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Brian Lehrer: It's The Brian Lehrer show on WNYC. Good morning again, everyone. Now we continue our WNYC Centennial Series, 100 Years of 100 Things. It's thing number 62, almost 100 years of the National Labor Relations Board. Rather than start in 1925, as we ordinarily would, we're going to start in the present because the Trump election was fueled by the votes of working-class Americans, very much so, including some unions. Given Trump's actual record, one of the big questions for the new administration is whether he is really for the working class and will empower workers differently from past Republican presidents, or will he be exposed to many of his supporters as a fake populist in this regard?

For example, as our guest will tell us, Elon Musk filed a lawsuit challenging the constitutionality of the very existence of the NLRB, the National Labor Relations Board after it accused him of firing some workers illegally. Here's a clip of Trump at an event in August talking to Musk and supporting the idea of firing workers who go on strike.

Trump: -cutter. I look at what you do. You walk in and you just say, "You want to quit?" They go on strike. I won't mention the name of the company, but they go on strike, and you say, "That's okay, you're all gone. Every one of you is gone." You are the greatest-- You would be very good. Oh, you would love it."

Brian Lehrer: Trump in August with Musk chortling in response. What is the National Labor Relations Board? It was created by President Franklin Roosevelt and Congress in 1935 as part of the National Labor Relations Act which established the right to organize and go on strike. The law also became known as the Wagner Act because it was sponsored by US Senator Robert F. Wagner of New York. Here's a clip of Wagner from back in that time advocating for the bill.

Robert F. Wagner: The National Labor Relations Bill I introduced is not new in principle. It is based upon a long-cherished American belief that every worker should be a free man, in fact, as well as in name, should be free to belong to any kind of union that he likes. My bill guarantees this economic freedom in the clearest terms.

Brian Lehrer: Economic freedom as it relates to workers, not just owners of businesses, New York Senator Robert Wagner before the bill's passage in 1935. Let's start there with our guest. It's Labor Journalist Dan Kaufman, a New York Times Magazine contributor and author of the book The Fall of Wisconsin: The Conservative Conquest of a Progressive Bastion and the Future of American Politics, which came out after Trump's first election. Dan Kaufman has an article in The New York Review of Books now called What Labor Could Lose. Much of the article is 90 years of history of the National Labor Relations Act and the National Labor Relations Board as it's been treated or mistreated by many presidents. Then, it ends with Trump and workers' rights today. We'll do all of that. Dan, thanks for coming on WNYC for this and joining our 100 Years of 100 Things series.

Dan Kaufman: Thank you so much for having me, Brian. It's really a pleasure.

Brian Lehrer: Can we start with a little pre-history of the NLRA and the NLRB to make it fully 100-year segment? I was reading an article on the website unioncouncil.net, which notes that between 1925 and 1947, workers organized 85% of the construction industry outside the Deep South. What was going on in working-class America that in the years leading up to 1935, there was this demand for something like the National Labor Relations Act?

Dan Kaufman: Of course, you have the Great Depression, which decimated the livelihoods of tens of millions of workers. It also galvanized the labor movement, which had been moribund in a lot of the 1920s. There were big labor uprisings in West Virginia in 1921 in which thousands of miners were killed in an armed standoff with the US Government, the Battle of Blair Mountain.

In the early 30s, you had an incredible revival of labor organizing and a lot of strikes. Some of these strikes turned violent. You had the Kohler strike in Sheboygan, Wisconsin. There was Minneapolis. There was essentially a general strike in 1934. There was a feeling that these fractious and sometimes often violent labor relations were damaging to the country as a whole. There was also a lot of sympathy among the New Deal Democrats like Robert Wagner for ordinary workers.

The NLRA was crafted by Wagner as a very-- It was unambiguously a pro-worker bill. As you mentioned, it protected the right to organize, the right to strike. It protected this not only for union members but for those not in a union, that workers should be free to speak out about the conditions of their employment for their own mutual aid and protection. That's the language in the in the bill. The law also said that it's the policy of the United States to encourage collective bargaining. It was very pro-union law in a sense.

It wanted to do this partly to keep the economy going smoothly because these strikes were very disruptive, but it was also doing it in a way-- I'm so glad you played those clips at the beginning because it was really part of the New Deal spirit to speak of these things as freedoms for ordinary people, ordinary workers. The freedom to speak out about the conditions of your employment was very important. You could be fired summarily. You had basically no rights. The NLRA gave workers these incredible rights. That was the context in 1935.

