In light of the current crisis afflicting the labor movement, historian Joseph McCartin revisits the 1935 National Labor Relations Act (Wagner Act) eight decades after its passage and the Supreme Court ruling that upheld its constitutionality. That act constituted a “momentous shift in the nation’s jurisprudence,” but making it a living reality required American workers’ efforts on the ground. In this Up for Debate roundtable, McCartin poses critical questions: How should we evaluate the legacy of the Wagner Act? What did it mean in its time? How did it shape the course of US labor history? What significance does it hold for us in our present context? McCartin and three respondents—Craig Becker, Dorothy Sue Cobble, and Katherine Stone—address these questions and debate their responses, offering both historiographical assessments and historically informed suggestions about the labor movement’s path forward.

By this “collective bargaining” the employee shares through his chosen representatives in fixing the conditions under which he works, and a rule of the law is substituted for absolute authority. With these roots in the ideals of self-rule and government according to law, the institution seems certain to grow, at least as long as there survives the political democracy on whose achievement it has followed.

—Archibald Cox, 1947

Our days may come to seventy years, or eighty, if our strength endures.

—Psalm 90

Eighty years ago, the world inhabited by tens of millions of US workers was transformed in the span of only 102 days. On the morning of December 30, 1936, few could have predicted the scale or scope of that transformation. When that day dawned, even fervent supporters of labor reform doubted whether Senator Robert F. Wagner’s National Labor Relations Act (NLRA), which had been signed into law only eighteen months earlier, could withstand the scrutiny of a hostile US Supreme Court. Oral argument in the test case of NLRB v. Jones and Laughlin was scheduled to begin in less than six weeks, on February 9, 1937. Judging by the Supreme Court’s 1935 decisions striking down the cornerstone programs of the early New Deal—the National Industrial Recovery Act and the Agricultural Adjustment Act—there was not much reason to believe that Wagner’s law would survive judicial review.

No one outside the court yet knew that a momentous shift in the nation’s jurisprudence had in fact already begun. Associate Justice Owen Roberts—the court’s youngest member, an appointee of President Herbert Hoover, and one who had consistently sided with the court’s four most conservative justices in overturning New Deal initiatives—had only days before seemingly changed his orientation. On December 19, 1936, Roberts had cast the decisive vote in the case of West Coast Hotel Company v. Parrish, a vote that would not become public for three more months. Influenced by Franklin D. Roosevelt’s smashing reelection, Roberts had allowed Chief Justice Charles Evans Hughes to persuade him to side with the court’s more liberal members to uphold the constitutionality of a Washington State minimum wage law. In retrospect, Roberts’s decision would be seen as signaling the end of the Lochner era, in which the concept of “liberty of contract” had been used as a sledgehammer by the court to demolish one effort at labor reform after another in the years between 1905 and 1936.1

But that became clear only in retrospect. On December 30, 1936, when no one yet knew what the law of the land regarding labor would be six months hence, auto workers in Flint, Michigan, handed down their own decision. In response to news of a walkout by General Motors workers in Cleveland, hundreds of members of the fledgling United Automobile Workers union shut down the assembly line and occupied Flint’s Fisher Body No. 1 auto body plant, a key cog in GM’s US operations. Soon the sit-down strikers’ ranks swelled to two thousand. In the coming weeks they would repel multiple efforts to dislodge them. While they were barricaded inside their plant, on February 5, 1937, the strikers learned that President Roosevelt was proposing an expansion of the court’s membership—his “court packing” plan. But their focus remained on GM and not Washington. With strong community support, the aid of a militant Women’s Emergency Brigade, and the sympathy of Michigan’s recently elected governor, Frank Murphy, the sit-down strikers would hold their ground for forty-four days, until GM signed a two-page union recognition agreement with the UAW on February 11, 1937.2

On the very day the Flint workers marched victoriously out of Fisher Body No. 1, oral arguments in NLRB v. Jones and Laughlin were wrapping up before the Supreme Court. As sit-down strikes spread across the country in the wake of Flint, the court announced its surprising shift in the West Coast Hotel decision on March 29. Four days later, the United States Steel Corporation signed a collective bargaining agreement with the Steel Workers Organizing Committee. Then, on April 12, the Supreme Court ended the suspense surrounding the Wagner Act, announcing a 5–4 decision in the Jones and Laughlin case that definitively upheld the law’s constitutionality.

A three-month span had delivered a series of previously unimaginable breakthroughs, each one more unlikely than the last. Although the pendulum would swing against unions once again before the year was over, with the defeat of the Little Steel strike and the onset of the momentum-sapping Roosevelt recession, there was no going back to the world that had existed before “Labor’s Hundred Days.” A definitive change had come. Support for collective bargaining was written into the law of the land, a revived labor movement had stirred to life, and the New Deal, which to that point had been a contradictory programmatic mélange, had begun to crystallize into an entity that was more than the sum of its parts, a political and economic constellation that would long outlive Roosevelt himself: the New Deal order.

