My job, my choice: The National Labor Relations Act does not require unionization

It’s been just shy of a century since the National Labor Relations Act was signed into law, guaranteeing workers nationwide the right to bargain collectively. A crucial component of that was ensuring that it was the individual worker’s right to decide whether to belong to a union or not.

That’s not what you are likely to hear today from the White House and its regulatory agencies, however.

“Since 1935, when the National Labor Relations Act [NLRA] was enacted, the policy of the federal government has been to encourage worker organizing and collective bargaining, not to merely allow or tolerate them,” President Biden has claimed.

Biden is wrong. New York Sen. Robert Wagner, author of the Depression-era law, said that the government was neutral on the issue. “That’s all that this bill does, so far as I can see: It leaves the worker a free man to organize or not to organize as he chooses,” he said during the 1934 Senate hearings on the legislation, subsequently dubbed “The Wagner Act.”

In fact, the NLRA was intended in part to prevent workers from being pushed against their wishes into unions. The NLRA was actually the second law to ensure collective bargaining rights for all private-sector workers; the first was the National Industrial Recovery Act of 1933, though that law had some flaws.

The Recovery Act was vague on how these collective bargaining rights would be enforced. The leading industries of the day decided, well, if we must have unionized workers, let’s create the unions for them. A 1935 Labor Department study found that 41.6 percent of the firms surveyed had created “internal representation plans” — i.e., company-controlled unions — and encouraged their workers to join them.

A company-run union has an obvious conflict of interest and cannot effectively represent workers. Wagner’s NLRA was meant to rectify this.

“[A]mbiguities of language and the absence of enforcement powers [in the NIRA] have enabled a minority of employers to deviate from the clear intent of the law and to threaten our entire program with destruction,” Wagner said in a March 11, 1934, New York Times op-ed. He repeatedly stressed it had to be the individual worker’s decision to join a union, and bristled at the claim that the Recovery Act pushed workers into unions.

“[T]his bill does not do anything of this kind except that it does make a worker a free man so he may decide whether he wants a union or not,” and, Wagner said during the Senate hearings on the legislation, “if he wants one, what particular union he wants to represent him, or whether he wants to remain unorganized.”

The text of the NLRA does state that federal policy favors “encouraging the practice and procedure of collective bargaining,” but those words are almost always taken out of context. They follow a long preamble about “eliminat[ing] the causes of certain substantial obstructions to the free flow of commerce.” This is a reference to the labor strife in 1934, a year of violent clashes that stalled many sectors of the economy at a time when the nation was still struggling to get out of the Great Depression.

In other words, unions were recommended only in extreme situations where the national economy hung in the balance. Even then, it was ultimately the worker’s own choice.

At their mid-20th century membership high, unions represented about 30 percent of workers. That has shrunk to just 10 percent today, and just 6 percent of private sector employment.

Unions and their allies are worried about the movement’s waning power. Most union-backed labor legislation of recent years, like the Employee Free Choice Act or the Protecting the Right to Organize Act, would actually roll back the rights of individual workers to dissent and opt out from being in a union. They would turn the NLRA into a tool for union leaders to tell workers to get in line.

A better way to honor workers and to support the NLRA is to support the right of workers to decide for themselves if they want a union.

Sean Higgins is a research fellow with Competitive Enterprise Institute and author of a recent report on “The Forgotten History of the Wagner Act.”