Brian Lehrer: The clip of Wagner that we played there uses the word 'Freedom' a couple of times. It struck me because we usually hear that word invoked by libertarians or other economic conservatives only to refer to the freedom of owners of businesses to hire and fire and set wages and not be regulated much by the government and things like that. One great observation, I thought, in your article is that the National Labor Relations Act is one of the few US Laws that protects a collective right rather than an individual right. Of course, we have the individual rights like freedom of speech, freedom of religion. Why do you think that distinction is important?

Dan Kaufman: Oh, I think it's tremendously important because it's also one of the few instances, the New Deal period in American history, where the collective was emphasized. I think there's a lot in American jurisprudence and history, the freedom from, if you will, versus the freedom to come together. I thought it symbolized both in spirit and substance what the New Deal was trying to do, which was organize society as a whole in a more equal way. It's true. The law is one of the very few, there's only a couple of others that I can think of, that only comes into effect if more than one person is having their rights infringed upon. If you, for example, in a workplace discuss with your co-worker your pay or something, that's protected activity, whether you're in a union or not.

I think it gave workers power as a whole. I think one of the things that's lost is we have a society that's very unbalanced now. You have people like Elon Musk who is slated to be a trillionaire by the end of this administration. Then you have 50% of the population that owns less than three individuals in the United States. It's become very extreme, this disparity. I think one of the things that was rectified by the NLRA was rebalancing that. You had a similar situation in the 20s, where the wealth was just-- The inequality was so extreme. I think that collective mindset was very important and it was very unusual. It's one of the most radical laws in American history. FDR, in fact, was not publicly supportive of it, really. He did tell Wagner privately that he would support it, but it was really Wagner that had this idea. I think there's a very interesting NLRA scholar named James Gross, probably knows more than anybody about the law, and one of the ways that he frames it is as a human rights law. I think that's an interesting way to think about it. At the very beginning, in the 1930s, it was incredibly important as far as a massive unionization effort. From 1935 to 1944, union membership went from about 13% of the non-farm workforce to 34% in less than a decade. It was really because of the NLRA.

Brian Lehrer: Then you document in the history section of your article that conservative backlash led eventually to another law, the Taft–Hartley Act, passed in 1947 over the veto of President Truman, which nullified or weakened some of the rights that the National Labor Relations Act had established. Our next archive clip is of Harry Truman. This is after his presidency. He's looking back on the Taft–Hartley Act and the override of his veto. What's interesting here, Dan, is that he actually blames unions for having created some of the backlash themselves. Here's Truman.

President Harry Truman: The Congress handed me the Taft Labor Act after two vetoes. They passed it over my veto. It was a harsh punishing law and was an attempt to take all the rights away from labor that they'd been enjoying. They brought it on themselves, though, by going to excess when they had all these rights. It was a trouble for the whole country as far as that's concerned. The country was of the opinion that labor had gone too far and were against them. That's the reason the Congress could pass the Taft–Hartley Act over my veto.

Brian Lehrer: Harry Truman, looking back. Briefly, what was the Taft–Hartley Act and are you surprised or were you aware that Truman came to think that Congress passed it partly because of what he called excesses of the labor movement?

Dan Kaufman: No, not surprised at all. In fact, I think he agreed with a lot of what was in Taft–Hartley. I think it was a political move to veto the law. In fact, a lot of people say that it helped bail him out and narrowly win the 1948 election. He was losing that election and then he did veto Taft–Hartley. You have to remember at that time about a third of the American workforce were members of the unions. It was incredibly important constituency. I think it was a politically motivated decision and a lot of the provisions in it were supported by him. I'm not sure how deeply opposed he was, but politically it made sense to veto it and it did help him win that election.

Taft–Hartley was-- Let me back up for a second two years. The NLRA was challenged very quickly by conservative business interests in the Supreme Court. It won a very important case in 1937, Jones v. Laughlin, which was a steel company and that established its constitutionality. For the next two years, the Board acted incredibly decisively in support of workers. By 1939, there was a conservative congressman, a Democrat from the South named Howard Smith who led a committee to examine the NLRB. They subpoenaed all these documents.

They red-baited members of the committee and basically implemented a series of recommendations to dilute the power of the committee. Those recommendations were adapted seven years later in Taft–Hartley, basically verbatim. These included a banning of secondary boycotts, that's when a union might target a third party involved in a dispute. It permitted states to become so-called right-to-work states, which means that basically members are not required to pay dues, even though the union is legally obligated to represent them in a unionized workplace.

