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One Law, Many Interpretations: Scholars’ Views of the Origins of the Wagner Act and Its Implications for American Workers

By: Jon Perkins

During the Great Depression, 13 million workers – out of a workforce of 52 million – lost their jobs. Of these 13 million, only a quarter received any kind of assistance,[1] and hunger and homelessness were widespread as a result.[2] Yet President Herbert Hoover vetoed a bill to provide assistance to the unemployed, while his administration’s Reconstruction Finance Corporation loaned $90 million to just one Chicago bank.[3] And so the Hoover administration laid the groundwork for “the Democrats’ return to political power” in 1932.[4]

After his election, President Franklin Roosevelt worked with Congress to pass the series of laws known as the “first New Deal,” and the National Industrial Recovery Act (NIRA) formed its centerpiece. NIRA’s section 7(a) promised workers the rights to organize unions and bargain collectively through them.[5]

However, NIRA’s National Recovery Administration (NRA) lacked the power to enforce the law in the face of employers who discriminated against unions. Thus, the NRA’s failure paved the way for the Wagner Act of 1935.[6] Named after its prime sponsor, US Senator Robert Wagner, the act almost replicated NIRA’s section 7(a) word-for-word. It declared that “[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” It also prioritized the free flow of commerce, redressing the inequality of bargaining power between employers and employees, and encouraging collective bargaining. To encourage collective bargaining, it established the National Labor Relations Board (NLRB).[7]

While these aspects of the Wagner Act are common knowledge, I pose two historiographical questions about it. First, how have scholars’ views of the act’s origins changed over time? And second, how have their views of the act’s implications for American workers changed as well? Answering these questions will provide a foundation, based on previous understandings, to answer the larger historical questions at play. As Michel-Rolph Trouillot puts it, “To contribute to new knowledge and to add new significance, the narrator must both acknowledge and contradict the power embedded in previous understandings.”[8] The act presents a puzzle for such understandings: “how and why, in a notoriously business-dominated polity, did the Wagner Act become law?”[9] Solving this puzzle may hold important lessons for how workers can overcome business opposition to new labor laws.

The question of the Wagner Act’s implications for American workers is important because it gets at the issues future laws should address. For example, the Wagner Act regime has failed to redress the inequality of bargaining power between employers and employees.[10] Despite this inequality, the Taft-Hartley amendments to the act required the federal government to maintain neutrality in labor affairs, which disproportionately benefits capital in its struggle with labor. For this very reason, Senator Wagner had rejected calls for amendments along the lines of Taft-Hartley’s when Congress originally debated his bill.[11] Taft-Hartley contradicted the Wagner Act’s declaration of policy, which encouraged collective bargaining.[12] As such, James Gross – among other scholars – poses questions about the policies best suited to the act’s fulfillment.[13] Such policies are important because most people work for a living, and labor law thus shapes the context of the work they do. Regardless of the ideal policy, the question of how to draft that policy as law and get it passed remains, and the Wagner Act’s origins directly relate to that question.

Scholars’ views of those origins have not progressed in a single direction, instead alternating between theories that stress the role of elites and theories that stress the role of the people.[14] Irving Bernstein produced one of the first elite theories of the Wagner Act’s origins before James Green, as well as Frances Fox Piven and Richard Cloward, responded with their own popular theories. Theda Skocpol and Kenneth Finegold then came to the defense of elite theory, for which Michael Goldfield severely criticized them. G. William Domhoff and Michael J. Webber, while conceding some ground to the popular theorists, attacked Marxists like Goldfield and Stanley Aronowitz and cemented their own position as elite theorists.

While elite theorists assess the Wagner Act’s implications for American workers more positively, popular theorists divide on this question. Although many agree that the act was a concession to workers, some argue that it was also an attempt by elites to co-opt workers and incorporate them into the social order. However, they focus not on the act’s implications for workers after it was passed, but on how it came to pass in the first place.

Other scholars have focused on the Wagner Act’s implications, but their assessments have also not progressed in a single direction. Instead, they have alternated between positive and negative assessments. Bernstein and others writing in the 1950s and 60s tended to assess the Wagner Act positively, while the critical legal scholars who followed them in the 1970s and 80s tended to assess it negatively. Other scholars also assessed the act negatively, but for different reasons. Melvyn Dubofsky followed with a scathing critique of this scholarship, placing him firmly in the optimist camp. Critical legal scholar Ahmed White followed Dubofsky with a more pessimistic assessment of the Wagner Act, but one that avoided many of the pitfalls that Dubofsky had criticized the earlier critical legal scholars for. Writing most recently, Alexis N. Walker broadened the focus beyond the typical one on the private-sector, industrial labor movement to the public-sector labor movement. Since she argues that the problems of the latter would be solved by its inclusion in the Wagner Act, which does not currently cover public-sector workers, she qualifies as a more nuanced optimist on the act. But before considering the assessments of Walker and others, this paper opens with scholars’ views of the Wagner Act’s origins.

Scholars Views’ of the Wagner Act’s Origins

Historian Irving Bernstein produced one of the first major narratives dealing with the Wagner Act’s origins. His 1950 book The New Deal Collective Bargaining Policy implicitly reduced the act’s origins to its legislative history (i.e., the changes in its drafts and proposed amendments to it). It focused on Senator Wagner, his aide Leon Keyserling, and members of the first NLRB like Philip Levy and Calvert Magruder – all of whom helped draft the act – as well as the debates in each chamber of Congress over Wagner’s bill.[15] It thus represented an elite theory of the act’s origins.

Bernstein’s later work went beyond the Wagner Act’s successive drafts but remained an elite theory. In The Turbulent Years: A History of the American Worker, 1933-1940, published in 1969, he emphasized the importance of New Deal Democrats in protecting labor militancy. For example, on the San Francisco longshoremen’s strike of 1934 – which expanded into a general strike – he wrote that “if Roosevelt and [Labor Secretary Frances] Perkins had thrown their weight to the employers, which they did not do, the longshoremen’s union and [strike leader Harry] Bridges could hardly have survived.”[16] That same year, the Teamsters’ strike in Minneapolis and the auto workers’ strike in Toledo also expanded into city-wide conflicts in which public authorities intervened to keep the peace (but not by taking the employers’ side). Scholars often cite these conflicts in discussions of the Wagner Act’s origins, Bernstein included, but he focuses on how state elites reacted to them as opposed to who started them.

