How the National Labor Relations Act Was Stolen and How it Can Be Recovered: Taft-Hartey Revisionism and the National Labor Relations Board's Appointment Process

Abstract

This article challenges and refutes the conventional wisdom that the Taft-Hartley Act changed the basic policy of the National Labor Relations Act (NLRA or Act). It identifies two interrelated phenomena as factors primarily responsible for the longstanding inability of the National Labor Relations Board (NLRB or Board) to adequately protect employees in their right to unionize and engage in collective bargaining. One phenomenon is the longstanding revisionism that distorted perception of the Act's policy. The other is the repetitive abuse of the Board's appointment process. The article also demonstrates that the NLRB's shortcomings have resulted primarily from the agency's failure to vigorously enforce existing law and to utilize innovative measures already available under the Act rather than from the Act's textual insufficiencies.

The article points out that although Taft-Hartley in its substantive content is a union- regulatory statute that severely reduced the power of unions in the collective bargaining process and in their relationship to their members, the Taft-Hartley Congress nevertheless reenacted - and even enhanced - the Wagner Act's statutory policy of encouraging and protecting union organizing and collective bargaining. That unambiguous declaration of policy, plus total retention of the Wagner Act's pro-union and pro-collective-bargaining substantive provisions, was the price Taft-Hartley's sponsors had to pay to garner sufficient votes to override President Truman's anticipated veto. Yet, notwithstanding the textual clarity of that policy and its consistent legislative history, and even its later reenactment with stronger language in the Landrum-Griffin Act, organized management and their Republican allies disseminated over a period of several decades false and revisionist versions of that policy. Those versions assert that Taft-Hartley altered the Act's policy by emphasizing employee free-choice - a concept allegedly based on Taft-Hartley's recognition of the right of employees “to refrain” from union activity. That provision, however, was originally viewed as minor and of little consequence. By explicit amendment on the floor of the Senate it was strictly confined to protecting only against union acts that “restrain or coerce” employees in the exercise of their right to refrain, thus expressly allowing unions to “interfere with” that right - which is consistent with the Act's statutory encouragement of union organizing and collective bargaining. Consequently, this “right to refrain” was conspicuously excluded from each of Congress's several declarations of national labor policy. Nevertheless - despite such unambiguous statutory text and clear legislative history - the revisionist version became conventional wisdom, which has resulted in serious damage to the credibility of the NLRB and the public's perception of that agency.

The phenomenon of abuse of the appointment process was the practice by every Republican President of appointing a critical number of Board Members and General Counsels who were opposed to the NLRA's basic policy. This resulted in Boards that were highly successful in protecting employers from disruptive union economic power - such as secondary boycotts and economic strikes without permanent replacements - but relatively impotent in providing strong protection for employees regarding their rights to join unions and engage in meaningful collective bargaining in accordance with the Act's underlying policy.

The article recommends a corrective program of intensive truth-telling that might produce Labor Boards willing to use the broad and flexible text of the Act to accomplish effective enforcement.