Eighty years later, this narrative seems as ancient as the story of Exodus. Once home to an aroused working-class capable of taming the world’s largest employer, Flint is today a desperately impoverished city lacking in decent jobs, whose lead-poisoned residents are trapped, their most significant asset—the value of their homes—having been made unsellable by the same scandalous decisions that stole their children’s health. Frank Murphy’s Michigan is now a “right-to-work” state presided over by Governor Rick Snyder, a venture capitalist whose efforts to wrest local control away from distressed communities led directly to Flint’s poisoning. Nor is much left of the labor movement that was aborning in the spring of 1937. In the aftermath of Donald J. Trump’s election to the presidency, its remnants face the most significant union crisis since the early 1930s. Associate Justice Antonin Scalia’s sudden death on February 13, 2016, allowed unions to dodge what many called an “existential threat” in the case of Friedrichs v. California Teachers Association, which would have denied public sector unions the ability to collect fair-share fees from the non-members they represent in collective bargaining and grievance procedures. But that reprieve was temporary and no “switch in time” is likely to save the labor movement should a similar case arise in the Trump era. Unions have never faced a more dangerous moment, and, eighty years after the Wagner Act’s constitutionality was affirmed, US labor law has never seemed weaker.3

A decade after the Flint sit-down strike, this state of affairs could not have been predicted. Although many laborites had called the Taft-Hartley Act a “Slave-Labor Act,” few saw its passage in 1947 as heralding labor’s progressive marginalization over subsequent decades. To the contrary, labor lawyer Archibald Cox spoke for a firm consensus when he confidently predicted that despite the Taft-Hartley Act, collective bargaining was “certain to grow, at least as long as there survives the political democracy on whose achievement it has followed.”4

The stark juxtaposition of the hopeful events of eighty years ago and labor’s dismal state today begs for retrospection and analysis. From the perspective of eighty years, as the labor order that the Wagner Act underwrote lies in tatters, a set of questions demands attention: How should we evaluate the legacy of the Wagner Act? What did it mean in its time? How did it shape the course of US labor history? What significance does it hold for us in our present context?

The Evolving Evaluation of the Act and Its Legacy

Although these questions are especially urgent today, they are not new. Indeed, such questions have been debated for decades. Not surprisingly, how scholars have answered them has changed over time. As one might expect, evaluations of the Wagner Act have been influenced by the historical vantage point from which they have been written. In the 1950s and 1960s, when organized labor was flourishing, scholars tended to uncritically celebrate the act; in the 1970s, as union strength began slipping, they began exploring the ways in which the act had been subverted or perverted. Not until the Reagan years did scholarly critics critique the provisions and debunk the premises of the Wagner Act itself. But that revisionist project seemed to lose steam by the 1990s. During the Clinton years, when hopes of labor law reform revived and the AFL-CIO experienced a leadership change that generated some excitement, scholars successfully rebutted Wagner Act revisionists, reintroducing a sense of contingency into thinking about the law and its legacy. Even after George W. Bush came to office in the disputed election of 2000, effectively shelving labor reform for a decade, scholars kept returning to the Wagner Act for guidance. Indeed, they began combing through its history and content, looking for roads not taken, avenues within the act that might open up creative new strategies for the reinvigoration of unions.

What was most remarkable about this half century of rumination over the Wagner Act was the degree to which the act remained the touchstone to which scholars, labor reformers, and trade unionists alike returned again and again as they came to terms with labor’s growing crisis and attempted to frame strategies for labor’s future. A quick review of this history makes clear just how tenacious this attachment to the act has been over the years.

During the first three decades after World War II, it seemed that the celebration of the Wagner Act might go on indefinitely. As Leon Fink has observed, the Wagner Act was seen in these years “as something of a Rock of Gibraltar for American trade unionism.”5 Its passage was hailed as a milestone. As Joseph G. Rayback put it, the act “climaxed a century-long struggle by labor for recognition of its right to organize and bargain collectively,” and by so doing it initiated “something of a revolution.”6 This was the view propounded in Milton S. Derber’s The American Idea of Industrial Democracy, 1865–1965 (1970).7 It was also the view held by US labor leaders in the mid-twentieth century. While they decried the Taft-Hartley amendments to the act as a “Slave-Labor Law,” they regarded the original Wagner Act as “Labor’s Magna Carta.”8

Postwar celebrants of the Wagner Act found a confirmation of their views in the critics the act attracted in those years. One such critic was Sylvester Petro, whose book The Labor Policy of a Free Society (1957) argued that the Wagner Act had given a virtual carte blanche to a thuggish union movement, trampling the individual rights of workers. The act “systematically outlawed every conceivable type of coercive activity by employers,” Petro sniped, while doing “nothing to protect the rights of workers who did not want to join unions.” The Wagner Act’s “subordination of employee free choice to the policy favoring collective bargaining and concerted union action” undermined the constitutional liberties of workers, Petro asserted, a situation that was only partially remedied by the Taft-Hartley Act.9 With antiunion critics like Petro attacking the Wagner Act so vociferously and public sector workers beginning to clamor for their own Wagner Act in the 1960s and 1970s, it is little wonder that the act’s celebrants rested easy in their views.10

It was not until after the civil rights and antiwar movements had deeply shaken the established order that pro-labor scholars initiated a significant reconsideration of the Wagner Act. That reconsideration began among scholars influenced by the New Left and was detectable in articles published in the journal Radical America in the early 1970s by historians like James Green and Staughton Lynd. It would be inaccurate to call these first articles a critique, though. They were less interested in criticizing the Wagner Act than in de-emphasizing its importance vis-à-vis labor militancy. Green and Lynd both noted that labor militancy preceded the act and suggested that this militancy helped to create the conditions that led to its passage.11 They were intent on recovering the importance of worker agency.

