#wagner act

Employee Voice and Representation in the New World of Work: Issues and Options for Ontario

The Wagner Act

…the phrase “affirmative action” first appeared in a Wagner Act provision that directed judges to impose financial penalties on employers who discriminated against union organizers. The eventual implementation of affirmative action in the workplace likewise drew on precedent stemming from the Wagner Act. As study after study has shown, few if any employers use quotas — which are not mandated by Title VII. Instead, employers hoping to avoid costly lawsuits established offices of equal employment to ensure compliance with anti-discrimination law. These new equal employment offices were modeled on the labor relations departments union and non-union firms established in the wake of the Wagner Act. Moreover, many of the policies implemented by equal employment offices to ensure fair employment practices — including in-house grievance procedures, formal job descriptions, published guidelines for promotion and termination, salary classifications, and open bidding— were already in use by labor relations departments partly because unions had demanded them. The Wagner Act and the labor movement it helped spawn are perhaps the clearest expression of the social-democratic impulses informing the old New Deal Democratic coalition. As such, the links between the right to collective bargaining and anti-discrimination legislation draw attention to the historic importance of social democracy to so-called civil rights issues.

It is no coincidence then that the attacks on affirmative action and collective bargaining have intensified over the past few decades, a period that has witnessed the retreat from a more social-democratic state and the rise of neoliberalism. For free-market ideologues, anti-discrimination legislation and unionization both muck up the rational function of the market and disrupt capitalist class power. To be sure, corporate America — which was responsible for devising workplace affirmative action strategies to begin with — has been one of affirmative action’s most powerful allies for the better part of the last three decades. But the fact that the corporate defense of affirmative action centers on diversity poses its own problems. The diversity defense — itself the product of Board of Regents of University of California v. Bakke and the Reagan administration’s efforts to gut anti-discrimination programs with the assistance of then Equal Employment Opportunity Commission director Clarence Thomas — has come to reify race and gender alike, insofar as it presumes that each member of an identity group possesses a unique cultural perspective. In conflating culture with race, “diversity” inadvertently plays into the hands of racists, like Justice Scalia, who view presumed hardwired group differences not as cause for celebration, but as justification for exclusion and even continued exploitation — as was the intent of race from the start.

The case for affirmative action — like unionization before it — proceeded from the view that anti-discrimination policy was in the public interest. Though the history of federal workplace anti-discrimination initiatives dates back to the New Deal, President Kennedy’s 1961 Executive Order 10925 — which authorized the federal government to cancel contracts with vendors who failed to take “affirmative action” to redress employment disparities — is generally understood as the start of the modern era of anti-discrimination policy. The Kennedy and later the Johnson administrations argued that workplace discrimination was a drag on the national economy, viewing racism as an irrational encumbrance on productivity. The Kennedy administration’s case for a fair employment practices bill — what would eventually become Title VII of the Civil Rights Act of 1964 — thus centered on the Commerce Clause, placing workplace discrimination in the purview of the federal government. ...In fact, the phrase “affirmative action” first appeared in a Wagner Act provision that directed judges to impose financial penalties on employers who discriminated against union organizers.

Prior to the 1935 Wagner Act, “freedom of contract” limited the government’s authority to regulate the employer-employee relationship. The Great Depression, however, led the drafters of the Wagner Act — Senator Robert Wagner and his assistant Leon Keyserling — to argue that the right to collective bargaining was essential to redressing the problem of under-consumption that had caused the protracted economic downturn. Many progressives also argued that unions would check managerial caprice by allowing workers to negotiate for contracts that established formal employment guidelines — for things such as hiring, firing, promotions, and raises — which would confer stability and dignity to the workplace via democratic process. From the second New Deal through World War II, the overwhelming majority of Americans were united with the executive, the courts, and the majority of legislators in the view that unions served a “public good.” As can be said of any institution in America, many unions — particularly in the building trades — were guilty of discrimination. But unions — particularly industrial unions — were also among the civil rights movement’s strongest allies. In fact, unions and churches accounted for nearly equal shares of the financial contributions to the 1963 March on Washington for Jobs and Freedom. More to the point — in cases such as Tunstall v. Brotherhood of Locomotive Firemen and Enginemen (1944) and James v. Marinship (1944) — the courts chipped away at union discrimination, denying NLRB coverage to unions guilty of racial discrimination.