The Wagner Act of 1935 and the Right Most Workers Still Cannot Use

On July 5, 1935, a Friday, Franklin Roosevelt signed a bill that its chief author, Senator Robert F. Wagner of New York, had been pushing through Congress for more than a year. Wagner was an immigrant from Germany who had grown up poor in Manhattan and become a state legislator just in time to help investigate the Triangle Shirtwaist fire of 1911. The law that carried his name declared, in plain federal language, that it was the policy of the United States to encourage collective bargaining and to protect workers' freedom to organize. Ninety-one years later, that sentence is still in the statute books. It is also one of the least enforced promises in American law. Most workers who want a union do not have one, and the reasons have less to do with what they want than with how the law was built and then rebuilt around them.

In short: The National Labor Relations Act of 1935 created the right of most private-sector workers to organize and the National Labor Relations Board to protect it. It excluded farmworkers, domestic workers and government employees from the start, later amendments narrowed it further, and its penalties are so mild that breaking the law during an organizing drive often costs an employer less than a union would.

What the law actually did

The National Labor Relations Act, usually called the Wagner Act, did three main things. First, Section 7 gave employees the right to form and join unions, to bargain collectively through representatives of their choosing, and to engage in other concerted activities for mutual aid or protection. That last phrase matters more than most people realize: it protects workers who act together about pay or conditions even when there is no union at all, such as co-workers who jointly complain to a manager about safety.

Second, Section 8 listed unfair labor practices by employers. An employer could not interfere with, restrain or coerce workers exercising those rights; could not dominate or finance a company union; could not fire or discriminate against workers for union activity; and could not refuse to bargain with a union the workers had chosen.

Third, the law created the National Labor Relations Board, a small independent agency with two jobs. It runs elections to decide whether workers want a union, and it investigates and rules on charges of unfair labor practices. The board's decisions are enforced through the federal courts of appeals.

Wagner had learned from failure. A weaker labor clause in the 1933 National Industrial Recovery Act had encouraged employers to set up company-controlled unions and had no real enforcement. The Supreme Court struck down that whole recovery program in the Schechter Poultry case in May 1935, which cleared the way for a cleaner, standalone labor law. Business groups expected the Court to strike the Wagner Act down, too. Instead, in April 1937, in NLRB v. Jones & Laughlin Steel Corp., a five-to-four majority upheld it as a valid use of Congress's power over interstate commerce. That ruling did as much as anything in the New Deal to establish the modern reach of federal power.

The workers it left out

The law's definition of "employee" carried exclusions that were political choices, and the people they excluded were not randomly chosen. Agricultural labourers and domestic servants were left out. So were government employees at every level. Railway and airline workers were already covered by a separate statute, the Railway Labor Act.

Historians still argue about the motive for excluding farm and household workers. One reading stresses administrative convenience and the opposition of farm interests across the country. Another, now widely held, stresses that Roosevelt's coalition depended on Southern Democrats who controlled key committees and would not accept a law that empowered the Black farm labourers and domestic workers who made up a large share of the Southern workforce. Both pressures were real, and the result was the same: millions of the country's lowest-paid workers, disproportionately Black, were outside the law's protection. The same pattern shaped the original Social Security Act of the same year.

The exclusions outlived their original logic. Farmworkers remain outside the federal labor law to this day; the union rights of California farmworkers come from a state law passed in 1975 after years of strikes and boycotts led by Cesar Chavez, Dolores Huerta and the United Farm Workers. Domestic workers remain excluded too, and advocates have spent the past two decades winning state-level bills of rights for nannies, housecleaners and home care workers instead. Public employees got bargaining rights, where they have them, from state laws and, for federal workers, from later federal statutes.

Then came the 1947 Taft-Hartley amendments, which removed supervisors from the definition of employee and wrote independent contractors out of it. Those two categories have grown in ways no one in 1947 could have imagined. Employers can label a shift lead a supervisor or a delivery driver a contractor, and in either case the worker has no federal right to organize at all. Whether a given worker truly falls into those categories is itself a long legal fight.

Why the remedies are so weak

Here is the mechanism that most explains why the right to organize is hard to use: the Wagner Act was designed to be remedial, not punitive. When the board finds that an employer illegally fired a worker for union activity, the standard remedy has been reinstatement and back pay, reduced by whatever the worker earned elsewhere in the meantime. There are no fines for most violations. There are no punitive damages. The board cannot hold individual managers personally liable.

The process also takes time. A fired worker files a charge; the regional office investigates; if it finds merit, it issues a complaint; an administrative law judge hears the case; the board reviews the decision; and the employer can appeal to a federal court. Each step can take months, and the whole chain can take years. By the time an organizer wins reinstatement, the campaign she was leading has usually collapsed, and her co-workers have drawn the obvious lesson.

From an employer's perspective, the arithmetic can be cold. A company that believes a union will raise its costs can calculate that firing the most visible organizers, holding mandatory meetings to warn about the union and delaying the election as long as possible will probably defeat the drive, and that the cost of any eventual back-pay order is small by comparison. Most employers do not break the law. Enough do, and the threat is credible enough, that fear itself becomes part of every campaign.

Add one more doctrine that is not in the Wagner Act at all. In the 1938 Mackay Radio case, the Supreme Court said in passing that employers could permanently replace workers who strike over economic issues. Workers cannot be fired for striking, the doctrine holds, but they can lose their jobs to permanent replacements. In practice that distinction can be invisible to the worker on the picket line.

