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REQUIEM FOR THE WAGNER ACT  
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Joseph A. McCartin
July 8, 2025
The American Prospect
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_ Signed into law 90 years ago, labor’s onetime ‘magna carta’
is now a very dead letter. _

Union workers hold signs at the Port Newark/Elizabeth-Port Authority
Marine Terminal complex, October 1, 2024, in New Jersey., Stefan
Jeremiah/AP Photo

 

On July 5, 1935, President Franklin D. Roosevelt signed the National
Labor Relations Act (NLRA) into law. Known as the Wagner Act, after
its author, New York’s Sen. Robert Wagner, the NLRA’s passage
followed decades of agitation by workers and reformers who demanded
protection of workers’ rights to organize and bargain collectively.
During its first decade, the NLRA did more to redistribute political
and economic power in the United States than any other act of
government since Emancipation. The labor movement was a marginalized
force in American politics and society before the 1930s. Thanks in
large part to the NLRA, by the mid-1940s, unions were firmly
established in the nation’s basic industries, and organized labor
had reached unprecedented levels of influence and legitimacy.
Organized labor in turn played a crucial role in pushing the nation
toward becoming a multiracial democracy in the postwar era.

Today, it requires an exercise of considerable historical imagination
to recall what a breakthrough the NLRA once represented, for on the
90th anniversary of its enactment it has been reduced to the status of
a dead letter. As Donald Trump pushes through the most radical
reconstruction of the federal government’s role in American life
since Roosevelt’s New Deal, the ignominious fate of the NLRA, which
is in effect being euthanized by the actions of Trump’s
administration and the Supreme Court, has been overshadowed by many
other headline-grabbing setbacks to progressivism. Yet the ignominious
fate of the NLRA symbolizes better than any other development just how
thoroughly the New Deal order has now been reduced to ruins and how
hard the fight will be to rebuild a decent democratic society.

The road to this nadir was long. Many historians date the NLRA’s
decline to its amendment by the Taft-Hartley Act of 1947, legislation
that began to swing power back toward employers. Over the span of
decades, other developments combined to further erode the act’s
efficacy: Successive court rulings chipped away at its protections;
employers reorganized their businesses, using subcontracting,
franchising, the employment of temporary workers, and offshoring to
insulate themselves from the demands of the workers whose labor made
them wealthy; others simply disregarded the act’s prohibitions
against firing workers who try to unionize, shrugging off its meager
penalties. Employers’ growing resistance to unionization, visible
most recently in Starbucks’s refusal to sign union contracts with
the hundreds of coffee shops where baristas have elected union
representation, eventually drove the unionization rate of the
nation’s workers down from 35 percent in the early 1950s to under 10
percent today, the lowest level since the NLRA’s enactment.

Hopes for the act’s resuscitation briefly rose during the Biden
administration, thanks to his appointments to the National Labor
Relations Board (NLRB): Gwynne Wilcox, the only Black woman ever to
sit on the Board, and Jennifer Abruzzo, arguably the most effective
general counsel in its history. But these hopes were decisively dashed
by the 2024 election. One week into his second term, Trump fired both
women, despite Wilcox having been approved by the U.S. Senate for a
term set to run to August 2028. While Wilcox was briefly restored to
office by a district court judge, the Supreme Court reinstated
Trump’s firing order. Lacking a three-member quorum, the NLRB has
been unable to reach decisions on disputed issues. Should Trump place
a third member on the Board—and a recent leak
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by the U.S. Chamber of Commerce suggests he is about to do so—this
will simply enable a Republican-controlled Board to begin actively
tearing down the Biden Board’s admirable work.

Meanwhile, lawsuits threaten to completely undermine the NLRA’s
enforcement powers. Should the Supreme Court settle the suit
occasioned by Wilcox’s firing by ruling in Trump’s favor, it will
ensure that members of the NLRB (and similar federal regulatory
boards) will lose their independence and become subject to
presidential removal without cause. On another legal front, Elon Musk
and other employers have filed suits contending that the NLRB’s
enforcement actions, which are and have always been appealable in
federal courts, deprive their companies of their rights to a jury
trial. If upheld by the courts, that charge would snarl federal court
dockets and paralyze all NLRB enforcement.

For more than 60 years, organized labor vainly sought legislation that
would update the NLRA, streamline its administration, and increase the
penalties on those who violated its provisions. In 1965, 1978, 1994,
and 2009-2010, efforts to enact labor law reform were blocked by
Republican-led Senate filibusters. Like all previous attempts, the
most recent effort at reform, the Protecting the Right to Organize
(PRO) Act, also failed to come to a vote in the Senate during the
Biden presidency.

This long and repetitive history suggests that it is now imperative
for unions to abandon the fantasy that labor law reform can open the
door to the preservation and resurgence of the labor movement.
Reforming the NLRA would not only require electing a president who
makes such a reform a top priority. It would also require winning
control of both houses of Congress with a Senate majority of at least
60 votes, and finding a way to reorient or circumvent a Supreme Court
whose six Republican appointees now constitute the most pro-employer
court since the 1920s.

Labor law reform will not precede and enable the revival of organized
labor. Rather, organized labor’s revival must precede and enable
labor law reform. If unions fail to take that lesson from the present
facts, then it is all but certain that the labor movement that remains
when the NLRA’s centenary arrives ten years from now will represent
the thinnest sliver of workers ever claimed by a movement that
professes to speak for all America’s wage-earners.

To appropriately mark the Wagner Act’s 90th anniversary, then,
unions should conclude that the act is already dead and begin to
behave accordingly. They should engage in the kinds of struggles,
including mass civil disobedience, that made the act’s passage
possible in the first place. By doing so, they will at least have some
hope of opening a way where none currently exists for the passage of
21st-century legislation that protects workers’ capacity to organize
and bargain collectively. By waging that fight, labor might also
inspire other progressive forces to join them in the long struggle to
build a just and democratic social order from the rubble in which we
now sit.

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Joseph A. McCartin is professor of history at Georgetown University
and president of the Labor and Working-Class History Association.

* Wagner Act; Labor Law Reform; Labor Movement;
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