By the mid-1970s, however, efforts to reconsider the Wagner Act’s significance were leading to divergent conclusions regarding its impact. Some, like Green, continued to see the act as both important and salutary for workers. In World of the Worker (1980), Green wrote that the Wagner Act was “the most radical labor legislation ever enacted.” Its effect on labor was liberating, he wrote, for it “encouraged worker militancy by demonstrating that the New Deal Congress would protect and defend workers’ right to organize and bargain collectively.”12 Yet others influenced by the New Left saw a less salutary influence flowing from the Wagner Act. Lynd, for one, sharply diverged from his erstwhile Radical America colleague to argue that the Wagner Act had helped stifle rather than encourage labor militancy. By the mid-1970s, Lynd had embraced the view that the CIO had used the Wagner Act to undermine a militant, democratic, and rank-and-file-led “alternative unionism” in favor of a top-down form of bureaucratic industrial unionism.13 Labor relations scholar Rick Hurd amplified that argument in his 1976 essay “New Deal Labor Policy and the Containment of Radical Union Activity.” The Wagner Act, Hurd claimed, “was anti–working class in spite of the fact that it was pro-union,” for by “supporting business unionism it helped undermine the radicalization of the working class.”14

Worsening conditions for unions and the failure of labor law reform in 1978 created a growing audience for explanations of the Wagner Act’s failures. Among the most influential were those developed by law scholars connected to the emerging field of critical legal studies, such as Karl Klare, Katherine Stone, and James B. Atleson. But even these scholars did not focus their critiques on the Wagner Act itself. Instead, they critiqued the way in which it had been interpreted and administered.

Klare’s 1978 article, “Judicial De-radicalization of the Wagner Act and the Origins of Modern Legal Consciousness,” initiated this turn in the scholarship. Like Green, Klare saw the Wagner Act as “perhaps the most radical piece of legislation ever enacted by the United States Congress.” However, he argued, the act’s radical promise had been subverted by a string of antiunion judicial decisions in the years between 1937 and 1941, in which justices “embraced those aims of the Act most consistent with the assumptions of liberal capitalism and foreclosed those potential paths of development most threatening to the established order.”15 Atleson also sought to understand how “an act seemingly created to radically alter economic power” was “used to institutionalize employer power,” and like Klare he also found his culprit in the courts. The unwritten values and assumptions embedded in the minds of those who interpreted the law, Atleson insisted, consistently elevated the rights of property and managerial discretion over the rights of workers.16 Whereas Klare and Atleson blamed judges for undermining the promise of the Wagner Act, Stone singled out the labor relations bureaucrats who administered the act as members and staff of the National Labor Relations Board (NLRB). These labor-law technicians, whom she called “industrial pluralists,” had based their administration of the act on a deeply flawed premise that the law had created a balance of power between labor and capital. The “industrial pluralist view of labor relations is based upon a false assumption,” she wrote, “that management and labor have equal power in the workplace.”17 By administering the law as if a balance of power existed when in fact management had never lost its advantage, the industrial pluralists inevitably strengthened the position of capital, all the while posing as (and believing themselves to be) neutral.

As the labor movement continued to deteriorate in the early 1980s, it was clear that the nation’s labor law no longer functioned to protect workers’ right to organize and bargain collectively. That realization hung like a dark cloud over celebrations of the fiftieth anniversary of the Wagner Act’s passage. “Although it is unusual to celebrate an anniversary by focusing on the guest of honor’s shortcomings,” wrote Judge Abner Mikva, “only by understanding the limited effectiveness of the Act in today’s economy can we contemplate a realistic and fair national labor policy.”18 In a similar vein, Paul C. Weiler wondered whether the NLRA should be regarded as a “milestone or a millstone.”19 Unions were no less emphatic about the problem. The AFL-CIO raged against the “failure of the law” in the 1985 report of its Committee on the Evolution of Work, The Changing Situation of Workers and Their Unions.20

But Mikva, Weiler, and AFL-CIO leaders did not blame the Wagner Act itself for the sorry state of the NLRA.21 They instead blamed the Taft-Hartley Act’s amendments to the Wagner Act. The Taft-Hartley changes had made the NLRA into a law “at cross-purposes with itself,” as the NLRB’s leading historian, James A. Gross, put it. There was no way that the NLRA could simultaneously promote workers’ rights to organize and bargain collectively, as the Wagner Act had intended, and defend rights of employers to resist such efforts, as the Taft-Hartley Act mandated.22 If only the nation could return to the original intent of the Wagner Act, Gross maintained, workers could again get the legal protections they deserved.

But what if the eventual collapse of collective bargaining had been in the cards from the beginning, embodied in the very principles and provisions of the 1935 Wagner Act? That was the radically explosive suggestion of Christopher L. Tomlins in his ambitious book, The State and the Unions (1985). Unlike most of those who had gone before him, Tomlins dismissed any notion that there ever had been liberating potential in the Wagner Act. The act amounted to a Faustian bargain, he contended. Unions were granted the power to collectively bargain only in return for surrendering their institutional autonomy to the state. The act had given labor nothing more than a “counterfeit liberty.”23 With the passage of the Wagner Act, it was the state and its agencies that would thenceforth determine bargaining units, certify bargaining agents, and set the (narrow) parameters within which bargaining could take place. Thus in its very origins—not later after judges or industrial pluralists subverted it—the Wagner Act promised US workers nothing but an “opportunity to participate in the construction of their own subordination.”24 Not only had the Wagner Act failed to emancipate workers, it had, as one shrewd summary of Tomlins’s argument put it, “hurt labor.”25

The appearance of Tomlins’s radical argument could not have been better timed for maximum influence. Coinciding with the Wagner Act’s golden anniversary, Tomlins’s book also appeared in the midst of the Reagan years. Reagan had once led a union that had used the Wagner Act to win power for its members in the film industry, but as a politician he had come to represent the antithesis of Roosevelt, and his ascendancy to the presidency seemingly marked the end of the New Deal order. His transformative impact on the nation’s labor relations was impossible to deny. Union density fell more during his eight years in office than during any other postwar administration, and union militancy dropped even faster as the phenomenon of striker-replacement, encouraged by Reagan’s breaking of the air traffic controllers strike, cut the number of strikes by almost two-thirds. Reagan’s rule seemed to illustrate how tenuous and conditional labor’s freedoms had been all along—exactly Tomlins’s point.

