatively apolitical way.

The full title of the Act is “An act to diminish the causes of labor disputes burdening or obstructing interstate and foreign commerce, to create a National Labor Relations Board, and for other purposes.” The body of the Act begins with a statement of the problems it was created to oppose. The point is to prevent “strikes and other forms of industrial strife or unrest, which have the intent or the necessary effect of burdening or obstructing commerce” (all quotes from here). That is, the Act exists to promote economic activity, and it understands strikes as an obstacle to that goal.

Is the enemy of our enemy our friend?

Some readers will respond by saying “the Act can’t really be an anti-strike law because many employers opposed it,” as if the enemy of our enemy is our friend. It’s true that the Act really did place new limitations on employers, in the form of requirements to show up to bargain with workers’ representatives as certified by the National Labor Relations Board, and to obey NLRB orders. Various employer behaviors are officially coded as Unfair Labor Practices as well. It’s no surprise that employers would dislike being required by law to do or not do various things, but those requirements are fully compatible with the NLRA being anti-strike legislation.

I want to make two points here, one abstract and one more concrete. The NLRA is an example of what the state does in capitalist society overall. The state rules in the name of the general interest of society, and in capitalism that means the general interest of a specifically capitalist society. As Simon Clarke has put it, “the interest of capital-in-general” confronts all individual capitalists as an external force.” The state helps supply that force. Readers of Organizing Work will know that workers get thrown under the wheels of the bus of capitalism constantly unless there’s a lot of organization and collective action to prevent that. It’s also the case that frequently individual capitalists get thrown under the bus too: the goal of every capitalist is to put their competition out of business. And sometimes whole industries get put out of business (been to a video store recently?). Those capitalists and industries are individual interests and they want to escape the general patterns and pressures of capitalism, but they can’t. Sometimes they try, by breaking the law, and when they do, sometimes the state punishes them. My point is that each capitalist wants to keep winning at the brutal game of capitalism and doesn’t really care that much about how well the game overall is going. The state, on the other hand, has to manage the overall game, keeping capitalists following capitalism’s rules, and periodically making minor changes to some of the smaller rules in order to best prevent the game from being interrupted. Individual capitalists don’t tend to like that state management unless it benefits them. To put it another way, the state periodically intervenes to shape what the new normal for capitalism will be in the attempt to best serve capitalist society as a whole. There are always winners and losers in those interventions, and there tend to be some capitalists included among the losers. Whenever that happens, many capitalists are scared of losing out under the new normal and falling into the working class. (There’s nothing a capitalist wants less than to work for a living.) That’s part of why we should not assume that capitalist opposition to some policy necessarily makes that policy pro-worker.

the Act can be both disliked by employers and also a policy aimed at reducing strikes

Less abstractly, the fact that the NLRA created new limits on capitalists is directly connected to it being anti-strike legislation. Indeed, one way that the NLRA sought to reduce strikes was specifically by placing new limits on employers. A major source of strikes, the Act states, is “the denial by some employers of the right of employees to organize and the refusal by some employers to accept the procedure of collective bargaining.” In effect, the Act is saying that when employers stomp all over workers without workers having any recourse, workers can get fed up and make trouble. The point of the Act is to prevent troublemaking, or at least economically disruptive troublemaking. So the Act is in part an attempt to reduce strikes by reducing the kinds of employer behavior that provokes strikes. This is how the Act can be both disliked by employers and also a policy aimed at reducing strikes.

Implied here is some recognition of the fact that bosses are often stupid, short-sighted, and greedy, acting in ways that can disrupt the economy as a whole. This recognition is expressed as well when the Act states that sometimes employers exploit workers to such an intense degree that the result is “depressing wage rates and the purchasing power of wage earners in industry”as well as “preventing the stabilization of competitive wage rates and working conditions within and between industries.”

