“Democracy cannot work unless it is honored in the factory as well as the polling booth; men cannot be truly free in body and in spirit unless their freedom extends into the places where they earn their daily bread.”
Senator Robert F. Wagner
Yesterday, July 5, marked the 80th anniversary of the signing of the National Labor Relations Act (NLRA), popularly known at the time as the Wagner Act, for its sponsor, New York Senator Robert Wagner. Passage of the NLRA marked the first time private-sector workers in the U.S gained permanent federal backing for organizing unions. The Act guarantees the right of private sector workers to organize and bargain collectively with their employers and to participate in concerted activities to improve their pay and working conditions, with or without representatives advocating on their behalf. Employers and employees alike are protected from unfair labor practices and have an ostensibly impartial forum in the National Labor Relations Board for the resolution of workplace disputes. Under the Act, if the government certified that the workers had a union—usually through a union election—then their company was obligated to enter into collective bargaining. Not only that, but the Wagner Act made it the “policy of the United States” to protect this right.
The employer class has fought against the NLRA from the beginning and has gradually succeeded in whittling away much of its promise, in part through Congressional amendments passed in 1947 (the infamous Taft-Hartley Act), 1959 (the Landrum-Griffin Act), and 1974 (adding to its coverage non-profit hospitals), but also through various Supreme Court decisions, including the notorious 1980 Yeshiva decision, which limited the ability of tenured and tenure-track faculty in private colleges and universities to unionize. By the turn of the 21st century, 57 percent of employers faced with a union organizing drive threatened plant closure, according to a study by Cornell University’s Kate Bronfenbrenner, and 34 percent fired union supporters. Wagner still deemed such threats illegal, yet the law’s penalties and enforcement were too weak to stop them.
The Act also created the National Labor Relations Board, which earlier this year published a 100-page anniversary publication, 80 Years of Protecting Employee Rights, which is available for free on the NLRB’s website. According to its Introduction, the book “does not attempt to be a comprehensive history of either the NLRB or development of the law under the Act. Rather, its purpose is to capture highlights of the Agency’s history and to serve as an album for the labor-management community on the Act’s anniversary.” As such, it is surprisingly successful and worth more than a brief look.
Academic unionism is not treated at much length in the book, but it does include this passage from a chapter covering the past twenty years:
Diverging views resulted in divided decisions, and shifting majorities in repeated reversals of precedent. For example, in New York University (2000), the Board overruled precedent to hold that graduate student assistants are employees within the meaning of the Act and therefore enjoy Section 7 rights. Four years later, in Brown University, the Board overruled NYU and returned to earlier precedent holding that graduate assistants are primarily students, not statutory employees. Then in Pacific Lutheran University (2014), the Board adopted a new jurisdictional test under Catholic Bishop that when it is argued that the Board cannot exercise jurisdiction over a petitioned-for unit of faculty because the university is a religious university, the university must first demonstrate that First Amendment concerns are implicated by showing that it holds itself out as providing a religious educational environment and then must show that it holds out the petitioned-for faculty members themselves as performing a specific role in creating or maintaining the religious educational environment. The Board also refined the standards under Yeshiva University to determine whether faculty actually or effectively exercise control over decision-making pertaining to central university policies by examining faculty participation in decision-making in: academic programs, enrollment management policies, finances, academic policies, and personnel policies and decisions, and giving greater weight to the first three areas than the last two.
In the wake of the steady decline in union membership, especially in the private sector, there have been a number of intriguing proposals for strengthening or bypassing the aging law, such as making the right to form a union a civil right or allowing workers to skip organizing for a majority and instead to build members-only unions. It’s also clear the Wagner Act needs to be updated to cover the burgeoning ranks of the exempt, such as those working people legally considered independent contractors—even when they drive the same company truck each day, or sweep the same office floors. And the NLRB itself has recognized “an increased emphasis on the protection of employee rights in the unorganized workplace.” Still, the passage of the NLRA marked a victory for workers everywhere. If that victory is to be sustained will depend less on changes in the Act than on the emergence of a revitalized labor movement, including an academic labor movement that strives to represent all who teach — tenure-track, adjuncts, academic professionals and graduate students alike. So, Happy Birthday, NLRA!