It also gave free speech rights to employers and Wagner feared this most of all. He was too ill to attend the Senate hearings on Taft–Hartley, but he did write about it and he said it was basically a cover for employer interference and unionization. Taft–Hartley amended the NLRA in a way that was much more favorable to employers and elevated their rights and diminished the power of the NLRA as a pro-worker statute. I think that's the basic context. It's interesting because we could talk and I think we will talk about the politics, but more than half of the Democrats in Congress at the time supported overturning Truman's veto.

Truman, as your clip played, was not even all that supportive of his own veto and, in fact, blamed unions for overreaching or something like that.

Brian Lehrer: Part of your article is going over Democratic presidents, not just Republican presidents who've weakened the NLRB or labor rights at times in their presidencies, even though by and large it's been a back-and-forth where Democratic presidents strengthen the NLRB and Republican presidents weaken it. One thing that you brought up in Taft–Hartley, this prohibition of unions targeting third-party workplaces to support a strike. Does that mean, for example, because this seems potentially very current to me, that if workers at Whole Foods, which is owned by Amazon, want to organize at one Whole Food store-- As is happening right now in Philadelphia, and if they go on strike, they can't call for a boycott of other Whole Food stores to support the effort?

Dan Kaufman: It's very confusing, this law and this provision and a lot of labor lawyers say it doesn't prohibit that. It is incredibly confusing. I think it's enough to prevent unions from not endorsing it because the penalties are very steep. The law itself is very complex on that provision and it's unclear, I would say, but it's been interpreted that way that it would prevent it. At least unions are too fearful to invoke a boycott of a secondary target as a tactic. That's diminished their power over time that was permitted prior to Taft–Hartley.

Brian Lehrer: Now, listeners, as we do with our 100 Year segments, we invite you to contribute a piece of oral history on the phones. Who has had any experience as a union member or an employer with the National Labor Relations Board under any president, including Biden and Trump in his first term? 212-433-WNYC, 212-433-9692. We can take a few calls on the current issue that we're leading up to in this 100-year segment. After winning with so many working-class voters, is Trump in his first week setting up to be a champion of labor differently from other Republican presidents? Or will he be, as our guest suspects, a faux working-class populist when we see what labor policies he actually enacts?

Listeners, what will you be looking for in this regard? 212-433-WNYC, 212-433-9692 with our guest Dan Kaufman, author of the book The Fall of Wisconsin: The Conservative Conquest of a Progressive Bastion and the Future of American Politics and his new article in The New York Review of Books called What Labor Could Lose. Before we get to Trump and what might happen now, just continuing briefly on the timeline, we move from the 1940s to the 1950s and you write that President Eisenhower went further in a business-friendly direction than even Taft–Hartley by allowing employers to hold mandatory anti-union presentations for their workers.

On the timeline, you have the Democratic Presidents Kennedy and Johnson empowering the NLRB, followed by Nixon weakening it. Then, the next big tent pole comes under President Ronald Reagan in the 80s, no surprise, perhaps, who appointed a chairman of the Labor Relations Board who called collective bargaining 'The destruction of individual freedom'. I guess this takes us back to that tension between individual and collective rights under the law, yes?

Dan Kaufman: Totally. I'm so glad you brought that up because, by that time, the right had claimed the mantle of freedom, Milton Friedman, and so on, the freedom to choose, and all of this libertarian argument, which essentially that government interference was by its nature an imposition on people's freedom. I think what the New Deal era reminded people is within these huge structural battles and forces in society, workers needed the government to attain a measure of freedom. For example, in your workplace, if you could be fired for simply speaking up about your conditions, were you really free?

You look at-- Roosevelt's famous for freedom speech, which I think Wagner really paved the way, in a way, with his rhetoric around it. I think by the 80s, you're right, the messaging around freedom had shifted and government was seen as a negative force. Bill Clinton re-emphasized that, and he was a Democrat in the 90s. He said, "The era of big government is over," and so on and so forth, and I think took up and continued Reagan's reframing of it in that way.

The history of the NLRB mirrors a lot of American political history in general. That's no surprise, perhaps. The Board continued to fall in its power and reach. That fall abetted the decline of union membership. It wasn't the only reason, but it was harder and harder to unionize. You look at the figures today, 6% of the American private sector workforce is in a union. That's the lowest ever. It's been very difficult to form a union. As employers got more and more rights and the NLARB got weaker, there were fewer punishments for them. It was easy to disrupt a union election, and that is what they did.