The popular theorists who followed Bernstein wrote during a very different time. While the contemporary capitalist offensive against American workers began in the mid-1950s,[17] it seriously intensified after the neoliberal turn in the 1970s.[18] That decade also saw a massive strike wave and welfare-rights protests, partially in response to neoliberalization, as well as the antiwar and Black Power movements. These movements increased the salience of popular mobilization, as reflected in the period’s scholarship.[19] Popular theorist James Green, for example, focuses on rank-and-file workers to the exclusion of elites.[20] Green studied under C. Vann Woodward, author of The Strange Career of Jim Crow, which Martin Luther King, Jr. called “the Bible of the civil rights movement.”[21]

Green criticizes Bernstein for writing of conflicts between particular groups of workers and employers without placing them in the larger context of the struggle between the people and elites – specifically, the working and capitalist classes.[22] As Stephen Resnick and Richard Wolff would put it, Bernstein does not take class as his “conceptual point of entry”[23] into history. As such, he relies on interviews with elites and traditional printed sources, which force him to emphasize the roles of those elites. Interviews with local leaders and rank-and-filers would have highlighted the fact that they were behind the mass strikes of 1934 in San Francisco, Minneapolis, and Toledo – thanks in large part to their leftist ideology.[24] Bernstein’s elite research methodology thus silences the role of the people, and especially the working class, in the Wagner Act’s origins.[25]

In 1977, five years after Green wrote, fellow popular theorists Frances Fox Piven and Richard Cloward argued that unions did not exist for the workers who went on strike in San Francisco, Minneapolis, and Toledo in 1934, demonstrating the irrelevance of organizations to popular disruption.[26] While Piven and Cloward would sympathize with Green’s comment that “the workers organized themselves, often in spite of the old unions,” they emphasize the left’s role in Depression-era labor organizing less than he does.[27] In fact, they downplay organizing altogether, arguing that the era’s disruptive protests were largely spontaneous. As Piven and Cloward put it, “lower-class disruptions often are [spontaneous], in the sense that they are not planned and executed by formal organizations.”[28] For example, Piven and Cloward argue that “the battles in Toledo, Minneapolis, and San Francisco occurred either in the aftermath of failed unionization drives, or before unionization had taken hold.”[29] They attribute this to the tendency of union leaders to act cautiously – not militantly – in response to the imperatives of organizational survival.

Elite theorists Theda Skocpol and Kenneth Finegold, in a 1990 article, did not focus on such disruption. Instead, they shifted the focus from the spontaneity and organizing of the people back to state leaders. However, popular theorist Michael Goldfield disputed the value of that focus in the same article, “Explaining New Deal Labor Policy.”[30]

Interestingly, Skocpol and Goldfield both participated in social movements before they became political scientists: Skocpol participated in the anti-Vietnam War movement while she attended Michigan State University as an undergraduate,[31] and Goldfield participated in Students for a Democratic Society and the Sojourner Truth Organization.[32] But they hail from different schools of thought: while Goldfield is a Marxist, Skocpol is a state autonomy theorist. In fact, the implicit maxim of the piece she co-authored with Finegold is that class relations, and society more generally, do not determine the nature of the state.[33] Specifically, Skocpol and Finegold argue that the Wagner Act was a project of state-building, in which elites like Senator Wagner and labor board bureaucrats took advantage of the Depression to increase their power.

Despite my disagreements with Skocpol and Finegold, I argue that they make at least three contributions to understanding the Wagner Act’s origins, all of which involve state elites (whether Members of Congress, President Roosevelt, or the Supreme Court). First, Skocpol and Finegold point out that NIRA, after Congress passed it in 1933, led to labor unrest. This is because it “emboldened labor organizers without constraining oppositions to unions,” as the NRA lacked the power to enforce its decisions.[34] In response, President Roosevelt established the National Labor Board (NLB). But the NLB, too, lacked the power to enforce its decisions. As such, the NIRA experience helped Members of Congress see a law like the Wagner Act – which gave enforcement powers to the new NLRB – as necessary, in order to reduce labor unrest and spur economic recovery.[35] Second, Skocpol and Finegold highlight the importance of the 1934 elections, in which progressives came to dominate Congress and state governorships, to the act’s passage. Many of these progressives refused to enforce capitalist property rights against strikers who violated them in the mass strikes of 1934. With repression of strikes off the table, those strikes’ underlying issues – mainly, union recognition and the right to organize – still begged for resolution. Finally, Skocpol and Finegold emphasize how the Supreme Court struck down NIRA in its Schechter Poultry decision. While President Roosevelt had reluctantly supported Senator Wagner’s bill before Schechter, that decision left him with no other workable policy alternative.[36] Ultimately, the election of progressives to Congress and NIRA’s invalidation made the difference to the Wagner Act’s success in July 1935 after Congress failed to pass a previous version of it in June 1934.[37]

While Goldfield agrees that the 1934 elections can help explain the Wagner Act’s passage, he refuses to view those elections apart from the popular activism that shaped them. Like Skocpol and Finegold, he points to the importance of “the increase in left-wing Democrats, progressive Republicans, and radical third-party congressmen and senators” in Congress after the 1934 elections. However, he argues that the outcomes of those elections were “in good part the result of the activities of broad social movements among the urban unemployed, farmers, Afro-Americans, and others and of the 1934 labor upsurge” in addition to “the organizing of dozens of powerful state and local third parties.”[38] In other words, according to Goldfield, without the 1934 elections Congress would not have passed the Wagner Act, but without popular movements, those elections would not have turned out the way they did.[39] As such, any explanation of the Wagner Act’s origins must not refer solely to state elites, but also to the popular movements crucial in their elections.

Furthermore, movement activity – including militant strikes – continued past the 1934 elections. These strikes and their largely radical leadership produced fears of revolution, with sociologist Stanley Aronowitz referring to “what some had termed an incipient revolution in America’s key production and transportation industries.”[40] Even if strikes had declined shortly before the act’s passage, the memory of them – especially those that expanded into general strikes, or something resembling them, in 1934 – were fresh in the minds of many Members of Congress, according to Goldfield.[41] Given their focus on this mass unrest, I classify Aronowitz and Goldfield’s interpretations of the Wagner Act as popular theories.

In contrast to Goldfield and Aronowitz, elite theorists G. William Domhoff and Michael J. Webber – writing in 2011 – declare that “the emphasis in most historical accounts, including ours, is…on the power of landlords, capitalists, state leaders, or priests…”[42] Further distinguishing themselves from Goldfield and Aronowitz, who identify as Marxists, Domhoff and Webber write that their work “starts with the work of sociologists C. Wright Mills (1956, 1962) and Michael Mann (1986) in assuming that there are political, military, and religious bases of power in addition to the economic base that is given primacy in Marxist theory.”[43] As such, their work is also distinct from that of Skocpol and Finegold, who focus on state leaders to the exclusion of military, religious, and corporate leaders – the latter of whom Domhoff and Webber emphasize.

While they generally agree with fellow elite theorists Skocpol and Finegold that society does not determine the nature of the state, Domhoff and Webber argue that capitalist-class dominance throughout most of US history has indeed determined the nature of the American state.[44] Indeed, most elected officials and policy experts, throughout the 20th century, were not independent of that class. Specifically, Domhoff and Webber argue that “most of the experts who influenced public policy” during the New Deal “were employees of the corporate moderates in a policy-planning network that grew gradually over the first three decades of the twentieth century, with its main organizations fully developed and in place shortly before the New Deal began.”[45] Those corporate leaders also “provided the lion’s share of [elected officials’] financial support in the twentieth century, including the New Deal era…”[46] While it is difficult to prove that corporate elites’ funding directly determined experts’ policy proposals, or elected officials’ votes, it is plausible that such funding narrowed the acceptable range of actions they could take (at least if they cared about keeping their jobs or positions of power).

