Divided Unions: The Wagner Act, Federalism, and Organized Labor

Abstract

While writing this review of Alexis N. Walker's eloquently concise and smartly argued book, I wished that the drafters of the Protecting the Right to Organize (PRO) Act had read it before commencing their labors. If the PRO Act manages to win over wavering Democratic senators and somehow avoids another Republican-led filibuster to become law, I fear we will soon find that its reform potential has been undercut by its failure to address the problem Walker outlines so clearly in this volume. And if the PRO Act fails to be enacted, that result will turn in large part on that very same problem: the long-standing bifurcation of American labor law into separate spheres—the private sector and the public sector. This division has hampered labor solidarity ever since the passage of the Wagner Act in 1935, generated frequent opportunities for labor's enemies to whipsaw unions and states against each other, and dramatically weakened labor's political influence.Until fairly recently, labor historians as a whole gave little thought to the implications of public sector workers’ historic exclusion from federal labor law. While many rightly recognized the negative long-term consequences flowing from the Wagner Act's exclusion of agricultural and domestic workers, few deeply considered the implications of government workers’ exclusion. Yet government workers’ exclusion arguably proved more costly for organized labor and certainly covered more workers generally than did domestic and agricultural workers’ exclusions if only because the number of government workers would, over time, far exceed those in agricultural and domestic labor. By carefully calculating the long-term costs of “solidarity's wedge,” Walker offers a bold rethinking of the last eighty-seven years of labor history (146).Among Walker's most important contributions is her exploration of how public workers were excluded in the first place. After tracing the bill's intricate legislative history and carefully studying the papers of Senator Robert F. Wagner and his aide Leon Keyserling, she shows that this exclusion came only after the Wagner Act had gone through multiple drafts. Unlike the exclusion of agricultural and domestic workers, which was demanded by powerful southern Democrats, public workers’ exclusion was “not a foregone conclusion” produced by determined opposition forces (29). Rather, it happened because “there was no consensus on their inclusion” (23). In 1935 and for years afterward, the vast majority of union leaders and their legislative allies treated government workers as an afterthought. Indeed, even public sector union leaders failed to advocate for their members’ inclusion in the bill, although once they realized its potential the American Federation of Teachers and the International Association of Fire Fighters both pursued fruitless efforts to win ex post facto inclusion under its umbrella.The long-term costs of exclusion, Walker explains, became clear only over the course of decades. Three such costs stand out. The first was that the trajectories of private sector unionism and public sector unionism would never be in sync. Public sector workers largely sat out the great surge of organization between 1935 and 1955 that had ensconced the labor movement in the mainstream of American political life. Public sector union growth came later, between 1960 and 1980, just as private sector unions were losing steam; rather than augmenting private sector labor's strength, then, they merely offset its growing weakness. This in turn contributed to tensions between public and private sector unions, as government employees began demanding more (thus creating pressures for tax increases) at precisely the moment when unionized private sector workers (and taxpayers) were bringing home less from their increasingly antiunion employers.A second cost of exclusion, Walker shows, was that it made unions overall more vulnerable to the most insidious effects of American federalism. “In the long run,” Walker argues, “federalism has not done organized labor any favors,” only occasionally furnishing Louis D. Brandeis's idealized “laboratories of democracy” when it comes to labor policy (140). In the 1960s and ’70s, federalism briefly did play a Brandeisian role, as government workers successfully fought state-by-state to win bargaining rights that most private sector workers had (at least theoretically) won decades earlier. When Wisconsin became to first state to legislate collective bargaining rights for state and local workers, other high-union-density states began following suit, encouraged in part by John F. Kennedy's 1962 executive order that allowed a limited form of collective bargaining for many federal workers. By the Reagan era, however, the momentum for state-by-state expansion of public sector bargaining had ebbed, and by the early twenty-first century, federalism was operating to government workers’ disadvantage as anti-unionists like Governor Mitch Daniels of Indiana strove to undercut bargaining rights.As private sector unionism continued to atrophy, public sector union gains became increasingly tenuous both politically and legally—a third long-term cost of government workers’ exclusion from federal protection. Governor Scott Walker demonstrated labor's political weakness when he drove Act 10 through the Wisconsin legislature in 2011: this law stripped most state and local workers of bargaining rights and inspired similar assaults in other states. A 5–4 Supreme Court majority in turn demonstrated labor's legal vulnerability in Janus v. AFSCME (2018), which aimed to drain union treasuries by overturning a decades-old precedent that had allowed unions to negotiate fees in which workers under contract shared the costs of union representation.After Janus, labor belatedly renewed the fight for a public sector Wagner Act it had briefly taken up in the 1970s, introducing the Public Service Freedom of Negotiation Act (PSFNA) in 2019. Yet as unions now push single-mindedly for the PRO Act, which continues the historic exclusions of government, agricultural, and domestic workers, the PSFNA is rarely mentioned. Alexis Walker anticipated this marginalization: “The window of opportunity for a national public labor law closed nearly forty years ago,” she writes, “and it remains unclear if it will ever reopen” (126). Her thoughtful book shows why we had better hope that window is pried open again—and soon!