Tomlins was not alone in advancing a dark view of the Wagner Act. In his 1994 book New Deals, Colin Gordon went so far as to suggest that elements of business actually favored passage of the Wagner Act, realizing that organized labor was essential to “the stabilization of industrial activity.” “Business influence in the origins and administration of the Wagner Act was more pervasive and more diverse than most scholars have allowed,” Gordon contended, and the rhetorical opposition to the act voiced by business was “often superficial and cynical.”26

The critique of the Wagner Act advanced by Tomlins and Gordon did not stand unchallenged for long. The most successful rejoinders to these critics were delivered in the mid-1990s by Melvyn Dubofsky and David Plotke. Since the early 1980s, Dubofsky had been jousting with Klare, Lynd, and other legal revisionists. He believed they assigned too much agency to judges and ascribed too much power to law and the ideologies that had shaped it, while ignoring historical contingency and slighting politics. “The evolution of the law must be seen in light of shifts in the political balance of power and ebbs and flows in the labor movement,” he argued.27 He flayed Gordon for his “interpretive fallacies” and “loose use of evidence” and dismissed Gordon’s conclusion as hyperbolic and vastly overstated.28 But Dubofsky’s chief intellectual target was Tomlins, whose work he considered the most substantive example of new scholarship on labor and the law.

In a review of The State and the Unions, Dubofsky took issue with what he saw as Tomlins’s central contention, that “processes internal to the history of the NLRB, intrinsic to bourgeois law, and inherent in the role of the state in capitalist society satisfactorily explain the evolution of federal labor policies after 1935.”29 In his own book, The State and Labor in Modern America (1993), Dubofsky laid out an alternative narrative that spanned a century of history. Like Tomlins’s story, Dubofsky’s narrative turned on his interpretation of the Wagner Act. But unlike Tomlins, Dubofsky defended the Wagner Act as a major breakthrough for workers the limitations of which stemmed less from judicial action than from the shifting politics of the complex American polity, a polity in which mobilizing an effective majority on behalf of workers’ rights had always proved difficult for structurally embedded reasons, not the least of which was the enduring political influence of capital.30

Following close on Dubofsky’s heels, Plotke’s Building a Democratic Political Order (1996) reinforced the basic thrust of Dubofsky’s argument. Whereas Dubofsky focused on law and treated the Wagner Act as the key point in a century-long survey of labor history, Plotke focused on the relationship between the Wagner Act and formation of the political bloc that underpinned the New Deal order. He emphasized the degree to which the law was “sharply discontinuous with past practices” and maintained that “in formulating and passing the Wagner Act, the leading agent was a progressive liberal political leadership.”31 The survival of this political bloc through the election of 1948 against great opposition was, in Plotke’s view, a triumph of immense importance and liberating impact.

The books by Dubofsky and Plotke moved toward publication at a propitious moment. Aided by a split in the Republican party, Bill Clinton had assumed the presidency; his newly appointed NLRB chairman, William Gould IV, had introduced an ambitious reform agenda intended to reclaim the promise of American labor law; and his administration had convened the Commission on the Future of Worker-Management Relations under the leadership of John T. Dunlop in hopes of outlining reforms that would modernize the NLRA. The moment seemed ripe for change, and arguments that the Wagner Act had not been rotten at its core, as Tomlins had seemed to suggest, resonated with the hopeful mood of Clinton’s first years in office.

No sooner had the window of opportunity for reform opened, however, than it was slammed decisively shut. Republicans assumed control of Congress in 1995 behind Newt Gingrich and the “Contract with America,” the Dunlop commission fizzled, and Gould’s reform agenda ran aground. Not only were hopes of reforming the NLRA shelved, labor was thrown on the defensive, forced to resist congressional efforts to further weaken the NLRA.32 So great was the setback that it undermined support for AFL-CIO president Lane Kirkland and paved the way for the election of John Sweeney of the Service Employees International Union in 1995. Under Sweeney, the AFL-CIO devoted more resources to organizing but relied less on the NLRA; significant breakthroughs in the 1990s, such as the Justice for Janitors campaign, were won outside the NLRB process. But Justice for Janitors was not replicated, and the disputed election of George W. Bush in 2000 combined with the September 11 attacks that took place the following year created an atmosphere unconducive to reform.

Yet, remarkably, through the darkness of the Bush era, Tomlins’s critique of the Wagner Act was not revived and carried forward by a new generation of revisionists. Scholars did not hasten to explain labor’s fate by arguing that it had been the inevitable result of the “counterfeit liberty” granted to unions by the Wagner Act. Instead, as organized labor’s crisis worsened year by year, labor intellectuals continued to look to the Wagner Act as though it were a beacon that might help them get their bearings and plot a way forward. Thus two of the most creative proposals for reviving unions in this period came out of a reexamination of the act’s early history. They were the work of two eminent intellectuals, labor historian David Brody and labor law scholar Charles J. Morris, both of whom published their ideas in 2004.