Domhoff and Webber further argue, against the popular theorists, that the Wagner Act was not a response to the worker upsurge of the first half of the 1930s. At the same time, they argue that “the election of moderate-to-liberal Northern Democrats to Congress and the militancy of a united working class were necessary conditions” for corporate moderates to propose and serve on the NLB. Liberals, corporate lawyers in government, and labor leaders then “refashioned [the NLB] to their liking.”[47] Based on what they learned from their experiences (what Skocpol and Finegold call “administratively situated policy learning”),[48] these elites formulated the principles of what would become the Wagner Act.[49]

A significant reason for the divergence of Domhoff and Webber’s view of the Wagner Act from others’ views – whether elite or popular – is that “some of the most important archival material necessary for a more complete analysis did not become available until the second half of the 1980s or even later.” This had contributed to “a general impression in the historical literature that corporate leaders uniformly opposed every aspect of the New Deal.”[50] The reverse image of this impression – the theory of corporate liberalism, which holds that enlightened corporate elites led the effort for the Wagner Act’s passage – is equally untenable. Domhoff and Webber do emphasize the role corporate moderates played in the formation of the NLB, which “took on a life of its own.”[51] But they also point out that these moderate corporate elites united with ultraconservative ones to oppose the Wagner Act’s passage, since by that point it had gone too far even for them.[52]

Scholars’ Views of the Wagner Act’s Implications for American Workers

However, according to some popular theorists and theorists of corporate liberalism, certain corporate leaders – along with state and union leaders – supported the Wagner Act to co-opt workers and incorporate them into the social order.[53] Others make no such claims, but nevertheless agree that the act had this effect in practice.[54] Still others deny this contention altogether. For example, in the 1950s and 60s scholars tended to argue that the Wagner Act was entirely positive for American workers (implicitly denying that it co-opted them).[55] In Joseph G. Rayback’s words, “Labor, in short, had finally secured equality of position in the nation’s economy.”[56] According to Rayback, since the act required employers to negotiate with unions elected to represent their employees, they could finally sit across the bargaining table from one another as equals. Rayback thus represents the first wave of scholarship positively assessing the Wagner Act.

In reaction to such optimistic scholarship, legal scholars founded the critical legal studies (CLS) school of thought at a conference at the University of Wisconsin-Madison in 1977.[57] Many of these scholars had “participated in social activism surrounding the Civil Rights movement and the Vietnam War.”[58] They founded CLS to criticize the method of “reasoned elaboration” in particular. That method treats laws as if they had an essence underlying the contradictions of their text. For the critical legal scholars, as those affiliated with CLS came to be known, reasoned elaboration mystified the fact that laws were instead contingent products of compromise.[59] As such, reasoned elaboration served to prevent the law’s use as an instrument of social change, instead facilitating its use as an instrument of the rich and powerful.[60] Thus, critical legal scholarship stressed the negative side of existing laws like the Wagner Act.

Karl Klare was one of the first critical legal scholars to stress the negative side of the Wagner Act. Klare, like some popular theorists and theorists of corporate liberalism, argues that the act – while increasing the material security of the working class – co-opted the working class and incorporated it into the social order.[61] He also argues that, while this was the Wagner Act’s effect in practice, that the act had an unfulfilled potential to transform class relations. However, Supreme Court decisions from 1937-1941 significantly reduced that potential, thereby deradicalizing the act. According to Klare, these decisions narrowed and limited “legally protected union activity and [hampered] the effective enforcement of the Act. Chief among these decisions were NLRB v. Fansteel Metallurgical Corp….condemning the sit-down strike; NLRB v. Mackay Radio & Telegraph Co….allowing permanent replacement of economic strikers; NLRB v. Sands Manufacturing Co….withdrawing section 7 protection from certain strike activity in the context of an existing collective bargaining relationship; and Phelps Dodge Corp. v. NLRB…establishing the mitigation rule.”[62] All of these decisions restricted the right to strike, one of the most powerful weapons at workers’ disposal. Klare argued that, with their ability to strike reduced, workers would face an uphill battle in any attempt to transform class relations. Since he implicitly framed such a transformation as positive, it follows that Klare was pessimistic about the Supreme Court’s interpretations of the Wagner Act.

Critical legal scholars Katherine Stone and Staughton Lynd also negatively assess the Wagner Act’s legal interpretations. While Klare focused on Supreme Court decisions between 1937-1941, Stone broadened the focus to decisions from that time until 1981 (the year in which she wrote), and the philosophy of class relations underlying those decisions. Following World War II, liberal academics and judges widely shared this philosophy, known as industrial pluralism. It holds that labor and management have equal power and come together to legislate the law of the workplace: the collective bargaining agreement.[63] However, Stone recognized a major flaw of industrial pluralism in that labor and management do not and did not have equal power, even during the long postwar boom (roughly 1946-1973), and this is the primary reason for her negative assessment of the Wagner Act’s interpretations.

Of those interpretations, some of the most important were the Supreme Court’s Steelworkers Trilogy (1960) decisions, which established a federal common law of labor relations based on industrial pluralism. That common law deferred to the outcomes of the arbitration of contractual disputes, and elevated such arbitration above the right to strike. In its three decisions in the Steelworkers Trilogy cases, the Supreme Court “created a presumption of arbitrability….[w]hen the scope of the agreement to arbitrate is ambiguous.”[64] In this way, the court handcuffed unions to the arbitral process, preventing them from using other tactics like strikes. It also ruled that “arbitrators need not disclose the rationale for their decision…‘mere ambiguity’ concerning its basis will not invalidate the award.”[65] Apparently unions had an obligation to arbitrators – to give reasons why a grievance should be resolved in their favor – but arbitrators were not similarly obligated to give reasons for ruling as they did. Such a flagrant double standard easily lent itself to Stone’s negative assessment of the Wagner Act’s legal interpretations.

While there is much overlap between Stone and Lynd, the latter is more nuanced in his pessimism regarding the Wagner Act’s legal interpretations. He argues – against Klare – that from the Jones & Laughlin decision upholding the Wagner Act in 1937 to the Taft-Hartley amendments to it in 1947, the court had prioritized workers’ rights over labor peace. The relative importance of these principles is not a straightforward matter of the Wagner Act’s text, since it mentions both of them.[66] On the issue of labor peace, the act states that “strikes and other forms of industrial strife or unrest…have the intent or the necessary effect of burdening or obstructing commerce.”[67] It therefore seeks to prevent strikes to facilitate the free flow of that commerce, regardless of whether workers’ rights will be served in the process – a negative aspect of the Wagner Act, from Lynd’s perspective.

Since 1947, according to Lynd, the Supreme Court had focused on labor peace and workers’ rights had suffered as a result. This included the right to strike.[68] For example, in its Boys Markets decision (1970), the court ruled that it was “unlawful for workers to strike over any issue covered by an arbitration clause in a collective bargaining agreement, even if the contracts made no express waiver of this kind.”[69] This meant that federal courts could enjoin such strikes, contrary to the Norris-LaGuardia Act of 1932 – the most positive legal development preceding the Wagner Act for workers at the national level.

