UP FOR DEBATE “As Long as There Survives”: Contemplating the Wagner Act after Eighty Years Joseph A. McCartin By this “collective bargaining” the employee shares through his chosen repre­ sentatives in fixing the conditions under which he works, and a rule of the law is substituted for absolute authority. With these roots in the ideals of self­rule and government according to law, the institution seems certain to grow, at least as long as there survives the political democracy on whose achievement it has followed. —Archibald Cox, 1947 Our days may come to seventy years, or eighty, if our strength endures. —Psalm 90 Eighty years ago, the world inhabited by tens of millions of US workers was trans­ formed in the span of only 102 days. On the morning of December 30, 1936, few could have predicted the scale or scope of that transformation. When that day dawned, even fervent supporters of labor reform doubted whether Senator Robert F. Wagner’s National Labor Relations Act (NLRA), which had been signed into law only eighteen months earlier, could withstand the scrutiny of a hostile US Supreme Court. Oral argument in the test case of NLRB v. Jones and Laughlin was scheduled to begin in less than six weeks, on February 9, 1937. Judging by the Supreme Court’s 1935 deci­ sions striking down the cornerstone programs of the early New Deal—the National Industrial Recovery Act and the Agricultural Adjustment Act—there was not much reason to believe that Wagner’s law would survive judicial review. No one outside the court yet knew that a momentous shift in the nation’s jurisprudence had in fact already begun. Associate Justice Owen Roberts—the court’s youngest member, an appointee of President Herbert Hoover, and one who had consistently sided with the court’s four most conservative justices in overturning New Deal initiatives—had only days before seemingly changed his orientation. On Labor: Studies in Working-Class History, Volume 14, Issue 2 DOI 10.1215/15476715-3790138 © 2017 by Labor and Working-Class History Association 21 Downloaded from https://read.dukeupress.edu/labor/article-pdf/14/2/21/437642/0140021.pdf by SARAH LAWRENCE COLLEGE user on 10 December 2019 22 14.2 LABOR December 19, 1936, Roberts had cast the decisive vote in the case of West Coast Hotel Company v. Parrish, a vote that would not become public for three more months. Influenced by Franklin D. Roosevelt’s smashing reelection, Roberts had allowed Chief Justice Charles Evans Hughes to persuade him to side with the court’s more liberal members to uphold the constitutionality of a Washington State minimum wage law. In retrospect, Roberts’s decision would be seen as signaling the end of the Lochner era, in which the concept of “liberty of contract” had been used as a sledgehammer by the court to demolish one effort at labor reform after another in the years between 1905 and 1936.1 But that became clear only in retrospect. On December 30, 1936, when no one yet knew what the law of the land regarding labor would be six months hence, auto workers in Flint, Michigan, handed down their own decision. In response to news of a walkout by General Motors workers in Cleveland, hundreds of members of the fledgling United Automobile Workers union shut down the assembly line and occu­ pied Flint’s Fisher Body No. 1 auto body plant, a key cog in GM’s US operations. Soon the sit­down strikers’ ranks swelled to two thousand. In the coming weeks they would repel multiple efforts to dislodge them. While they were barricaded inside their plant, on February 5, 1937, the strikers learned that President Roosevelt was proposing an expansion of the court’s membership—his “court packing” plan. But their focus remained on GM and not Washington. With strong community sup­ port, the aid of a militant Women’s Emergency Brigade, and the sympathy of Michi­ gan’s recently elected governor, Frank Murphy, the sit­down strikers would hold their ground for forty­four days, until GM signed a two­page union recognition agreement with the UAW on February 11, 1937.2 On the very day the Flint workers marched victoriously out of Fisher Body No. 1, oral arguments in NLRB v. Jones and Laughlin were wrapping up before the Supreme Court. As sit­down strikes spread across the country in the wake of Flint, the court announced its surprising shift in the West Coast Hotel decision on March 29. Four days later, the United States Steel Corporation signed a collective bargain­ ing agreement with the Steel Workers Organizing Committee. Then, on April 12, the Supreme Court ended the suspense surrounding the Wagner Act, announc­ ing a 5–4 decision in the Jones and Laughlin case that definitively upheld the law’s constitutionality. A three­month span had delivered a series of previously unimaginable break­ throughs, each one more unlikely than the last. Although the pendulum would swing against unions once again before the year was over, with the defeat of the Little Steel strike and the onset of the momentum­sapping Roosevelt recession, there was no going back to the world that had existed before “Labor’s Hundred Days.” A definitive change had come. Support for collective bargaining was written into the law of the land, a revived labor movement had stirred to life, and the New Deal, which to that 1. McKenna, Franklin Roosevelt and the Great Constitutional War; Frankfurter, “Mr. Justice Roberts.” 