Morris’s proposal was both deceptively simple and potentially quite radical. Following the arguments of the influential labor scholar Clyde W. Summers, he reminded us that the Wagner Act had never ruled out the possibility of minority unionism. Summers had believed that over the years judges had placed too much emphasis on Section 9(1) of the NLRA, which defined a majority union as the “exclusive representative” of workers for the purposes of collective bargaining, neglecting the more fundamental provision of Section 7 of the act, which endowed workers with the right to “bargain collectively through representatives of their own choosing” and which was silent on whether those workers needed to be in a majority or not.33 But Morris went further than Summers, who never suggested that employers could be compelled to bargain with a minority union. In fact, Morris argued that if a minority of workers decided to join collectively and attempt to bargain with their employer, it was the employer’s duty under the act to bargain with them. The Wagner Act would have supported this approach, Morris believed, and the Taft-Hartley Act had not foreclosed it. More than fifty years of jurisprudence had misinterpreted the law on this question, he insisted. Morris seemed to suggest that a properly mounted legal challenge could unlock a veritable secret passageway in the law. If workers could begin bargaining through minority unions to win members-only contracts from their employers, they could use these beachheads eventually to expand their reach and win majority-based exclusive representation.34

Some sympathizers doubted Morris’s legal reasoning, but many more questioned his reading of legal and political realities. Even if he was right that judges had repeatedly misunderstood the Wagner Act, his critics chided, reversing decades of legal inertia in a way that might benefit union growth was an exceedingly remote possibility.35 So far, the critics have proved correct.

David Brody also went back to the original Wagner Act as he attempted to come up with a strategy for reforming the now dysfunctional NLRA. He was also concerned with the question of workers’ selection of “representatives of their own choosing” as defined by the Wagner Act. But his focus was on the eventual harm that came to the union movement from the act’s entanglement of the exclusive representation issue with workplace representation elections. The labor movement did not consider representation elections to be a problem prior to the mid-1970s, for unions routinely won a majority of their elections. However, increased employer hostility, the rise of antiunion law firms that specialized in defeating union elections, and the impact of economic dislocation combined to change the social terrain. Employer resistance escalated. The ratio of those workers fired by employers for union activity compared to those who voted in union elections was 0.5 per 100 in the early 1950s but rose to 9.5 per 100 by the early 1990s.36 Workers’ willingness to defy that opposition in difficult economic times diminished sharply. The labor movement responded by seeking fewer elections. As Lane Windham has documented, between World War II and 1973, at least one percent of private-production and nonsupervisory workers were eligible to vote in NLRB elections in each year for which we have data, but by the 1990s the average annual percentage of eligible voters in union elections was only one quarter of the earlier figure.37

Such developments led Brody to conclude that “the representation election is the instrument by which labor’s enemies have hijacked the law.”38 This struck him as ironic because the mechanism of representation elections had been introduced into the original Wagner Act mainly to allow workers to choose an independent union over a company-sponsored union. Even so, Brody reminded us, the act did not mandate representation elections. Rather, the NLRB was empowered to “use ‘any other suitable method’” to determine majority certification, which underscored the extent to which Senator Wagner had believed that the process of union certification must be “in service to the self-organization of workers.”39

Pointing to the Wagner Act, Brody called for a campaign that would challenge and move beyond its overreliance on the representation election, which was in many ways an unnatural subversion of the act’s original intention. That campaign needed to be narrowly focused, Brody argued, and should not be complicated with other proposed labor law reforms. “Tactically, the crucial thing is to avoid making the right to organize part of an omnibus reform,” he explained. “The issue has to stand alone, where it cannot be obfuscated by talk about democratic elections and individual rights. Labor can win a debate on the right to organize, but until another New Deal era comes along that’s the only ideological debate it can [win].”40

Unions had already reached a similar conclusion. At the same time Brody’s article went to press, unions were launching a campaign on Capitol Hill for the passage of the Employee Free Choice Act (EFCA), a bill primarily intended to allow workers to avoid representation elections by gathering signed authorization cards from a majority of their workplace colleagues. The bill increased penalties for violating workers’ rights to organize and provided for binding arbitration in cases where a duly recognized union was not able to come to a contract agreement with an employer. Yet the heart of the bill—its card-check recognition provision—took Brody’s analysis to heart and focused on restoring workers’ capacity for self-organization.

Brody had believed that labor could win a debate about “the individual right of workers to associate” in part because the “right to organize is exercised by individuals” and therefore “calls forth no rival employer rights.”41 But he failed to appreciate that some workers’ assertion of their right to organize did call forth a rival rights claim: the claim by other workers (or those who claimed to speak for them) that they should not be compelled to join, support, or be bound by the agreements of a labor organization.42 A crusade to protect the right of workers not to organize provided the rationale for a vast employer-funded campaign against EFCA, a campaign that attacked unions for seeking to avoid secret ballot elections. Labor never successfully countered that argument. For six years, until the election of Republican Scott Brown to the late Senator Ted Kennedy’s senate seat in 2010 made it mathematically impossible to pass EFCA, the unions relentlessly pursued this legislation.

It was only in 2010, when EFCA was shelved indefinitely and the seventy-fifth anniversary of the Wagner Act’s passage approached, that Wagner’s 1935 law began to noticeably loosen its grip on the imaginations of labor intellectuals. “It is perhaps harsh and impolitic at the NLRA’s 75th birthday to declare that in 2010 the law no longer fits American economic reality and has become an anachronism irrelevant for most workers and firms. But that is the case,” observed Richard B. Freeman.43 No longer did many harbor illusions that the law could be salvaged and repaired. While Brody had urged reformers to narrow their ambitions in 2004, avoid “omnibus” reform packages, and focus only on easing the union certification process, few now believed that there was any single way to fix what was broken. Rather, labor relations scholar Thomas A. Kochan asserted that it was time to “close the door on efforts to make just marginal changes in the NLRA and outline the design of a new, modern labor relations policy that better fits the needs of workers, employers, and the broader economy and society.”44