Furthermore, Lynd agrees with Stone that industrial pluralism underlied the court’s priority on arbitration over the right to strike, casting this priority as a negative one. Justice William Brennan, who wrote the majority opinion in Boys Markets, justified that decision with an argument from leading industrial pluralist Archibald Cox. Since industrial pluralists like Cox elevated arbitration above the right to strike, Lynd also assessed industrial pluralism – and the interpretations of the Wagner Act it informed – quite negatively.[70]

Like Lynd, historian James Gross – in a 1985 article – also negatively assesses the Wagner Act’s post-1947 interpretations. Unlike Lynd and Stone, however, he blames these interpretations on the Taft-Hartley amendments to the act instead of industrial pluralism.[71] Gross developed his thesis in a series of books, culminating in 2017 with Rights, Not Interests: Resolving Value Clashes Under the National Labor Relations Act. That thesis can be divided into two parts. First, Taft-Hartley’s requirement that the government maintain neutrality in labor affairs contradicts the Wagner Act’s declaration that “the policy of the United States [is] to…[encourage] the practice and procedure of collective bargaining.”[72] Second, from the post-Taft-Hartley NLRB in 1947 to the Bush, Sr. NLRB in 1994, each Board recognized that these statutory purposes conflict, and each Board prioritized just one of those purposes as consistent with congressional will. Thus, the President’s power to appoint the Board has effectively become the power to select one of those purposes – for Gross, a most arbitrary power, and hence one he views negatively.[73]

While Klare, Stone, and Lynd either wrote before President Ronald Reagan was elected, or after he had held office for less than a year, Gross wrote his original 1985 article after Reagan had held office for over four years. During that time, he appointed eight NLRB members. Of these, six were Republicans and only two were Democrats.[74] According to Gross, these members prioritized employer speech – as protected by Taft-Hartley – over employer neutrality in union elections, as required by the Wagner Act.[75] This was highly distressing to Gross and to the leaders of the American Federation of Labor-Congress of Industrial Organizations (AFL-CIO), who both blamed the “sorry state of the NLRA” on Taft-Hartley.[76] They adopted this view from earlier labor leaders, whose optimism regarding the Wagner Act, and pessimism regarding the Taft-Hartley Act, were expressed in their references to the former as “Labor’s Magna Carta” and to the latter as a “Slave-Labor Law.”[77]

While historian Melvyn Dubofsky would endorse the framing of the Wagner Act as “Labor’s Magna Carta,” he would oppose the framing of Taft-Hartley as a “Slave-Labor Law.” Writing in 1994, Dubofsky returned to a positive assessment of the Wagner Act’s legal interpretations – albeit one more nuanced than that of the early optimists.[78] Against what he frames as Klare’s one-sided pessimism, he argues that the act not only increased workers’ material security, but also liberated them (insofar as it reduced bosses’ ability to treat them arbitrarily and with impunity).[79]

Expanding on his optimism, Dubofsky also argues that “[t]he vast majority” of Supreme Court decisions from 1937-1941 “sustained both the letter and the spirit of the Wagner Act, and the authority of the NLRB and the rights of labor.”[80] Those decisions “surely did not strip…workers of rights or freedoms once held.”[81] To those like Klare who faulted the Supreme Court’s Mackay Radio decision for allowing employers to permanently replace workers striking for “economic reasons” (as opposed to legally defined unfair labor practices), Dubofsky responded that “the Supreme Court’s actual opinion…simply [defined] more precisely the employers’ prior legal right to hire replacement workers, which the Wagner Act had never abrogated.”[82] In other words, the Wagner Act had never protected economic strikers from permanent replacement in the first place. And with the exception of the Sands Manufacturing and Phelps Dodge decisions, the only examples Klare cites are Mackay Radio and Fansteel, which outlawed the sit-down strike. But occupying corporate property in sit-down strikes, however effective it might be in furthering workers’ interests, qualifies as yet another example of a freedom that workers have never held (meaning the Supreme Court could not have stripped it from them).[83] Since Mackay Radio and Fansteel did not add to workers’ injury, and since other Supreme Court decisions actually benefited workers, Dubofsky took an optimistic view of the Wagner Act.

Against Gross, Dubofsky also frames the Taft-Hartley Act in an optimistic fashion, in that it did not represent a fundamental break with New Deal labor law. Critical legal scholar Ahmed White,[84] as well as historians David Brody[85] and Christopher Tomlins – who opposes Dubofsky in most other respects[86] – argue along the same lines. Tomlins, for example, writes that “a careful study of…NLRB decisions suggests that…[b]y 1947, the Board itself had already adopted many of the ‘changes’ of Taft-Hartley.”[87] Dubofsky similarly writes that “[e]ver since the NLRB had been reconstituted by Roosevelt in the wake of the Smith Committee investigations and hearings, its new members and their even more conservative successors had been issuing decisions that prefigured some of the reforms enunciated in Taft­-Hartley.”[88] Conservatives dominated the congressional Smith Committee, whose investigations into the NLRB resulted in a purge of leftists from it.[89] The leftists’ departure paved the way for NLRB decisions that Taft-Hartley simply codified in 1947. As such, Dubofsky – echoing his assessment of Supreme Court decisions from 1937-1941 – does not assess Taft-Hartley negatively because it did not add to workers’ injury.

Dubofsky also argues that Taft-Hartley did not make a difference in union successes or failures after Congress passed it. He writes that “the unions that should have been most severely constrained by the law’s limitations on jurisdictional and sympathy strikes, secondary boycotts, and arbitrary internal union practices flourished in the aftermath of its passage, none more so than the Teamsters and the construction trades unions, the primary practitioners of [those tactics]. The CIO campaign to organize the South was imperiled well before the passage of Taft­-Hartley and the subsequent enactment of state right­-to-­work laws. Indeed, unions achieved their peak absolute and relative membership (union density) in the era of the Korean War, four to six years after the passage of Taft­-Hartley.”[90] For Dubofsky, right-to-work laws and restrictions on union tactics did not stop the growth in union membership, and the NLRB had already decided the aspects of Taft-Hartley that were bad for unions. Thus, his assessment of the Wagner Act was more nuanced than those of the early optimists, whose work did not deal with these NLRB interpretations and thus left the impression that the act’s legacy was unblemished.

While Ahmed White took issue with these and other legal interpretations of the act, making him a pessimist, he moved beyond a narrow focus on the law in itself – something Dubofsky had criticized other critical legal scholars for doing. In the 2011 article “Industrial Terrorism and the Unmaking of New Deal Labor Law,” White harshly criticized the Supreme Court’s Fansteel decision confirming the illegality of sit-down strikes, and the Southern Steamship decision extending Fansteel to other contexts. He also broadened the focus beyond the law to labor militancy and its repression – the subject of his 2016 book, The Last Great Strike: Little Steel, the CIO, and the Struggle for Labor Rights in New Deal America. In the 2018 article “Its Own Dubious Battle: The Impossible Defense of an Effective Right to Strike,” he argued that such repression is part and parcel of liberal society – hinting at an analysis not only critical of the Wagner Act, but critical of capitalism more broadly (or at least its liberal variants).[91]

Like historian Jeremy Brecher, another pessimist regarding the Wagner Act, much of White’s work focuses on the repression of strikes in particular. Brecher puts the issue thus: “When workers strike, they immediately face the problem of making the strike effective by preventing production” through disruptive tactics – for example, a picket line. However, the courts have held that “employers have the legal right to move goods and people” – mainly replacement workers – “freely across a picket line.”[92] Furthermore, the government can intervene to end strikes which refuse to recognize this right, and on 160 occasions – as of 1969 – state and federal troops had done just that.[93] White further argues that the leftists who ran the NLRB in the second half of the 1930s tolerated disruptive tactics like picket lines, which is the only reason they succeeded at that time. In his words, “Under the leadership of a group of leftist lawyers between 1935 and 1939…the agency’s staff went to considerable lengths to protect strikers from reprisals by employers and government officials” for strikers’ use of these tactics.[94] The Smith Committee soon forced Roosevelt to purge these leftists, and the progressives in Congress – who were responsible for approving their nominations and for funding the NLRB – were soon replaced by more conservative legislators in the 1938 elections.[95] As such, congressional conservatism rapidly did away with any positive potential the Wagner Act had, according to White.