There was one study in 2019 that said more than 40% of union elections were marred by illegal interference by employees. It's probably higher than that, but I think that's been the norm for some time, and it did change. It's worth mentioning that Biden's appointee, Jennifer Abruzzo, who's one of the subjects of my piece, did a remarkable job at revitalizing this agency.

Brian Lehrer: We'll get to Jennifer Abruzzo, the Biden general counsel of the NLRB, and what Trump is signaling in his first days in office. But I want to take an oral history call from Robert in Washington Heights who says he had an experience with the National Labor Relations Board. Robert, you're on WNYC. Hello.

Robert: Good morning. Thank you. I worked for a union and I was dismissed for obvious ridiculous reason. I went to the NLRB, the National Relations Board, and the dismissal was reversed because they found that the union itself had acted illegally. The other thing I wanted to mention was on secondary boycotts. My understanding of it was that if another union in a related field went on strike, that union one could not go on strike. It's a little confusing. I was an officer at the Musicians Union.

The stagehands went on strike and the law was that the musicians could not go on strike in support of them, but it was a moot point because no shows were being put on, given that there were no stagehands. We were not legally entitled to strike in support of another union striking. Does that make sense?

Brian Lehrer: Yes, it does, because your contract wasn't up.

Robert: Exactly. Our contract was still in effect.

Brian Lehrer: Thank you for clarifying us and telling your story. It sounds like on your individual case, you were very happy that the NLRB existed and had some power.

Robert: Oh, very much so. Let me leave you with this thought. There's an old saying, "Doctors are the worst patients. Lawyers are the worst clients, and labor unions are the worst employers."

Brian Lehrer: [laughs] Okay. We will leave that there as maybe a topic for another day. Robert, thank you very much. It's 100 Years of 100 Things, thing number 62 today on the NLRA and the NLRB, the National Labor Relations Act, and the National Labor Relations Board. When we come back from a break, we'll bring it up to the present and the election of President Trump, which is why my guest Dan Kaufman published this history in The New York Report View of Books in his article called What Labor Could Lose and more of your calls and texts. 212-433-WNYC.

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Brian Lehrer: Brian Lehrer, on WNYC. It's 100 Years of 100 Things, thing number 62 today on the NLRA and the NLRB with Dan Kaufman and his wonderfully historical New York Review of Books article called What Labor Could Lose, which concludes with his take on what the Trump administration may or may not do. Before we get to that, to finish up, let me take one more oral history call. William in East Orange. You're on WNYC. Hi William.

William: Thank you. I'm a little, I guess even flabbergasted that it wasn't mentioned. I believe it was 1948 where if a public communist was in the leadership of a union, that union became dissolved. The government set up a new one with a more friendly liberal-ish sometimes-- I wouldn't say pro-corporate, but one of the biggest destructions of the forward motion of union organizing was a result of that, the Red Scare and the word 'Socialism' became a scarier word than saying you hated your mother until Bernie Sanders in 2016. Now it's the case that it isn't a word that has people running for the forests, but that part of the Taft–Hartley Act was so destructive, along with the brilliance of the cultural apparatuses that basically said, "You can't say socialism." Let alone [inaudible 00:26:27] without losing all your friends.

Brian Lehrer: William, thank you very much. Anything on that briefly, Dan?

Dan Kaufman: I'm glad that the caller mentioned that. In the article, I do talk about the loyalty oaths that were required. I think that's a hugely significant thing. Within Taft–Hartley, you were required to declare that you were never a member of the Communist Party. The effect of that was that the unions, particularly the CIO, which was the more radical one, organization of unions versus the AFL, the American Federation of Labor, purged a lot of their leftist leaders.

The American labor movement became much more conservative in the aftermath of this great purge of it's much more activist, radical leaders, many of whom were never members of the Communist Party, but they were caught up in the Red Scare. I think that was a huge thing. The provision was later declared unconstitutional, but the damage was already done and the labor movement was transformed into a more-- Some people described it as a junior partner to corporate America rather than a more antagonistic role. I think that aspect in the Red Scare had a major impact and a lasting one to this day.

You could go back to the 2020 election and all the talk about socialism, even though Bernie Sanders wasn't even on the ballot. Trump talked about that a lot. He flew a plane over Ohio denouncing socialism with a banner and so on. I think they tried to tag Biden as somehow some sort of socialist or something. It's a huge issue.

