labor law

Michael Yates mikey+ at
Tue Jan 30 13:45:06 MST 2001

Here are some remarks I made at a conference held at the Univ. of
Pennsylvania Law School on Jan. 26, 2001 in Philadelphia.  For list
members outside of the U.S. the Wagner Act was the first broad federal
law to protect the rights of working people enacted in the U.S.
Comments are welcome.  I would be happy to say a few things about the
conference if anyone is interested.  It was an interesting experience in
class distinction, academic careerism, the lack of any connection or
understanding between most academics and working people, and the utter
lack of class consciousness among the technical workers (engineers who
struck Boeing last year)whose president a presentation.

Michael Yates

        Should We Return to the Policy of the Wagner Act?


        Michael D. Yates
        Professor of Economics
        University of Pittsburgh at Johnstown
        Johnstown, PA 15904
        mikey at


        I have organized these remarks around four questions: What was the
Wagner Act?  What was its impact?  Why was it enacted?  How might we
return to the policy of the Act?  The last question tells you that I
will answer the title question affirmatively.  Now, let us look at each
question in turn.


        There are those who argue that the Wagner Act was a conservative law,
aimed ultimately at circumscribing the ability of workers and their
unions to engage in direct actions against their employers by legally
confining them to bureaucratic elections and collective bargaining.
While in hindsight it is possible to make this argument, I do not think
it could plausibly have bene made in 1935.  Then, quite simply, the
Wagner Act was the most pro-worker law ever enacted by the federal
government.  There are at least three reasons for saying this.  First,
the Act ended more than 100 years of quasi-legality of unions and their
actions.  From the Commonwealth versus Pullis decision of 1806 to the
notorious Red Jacket injunction of the 1920s, and from the use of local,
state, and federal troops to defeat the Great Uprising of 1877 to
similar use in the Pullman Strike, the Great Coal Wars, and numerous
other labor rebellions, the judicial, legislative, and executive
branches of government considered unions to be somewhat beyond the legal
pale.  The fact that William Howard Taft could become both President and
Supreme Court Justice after stating in a letter that more workers should
have been killed during the Pullman strike says about al that needs to
be said about the quasi-legality of unions and the gigantic step forward
marked by the Wagner Act.

        Second, the Act gave full government legal sanction to labor's direct
action weapons – the strike, picketing, and boycott.  These were
protected either directly or indirectly in several parts of the Act.
Under the Act's provisions, it was, and still is, possible for workers
to strike for union or organize a boycott to force an employer to
recognize their union.  Nothing in the Act explicitly prohibited a union
from using direct actions even after signing a collective bargaining
agreement.  What is more, in 1932 Congress had enacted the
Norris-LaGuardia Act with its sweeping anti-injunction legislation.  So,
in 1935 unions were also free to use various secondary actions without
an overriding fear that an injunction would be issued to stop them.

        Finally, the Wagner Act put the federal government on record as
admitting that the individual worker is powerless in any struggle
against a large corporation, and that in such circumstances unions and
collective bargaining are the preferred methods of settling industrial
disputes. It is ironic, in light of this, that Ronald Reagan appointed
to chair the NLRB a man, Donald Dotson (lately chief of labor relations
for that egregious violator of labor law, Beverly Enterprises) who did
not believe in the law he was duty bound to enforce.