Political scientist Alexis Walker returned to a more positive view of the Wagner Act two years after White’s most recent article.[96] Her book Divided Unions: The Wagner Act, Federalism, and Organized Labor covers the history of public-sector workers and their exclusion from the act. She wrote it during an ongoing assault on public-sector unions, which took the form most recently of the Supreme Court’s Janus decision in 2018. That decision outlawed the union shop,[97] which was already illegal for federal workers, in state and local government employment as well. In the face of such judicial hostility, compared to Supreme Court decisions during the “second New Deal,” it has been easier – as Walker does – to emphasize the positive aspects of the Wagner Act.

While Walker focuses on the exclusion of public-sector workers from the act, a decidedly negative aspect of it, she frames that exclusion as a problem to be solved by the public sector’s inclusion, thereby implying a positive view of the act as a whole. She focuses especially on how federalism relates to the Wagner Act’s exclusion of public-sector workers. Given that exclusion, the US federal system has three important consequences. First, public-sector unions have just as many “points of access at the state and local levels” to influence policy-making as their opponents have points at which to veto their efforts.[98] This has resulted in a patchwork quilt of public-sector labor laws. Second, public-sector unions constitute a majority of the labor movement today, but have only been able to win collective bargaining rights in more progressive states. The resulting geographic concentration of these unions has decreased the chances of winning a filibuster-proof majority in the Senate for federal labor law reform. Finally, since public-sector unions only started to win collective bargaining rights three decades after Congress passed the Wagner Act in 1935, they experienced a delayed growth spurt relative to private-sector unions, and this growth plateaued in the 1970s.[99] As such, Walker implies a positive view of the Wagner Act by arguing that these problems with public-sector unions’ growth would not have occurred if they were originally included in the act.

Conclusion

While the Wagner Act excluded public-sector workers, Walker argues that this was an afterthought for Members of Congress. Their exclusion of agricultural and domestic workers, on the other hand, was truly important for the act’s passage.[100] But their exclusion was not the only factor in that passage, and scholars’ views of the Wagner Act’s origins reflect this.

Those views did not progress in a single direction, but instead alternated between elite and popular theories. Thus, popular theorists like Green, Piven and Cloward, Goldfield, and Aronowitz focus on labor unrest in the Wagner Act’s origins. However, Green, Goldfield, and Aronowitz emphasize the working class, whereas Piven and Cloward emphasize poor people. Elite theorists like Bernstein, Skocpol and Finegold, and Domhoff and Webber, on the other hand, discuss how progressives protected labor unrest from repression in the lead-up to the act’s passage. But whereas Bernstein and Skocpol and Finegold emphasize state elites, Domhoff and Webber emphasize corporate elites.

While some popular theorists argue that these elites attempted to co-opt workers, through the Wagner Act, and incorporate them into the social order, they focus more on the act’s origins than its implications for American workers after its passage. Scholars who did deal with those implications, as well as those of the act’s legal interpretations, also did not progress in a single direction. Rather, they alternated between positive and negative assessments. Early scholars of the Wagner Act like Bernstein, Rayback, and R.W. Fleming tended to endorse it without qualification. It was easier for them to do so: they either wrote before the contemporary capitalist assault on workers began in the mid-1950s,[101] or before that assault intensified in the 1970s with the neoliberal turn.[102] Subsequent optimists, however, have added nuance to their assessments. And whereas most of the initial pessimists blamed industrial pluralism for unfavorable Supreme Court interpretations of the Wagner Act, James Gross blamed the Taft-Hartley amendments to the act in 1947. Ahmed White, a subsequent pessimist, broadened the focus beyond the law in itself.

However, most of these pessimists were critical legal scholars who did focus narrowly on the law in itself, as Dubofsky had criticized them for doing.[103] While they saw the law as the product of various struggles, they did not consider how further struggles could shape the law’s application and interpretation. It was largely because of workers’ struggles that industrial pluralism – as applied – not only “imprisoned” workers, but “liberated” them as well.[104]

Staughton Lynd is an exception among critical legal scholars because he draws attention to how workers’ struggles can shape the law’s future interpretation. For example, he calls for the “activists and advocates building the interpretation of the Wagner Act ‘from below’” to “celebrate and seek to restore to its intended vigor the right to engage in concerted activity for mutual aid or protection.”[105] With other critical legal scholars, I hold that laws are generally the product of compromise; as such, the Wagner Act does not reflect just one intent.[106] But Lynd was right that by engaging in militant action, unionists can maximize the chances of the act’s interpretation along favorable lines.

However, militancy is just part of the equation. While White calls for a “more direct endorsement of militancy,” he also calls for a “political program that might advance the interests of the working class regardless of what the law might hold.”[107] This is no mere platitude: it is based on the lessons of the New Deal era, and the gains workers made by defying capitalist property rights. This defiance was most apparent in the sit-down strikes of 1936-37 – factory occupations by another name – which Lynd and White argue shaped the Supreme Court’s Jones & Laughlin decision upholding the Wagner Act.[108] However, such militancy would not have made the gains it did without the assistance of progressive elected officials and NLRB leftists, who refused to enforce property rights against the strikers. As such, popular theorists are one-sided in their focus on labor unrest, while elite theorists are one-sided in their focus on public officials’ protection of that unrest. A synthesis of popular and elite theories would stress that unrest was necessary, and its protection sufficient, for a change in the laws.

More generally, this dialectic between rank-and-file workers and state leaders seems to be an underexplored area in the scholarship on the Wagner Act. As Green put it in 1972, “Some Marxist historians called for a total view of the past that brought both of these approaches [bottom-up and top-down] together in a dialectical understanding of the class struggle. However, New Left historians of the US have not yet written that kind of total view of the past into their work.”[109] And it seems that scholars, regardless of their school of thought, have still not done so. As such, this promises to be an important area for future scholarship.