The unconvinced reader will now respond by pointing out that it’s good when employers stop doing bad things to workers, so it’s no big loss if the government prevents those things. And for the time being while we are trapped in a capitalist society it’s good to avoid or reduce “recurrent business depressions,” since those tend to worsen working class standards of living, and it’s good if “wage rates and the purchasing power of wage earners” is higher rather than lower. Absolutely! I certainly don’t mean to suggest that working class misery is good because it provokes workers to resist. That kind of “people only fight when their backs are against the wall” attitude is mistaken and leftists who hope for workers to suffer in order to bring about the revolution are at best confused and at worst ghouls play-acting as commissars.

That said, the Act doesn’t discuss depression-avoidance and wage-rate management in terms of what’s good for workers as people. It discusses them as a matter of keeping commerce going by ensuring that workers can afford to buy things capitalists sell. Considering workers as a source of demand that sustains capitalists’ profits is very different than prioritizing workers’ well-being, let alone promoting workers having the collective power to enforce their own ideas about their well-being.

I hope I’ve shown that “the NLRA is anti-strike legislation” and “employers opposed the NLRA” are fully compatible, and that the parts of the Act that sound pro-worker are really more about keeping commerce orderly. That focus on removing obstructions to commerce is important as well for how the NLRA governs over unions’ and workers’ collective action.

To eliminate substantial obstructions to commerce

As I noted above, the Act includes a list of problems it was created to solve. That list of problems includes “certain practices by some labor organizations, their officers, and members [that] have the intent or the necessary effect of burdening or obstructing commerce (…) through strikes and other forms of industrial unrest or through concerted activities which impair the interest of the public in the free flow of such commerce.” This is a clear statement of the act being anti-strike legislation. It lists the actions of workers and unions that disrupt the economy by strikes as problems to be prevented. After having stated that strikes are a problem, the NLRA says directly that the Act makes it “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.” Those “obstructions” are the result of workers’ and unions’ actions, actions that the Act says directly it intends to eliminate.

The Act proposed to carry out this elimination by creating a routine process for certifying unions, and it succeeded according to its own terms. Strikes for union recognition were largely replaced by recognition elections, for one thing. That shift is important and often not taken seriously enough. A strike is a complex collective activity, with roots in longer patterns of collective action and relationships. The multifaceted reality of a strike can’t be replaced with an election without having other effects. I’m aware that union elections too are the result of complex collective activity with long roots. My point is that swapping out the recognition strike and swapping in the recognition election changed the underlying activity that union recognition arises out of — it’s not a neutral swap like, say, replacing one kind of light bulb with another. I talked at more length about some of these issues in an essay here at Organizing Work last year. Interested readers could pick it up with the section titled “Institutional context and political vision.” 

In that essay, I said the NLRA treated the labor movement as an acceptable junior partner in governing the economy. I now think that’s an overstatement. Instead, what the NLRA did was create mechanisms for claims-making and dispute resolution on a limited basis, to deal with some of the issues workers face on the job and in their lives because of their jobs. The point of those mechanisms was to keep the economy humming along. From the perspective of the NLRA, if society is a chess game, workers and unions are the pieces, not the players. The NLRA is a matter of doing something good for some pawns because doing so serves a larger strategy.

This was a far cry from the aspirations that a lot of the labor movement had, aspirations to really govern over some of society to a significant degree. (This is not to say the labor movement agreed on how or why to govern, there was great disagreement on that, as I discuss in that other essay.) One effect of the NLRA, then, was to help create a labor movement which accepted its diminished status, shelved its more ambitious aspirations, and acted in keeping with the Act. That acceptance was not primarily a matter of political ideology, but of organizational practice — what’s in the hearts and minds of union members and officials matters, but if they act the same basic way that the law requires either way, it doesn’t matter much.

the Act’s vision of a US economy less burdened by strikes increasingly became a reality as major work stoppages declined precipitously from the mid-twentieth century to the present

Organizing Work readers will know that the labor movement in the US has declined significantly since the mid-twentieth century, and strikes are at a historic low as well. That is significantly because the NLRA hemmed in workers’ and unions’ collective action: the labor movement, having been made into an acceptable but junior partner, acted in keeping with its junior status and we see the results today. In a sense the NLRA succeeded in reducing strikes by having the long-term effect of reducing unionization. To be fair, I think the writers of the Act did not expect this result; I think they imagined a high union density world full of unions happy to play ball, but in the long term the result of unions being more willing to play ball has been fewer unionized workers.