Brian Lehrer: Now we get to the present, the transition from Biden to Trump in this respect. Dan, your article actually begins with a celebration of Biden's General Counsel for the NLRB Jennifer Abruzzo. What has she done during her tenure in that position that you would highlight briefly?

Dan Kaufman: In my view, the broad picture, she pushed really hard to revive the original spirit of the Wagner Act. She did it in a number of ways, how she can influence policies by bringing up cases before the Board. She focused on a lot of different things. The Board is a separate entity within the NLRB and they rule on cases. She also oversees about 1200 field attorneys, so she can direct policy that way and emphasize her vision of what the law should do. A couple of things she did, one, she advocated, for example, for college athletes to be considered employees, she wrote about the misclassification of gig workers.

Some of her successes-- Her biggest success was getting the Board to agree that captive audience meetings in which an employer forces people to listen to essentially anti-union propaganda were inherently coercive. That was a restoration of the Board's original position, but it had been eroded over time. As you mentioned, during the Eisenhower years, it became permitted and the union didn't even get a chance to respond. There was a lot more power given to employers. She was trying to rebalance that power. She was an interesting person. She grew up working class in Queens, in Jackson Heights.

Her father was a electrical engineer at Con Ed. Her mom was a X-ray technician at a Manhattan hospital. She went through the ranks of the agency. She went to law school at night as a single working mother and then started as a field attorney in Miami.

Brian Lehrer: Worked her way up. Let me jump in because I want to hit a couple of more points before we run out of time. Now Trump comes back into office with all this working-class support, but you start that section of the article by saying, "The NLRB has no greater antagonist these days than Elon Musk." How so?

Dan Kaufman: Right. Elon Musk has tangled with the NLRB under Abruzzo. There were two issues. One was more minor. He tweeted a threat to his employees that he would take away stock options if there was a unionization effort at Tesla. The NLRB under Jennifer Abruzzo went after him in court, and he was initially forced to remove the tweet and then he won in a conservative district, the Fifth Circuit, which is a clearinghouse for conservative legal efforts. Now that tweet is considered constitutionally protected speech, which is a complete repudiation of the NLRA if you believe that worker intimidation is not permissible.

A more maybe wide-ranging case is one that involves SpaceX. He's the owner of SpaceX, of course, the space exploration company. Some workers at SpaceX circulated a letter criticizing the workplace culture and also a tweet that he made making light of sexual misconduct allegations against a flight attendant on a SpaceX flight. He denied the allegations.

They were settled. He fired the workers and they fired an unfair labor practice with the NLRB. Then, he took that case also to the Fifth Circuit. It's probably going to end up before the Supreme Court.

Brian Lehrer: Still in progress.

Dan Kaufman: He's challenging the constitutionality of the Board.

Brian Lehrer: The very constitutionality of the Board to even exist?

Dan Kaufman: Yes.

Brian Lehrer: To end, looking to the future and what to watch for these next four years besides Elon Musk's influence, you labeled Trump in your article as a faux working-class populist. Should we maybe instead say, "We'll see if that label fits?" Because we also know Trump surprised a lot of people by nominating a member of Congress considered pro-labor for Labor Secretary Lori Chavez-DeRemer. He won with all these working-class votes. Might he be different from past Republican presidents?

Dan Kaufman: I think in his rhetoric sometimes, Brian, and maybe in a few relatively minor instances, I do think people should look at the woman more closely and I think her pro-labor bona fides are a bit oversold. I think the clearest example you can get is from the NLRB under Trump during his previous administration. I know we don't have much time, but very quickly-

Brian Lehrer: 20 seconds.

Dan Kaufman: He nominated Peter Robb as the general counsel. Peter Robb was Ronald Reagan's lead attorney when he fired 11,000 air traffic controllers, breaking the PATCO Union and essentially launching a decades-long attack on organized labor. Under Robb, the agency really almost fell into a non-functioning [inaudible 00:34:39].

Brian Lehrer: We'll see who he appoints this time. We are very grateful to Dan Kaufman for all this wonderful history and context from his New York Review of Books article called What Labor Could Lose in our latest 100 Years of 100 Things segment. Thank you so much, Dan. Thank you very much.

Dan Kaufman: Brian. Thanks so much. It was a real pleasure.

Brian Lehrer: Our next one in the series will be on Friday, 100 Years of The New Yorker with David Remnick. As for now, stay tuned for Alison.

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