Beyond the Wagner Act? From Consensus to Cacophony

Since 2010 it seems that a consensus has taken shape around the idea that the NLRA has fallen into an irreparable state necessitating Kochan’s “new, modern labor relations policy,” in effect a new, twenty-first-century Wagner Act. As that consensus has emerged, scholars and activists have brought forth a range of innovative ideas regarding what a new law ought to do and how it might be won. Some, such as Freeman, have called for turning attention away from federal labor law and toward more congenial states and localities, where experiments might be undertaken that could eventually yield innovations that might be incorporated into a future federal law—provided, that is, that such experiments are not preempted by federal legislation.45 Others, such as legal scholars Catherine Fisk, Ben Sachs, and Xenia Tashlitsky, have argued that unions ought to give up on the idea of exclusive representation as it has been interpreted over the years by the NLRB. They believe that in right-to-work states, the NLRB could interpret that law in a way that would free unions from the duty to bargain for workers who do not share the costs of representation. Their proposal has reopened a discussion about the promise and perils of minority unionism that Charles Morris began a decade earlier.46 Still others have demanded a rethinking of the legal categories that had underpinned the Wagner Act but that no longer fit the realities of today’s workers. One of these is Jean-Christian Vinel, who points out that fewer and fewer of today’s workers fit the category of “employee” as it was defined in the Wagner Act and its subsequent jurisprudence.47

Another group of scholars have called for abandoning the decaying foundation of American labor law completely and anchoring the protection of workers’ rights to a collective voice on the job in safer legal harbors. Proponents of this approach have named at least three possible alternatives. One of these is civil rights law. Richard D. Kahlenberg, Moshe Z. Marvit, and Thomas Geoghegan are among those who have advocated this approach. They have called for writing the right to organize into the Civil Rights Act of 1964, where it would be protected by more significant penalties for its violation and where lawyers would be empowered to engage in discovery motions that would give individual workers new leverage.48 Others have joined legal scholar Cynthia Estlund in recommending that labor rights be built up within the realm of employment law. Estlund has long held that American labor law has become “ossified” while employment law has continually expanded its reach. She recommends that reformers leave labor law for dead and focus instead on trying to win worker participation in shaping and enforcing the self-regulatory systems that businesses have evolved to comply with employment law.49 Perhaps the most interesting legal safe harbor has been suggested by the legal scholar James Gray Pope. Pope recommends going back to the US Constitution and grounding a defense of union rights in the language of the Thirteenth Amendment prohibiting “involuntary servitude.” He argues that a long tradition of pro-labor legal advocacy prior to the Wagner Act drew on the Thirteenth Amendment to contend that “labor freedom necessarily includes the rights to organize and strike.” The decline of the Wagner Act regime can be traced in part, he says, “to Senator Wagner’s choice to ground the NLRA on the Commerce Power instead of the Thirteenth Amendment.” A revival of Thirteenth Amendment jurisprudence, he believes, might offer the key to labor’s revival.50

As ideas have proliferated, so too have efforts to convene academics, policy makers, and practitioners to discuss and evaluate them. In 2010 George Washing-ton University Law School and the NLRB jointly convened a symposium to talk about the future of labor law seventy-five years after the Wagner Act. A wide range of academic institutions and think tanks hosted similar gatherings. In 2012 alone, the University of Illinois Labor Education Program hosted a gathering to consider “New Models of Worker Representation,” Georgetown University’s Kalmanovitz Initiative for Labor and the Working Poor launched a series of discussions for academics and union leaders called “Bargaining for the Future,” and the Roosevelt Institute announced an ambitious multi-year series of seminars and working papers in collaboration with Columbia Law School titled “The Future of Work.”51 Even President Barack Obama hosted such a discussion. On October 7, 2015, he convened a summit meeting at the White House, “The Future of Worker Voice,” that brought together many reform advocates from unions, “alt-labor” organizations, think tanks, and academia.52

The labor movement has proved surprisingly open to the new ideas generated in these discussions. The AFL-CIO’s 2013 national convention was indicative of this openness, as alt-labor organizations such as worker centers were welcomed with open arms, and delegates talked openly about the need to create a different kind of union movement and a different form of collective bargaining from the one that grew up under the Wagner Act.

Yet none of these initiatives or convenings have yet produced anything approaching a consensus on what a new Wagner Act should look like or how it might be achieved. Instead, a cacophony of voices and proposals are competing for attention even as organized labor’s decline seems to be accelerating. Since 2012 five more states (Indiana, Michigan, Wisconsin, Kentucky, and West Virginia), joined the “right-to-work” column, making twenty-seven states in all. It has been sixty years since that many states shifted to the “right-to-work” column in such a short span of time, and given the ascendancy of the Trump administration and active campaigns to pass similar legislation in other states, organized labor’s tenuous status could worsen drastically in the next few years. The need for a solution could not be more urgent.

Our Strength Endures: Applying Lessons of the Last Wagner Act to the Next One

It might seem a fool’s errand to contemplate an unimaginable breakthrough such as the passage of a twenty-first-century Wagner Act in a moment like the present when labor’s very survival seems at stake. Yet a big vision is exactly what the present situation demands. Hopefully, this review of our evolving evaluation of the Wagner Act over the years can help us identify the most important aspects of that vision.

It is now impossible to read the work of those who have evaluated the Wag-ner Act without acknowledging its many flaws. It excluded many workers; it specified lenient penalties for serious employer violations of workers’ rights; it failed to adequately protect workers’ ability to strike; it entrusted enforcement of its rules to a board that was too easily politicized and ultimately neutralized; it encouraged the development of a service model of unionism and a sharply attenuated version of workplace democracy; it set out what today we can see are narrow definitions of “employee” and “employer” that make it a poor fit for today’s markets.