A right to strike?

The unconvinced reader, wanting to hang their hopes on something as apparently solid as the law instead of workers’ collective action, will argue against me by pointing to how the NLRA protected the right to strike. It’s true that the NLRA states that it is not intended “to interfere with or impede or diminish in any way the right to strike,” and that phrase states directly that workers have a right to strike. If we look more closely at this, however, it’s not all it’s cracked up to be. While the NLRA states that workers have a right to strike, the Act also sought to reduce the actual occurrences of strikes. And the writers of the Act got what they wanted, in that the Act’s vision of a US economy less burdened by strikes increasingly became a reality as major work stoppages declined precipitously from the mid-twentieth century to the present. 

To be clear, I am not saying the Act alone explains the sharp decline in strikes in the US over time. Strikes are complicated and multi-faceted events. This makes it hard to measure them (“Big” is a less nebulous concept than “important”, but what makes a strike “big”? Is it the number of workers who struck? The percent of all workers on strike? the duration of the strike? work hours lost to the strike, absolute or relative?). The complexity of strikes as lived collective activity means we can not identify any one single factor that alone explains changes in strikes numbers. That said, it is true that the Act was created to reduce strikes. Given that strikes really have declined in numbers over time, it seems likely that the Act was one significant factor. As such, we should not see the Act as a big victory for unions and we should understand that behaving in keeping with the Act will impede labor movement success in the future. 

The change over time in the numbers of recognition strikes is instructive here. With the expansion of union recognition elections under the NLRB, the historical trend is a decline in the number of recognition strikes, number of workers involved in such strikes, and the percent of workers unionized via recognition strikes relative to NLRB elections. As an NLRB publication said in 2015, “the secret ballot took the place of the recognition strike,” something the Board took to be an accomplishment of the NLRA worth bragging about (page 25 here). That replacement tells us something about changes in the kind of labor movement we have over time. Changing the character of the labor movement – that is, creating less strike-prone unions — was a major policy goal of the NLRA. The Act helped change the social context in which unions exist, and we now have a labor movement that, for all its right to strike, has less actual capacity to engage in the kinds of collective action that win and that build the kind of unions we want. This is part of why labor law scholar Matt Dimick has suggested that rights themselves may be part of the problem, and instead we should focus on labor freedoms.

Think about any rights you have. There is a world of difference between you being able to enforce those rights yourself through collective action, and you needing the government to enforce those rights in order to have them respected. A labor movement that only has rights when the government enforces them is a labor movement that is decidedly subordinate to the government rather than being an independent, democratically-run social force in society.

When your government-enforced rights are violated, what happens? What does the government’s action look like in practice? Often, you have to begin some kind of legal proceeding, where experts have power, and you do not. Those experts make a decision about your claims. If they decide your claims are correct, then there may be an order issued against whoever violated those rights, telling them to change their behavior, perhaps punishing them in some way as well, and perhaps making them compensate you in some way.

The reality of labor law in the US is that these kinds of penalties are terribly weak and slow in ways that give major advantages to employers. In the fantasy world of many condescending saviors, of course, those aspects of the law are fixed — the state acts fast, powerfully, and employers are at a disadvantage. It’s an appealing fantasy, especially in the hard times many of us have lived through, though it seems implausible to me (remember the Employee Free Choice Act? The PRO Act?) but even if that fantasy were to somehow become real, there is an important difference between strong state enforcement of labor law and strong labor movement enforcement of workers’ values and moral rights.