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Notes:

  1. Frank Freidel, The New Deal in Historical Perspective (Washington, D.C.: American Historical

    Association, 1959). ↑

  2. Jefferson Cowie, The Great Exception: The New Deal and the Limits of American Politics (Princeton: Princeton University Press, 2016). ↑

  3. Freidel, The New Deal. ↑

  4. Stanley Aronowitz, How Class Works: Power and Social Movement (New Haven: Yale University Press, 2003), 77. ↑

  5. “National Industrial Recovery Act (1933),” Milestone Documents, National Archives, last reviewed February 8, 2022, https://www.archives.gov/milestone-documents/national-industrial-recovery-act. ↑

  6. Following Joseph McCartin, “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 [National Labor Relations Act], I am referring to the amended act.” Joseph A. McCartin, “‘As Long as There Survives’: Contemplating the Wagner Act after Eighty Years,” Labor: Studies in Working-Class History of the Americas 14, no. 2 (May 2017): 27, emphasis in original. ↑

  7. “National Labor Relations Act (1935),” Milestone Documents, National Archives, last reviewed November 22, 2021, https://www.archives.gov/milestone-documents/national-labor-relations-act. ↑

  8. Michel-Rolph Trouillot, Silencing the Past: Power and the Production of History (Boston: Beacon Press, 1995). ↑

  9. Colin Gordon, New Deals: Business, Labor, and Politics in America, 1920-1935 (Vancouver: University of British Columbia, 1994). See also G. William Domhoff and Michael J. Webber, Class and Power in the New Deal: Corporate Moderates, Southern Democrats, and the Liberal-Labor Coalition (Stanford: Stanford University Press, 2011). ↑

  10. To say nothing of employee participation in production decisions. ↑

  11. See, e.g., Irving Bernstein, The New Deal Collective Bargaining Policy (Berkeley: University of California Press, 1950), and R.W. Fleming, “The Significance of the Wagner Act,” in Labor and the New Deal, eds. Milton Derber and Edwin Young (New York: Da Capo Press, 1957). ↑

  12. “It is declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining…” National Archives, “National Labor Relations Act (1935).” See also James A. Gross, “Conflicting Statutory Purposes: Another Look at Fifty Years of NLRB Law Making,” Industrial and Labor Relations Review 39, no. 1 (October 1985): 7–18, https://www-jstor-org.aurarialibrary.idm.oclc.org/stable/2523534. ↑

  13. See, e.g., James A. Gross, Rights, Not Interests: Resolving Value Clashes Under the National Labor Relations Act (Ithaca: ILR Press, 2017). ↑

  14. I refer to these as “elite theories” and “popular theories,” and to the scholars espousing them as “elite theorists” and “popular theorists.” Notwithstanding the distinctions between individual scholars, their top-down or bottom-up approach to history unifies those in each camp, respectively. ↑

  15. Bernstein, The New Deal. ↑

  16. Irving Bernstein, The Turbulent Years: A History of the American Worker, 1933-1940 (New York: Houghton Mifflin, 1969), 298. ↑

  17. Michael Goldfield, The Decline of Organized Labor in the United States (Chicago: University of Chicago Press, 1987). ↑

  18. According to Marxist geographer David Harvey, neoliberalism is both a theory and a political project. As a theory, it proposes that “human well-being can best be advanced by the maximization of entrepreneurial freedoms within an institutional framework characterized by private property rights, individual liberty, unencumbered markets, and free trade.” As a political project, neoliberalism seeks to “restore class dominance to sectors that saw their fortunes threatened by the ascent of social democratic endeavors in the aftermath of the Second World War.” David Harvey, “Neoliberalism as Creative Destruction,” The Annals of the American Academy of Political and Social Science 610 (March 2007): 22. ↑

  19. As McCartin puts it, “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.” McCartin, “‘As Long as There Survives’,” 25. ↑

  20. James Green, “Working-Class Militancy in the Depression,” Radical America 6, no. 6 (November-December 1972): 1–36. ↑

  21. Sheldon Hackney, “C. Vann Woodward, Dissenter,” Historically Speaking 10, no. 1 (January 2009): 31. ↑

  22. Green, “Working-Class Militancy.” ↑

  23. “…that particular concept a theory uses to enter into its formulation, its particular construction of the entities and relations that comprise the social totality….Among the infinity of facts, each science’s facts are always selected for scrutiny, gathered, and quite literally ‘seen’ or ‘observed’ in and through its conceptual framework.” Stephen A. Resnick and Richard D. Wolff, Knowledge and Class: A Marxian Critique of Political Economy (Chicago: University of Chicago Press, 1987), 25, 84. ↑

  24. Green, “Working-Class Militancy.” ↑

  25. “Silences enter the process of historical production at four crucial moments: the moment of fact creation (the making of sources); the moment of fact assembly (the making of archives); the moment of fact retrieval (the making of narratives); and the moment of retrospective significance (the making of history in the final instance).” Trouillot, Silencing the Past, 26, emphasis in original. ↑

  26. Frances Fox Piven and Richard A. Cloward, Poor People’s Movements: Why They Succeed, How They Fail (New York: Vintage Books, 1977). Piven has served as an officer for professional associations like the Society for the Study of Social Problems, and on the boards of activist organizations like the Democratic Socialists of America and the American Civil Liberties Union. Cloward, Piven’s late husband, founded the National Welfare Rights Organization in 1966. “Frances Fox Piven papers,” Libraries, Smith College, last modified May 14, 2020, https://findingaids.smith.edu/repositories/2/resources/924. ↑

  27. Green, “Working-Class Militancy,” 2. ↑

  28. Piven and Cloward, Poor People’s Movements, 26. See also Domhoff and Webber, Class and Power. They call Piven and Cloward “protest-disruption theorists.” ↑

  29. Piven and Cloward, Poor People’s Movements, 148. ↑

  30. Theda Skocpol, Kenneth Finegold, and Michael Goldfield, “Explaining New Deal Labor

    Policy,” American Political Science Review 84, no. 4 (December 1990): 1297-1315, https://www-jstor-org.aurarialibrary.idm.oclc.org/stable/1963265. ↑

  31. Theda Skocpol and Eric Schickler, “A Conversation with Theda Skocpol,” Annual Review of Political Science 22 (May 2019): 1-16, https://www.annualreviews.org/doi/10.1146/annurev-polisci-030816-105449. ↑

  32. Michael Staudenmaier, Truth and Revolution: A History of the Sojourner Truth Organization, 1969-1986 (Oakland: AK Press, 2012). ↑

  33. Theda Skocpol and Kenneth Finegold, “Explaining New Deal Labor Policy,” American Political Science Review 84, no. 4 (December 1990): 1297-1304. ↑

  34. Skocpol and Finegold, “Explaining,” 1301. ↑

  35. However, this contradicts their argument against Goldfield that the act was not a response to labor unrest. They also fail to ask why Congress passed NIRA in the first place, thus silencing the role labor unrest may have played in that law’s passage as well. ↑

  36. Skocpol, Finegold, and Goldfield, “Explaining.” ↑

  37. Skocpol and Finegold, “Explaining.” ↑

  38. Michael Goldfield, “Explaining New Deal Labor Policy,” American Political Science Review 84, no. 4 (December 1990): 1305-06, https://www-jstor-org.aurarialibrary.idm.oclc.org/stable/1963265. ↑

  39. In Goldfield’s social-scientific language, the 1934 election outcomes were an “intervening variable” and not simply an “independent variable.” Goldfield, “Explaining,” 1306. ↑