        Not only was the Wagner Act a pro-worker law, it was also a powerful
civil rights law.  As you all know, we throw the Constitution in the
trash basket when we enter a private workplace as a wage laborer.  The
Wagner Act guarantees workers certain speech and assembly rights both
inside of and outside of the workplace.  It provided the first great
assault on the concept of at-will employment, since a worker could no
longer be fired for reasons protected by Section 7 of the Act.  The Act
guarantees a certain amount of due process in the selection of a union
representative.  By giving full government sanction to collective
bargaining, it also gives support to the due process provided by
ubiquitous "just cause" provisions and attendant grievance procedures.
These civil rights features of the Act must have loomed large in 1935.
In the mass production industries in which workers were then organizing
into what would become the CIO unions, working and living conditions can
best be described as industrial feudalism.  During the 1919 steel
strike, the mayor of McKeesport, Pennsylvania boldly stated that Jesus
Christ could not have held a meeting in his town.  The chief organizer
of the strike, William Z. Foster, was tarred and feathered by Bethlehem
Steel Company goons in Johnstown, Pennsylvania, where I now teach. Labor
organizers, supporters, and strikers were routinely fired, blacklisted,
beaten, and arrested in such communities.  Coal companies were even
permitted by Pennsylvania state law to ire their own "coal and iron"
police to run roughshod over the rights of workers.  When the Supreme
Court upheld the constitutionality of the Wagner Act in its 1937 Jones &
Laughlin decision, workers in J & L's Aliquippa, Pennsylvania plant
could finally see the end of their degradation at the hands of their
corporate masters.

        I note in passing that, while the Wagner Act was a significant civil
rights law, it failed to deal directly with the scourge of racial
discrimination, both by corporations and by labor unions.  If I am not
mistaken, the NAACP opposed passage of the Act for this reason.  The law
could have explicitly outlawed Jim Crow unions, for example, but it did
not.  The NLRB does have some power in this area, but it has, for the
most part, failed to use it, either in its establishment of appropriate
bargaining units or in its power to uphold a worker's right to fair


        In assessing the impact of the Act, we run into intractable problems of
causation.  No doubt, the passage of the Act encouraged union membership
because it fundamentally changed the terrain of the class struggle
(Actually the NIRA of 1933 had done something similar; after its
passage, United Mine Workers organizers fanned out into the nation's
coalfields telling miners that the President wanted them to join the
unions).  However, some organizing drives in mass production industries
pre-date the passage of the Act.  We might argue that the entire panoply
of events of the Great Depression, including the militant organizing of
both the employed and the unemployed, was what led to the passage of the
Wagner Act and not vice versa.  In fact, organizing slowed down in 1938
(the SWOC lost the Little Steel strike just the year before), after the
Supreme Court had ruled on the Act's constitutionality.  Membership rose
substantially during World War Two, but it could be argued that this was
due more to government pressure on employers than to the Wagner Act.
After all, union membership rose during World War One as well, and there
was no protective legislation then.  However, in my view, the effect of
the Wagner Act on union membership can best be seen in what happened
after the war.  After World War One employers went on the offensive,
aided by the government and the courts, with the latter issuing a record
number of injunctions.  Yet, after World War Two, there were mass
strikes in nearly every major industry, and employers and the government
were not able to crush them or the unions that waged them.  It is true
that Congress passed the Taft-Hartley laws and that these weakened the
labor movement, but union density continued to grow after the war, and
this must be credited at least in part to the changed legal climate
brought about by the Wagner Act.  Unions had shed there quasi-criminal
character and were now a permanent part of the economic and political


        In asking the question – should we return to the policy of the Wagner
Act – we need to first ask how it was that the Act got passed in the
first place.  This may also tell us what will have to happen for us to
return to the Wagner Act policy.  As I see it, the Act was the result of
relentless pressure from organizing forces below and accommodation by
economic and political elites above.  The agitation from the lower
depths of society is well-documented, but it is worth noting the strong
presence of communists and other left-wingers in the unemployed councils
and in nearly all of the industrial unions.  The various marches on
Washington, the sit-down strikes, the alliance of many progressive
intellectuals with both the communists and the new industrial unions,
the talk of a labor party – all of these and more defined a unique
period, very likely the most radical in our history.  The powers that be
were shaken by all of this and realized that a direct and violent
assault on the workers' movement, so common in the past, would not work
this time around.  What more powerful sign of accommodation at the top
could there be than the Jones & Laughlin ruling, itself, made by what
was still a politically reactionary Supreme Court?