The case for the current system, and the answer

Defenders of the law as it stands, mostly business groups and conservative legal scholars, make several arguments worth taking seriously. They say workers deserve a secret-ballot election free from union pressure, and that card-check recognition, where a union is recognized once a majority signs cards, invites coercion from organizers. They say employers have free-speech rights to tell workers what they think of a union. They say many workers simply do not want unions, and that falling membership reflects their preferences, not employer tactics. And they note that unions in some sectors have priced their employers out of business.

Each point has a fair core. Secret ballots do protect individual choice. Employers do have opinions. Some workers do vote no for reasons that have nothing to do with intimidation. The answer is in the asymmetry. A union organizer cannot fire anyone, cannot require workers to attend meetings on paid time, and cannot control their schedules. An employer can do all three. Public opinion surveys, including Gallup's long-running series, have shown majority approval of labor unions for years, which sits awkwardly beside a private-sector unionization rate in the single digits. The gap between what workers say they want and what they have is the part of the story the status quo does not explain.

Winning the vote is only the first half

Even a successful drive does not end when the ballots are counted. The usual path runs like this. Workers sign authorization cards; once at least 30 percent of the proposed unit has signed, the union can petition the board for an election. The employer and union may then argue over who belongs in the unit, which can delay the vote. If the union wins, the employer must bargain in good faith.

That duty is narrower than it sounds. The law requires the parties to meet and negotiate; it does not require them to agree on anything. An employer that shows up, listens, makes proposals and never reaches a deal may be within the law, provided it is not bargaining in bad faith, and proving bad faith is another long case before the board. Meanwhile, the workers who voted for the union see nothing change in their paychecks. After a year, the board's rules generally allow a decertification petition, and the employer's waiting game can pay off.

This is why first-contract fights have become as important as elections. Many recent high-profile wins, at coffee chains, warehouses and universities, were followed by long stretches without a contract. Reformers have proposed mediation and binding arbitration for first contracts, so that a union victory leads to an actual agreement within a set time. Some other countries' labor systems already do something like this. For American workers, the absence of such a rule is one more way the 1935 promise stops short of the finish line.

The board swings with every administration

Because the National Labor Relations Board makes much of labor law through its case decisions, its rules can change sharply when the presidency changes. Board members serve staggered five-year terms, and each president appoints a majority aligned with the administration's views. Over the decades, doctrines on captive-audience meetings, on what employers may say, on how fast elections happen and on when an employer must bargain without an election have swung back and forth.

In 2023 the board, under President Biden's appointees, issued a decision in a case involving Cemex that made it more likely an employer who commits serious unfair labor practices during a campaign will be ordered to bargain with the union rather than rerun the election. In 2024 it ruled that mandatory captive-audience meetings violate the law. Those decisions could be reversed by a board with a different majority, and the board's own independence has become a live question. In January 2025 President Trump removed Gwynne Wilcox, a Democratic member, before her term ended; the Supreme Court allowed the removal to stand while the challenge continued. The Court's June 2026 decision in Trump v. Slaughter, holding the Federal Trade Commission's for-cause removal protection unconstitutional, points in the direction of presidential control over agencies like this one. You can follow these cases on our court watch page.

What reform would look like

Labor law reform has been tried repeatedly since the 1970s. A bill to speed elections and strengthen remedies died in a Senate filibuster in 1978. The Employee Free Choice Act, which would have allowed card-check recognition, stalled in 2009 even with large Democratic majorities. The PRO Act, which would add civil penalties for violations, curb permanent replacement of strikers, override state right-to-work laws for private-sector workers and narrow the independent contractor loophole, passed the House in 2020 and again in 2021 but never cleared the Senate.

Here's the argument for making reform central rather than ornamental in the new Congress. Wage stagnation, the gap between productivity and pay, and the political alienation of working-class voters are all connected to the decline of collective bargaining, and the law is one of the few levers Congress fully controls. A reform that simply attached real penalties to existing violations, such as fines and personal liability for executives who order illegal firings, would not force anyone to join a union. It would make the 1935 promise mean what it says.

There are bipartisan threads to pull. Some Republican senators have voiced interest in pro-worker policy, and a few have proposed their own labor bills built around workplace committees or sectoral pilot programs. Progressives do not have to agree with every piece of those proposals to recognize that the old assumption, that labor law is a purely partisan issue, is no longer quite true. Track the bills that actually move on the Congress votes and bills page.

What you can do

The right on paper becomes real when people use it and defend it. A few places to start:

• Know the protection you already have. Even without a union, the law protects co-workers who act together about wages, hours or safety. If you and colleagues raise a concern together, you are using Section 7. Groups that offer free workers' rights clinics are listed by state on the organizations page.
• Watch the elections near you. The labor page shows the newest union elections the NLRB has counted and who won. A string of wins at nearby workplaces is often the best evidence a co-worker can see that organizing is possible.
• Tell Congress what the remedies should be. Use the representatives lookup to reach your representative and senators. Ask a specific question: do they support real penalties when employers illegally fire organizers? Specific questions get specific answers more often than general ones.
• Watch the courts. Cases about removing board members, and about the agency's powers, will shape whether the law has an enforcer at all. Keep an eye on the labor law coverage on our workers topic page.