The Long View of the Nlra at 70. or, the More Things Change??
Gregory, David L., Labor Law Journal
Following are the prepared remarks of David L. Gregory at the "NLRA at Seventy: Where It Is and Where It Should Go" conference on May 25, 2005, in New York City. The conference was sponsored by the Association of the Bar of the City of New York Committee on Labor and Employment, the New York State Bar Association Labor and Employment Committee, and the American Bar Association Labor and Employment Law Section.
Why the NLRA? Most immediately, for fans of cause and effect, the Great Depression plunged the nation into unprecedented economic misery. The National Industrial Recovery Act, enacted in June 1933, had been declared unconstitutional by the United States Supreme Court, as unconstitutionally delegating nondelegable legislative authority to the executive branch of the government.1 Senator Wagner cured the nondelegation defect in the new NLRA.
FUNDAMENTAL GOALS OF NLRA
The fundamental goals of the NLRA? Labor would say: get people employed, and, once working, keep them working. Employers would say: keep production processes operating without insurmountable, internal impediments. The declaration of policy, the first section of the NLRA, 29 USC §151, synopsizes these principles and objectives, fleshed out by the Taft Hartley Act amendments in 1947. Strife and unrest burden commerce; likewise, "the inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract, and employers who are organized in the corporate or other forms of ownership association substantially burdens and affects the flow of commerce, and tends to aggravate recurrent business depressions, by depressing wage rates and the purchasing power of wage earners in industry and by preventing the stabilization of competitive wage rates and working conditions within and between industries... It is hereby declared to be the policy of the United States to eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection."
NLRA CORE POLICY GOALS
Have the core policy goals of the NLRA been achieved? It probably depends on whom you talk to. For many in labor, the NLRA was mortally wounded by the Taft Hartley Amendments. Others, however, would contend that those amendments were congruent with the Golden Age of labor's power, influence, and workforce density for the next quarter century, 1947-1972.
Fast forwarding, Jon Hiatt certainly puts his labor cards on the table, in his concise, astute "The Bush NLRB and the Attack on Employee Rights," 30 NYSBA Labor and Employment Law section Newsletter 6 (Spring/Summer, 2005). What is left to say? Well, not much more, if anything, from the left. But, I suspect, from other points on the ideological and political spectrum, there are alternative views about to be presented just as cogently today.
G. K. Chesterton often said that we should be more concerned about achieving eternal relevance, and less so with contemporary relevance. This spins, and, it seems to me, trumps, John Maynard Keynes' famous quip that, hey, in eighty years (or so), we are all dead anyway. I promise not to take the really long view past the four final questions: death, judgment, hell (and, being an optimist), heaven.
Many critics of the NLRA, and of the NLRB, have, at various points, suggested that the Act, and the Board, have, in fact, plunged us into the equivalent of secular hell; notice, by the way, that no one has ever proclaimed the Act, or the Board, heavenly-at least, not lately. Bill Gould certainly suggested that his time as Chairman at the Board, while on the side of the proverbial angels, was equivalent to purgatory; it wasn't hell because, unlike hell, his Chairmanship had a finite term and came to a temporal close. …