Abstract: When the National Labor Relations Act (“NLRA”) was enacted, both labor and management believed that it would pave the way for unionization and the spread of collective bargaining. The key provisions that led to such great hopes by unions and their supporters remain in force, but after many years of working with the NLRA, optimism has given way to cynicism and despair about the law’s ability to protect workers and enhance collective bargaining. This Essay provides tentative suggestions for structuring a legislative agenda that would make basic labor law more even handed and protective of basic worker rights. Recognizing that basic labor law is currently not a friend to unions, the Essay concludes that even though efforts to improve it are likely to meet with significant resistance, they are, nevertheless, worth the effort.
When the National Labor Relations Act (“NLRA”)1 was enacted, both labor and management believed that it would pave the way for unionization and the spread of collective bargaining.2 Unlike the National Recovery Administration, which preceded it, the Wagner Act was carefully structured to be effective.3 Many aspects of the new law were innovative, its provisions were powerful, and its scheme for enforcement was carefully chosen. It contained a sweeping enunciation of employee rights, provisions for determining whether employees wished to be represented by a union, and a requirement that the em[*PG126]ployer bargain with a union selected by its employees. Perhaps most encouraging to union supporters, the NLRA was to be developed and applied by an expert agency rather than the courts—labor’s historic enemy. The key provisions that led to such great hopes by unions and their supporters remain in force, but after many years of working with the NLRA, optimism has given way to cynicism and despair about the law’s ability to protect workers and enhance collective bargaining. How has this come about and what, if anything, should and can be done to make the law fairer and more effective?
I. The Role of the Courts in Limiting the
Effectiveness of the Law
A. The Continuing Role of the Judiciary
The scheme of the NLRA envisioned no role for the courts with respect to the representation election process, and a limited task of enforcing National Labor Relations Board (the “NLRB” or “Board”) orders with respect to unfair labor practices. But the courts are notoriously difficult to replace or control. The notion that courts would simultaneously defer and enforce was unrealistic. So long as the courts had the power to refuse enforcement, it was inevitable that they would use this power to require the Board to interpret the NLRA in accordance with their views of desirable policy. In addition, three factors combined to make them particularly feisty in dealing with Board decisions.
First, the reasons advanced for deferral to the Board—its expertise and neutrality—were quickly perceived to be fictional. As it became obvious that the Board was performing the function of an adjudicatory body—applying or interpreting general language, developing doctrine, and finding facts—and that its policies changed with its political makeup, the reasons to defer seemed less compelling.
Second, because of its concentration on the NLRA, the Board was not in the position to undertake the important task of harmonizing NLRA policy with the policy behind other statutes and laws. This became increasingly important as other labor-related statutes and policies were developed. The courts have primary responsibility for harmonizing the NLRA with the policy favoring arbitration and with the antidiscrimination, antitrust, and bankruptcy laws, and developing the law dealing with the relationship between the employee and the union, an [*PG127]area not dealt with by the NLRA. The labor injunction was reinstated by the Taft-Hartley Amendments.4 Because the board lacked injunctive power, this approach increased the role of courts,