        It is important here to argue against the hypothesis that the Wagner
Act was really a conservative piece of legislation aimed at ultimately
taming the industrial labor movement.  If we look at the left-wing
unions, such as the United Electrical Workers, Mine, Mill, and Smelter
Workers, International Long Shore Workers union, and the United Packing
House Workers of America, we find (using the path-breaking studies of
Maurice Zeitlin and Judith Stepan-Norris) that forming unions under the
auspices of the NLRB and engaging in collective bargaining did not
inevitably bureaucratize and make more conservative the labor movement.
Zeitlin and Stepan-Norris found that the left-wing unions won better
contracts than more conservative unions in a number of important
respects: contracts of shorter duration, contracts with fewer steps in
the grievance procedure, and contracts more likely not to contain either
"management's rights" or "no strike" clauses.   These unions, typically
more democratic than more conservative unions, were the most likely to
fight for an end to racism, both inside and outside of the plants, with
the UPWA achieving some remarkable results.  They also showed
considerable willingness to use direct action even when it was
technically forbidden by the collective bargaining agreement.  Finally
they were the most likely to urge a path of political independence for
the labor movement and to oppose the Cold War and U.S. imperialism.

        All of which is to say that what is important in assessing the Wagner
Act is the context in which it came into being.  The Act was a powerful
enabler of a progressive and militant labor movement already in
existence at the time of its passage.  Once the Act was on the books, it
could be used by this labor movement to further its growth and
development.  The resultant labor movement proved impervious to
destruction after the war, and, in terms of numbers, continued to grow.


        Working people benefitted greatly from the Wagner Act and the labor
movement that made it possible and was, in turn, strengthened by it.
The living standards of working men and women rose considerably (my own
life growing up in a unionized working class community gives personal
testimony to this truth); they experienced a giant leap in dignity and
respect vis-a-vis their employers; and their political influence
increased markedly.  In the best unions, workers also experienced a
sharp change in their consciousness and came to view the world from a
much more egalitarian perspective than they had before.  So, it is
obvious to me that workers, and society as a whole, would be better off
if we were to return to the policy of the Wagner Act.  However, to me
this means not just that the amended Wagner Act of today be itself
amended and new pro-worker parts added.  For this begs the question for
which I tried to give an answer above, namely, how did the Wagner Act
come to be enacted.

        To return to the heady days of the Wagner Act, it will be necessary for
the labor movement to regenerate itself, that is, to transform itself
into a movement akin to but transcending the CIO.  Today's AFL-CIO is a
pale imitation of the labor movement of the 1930s and early 1940s.
While the Federation of Sweeney, Trumka, and Chavez-Thompson is
decidedly better than the moribund and class collaborationist
organization of Meany and Kirkland, it is still pretty weak tea compared
to the CIO of John L. Lewis, much less Harry Bridges.  Let us consider
some of the main differences and use these to examine how a CIO-like
movement might be created:

1.  The Wagner Act became law during the nation's greatest economic
crisis.  The economic collapse created a crisis of political legitimacy
in which it became possible for people to entertain notions much more
radical than was normally the case.  As the popularity of business
leaders sank, that of labor leaders and working class militants rose,
making conceivable the development of a labor movement massive enough
and powerful enough to generate sweeping political changes.  Today the
situation is vastly different.  We are not in a state of economic
collapse; far from it, we have enjoyed economic growth for ten years.
There are signs that a downturn is on the horizon, but it will surely
not be a Depression-like crisis.  On the other hand, many parts of the
world are in dire economic straights, and there are here in the United
States increasing signs of dissatisfaction with the rapid development of
a market society devoid of compassion and any hint of equality.  Perhaps
this disaffection, shown most notably in the variety of
anti-globalization movements which have recently arisen, can be built
upon to create a Wagner-era labor movement.  If the AFL-CIO fully
embraces these movements and tries to build long-term alliances, perhaps
a labor movement can be created that is even more powerful than the CIO
of the 1930s.