Again, there is a difference between rights and power. Employers can sometimes make legal claims against workers, such as with non-compete and non-disclosure agreements. Generally, though, it’s not because of any specific laws that we obey orders from our bosses. Our bosses can give us orders because they have power over whether or not we keep getting a paycheck. This is a fundamental condition in capitalist society — many people get money by selling their ability to work to employers. Lots of terrible things follow from that terrible reality. Those terrible things can be mitigated by laws and by workers’ organizing, but state action and workers’ collective action based on their leverage are not equivalent mechanisms that can be swapped for each other with no significant other differences occurring due to the swap. The NLRA made the government into the force that meets employer power and compels employers to negotiate with workers. That’s very different from workers creating that force by taking collective action “burdening or obstructing commerce.”

Of course it’s good if there is a high and well-enforced minimum wage, universal healthcare, social housing, and so on. Those create benefits in people’s lives that are intrinsically good and they set a higher baseline for workers’ demands. The thing is, setting an economic floor is not the same thing as the state being the power behind a strike. If workers need the state to declare that a strike is permitted in order to strike, then workers can only strike when the government says so. The NLRA brought about a relative reduction in workers’ and unions’ collective power to strike in part by replacing that power with the government’s power in the form of legal protection. As I said, government protection of rights generally kicks in after a violation of the right, with the government — rather than the holder of the right – being the real decision-maker about whether to act and how to act. In the case of rights in the economy, the law generally prioritizes (as with the beginning of the NLRA) keeping the economy rolling and  preventing disruptions. Those conditions – giving power to someone else, moving on their timeframe, with a premium placed on avoiding economic disruption — are antithetical to unions as powerful democratic actors. Those conditions relegate unions to decidedly secondary status. Furthermore, the means matter: workers governing their lives collectively is a different process than a state governing on behalf of workers, and institutions of collective self-governance are different from institutions that govern over us, no matter how beneficial they may be. 

Part of how the Act got unions and workers to abandon the “certain practices” it opposed, the ones that “have the intent or the necessary effect of burdening or obstructing commerce,” is through the recognition elections that gradually replaced recognition strikes over time. The Act created new rights for the government to step in and oversee the process of creating recognition. It’s common to treat that government supervision as mostly limiting employers, and certainly employers complain about it. But in stepping in like this, the government made unions dependent on its power – as I said, the election can’t replace the strike without changing the collective life of the organization.

the government’s willingness to step in to defend workers and unions is conditional

The Act is explicit that it seeks to promote a specific kind of unionism. It declares that it protects workers’ right “to organize and bargain collectively,” in order to protect and promote “the flow of commerce” from the disruption caused by strikes. It does so by “encouraging practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions.” The Act aims to promote unions interested in “friendly” relationships with management, and who see disputes as matters to “adjust” and resolve. Unions who think they have a right to govern that is equal to or superior to management’s property rights don’t fit into this framework. It’s no surprise then, as Charles Romney’s excellent book Rights Delayed demonstrated, the NLRA created a social and economic environment that fostered the success of more conservative and management-friendly unions over more radical, democratic, and militant unions. To overstate the point a little, the NLRA was the comet strike that wiped out a great deal of biodiversity. That some people happen to like who got to become the apex predators after the comet strike doesn’t change the reality that the new resulting ecosystem is a worse one.

The NLRA’s encouragement of “friendly” unions came in part because the government’s willingness to step in to defend workers and unions is conditional. Unions that continue those “certain practices” are cut off from the new processes introduced by the Act. The NLRA is very explicit about this, stating that “elimination of such practices is a necessary condition to the assurance of the rights [that the Act] guaranteed.” This is part of how the NLRA promoted more conservative unions – it put its thumb on the scale for some unions, which were then able to raid and outcompete other unions.

