It’s not just employers over whom the law grants unions immense power. When a union wins an election, workers who voted against it are forced to accept the union as their “monopoly bargaining” agent, and are forbidden to negotiate their own contracts with the business. Depending on state law and the specific contract, anti-union workers may also have to join the union or pay dues. Right-to-work laws help in this regard, but they do not solve the problem of coercion — and the NLRA banned even these laws until the passage of the Taft-Hartley Act. In a right-to-work state, workers at union shops don’t have to pay dues or join the union, but they’re still bound by the union contract even if they do not wish to be. Seen differently, they get to free-ride on union negotiating efforts without paying their fair share.
Most of the NLRA’s effects were completely foreseeable. Union membership exploded, almost tripling in the ten years following its passage. And the law failed to accomplish its supposed goal of curtailing strikes: Work stoppages continued to rise through 1937, fell off as the economy improved, and then soared, reaching their all-time high in 1943.
What many did not foresee was the spread of corruption through organized labor. This is a complex story — read Robert Fitch’s Solidarity for Sale for an excellent summary by a pro-union, leftist writer — but the bottom line is that it’s called “monopoly” bargaining for a reason. When a union doesn’t face competition and is entitled to dues from thousands of workers, it constitutes a massive opportunity for organized crime. To this day, if you read through the FBI indictments following a mob bust, you’ll find allegations of labor racketeering.
From its inception, the NLRA faced constitutional challenges. One involved the question of whether Congress has the authority to dictate how businesses interact with their workers.
The Constitution gives Congress the right to regulate interstate commerce, but during (and since) the New Deal, Congress took this to mean it could regulate anything that had anything to do with interstate commerce. The NLRA was one result of this interpretation: The employment policies of companies that are involved in interstate commerce are not the same thing as interstate commerce itself, and yet the legislation dictated the hiring practices of many large companies throughout the country.
As usual, the Supreme Court acquiesced to this abuse of the commerce power. In 1937’s NLRB v. Jones & Laughlin Steel Corporation, it ruled that “although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control.” Never mind that Congress has the authority only to “regulate” interstate commerce, not to “protect [it] from burdens and obstructions.”
The NLRA also raises First Amendment concerns. While the Taft-Hartley Act made it clear that employers have the right to speak their mind, company officials can still be punished if their statements are construed as threats — and even statements that are protected by the First Amendment can be used against employers in discrimination cases.