2.  The crisis of legitimacy in the 1930s made a pro-labor rhetoric
acceptable.  Workers could be portrayed as what they were, people
without fundamental rights, and it was impossible for the business class
to successfully counter this argument.  Congressional hearings and books
such as Leo Huberman's Labor Spy Racket showed clearly and
incontrovertibly that workers systematically were being denied the
rights to free speech and assembly, not just in private workplaces but
in public spaces.  Today, pro-labor rhetoric is rarely encountered.  For
example, on seldom sees an account of the right-wing attempt to
dismantle social security or of President-elect Bush's tax cut plan
described as class legislation aimed at making the working class less
secure and therefore more vulnerable to their employer's demands.
Perhaps again, however, the climate is now right for this to change.  If
a union president could ask the crowd at the Seattle WTO protests to
"name the system" and if at that same protest the name of Karl Marx
could be mentioned without fear of red-baiting, then now might be the
time to begin to talk about worker's rights and how these rights are
still being systematically denied.  Elaine Bernard, Director of
Harvard's Trade Union Program, argues that instead of trying to get the
NLRA, with its troubling interstate commerce language, reformed, we
should push hard for a wider interpretation of the First, Fourth, and
Thirteenth Amendments to the U.S. Constitution.  After all, most
Americans would be shocked to know the limited reach of their most
revered document; I know my students, including the many union members I
have taught, do not know this.  Through union radio shows, newspapers,
op-ed pieces, and organizing campaigns, we could once again make it
legitimate to talk about class and class rights.

3.  Although much of the literature on the period focuses on leaders
like John L. Lewis, the truth is that the CIO and the labor movement of
the 1930s (including the unemployed) were built mainly from below, with
workers and their often radical leaders engaging in direct actions to
get what they wanted.  This movement from below was successful and in
those unions willing to continue to build on the power and knowledge of
their members (UPWA comes immediately to mind), it continued to be
successful until the Cold War and McCarthyism destroyed it altogether.
Today, the AFL-CIO is long on creating new organizations and short on
building a real rank-and-file movement.  Precious little has been said
by the New Voices leadership about democracy within the member unions or
in the Federation itself.  Corruption at the top actually helped to
weaken the budding democracy movement in the Teamsters Union.  Richard
Trumka may be a hair breadth's away from prosecution for his
participation in the Carey fiasco.  I strongly believe that an educated
and active membership is the sine qua non of any return to the Wagner
Act era.  But here there is not much hope that organized labor's
leadership will get the job done.  Pressure will have to build from the
reformers and their allies.

4.  Some of the unions in the CIO pioneered multiracial industrial
unionism, helping to break down racial barriers both inside and outside
of the workplace and forging a racial solidarity extremely rare in the
United States.  Today's AFL-CIO has made a few strides along the same
path, but it has not done enough.  Positive developments are the
Federation's championing of immigrant workers, who have become the shock
troops of the labor movement, especially in progressive labor areas such
as Los Angeles.  However, the Federation needs to break decisively with
the racism that exists in all too many unions.  It needs to hold a
series of town meetings in which top Federation officers speak frankly
about race, and it needs to make much stronger efforts to organize the
South and the Southwest, still home to a majority of Black and Hispanic
workers.  It also needs to address issues such as the abolition of
welfare and the burgeoning prison population, which is overwhelmingly
Black and other racial minority.  It needs to revisit the sad demise of
the racially revolutionary CIO unions and examine the failure of the
half-hearted and disingenuous efforts of the CIO leadership to organize
the South after the Second World War.

5.  In the 1930s capitalism was more nation-centered than it is today,
and the CIO unions did not have to worry that much about global
competition, runaway shops, and the like.  It was easier for a state to
place controls upon capital movements, and the architects of the
post-World War Two trade system, such as John Maynard Keynes, understood
that such controls were necessary to prevent the recurrence of another
depression.  Today, Keynesian is dead, and full-scale globalization is
the order of the day.  So, the labor movement faces economic conditions
considerably different than those faced by the CIO.  I don't want to
overemphasize this, because the situation is not nearly as dire as some
would have us believe.  There is still plenty of scope for national
union organizing (think of all the service sector employment sites that
cannot be physically moved and the large fixed capitals that must be
depreciated before a firm will contemplate relocation), and there is
still a lot of muscle residing in national governments, especially that
of the world's hegemonic power, the United States.  Therefore, the
AFL-CIO must organize as much of the national workforce as it can, and
it must continue to exert as much political influence nationally as it
can.  However, it must also internationalize its operations, building as
much solidarity and cooperation with labor movements in other countries
as it can.  There have been some successes here, as I have pointed out
in an article published in Monthly Review magazine last summer ("
‘Workers of All Countries, Unite': Will This Include the U.S. Labor
Movement?").  However, I noted that the Cold War complicity of the
AFL-CIO has perhaps not yet ended, and it is certainly the case that the
Federation has not yet critically examined and criticized  this sordid
part of its past, as urged recently by the Bay Area Labor Council.

