The statute and its structure
The Wagner Act, passed in 1935, is discussed in these excerpts chiefly through the account Richard Epstein gives of the National Labor Relations Act. Epstein states that in 1935 the Wagner Act was passed and that it had only one set of unfair labor practices, committed by employers against employees. He adds that there was also no public union coverage in that particular statute. He notes that the courts then began to interpret the statute in ways he calls very expansive. Which Side Are You On? (2022)
Epstein places the Act in a longer sequence. He recalls that any effort by government to require individual firms, at the federal or state level, to unionize was treated as an interference with freedom of contract, and he names a 1908 decision by Justice Harlan and a more elaborate version by Mahlon Pitney in a case called Coppage and Kansas, decided in early 1915. In his telling, you could not force unions on anybody. He then describes the topple of those earlier cases beginning in 1926 with the Railway Labor Act, applied to railways only; the 1930 book The Labor Injunction by Felix Frankfurter and Nathan Greene; Norris-La Guardia in 1932; and the National Labor Relations Act after a couple of failed attempts in 1937, which he says completely undid the earlier structure. California Passes the Worst Piece of Legislation Since AB 5 (2023)
Epstein characterizes the findings attached to the Act as philosophical rather than factual. He asks what the meaning of the word actual is in the finding that there was no actual freedom of contract between management and work, and says the drafters could not prove that the contracts were coercive, that employers were often in a competitive industry, and that wages were rising at that time. He sets against this what he calls the single greatest improvement in human well-being, taking place roughly between 1870 and 1940 at a time when labor laws were extremely hostile. California Passes the Worst Piece of Legislation Since AB 5 (2023)
Taft-Hartley and the right not to organize
Epstein describes the political transformation that followed the Second World War. In 1946, he says, the FDR New Deal Democrats were essentially wiped off the face of the globe in both the Senate and the House, and a series of statutes were passed designed to limit the power of unions, including the Taft-Hartley Act. Its key provisions in many ways, he says, were to try to create a parallel set of unfair labor practices applicable to unions as against their workers or against employers. In that statute, he states, what they said is not the right only to organize, but the right not to organize. Which Side Are You On? (2022)
He connects this to a preemption argument: if you force people to organize by threatening them with something in the way in which this statute does, if they do not organize, it is going to be difficult. He says the current version of the National Labor Relations Act is designed by Republican influence not to repeal the whole statute, which he says he has championed for the last 40 years or more. He notes that the student note he wrote in 1967 was an anti-union piece, written after he returned from England in 1966, where he studied law at Oxford, and he says you could see that labor unions were going to bring England down to an impossibly low position until Margaret Thatcher took office in 1979. Which Side Are You On? (2022)
The Act as a passing reference
In the other two episodes the Wagner Act is named only in passing. In a discussion of immigration and work visas, Bob Zadek asks Gary Johnson a surprise question: what if, as part of that work visa, we changed the Wagner Act or the minimum wage statute and exempted anybody with a work visa from minimum wage law protection, so they could lawfully be hired for any wage the employer offered and they were willing to accept. A Better America (2010)
Johnson does not take up the Wagner Act by name. He says he is opposed to minimum wage legislation, and illustrates with Santa Fe’s living wage, which he says was $9.50 an hour. He recounts that when asked about it he chimed in with, why stop at $9.50, why not go to $73, and make Santa Fe the wealthiest city and the highest standard of living city in the United States. He says it did not work. He adds that the government contributes to the fact that there are so many illegal immigrants in this country more than any other entity, and that Mexican citizens would stand in line if they knew they could get a legal work visa. A Better America (2010)
Ed Freeman names the Wagner Act once, in a discussion of stakeholder interests. He says that if interests are not gotten going in the same direction over time, in a free society those interests will go to government to get their interests taken care of, as we see with regulations like the Wagner Act, the Fair Labor Practices Act, all the environmental regulation, a lot of the Uniform Commercial Code. He frames these interests as going together and thriving together, and says that when you start to say one is more important than the other, you tend to start making mistakes and systematically denying the importance of one, which leads to what he calls this impossible tangle of politicization of business and the regulatory state. Stakeholder Value: A New Story About Business (2021)
Across episodes
The Wagner Act is touched on in four episodes, and the excerpts show no development in the treatment across them. Epstein supplies the only sustained account, in the two 2022 and 2023 episodes, of the statute’s structure, its findings, and the Taft-Hartley reaction; Zadek raises it as a hypothetical lever on immigration policy in the 2010 episode, and Freeman cites it in a single list of regulations in the 2021 episode. The later Epstein episodes do not refer back to the earlier mentions, and the earlier guests do not engage Epstein’s account.
What the sources do not cover
The excerpts do not state the formal name of the statute beyond the Wagner Act and the National Labor Relations Act, nor the name of any member of Congress associated with it. They do not describe the text of the Act’s findings beyond Epstein’s paraphrase, and they do not say which amendment any of the cited cases turned on. The excerpts also do not state the outcome of the California fast food legislation discussed in the 2023 episode, or the fate of the work visa proposal Zadek raised in 2010.