Shifting blame to Taft-Hartley

I want to make two final points here. First, people on the left often act like the real problems with US labor law began with judges who limited the NLRA sometime after its passage in 1935, or with the creation of the Labor Management Relations Act of 1947, more commonly called Taft–Hartley. But the limitations I’ve discussed are in the framework the Act introduced. Later developments that worsened the Act were building on elements of the Act itself. Taft-Hartley is especially famous for requiring unions to sign anti-communist affidavits. That was certainly a terrible violation of Americans’ civil liberties. In committing that violation, the power that the government exercised was precisely the power given to the government by the NLRA. The mechanism for enforcing the affidavit was that the NLRB would not conduct union elections or investigate unfair labor practice complaints filed by unions that did not sign the affidavit. Romney’s Rights Delayed has shown that even in the years before Taft-Hartley the National Labor Relations Act created a context where more conservative, less democratic, and less militant unions won out. Taft-Hartley intensified that pattern, because letting some union into the new system introduced by the NLRA and shutting others out of that system created big disadvantages to those who were shut out.

I’ve often heard people point to how vile the Republicans were who created and voted for Taft-Hartley. I wouldn’t argue with that. But the government power that Taft-Hartley used against the unions was a power already built in, intentionally, to the National Labor Relations Act. As I’ve quoted already, the Act said directly that “certain practices by some labor organizations” were a problem because they disrupted the economy and its intention was to eliminate those practices by making it a requirement to drop those practices in order to have the new rights extended by the NLRA. The creators of Taft-Hartley understood that the power to shut out unions that wouldn’t play ball was already in the Act, as a mechanism to eliminate those problematic “certain practices.” Taft-Hartley added communist ideology to the list of practices that weren’t acceptable.

Laws that limit unions’ range of acceptable activity limit the range of politics the working class can have

The government could repeal Taft-Hartley tomorrow, and while that would be better, we’d still be left with the NLRA which explicitly states its intention to prevent strikes and to promote unions that play ball as junior partners over other kinds of unionism. The vileness of Taft-Hartley and the Republicans responsible for it too often distracts people from the fact that the NLRA itself, for all its reputation as supposedly pro-worker, says basically that the unions can play ball or kick rocks. Whatever its benefits, the Act rules over workers as a system of labor control, as Joe Burns has called it.

Second, unions are political organizations, associations of workers acting together collectively. They’re not just instruments for pursuing a policy agenda like more income equality or greater buying power to foster demand for products. Laws that limit unions’ range of acceptable activity limit the range of politics the working class can have, and that is what the NLRA does. It says that some kinds of collective action and unionization — that is, some kinds of politics — are off-limits for the working class. Furthermore, when policies are proposed which will promote unions, we need to ask, what kind of unions – doing what, and how – will be promoted?

Many people in these terrible times are willing to say “any union whatsoever is better than none.” That’s understandable, but it treats unions in a thinned-out way, with any kind of union whatsoever being treated as equivalent to any other kind. As I’ve tried to stress in part with reference to Charles Romney’s important work, the NLRA does not promote just any kind of union whatsoever. The NLRA has promoted a specific kind of unionism, or a specific range of kinds of unionism. There’s also a reason why policy planners and talking heads – condescending saviors – tend to think and talk in this “any union at all” thinned-out kind of way. It reduces unions to a game piece on a larger board, a building block for trying to plan out a somewhat more egalitarian capitalism. That’s a far cry from thinking about unions’ activity and workers’ collective action as political, and so as complicated as any other form of politics, let alone from the traditions of revolutionary unionism that exemplify the labor movement at its best. We need that kind of more concrete, nuanced, and political thinking about the labor movement. In the long run, we’re not going to get anywhere worth going from “any union whatsoever.” We need specific forms of unions and collective action, forms that directly conflict with the constraints on workers built into the NLRA.

Nate Holdren lives in Iowa. He is the author of the book Injury Impoverished and keeps an infrequently updated blog.