6.  Although top CIO leaders like Sidney Hillman and Philip Murray were
eventually and firmly coopted by Roosevelt and the Democratic Party,
during the CIO's 1930s heyday, there was a real possibility of
constructing an independent labor politics, even a labor political party
on the European model (Oh, if only John L. Lewis had been a man of more
radical vision!).  The early CIO took independent and bold stands on
issues ranging from racism to public housing, and some of its leaders
had a vision of a more egalitarian and cooperative society.  Today, the
picture is much different.  The New Voices leadership has spent a lot of
money in political campaigns, with some success, but it is tied tightly
to the Democratic Party, which only by a very large stretch of the
imagination, can be called the party of labor.  In the last presidential
election, for example, the Federation want all-out for Gore, without
getting any commitment from him whatsoever to support specific pro-labor
programs and after Gore had already supported a raft of anti-labor
initiatives, including massive cuts in public employment, all of the
trade treaties and organizations, and the destruction of the system of
public welfare, to name a few.  Then when the Florida fiasco was
unfolding Gore operatives told Jesse Jackson and the AFL-CIO to cool it,
just when they might have done Gore some good.  A Wagner-era labor
movement cannot be constructed through such subservience to a Democratic
Party as fully dominated by corporate capital as the Republicans.
Political independence is perhaps a sine qua non for labor's revival.

7.  The Wagner Act era and the vibrant labor movement that made it
possible and benefitted from it, was marked by a strong left-wing within
the house of labor.  In my view, this is the most important difference
between then and now.  The left, with all of its faults, was the driving
force in organizing the mass production industries and the conscience of
the labor movement.  It stood for something much larger than the bread
and butter unionism of Samuel Gompers: for an end to racism and sexism,
for industrial democracy, for an anti-imperialist government, for an
egalitarian society.  What is more, the left-led unions won better
contracts and had more democratic practices than most other unions.
Without this left, I do not think that the CIO would have grown the way
it did, and perhaps the Wagner Act, itself, would never have been
enacted.  The demise of organized labor after World War Two was, in my
opinion due in large part to the conscious destruction by organized
labor of its left flank.  Therefore, a vibrant left is critical to
recreating the conditions which would allow a return to the Wagner-Act
era.  To its great credit, the new leadership in the AFL-CIO has been
reasonably congenial to the left, and there is some space now for the
left to prosper.  Recently there was a large meeting of labor leftists
in Los Angeles, the goal of which was to coordinate the various
left-wing forces within unions and in the larger labor movement.  If we
are lucky, an independent left will develop within organized labor and
at least act as pressuring agent to keep the Federation from slipping
too far to the right.


        It is one thing to say that we should return to the heady days of the
Wagner Act.  It is quite another to say how we should get there.  I have
laid out some of the preconditions for a return in the seven points just
made.  I suppose it is only fair to conclude with the obvious question:
how likely are these things to happen.  Right now I am not especially
optimistic, at least as far as the AFL-CIO is concerned.  It is, I fear,
too much the product of its past, and there are many labor right-wingers
waiting to undo even what Sweeney and company have achieved.  The return
of a Hoffa to the Teamsters is an unmitigated disaster and does not bode
well for labor's progressives, much less its leftists.  Yet, all is not
well in the house of capital, and the future might create economic
conditions ripe for mass challenge and protest.  Maybe the protests we
witnessed last year are a harbinger of things to come.  And at least in
some unions, the Teamsters especially, a strong, left-wing,
rank-and-file movement exists and is growing.  A combination of struggle
from below and another crisis of legitimacy could pave the way for a
21st century equivalent of U. S. labor's shining moment.

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