Yet as most of those who have written about the Wagner Act over the years have noted, these flaws were not necessarily fatal. They could have been remedied, and reformers have made many efforts over the years to fix them. But while the economy has changed radically since the days when the Wagner Act was drafted, the political system has become only more impervious to change, making it easy for a political minority to defeat any effort to modernize or reform the law. As a result, the flaws of the NLRA have grown only more glaring over time, making it a nearly useless anachronism or even a barrier to self-organization for most workers today. Clearly, should reformers have an opportunity to remake US labor law in coming years, they will need to correct these and other glaring weaknesses in the law.

But if an opportunity to rewrite labor law arises, it is equally imperative that its drafters recognize and replicate some central elements of the Wagner Act. There are reasons why most who have studied the act over the years have rejected the argument that it offered nothing but a “counterfeit liberty” and why the 1935 law continues to serve as the point of reference for would-be reformers who describe themselves as seeking “a modern day Wagner Act.”53 The fact is that the Wagner Act got some things right, things that help explain its stubborn endurance and continuing attraction over eight decades, things that too many contemporary advocates today minimize or overlook. Three essential elements of the Wagner Act are worthy of emphasis.

First, it was rooted in a vision of political economy that saw worker organization and bargaining power as essential to a just and sustainable economic order. Over the years, many critics have lamented the fact that the preamble to the Wagner Act was premised on an essentially economic argument rather than one rooted in civil, human, or constitutional rights: the act’s preamble proclaimed that protecting “the right of employees to organize and bargain collectively safeguards commerce from injury, impairment, or interruption and promotes the flow of commerce.” But in the long run, the Wagner Act’s economic orientation was very likely more a strength than a weakness. After all, the act was designed around an economic proposition that proved to be basically true in the era of mass production and mass consumption: “Inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract and employers who are organized in the corporate or other forms of ownership association substantially burdens and affects the flow of commerce, and tends to aggravate recurrent business depressions, by depressing wage rates and the purchasing power of wage earners in industry and by preventing the stabilization of competitive wage rates and working conditions within and between industries.”54 While many present-day reformers focus on the need to restore workers’ rights, few devote much thought to the way in which any new law must be grounded in a larger economic vision if it is to prove sustainable. Such an economic vision undoubtedly will be articulated differently in an era of global, financialized, and postindustrial capitalism than it was in 1935. But whatever that vision is, it must not only be articulated in the preamble of any “new Wagner Act”; it must inform its structure.

Second, the Wagner Act protected organizing rights in ways that promoted worker bargaining power. Too many would-be reformers see labor’s problem today as being primarily rooted in the law’s failure to protect the “right to organize.” Many of the reform proposals now afoot, including ideas about rewriting the Civil Rights Act, leveraging the Thirteenth Amendment, or opening the door to minority unions ignore the extent to which the degradation of the right to organize is to a large extent symptomatic of a deeper problem: the erosion of worker bargaining power brought about by the evolving structure of contemporary capitalism. The ways in which capitalism has changed since the New Deal era, when the model of mass production for a domestic market dominated the economy, has made it harder for workers to aggregate their voices collectively. Few workplaces in the United States any longer resemble Fisher Body No. 1; few corporations resemble General Motors in 1937. Today, temp work, subcontracting, franchising, and lengthening supply chains complicate any effort to bring workers together, identify their true employers, and bargain successfully with those who have the most control over their wages and working conditions.

Unfortunately, in an effort to promote workers’ freedom of association, some of the new ideas now afoot risk exacerbating the problem of how to enhance workers’ bargaining power. Is there any way to rewrite the Civil Rights Act or employ the Thirteenth Amendment’s prohibition of involuntary servitude to protect workers’ right to organize without at the same time strengthening the rights of other workers who seek not to organize or be subject to the provisions of a collective bargaining agreement negotiated by an organization they refuse to join? Is there any way to promote minority unionism without at the same time opening the door to feuding unions within individual workplaces or encouraging the revival of forms of unionism in which only the most skilled and therefore indispensable workers are able to bargain? Rather than enhance bargaining power, such reforms would seem to further fragment it.

It is well to remember that the Wagner Act was less about ensuring freedom of association than about empowering workers to bargain. A similar focus should inform any new Wagner Act, for the problem of diminished bargaining power is even greater today than it was in 1935. Globalization, financialization, new technologies, disaggregated businesses, and the dissolution of formal bonds between employer and employee have created a form of capitalism more challenging to workers’ organization than the one the sit-down strikers faced. Reformers need to protect workers’ right to organize in ways that strengthen their bargaining power and allow them to bargain with the entities that are presently driving this exploitative system and extracting the greatest share of profits from it, recognizing that in many cases these entities are no longer the workers’ direct employers.

The third essential element of the Wagner Act is that it imported basic tenets of democracy (such as majority rule) into the workplace on the theory that the quality of political democracy was inevitably intertwined with the quality of workplace democracy. By contrast, most recent labor law reform advocates have focused on the protection of rights without reference to the promotion of democracy. While Wagner asserted that his bill would promote “industrial democracy,” an ideal that had broad appeal in the mid-twentieth century, today’s reformers have identified no similar explanatory concept that can rationalize workers’ demands for a voice in the governance of their workplaces. The notion of employee “free choice” upon which EFCA was premised not only failed to provide much moral leverage, it further legitimized the libertarian rhetoric of trade unionism’s opponents.55 Making the promotion of democracy a central aim of any new Wagner Act is all the more vital in these times when the future of political democracy is increasingly imperiled by the influence of money, media, and unaccountable corporate power. The reconstruction of democracy in work relations and political relations must go hand in hand.