  40. Aronowitz, How Class Works, 79. ↑

  41. Goldfield, “Explaining.” As legal scholar George Feldman points out, Members of Congress feared a “rising tide of labor unrest” and “an epidemic of strikes that has never before been witnessed in this country.” George Feldman, “Unions, Solidarity, and Class: The Limits of Liberal Labor Law,” Berkeley Journal of Employment and Labor Law 15, no. 2 (1994): 196, quoting Senator Walsh and Representative Sweeney, https://www-jstor-org.aurarialibrary.idm.oclc.org/stable/24051127. Such unrest need not have risen to the level of a revolutionary situation, and historian Melvyn Dubofsky is probably right that it did not. Melvyn Dubofsky, The State and Labor in Modern America (Chapel Hill: University of North Carolina Press, 1994). Members of Congress need only have perceived a revolutionary situation, or at least a situation threatening economic recovery. ↑

  42. Domhoff and Webber, Class and Power, 19. ↑

  43. Domhoff and Webber, Class and Power, 7. Resnick and Wolff argue, in Knowledge and Class, that Marxist theory only prioritizes the economy insofar as the economic concept of class is its conceptual point of entry (see note 23 for a definition of “conceptual point of entry”). They argue against economic determinism, the idea that the economy is the “base” of society and determines everything else about it. ↑

  44. Domhoff and Webber, Class and Power. Such dominance would have been especially noticeable in the year during which Domhoff and Webber wrote Class and Power in the New Deal: 2011. That year, the Occupy Wall Street movement formed in response to the fallout of the financial crisis of 2007-2009, the largest such crisis since the Great Depression. The Occupy movement criticized the Bush and Obama administrations for bailing out big banks while failing to provide relief for the people – much as the Hoover administration had done during the Depression. ↑

  45. Domhoff and Webber, Class and Power, 16. “Moderate” here refers to moderate conservatism. ↑

  46. Domhoff and Webber, Class and Power, 17. ↑

  47. Domhoff and Webber, Class and Power, 140-41. ↑

  48. Skocpol and Finegold, “Explaining,” 1301. ↑

  49. While Domhoff and Webber, Class and Power, are right about all this, they make the same mistake as Skocpol and Finegold in limiting the role of labor unrest to the NLB. ↑

  50. Domhoff and Webber, Class and Power, 21-23. ↑

  51. Domhoff and Webber, Class and Power, 140. ↑

  52. Domhoff and Webber, Class and Power. ↑

  53. See, e.g., Aronowitz, How Class Works. ↑

  54. See, e.g., Karl Klare, “Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937-1941,” Minnesota Law Review 62, no. 3 (March 1978): 265-339, https://heinonline-org.aurarialibrary.idm.oclc.org/HOL/Page?lname=Klare&handle=heinjournals/mnlr62&collection=&page=265&collection=journals. See also Piven and Cloward, Poor People’s Movements. ↑

  55. Bernstein, The New Deal; Fleming, “Significance;” Joseph G. Rayback, A History of American Labor (New York: Free Press, 1966); Bernstein, Turbulent Years. ↑

  56. Rayback, American Labor, 366. ↑

  57. “critical legal theory,” Wex, Legal Information Institute – Cornell University, last updated August 2022, https://www.law.cornell.edu/wex/critical_legal_theory. ↑

  58. Legal Information Institute – Cornell University, “critical legal theory.” ↑

  59. Roberto Unger, The Critical Legal Studies Movement: Another Time, a Greater Task (Brooklyn: Verso, 2015). ↑

  60. Legal Information Institute – Cornell University, “critical legal theory.” ↑

  61. “Reference to the ‘incorporation’ or ‘integration’ of the working class refers to the complex historical transition from a prototypical mode of working-class self-consciousness (reflected in its institutions and struggles), in which the working class saw itself as outcast, lacking entitlement to participation as of right in the affairs of state, and forced by hostile social and political institutions to depend entirely on its own efforts to secure economic and social betterment, to one in which it sees itself as having claims upon the state, interests that are in part synonymous with those of the state, and meaningful participation in the state’s affairs.” Klare, “Judicial Deradicalization,” 267. ↑

  62. Klare, “Judicial Deradicalization,” 319. ↑

  63. Katherine Van Wezel Stone, “The Post-war Paradigm in American Labor Law,” Yale Law Journal 90, no. 7 (June 1981): 1509–80, https://www-jstor-org.aurarialibrary.idm.oclc.org/stable/796079. According to Jean-Christian Vinel, “At the heart of industrial pluralism lay two important principles: the first one…was that both sides had legitimate positions that were worthy of consideration. The second one was that there was no inevitable class conflict between labor and capital…[who] had common interests that could be met if both sides agreed to meet at a bargaining table.” Jean-Christian Vinel, “The Other Side of Industrial Pluralism: William Leiserson, Harry Millis, Paul Herzog and the Quest for an ‘Employment Democracy’, 1939–47,” Labor History 48, no. 1 (February 2007): 1-24, https://www-tandfonline-com.aurarialibrary.idm.oclc.org/doi/full/10.1080/00236560601054082. ↑

  64. Stone, “The Post-war Paradigm,” 1528. ↑

  65. Stone, “The Post-war Paradigm,” 1529. ↑

  66. Staughton Lynd, “Government Without Rights: The Labor Law Vision of Archibald Cox,” Industrial Relations Law Journal 4, no. 3 (1981): 483-495, https://www.jstor.org/stable/24049605. ↑

  67. National Archives, “National Labor Relations Act (1935).” ↑

  68. Cf. Ahmed White, “Its Own Dubious Battle: The Impossible Defense of an Effective Right to Strike,” Wisconsin Law Review 2018, no. 6 (February 2018): 1086, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3128005: “In Jones & Laughlin itself, the Court’s majority took the opportunity to valorize labor peace, to invoke it as the essential, legitimate purpose behind the Congress’ enactment of the statute. ‘Experience has abundantly demonstrated,’ wrote Chief Justice Charles Evans Hughes, ‘that the recognition of the right of employees to self-organization and to have representatives of their own choosing for the purpose of collective bargaining is often an essential condition of industrial peace.’…A functional labor law, Hughes made clear, was above all a way of avoiding strikes.” ↑

  69. White, “Its Own Dubious Battle,” 1094. See also Stone, “Post-war Paradigm,” and Lynd, “Government Without Rights.” ↑

  70. Lynd, “Government Without Rights.” Lynd is correct that industrial pluralism underlied Supreme Court decisions that prioritized labor peace over workers’ rights, such as the one in Boys Markets. By allowing federal injunctions against workers who were striking over an issue covered by their collective bargaining agreement’s arbitration clause, even if that agreement did not waive their right to strike over it, Boys Markets pretended as if the Norris-LaGuardia Act did not exist. In doing so, it stripped workers of a “right or freedom once held”: the right to strike free from federal injunctions, contra Melvyn Dubofsky, “Legal Theory and Workers’ Rights: A Historian’s Critique,” Industrial Relations Law Journal 4, no. 3 (1981): 499, https://www.jstor.org/stable/24049606. But Dubofsky’s larger argument on the postwar industrial relations system – based in part on industrial pluralism – is more persuasive than Stone’s and Lynd’s. That system, Dubofsky argues in The State and Labor in Modern America, 214,, “simultaneously liberated and imprisoned the individual worker.” While it decreased bosses’ ability to treat workers arbitrarily and with impunity, and – as Klare had pointed out – increased workers’ material security, it also reduced their ability to directly challenge their employers or their unions. ↑

