Exclusive Representation and the Wagner Act: The Structure of Federal Collective Bargaining Law

By Hogler, Raymond | Labor Law Journal, Fall 2007 | Go to article overview

Exclusive Representation and the Wagner Act: The Structure of Federal Collective Bargaining Law


Hogler, Raymond, Labor Law Journal


As much recent scholarship points out, the American labor movement has suffered a severe decline in membership and influence over the past three decades. Union density in 2006 stood at 12 percent of the non-agricultural workforce, with only 7.4 percent in private sector employment.1 Various reasons are put forward to explain labor's desuetude, and a number of proposals have been suggested as a means to reinvigorate unionism. One of those proposals is advanced by Charles Morris, a well-known legal scholar. Professor Morris wrote a book-length study of the subject and more recently summarized his arguments in an article in this journal.2 Briefly, Morris contends that the National Labor Relations (Wagner) Act did not mandate exclusive union representation and that unions should attempt to create a "members only" organizing strategy to gain a foothold in companies. This strategy, he believes, provides an avenue through which unions might regain membership and bargaining power.

Despite his expertise in labor law and the history of the National Labor Relations Act (NLRA), Professor Morris is not persuasive in his conclusions about federal collective bargaining policy. That policy, as expressed in the Wagner Act of 1935, never intended to allow minority unions to engage in collective negotiations for fragmented sets of employees. To the contrary, the Wagner Act rests on three core principles which support the bargaining system. Those principles are, in order of importance, a ban on company unions, exclusive representation for all members in a work group, and union security agreements requiring all employees covered by a contract to provide financial support to the representative. The structural elements are essential to the primary purpose of Wagner's law, which was to promote economic stability and equality through the procedures of collective bargaining.3 They make up the driving gears of labor policy in the United States, and without them, the system is unsustainable. Whatever else the Wagner Act might have accomplished, its singular achievement was a long period of institutional stability and wealth redistribution to the benefit of American workers.4 Any recommendation for union renewal should have that same objective.

This article analyzes the legislative history and case interpretations of Section 7(a) of the National Industrial Recovery Act (NIRA) and the drafting of the Wagner Act in 1934-35. Through that analysis, it becomes clear that minority unionism is inconsistent with the history, language, and intent of the NLRA. Wagner confronted an industrial relations landscape characterized by corporate hostility to unions, constitutional impediments to federal legislation, and an entrenched ideology of individual rather than group rights. He maneuvered successfully across that terrain by maintaining a steadfast vision of working class emancipation through collective solidarity, the keystone of which was the closed shop.

Going "back to the future" of federal labor law would be a return to the conditions which threatened to destroy independent unionism in 1933-35 rather than some halcyon era of organizing. Instead of offering salvation to the contemporary labor movement, minority representation would be the instrument of its doom. Labor law may need to be reformed, but any changes should move in the direction of the Wagner Act's original understanding and not away from it.

REVISITING THE STATUTORY LANGUAGE

President Franklin D. Roosevelt signed the Wagner Act into law on July 5, 1935. Section 7 of the statute, which derived from Section 7(a) of the NIRA, set forth the protections for American workers which remain in effect today. It provided that they would have a right of self-organization to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for their mutual aid and protection. The affirmative rights of Section 7 were enforced through various unfair labor practices making it unlawful for employers to engage in specified actions, such as interfering with or coercing employees, creating dominated company unions, and refusing to bargain with the representative of the employees selected by a majority of employees in an appropriate unit. …

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