While would-be reformers should keep these three elements in mind as they consider prospects for a “new Wagner Act,” they also should remember a central lesson of the winter of 1936–37: no significant reform will be won unless workers mobilize—with significant public support—to demand it. When the activists sat down at Flint, they had no idea whether the Wagner Act would still be on the books by the time their strike ended. Nor did they wait for guarantees from Washington before they acted. We cannot know for sure whether their strike influenced Justice Owen Roberts’s decision to take another step in the direction he had set out on in West Coast Hotel and to cast the deciding vote upholding the Wagner Act’s constitutionality. But surely their militancy did not hurt. A key rationale for the passage of the act in the first place was its promise of reducing labor conflict; its preamble spoke of “removing certain recognized sources of industrial strife and unrest” through the extension of collective bargaining. Worker militancy helped lead to the drafting of the Wagner Act; worker militancy in Flint and elsewhere invested the act with increased moral weight even before its constitutionality was assured; and worker militancy probably made it more likely that the act would survive its Supreme Court challenge.

This lesson leads to one final and perhaps counterintuitive point: an expansively conceived replacement for the Wagner Act will likely stand a better chance of enactment than a modestly framed reform. Over the past fifty years, employers have repeatedly demonstrated that they would go all out to block any reform of the labor law, no matter how reasonable or narrowly constructed. They will fight small reforms every bit as militantly as they will fight big ones, for they want no changes in a status quo that so clearly favors their interests. At the same time, the more modest the changes labor seeks in the NLRA the more difficult unions will find it to attract the interest or excite the imaginations of hard-pressed working people whose support would be necessary to enact those changes. Unions had difficulty rousing even their own members, let alone unorganized workers, in support of EFCA and its card-check provision. A grander vision than that will be necessary if we are to break through the blockade that has been erected by Donald Trump’s election. Even a losing fight for a big new vision can play an educative role, elaborating frameworks and creating expectations that can serve as the starting point for action when the opportunity arises.

Perhaps this was the eventuality that CIO leader Philip Murray had in mind when he commiserated with his colleagues over the passage of the “slave-labor” Taft-Hartley Act in 1947. “What the hell—pendulums swing,” Murray said, “and we have our cycles in life, and we [have] got to make the best of it, using the tools at hand.”56 If and when the pendulum swings again, today’s would-be reformers will be better prepared to “make the best of it” if they draw the right lessons from the Wagner Act and its eighty-year history and if they are ready to take risks, as the Flint workers did, to bring on the change they seek.

2

For the classic account, see Fine, Sit-Down.

17

Stone, “Post-war Paradigm in American Labor Law,” 1511. Lynd also took aim at Archibald Cox as symbolizing the ways in which labor law had disempowered workers. Lynd, “Government without Rights.”

21

The 1935 Wagner Act (formally known as the NLRA) was amended in 1947 by the Taft-Hartley Act (formally known as the Labor Management Relations Act). The resulting act is most often also referred to as the NLRA. When I use the term Wagner Act in this essay, I am referring to the original act prior to its amendment; when I use the term NLRA, I am referring to the amended act.

24

Ibid., 327–28.

27

Dubofsky, “Legal Theory and Workers’ Rights,” 498. See that article for Dubofsky’s critique of the early revisionists. His view of the law as it was conceived by the revisionists was influenced by Thompson, Whigs and Hunters, esp. 262–65.

30

Dubofsky, State and Labor in Modern America. A more critical interpretation of the Wagner Act that nonetheless rejected Tomlins’s view that the act offered only “counterfeit liberty” can be found in Barenberg, “Political Economy of the Wagner Act.”

35

For a critique of Morris’s thesis, see True, “Review Essay, The Blue Eagle at Work.” For Morris’s response, see Morris, “Minority Union Collective Bargaining.”

39

Ibid., 12.

40

Ibid., 15.

41

Ibid.

42

I tried unsuccessfully to make this point in the early days of the EFCA fight. See McCartin, “Democratizing the Demand for Workers’ Rights”; and McCartin, “Reply to Lance Compa and Sheldon Friedman.”

50

Pope, “Workers’ Freedom of Association under the Thirteenth Amendment,” 149, 152. For more on this argument, see Pope, “The Thirteenth Amendment versus the Commerce Clause.” Here Pope contends that in the years before the Wagner Act, “unions and workers argued that the rights to organize and strike made the difference between freedom and involuntary servitude.” However, “a bevy of progressive lawyers who styled themselves ‘friends of labor’ undermined labor’s Thirteenth Amendment theory” and made the Commerce Clause the basis of the Wagner Act. “Afterward unions and workers interpreted the Wagner Act decisions as victories for labor freedom, but the Act’s Commerce Clause foundation pointed in a different direction—one leading to fateful distortions in the jurisprudence of congressional powers” (1).

51

George Washington University Law School and the NLRB hosted a symposium on October 28, 2010; the University of Illinois hosted the Conference on New Models of Worker Representation in Chicago, March 7, 2013; Georgetown University hosted “Bargaining for the Future” between May and July 2013; and the Roosevelt Institute’s program, a collaboration with the Columbia Program on Labor Law and Policy, was undertaken in a series of gatherings between 2013 and 2015.

52

On the White House summit, see White House Summit on Worker Voice, www.whitehouse.gov/campaign/worker-voice (accessed November 20, 2016).

53

This is how the Roosevelt Institute describes the goal of its Future of Work initiative. See Roosevelt Institute, http://rooseveltforward.org/dorian-warren-why-we-all-need-strong-labor-movement/ (accessed December 20, 2016).

54

National Labor Relations Act, Section 1, National Labor Relations Board, www.nlrb.gov/resources/national-labor-relations-act (accessed November 20, 2016).

55

A promising step forward is Senator Bernie Sanders’s Workplace Democracy Act, whose title at least references democracy. See S.2142–Workplace Democracy Act, Congress.gov, www.congress.gov/bill/114th-congress/senate-bill/2142 (accessed November 20, 2016).

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