  71. Gross, “Conflicting Statutory Purposes.” ↑

  72. Gross, “Conflicting Statutory Purposes;” National Archives, “National Labor Relations Act (1935).” ↑

  73. Gross, Rights, Not Interests. ↑

  74. “Board Members Since 1935,” Who We Are, NLRB, last modified September 2023, https://www.nlrb.gov/about-nlrb/who-we-are/board/board-members-1935. ↑

  75. Gross, “Conflicting Statutory Purposes;” Gross, Rights, Not Interests. ↑

  76. McCartin, “‘As Long as There Survives’,” 27. ↑

  77. McCartin, “‘As Long as There Survives’,” 24. ↑

  78. Dubofsky, The State and Labor. Bryan Palmer writes that in the 1950s and 60s, Dubofsky, “[a]long with Herbert G. Gutman, David Montgomery, David Brody, and Alice Kessler-Harris…researched, wrote about, and taught courses in labour history at a time when the field was not in fashion and there was little appreciation and support for the study of workers and their pasts.” Bryan D. Palmer, “Hard Work: The Making of Labor History. (Book Reviews),” Relations Industrielles/Industrial Relations 56, no. 4 (Autumn 2001): 812, https://go-gale-com.aurarialibrary.idm.oclc.org/ps/retrieve.do?tabID=T002&resultListTye=RESULT_LIST&searchResultsType=SingleTab&retrievalId=fe38d753-d848-4169-b45-aa936aff53d1&hitCount=1&searchType=AdvancedSearchForm&currentPosition=1&ocId=GALE%7CA82536215&docType=Book+review&sort=RELEVANCE&contentSement=ZONE-MOD1&prodId=AONE&pageNum=1&contentSet=GALE%7CA8253621&searchId=R1&userGroupName=auraria_main&inPS=true. ↑

  79. Dubofsky, The State and Labor. ↑

  80. Dubofsky, The State and Labor, 164. See 162-66 for support. ↑

  81. Dubofsky, “Legal Theory,” 499. ↑

  82. Dubofsky, The State and Labor, 162. See also Jean-Christian Vinel, The Employee: A Political History (Philadelphia: University of Pennsylvania Press, 2013). ↑

  83. Dubofsky, The State and Labor. ↑

  84. White, “Its Own Dubious Battle.” ↑

  85. David Brody, “Labor vs. the Law: How the Wagner Act Became a Management Tool,” New Labor Forum 13, no. 1 (Spring 2004): 8–16, https://www-jstor-org.aurarialibrary.idm.oclc.org/stable/40342447. ↑

  86. See, e.g., Christopher L. Tomlins, “The State & Labor in Modern America. By Melvyn Dubofsky. Reviewed by Christopher L. Tomlins,” The Business History Review 68, no. 4 (Winter 1994): 593-597. https://www.jstor.org/stable/3117205. ↑

  87. Christopher L. Tomlins, The State and the Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880–1960 (New York: Cambridge University Press, 1985), 251, quoting Clyde W. Summers. ↑

  88. Dubofsky, The State and Labor, 206. ↑

  89. These leftists, inter alia, were partially successful in enforcing the Wagner Act against companies that violently repressed their workers in the Little Steel Strike of 1937. See Ahmed White, “Industrial Terrorism and the Unmaking of New Deal Labor Law,” Nevada Law Journal 11 (2011): 561-628, https://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1172&context=nlj. ↑

  90. Dubofsky, The State and Labor, 206. While Dubofsky is correct that Taft-Hartley codified decisions that the NLRB had already made, he fails to adequately address its section 14(b), and he fails to address its section 9(h) altogether. 9(h) required union officers to sign affidavits swearing that they were not members of the Communist Party. 14(b) allowed for state-level right-to-work laws outlawing the union shop. (See note 97 for a definition of the union shop.) As Dubofsky himself acknowledges, 14(b) allowed Southern states to opt out of industrial pluralism, double-sided as its protections may have been. As such, he is wrong to reduce the implications of that section to the CIO’s failure to organize the South in Operation Dixie. And even though Dubofsky is correct that union density peaked around 1953, seven more states passed right-to-work laws between 1954 and 1994, when he wrote The State and Labor in Modern America: Mississippi (1954), South Carolina (1954), Utah (1955), Kansas (1958), Wyoming (1963), Louisiana (1976), and Idaho (1985). Six more states passed right-to-work laws after 1994: Oklahoma (2001), Indiana (2012), Michigan (2012), Wisconsin (2015), West Virginia (2016), and Kentucky (2017). As such, the right-to-work laws in these 13 states might help explain why union density peaked around 1953 in the first place. ↑

  91. See also Feldman, “Unions, Solidarity, and Class.” ↑

  92. Jeremy Brecher, Strike! (Oakland: PM Press, 2014 [1972]), 295. ↑

  93. Brecher, Strike!, citing the History of Violence in America, published by the President’s Commission on Violence. ↑

  94. White, “Its Own Dubious Battle,” 1084. ↑

  95. Dubofsky, The State and Labor; White, “Industrial Terrorism,” and “Its Own Dubious Battle.” ↑

  96. Alexis N. Walker, Divided Unions: The Wagner Act, Federalism, and Organized Labor (Philadelphia: University of Pennsylvania Press, 2020). While repression was not Walker’s focus, on page 31 of Divided Unions she claims that “the Wagner Act put an end to active state repression of labor.” ↑

  97. “In a union shop, the contract states that the employer may hire a worker who is not a member of the union, but the worker must join the union within thirty days or be fired.” Michael Evan Gold, An Introduction to Labor Law (Ithaca: ILR Press, 1989), 31, emphasis in original. ↑

  98. Walker, Divided Unions, 133. The scholarly literature refers to these as “access points” and “veto points,” respectively. ↑

  99. Walker, Divided Unions. ↑

  100. Walker, Divided Unions. See also Dubofsky, The State and Labor; Domhoff and Webber, Class and Power; Ira Katznelson, Fear Itself: The New Deal and the Origins of Our Time (New York: W.W. Norton, 2013); and Goldfield, email to author, December 15, 2023. ↑

  101. Bernstein, The New Deal. ↑

  102. Fleming, “Significance;” Rayback, American Labor; Bernstein, Turbulent Years. For some, like the critical legal scholars, the neoliberal turn may have highlighted the insufficiency of the Wagner Act, and its legal interpretations, all along (or at least since the 1947 Taft-Hartley Act). For others, like Dubofsky, it may have highlighted how the state of affairs before the neoliberal turn, however much it “imprisoned” workers, simultaneously “liberated” them. ↑

  103. Dubofsky, “Legal Theory.” ↑

  104. Dubofsky, The State and Labor. ↑

  105. Lynd, “Government Without Rights,” 494-95. Lynd was a historian and activist before becoming a legal scholar. ↑

  106. The Wagner Act represents a compromise between the values of workers’ rights, on the one hand, and labor peace and the free flow of commerce on the other. ↑

  107. White, “Its Own Dubious Battle,” 1073. ↑

  108. Lynd, “Government Without Rights;” White, “Its Own Dubious Battle.” Both cite Piven and Cloward, Poor People’s Movements. ↑

  109. Green, “Working-Class Militancy,” 18. ↑

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