President Joe Biden believes joining a union isn’t merely a right that workers have but something the federal government has an obligation to promote. He repeated this on April 26 as he announced the creation of a special Task Force on Worker Organizing and Empowerment. “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,” Biden claimed. (Emphasis his.)
Unfortunately for workers, Biden’s stance is a misreading of federal law, and it signals four years of aggressive sales tactics from this administration on behalf of its union allies.
Sen. Robert F. Wagner (D–N.Y.), the primary author of the NLRA, also known as the Wagner Act, thought the government was neutral on the issue. “The malicious falsehood has been widely circulated that the measure was designed to force men into unions, although the text provides in simple English prose that workers shall be absolutely free to belong or to refrain from belonging to any organization,” Wagner said in a 1935 radio address.
Here’s what the text of the NLRA says:
It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing.
So, yes, the law’s text does include the word encouraging. However, that word follows a long preamble about preventing “certain substantial obstructions” to commerce, which refer to things like strikes, protests, riots, or any other collective action that could damage a business’s ability to operate.
The right to collective bargaining existed only in a very limited fashion prior to the NLRA’s 1935 passage. The U.S. was in the middle of the Great Depression and 1934 was a particularly troubled year for labor unrest. The passage of the NLRA was intended to put an end to that by giving workers and businesses a less disruptive way to resolve disputes.
What if there aren’t “obstructions to the free flow of commerce”? Workers still have the right to collectively bargain, hence the NLRA’s second part about protecting workers’ “full freedom of association,” which reaffirms the First Amendment’s “right of the people peaceably to assemble.”
In short, the NLRA was only meant to encourage collective bargaining when that serves the purpose of ending “substantial” disruptions in industries, such as strikes, to avoid harm to the national economy. The NLRA is not a mandate for the government to encourage collective bargaining where there are no disruptions. In those situations, the NLRA says that belonging to a union is solely the workers’ choice.
The Biden administration seems to know this because it is trying to rewrite the NLRA to make the law encourage unions. The administration supports passing the Protecting the Right to Organize Act (PRO Act), which would eliminate all state-level right-to-work laws. That would strip many workers in 27 states of the choice to say no to belonging to a union.
Had the drafters of the NLRA meant to encourage workers to join a union, they could have made all organized workplaces “closed shops.” They could have prohibited right-to-work laws and instead required all workers to join or otherwise support the union if they wanted to keep their jobs. Some lawmakers originally pushed for that but Wagner rejected it, saying during Senate debate that the legislation “does not force any employer to make a closed-shop agreement. It does not even state that Congress favors the policy of the closed shop.”
A decade later, the Taft-Hartley amendments to the NLRA would clarify that individual states could prohibit closed shops. The 27 states that do this are now called right-to-work states.
“All I am trying to do, and I think, you believe me when I say that, is to make the worker a free man to join any organization that he wishes to join,” Wagner told a gas station attendant in 1934.
Biden’s interpretation that the NLRA encourages unions lacks that nuance. He gives lip service to the notion that the choice is solely left up to workers while focusing on aiding his allies in the union movement. That ought to concern workers who would rather make up their own mind about joining a union.