2. For the classic account, see Fine, Sit-Down. Downloaded from https://read.dukeupress.edu/labor/article-pdf/14/2/21/437642/0140021.pdf by SARAH LAWRENCE COLLEGE user on 10 December 2019 McCartin / “As Long as There Survives” 23 point had been a contradictory programmatic mélange, had begun to crystallize into an entity that was more than the sum of its parts, a political and economic constella­ tion that would long outlive Roosevelt himself: the New Deal order. Eighty years later, this narrative seems as ancient as the story of Exodus. Once home to an aroused working­class capable of taming the world’s largest employer, Flint is today a desperately impoverished city lacking in decent jobs, whose lead­ poisoned residents are trapped, their most significant asset—the value of their homes—having been made unsellable by the same scandalous decisions that stole their children’s health. Frank Murphy’s Michigan is now a “right­to­work” state pre­ sided over by Governor Rick Snyder, a venture capitalist whose efforts to wrest local control away from distressed communities led directly to Flint’s poisoning. Nor is much left of the labor movement that was aborning in the spring of 1937. In the after­ math of Donald J. Trump’s election to the presidency, its remnants face the most sig­ nificant union crisis since the early 1930s. Associate Justice Antonin Scalia’s sudden death on February 13, 2016, allowed unions to dodge what many called an “existential threat” in the case of Friedrichs v. California Teachers Association, which would have denied public sector unions the ability to collect fair­share fees from the non­members they represent in collective bargaining and grievance procedures. But that reprieve was temporary and no “switch in time” is likely to save the labor movement should a similar case arise in the Trump era. Unions have never faced a more dangerous moment, and, eighty years after the Wagner Act’s constitutionality was affirmed, US labor law has never seemed weaker.3 A decade after the Flint sit­down strike, this state of affairs could not have been predicted. Although many laborites had called the Taft­Hartley Act a “Slave­Labor Act,” few saw its passage in 1947 as heralding labor’s progressive mar­ ginalization over subsequent decades. To the contrary, labor lawyer Archibald Cox spoke for a firm consensus when he confidently predicted that despite the Taft-­ Hartley Act, collective bargaining was “certain to grow, at least as long as there sur­ vives the political democracy on whose achievement it has followed.”4 The stark juxtaposition of the hopeful events of eighty years ago and labor’s dismal state today begs for retrospection and analysis. From the perspective of eighty years, as the labor order that the Wagner Act underwrote lies in tatters, a set of ques­ tions demands attention: How should we evaluate the legacy of the Wagner Act? What did it mean in its time? How did it shape the course of US labor history? What significance does it hold for us in our present context? The Evolving Evaluation of the Act and Its Legacy Although these questions are especially urgent today, they are not new. Indeed, such questions have been debated for decades. Not surprisingly, how scholars have 3. Marvit, “Why a New Supreme Court Case is an Existential Threat to Unions”; Carson and Klein­ erman, “A Switch in Time Saves Nine.” 4. Cox, “Some Aspects of the Labor­Management Relations Act,” 1. Downloaded from https://read.dukeupress.edu/labor/article-pdf/14/2/21/437642/0140021.pdf by SARAH LAWRENCE COLLEGE user on 10 December 2019 24 14.2 LABOR answered them has changed over time. As one might expect, evaluations of the Wag­ ner Act have been influenced by the historical vantage point from which they have been written. In the 1950s and 1960s, when organized labor was flourishing, scholars tended to uncritically celebrate the act; in the 1970s, as union strength began slipping, they began exploring the ways in which the act had been subverted or perverted. Not until the Reagan years did scholarly critics critique the provisions and debunk the premises of the Wagner Act itself.