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Abstract

The National Labor Relations Act’s (NLRA) well-documented weaknesses in substance and enforcement, combined with legislators’ inability to adapt the Act to the modern economy, have understandably created many cynics in the field of labor law. For several decades, legal scholars have almost unanimously derided the NLRA and the agency which administers it, the National Labor Relations Board (NLRB), for failing to prevent rampant anti-union conduct by employers and the collapse of the union formation process through the Board’s election machinery. This “ossification” of the law, as it has come to be known, is considered to be a key contributor to the United States’ private-sector unionization rate declining from its mid-century high of 35 percent to a mere six percent in recent years. While most scholars have generally lamented the diminishing relevance of the NLRA or the squandering of its transformational potential, others have questioned the labor movement’s preoccupation with obtaining favorable federal legislation. This clustering of academics and activists are skeptical not only of unions’ current reliance on the state for assistance in reversing its fortunes, but of the very decision of New Deal-era politicians to pass the NLRA amidst the high point of worker insurgency and radical organizing in the 1930s.

This Article seeks to correct this narrative. It argues that Senator Robert Wagner was justified in crafting a national labor policy from the barbaric conditions which accompanied pre-New Deal union organizing. Wagner’s crusade to convert the state from an impediment to a facilitator of collective bargaining was “the most dramatic statutory assault on corporate prerogatives in American history,” and it represents the rare instance where a political elite pursued an ambitious economic agenda on behalf of labor and succeeded in the teeth of ferocious internal and industrial opposition. Although this Article takes no position on any recommended path forward, the story of the NLRA’s creation and an examination of the NLRB’s early history casts significant doubt on any theory of union growth that treats the state as a uniformly enervating force on the American labor movement.

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