OF ROBERT J. BATTISTA
CHAIRMAN, NATIONAL LABOR RELATIONS BOARD
NLRB AT 70: ITS PAST AND ITS
NYU ANNUAL CONFERENCE ON LABOR
would like to thank my good friend and former Board Member John Raudabaugh for
that kind introduction, and Professor Samuel Estreicher for inviting me to
participate today in one of the truly outstanding conferences of its type in
week marks the 70th anniversary of the introduction of the Wagner
Act, which, when signed into law by President Roosevelt, gave birth to the
Agency I chair – the National Labor Relations Board.
has changed over that 70-year period. We
have gone from propeller-driven biplanes to rocket-powered moon shots; from
Prohibition to Budweiser Super Bowl ads; from radio broadcasts to high
definition TV. Things we take for
granted now – the ubiquitous television, the computer, the cell phone –
were merely futuristic dreams then.
against this wave of change that I would like to commemorate the 70th
anniversary of the National Labor Relations Board by offering some
observations about the Agency – about its storied past, its accomplishments,
and its future.
begin by offering certain beliefs I have formed over my 37-1/2 years as a
practitioner before the Agency, and my 2-1/2 years as its Chairman.
first proposition is that the NLRB is a remarkably stable, reliable, resilient
institution that has been able to adapt, as necessary, to changes in society
over seven decades. The Wagner
Act, as amended by the Taft-Hartley Act of 1947 and Landrum-Griffin Act of
1959, and as interpreted by the 60 Board Members who have come and gone, has
worked exceedingly well in guiding this nation’s primary labor policy.
I submit that the main reason for the Act’s success and longevity, is that
it is predicated on such fundamental democratic principles as freedom of
choice to be represented or not; democracy in the workplace through rule of
the majority; and participation in the workplace through free collective
bargaining and voluntary agreements. Together,
these principles constitute a “rule of law” in the workplace that fosters
and yields industrial stability. The statute’s success can be attributed to
its enduring principles, while at the same time allowing for flexibility and
change in the dynamic labor relations field.
The law was meant to ebb and flow, to change from time to time within
the boundaries set by the statute and subject to review by the courts.
I believe the NLRB will remain relevant and at the center of national labor
policy, notwithstanding the decline of organized labor, which represents less
than 8 percent of employees in the private sector.
Unions will be with us for the foreseeable future and the NLRB will
continue to protect the freedom of choice employees enjoy to be represented,
or to refrain from being represented, by them.
The Act protects nonunion employees and union members in the private
sector. In doing so, the law
provides for stability and predictability in American labor relations.
Congress envisioned a minimal role for government in enforcing the National
Labor Relations Act. The purpose
of the law is to define an environment within which labor and management can
resolve their differences. The
Board is the referee, but the action takes place between the parties.
Simply stated, the design and purpose of the Act is to advance
industrial democracy within a free and open economy but with a minimum of
I will address some criticism of the Board, which goes with the territory of
administering the legal centerpiece of the controversial, and often
contentious, field of labor relations. Often
the Board’s critics fail to recognize that our job is to enforce the law as
written. They also don’t seem
to understand or neglect to mention that Congress established the Board’s
structure anticipating that changing administrations would appoint persons who
are free, within statutory limits, to reflect the labor policy of the
administration making the appointments. At
the same time, reasonable stability in Board decisions is necessary so that
companies, unions, and employees can understand and follow the law.
us now go back to the beginning and examine how this law and the Labor Board
came into being. Doing so will
help illuminate our situation today and, hopefully, our future direction.
NLRA had its origin in the depths of the Great Depression. President Franklin
Delano Roosevelt was in his first term. The
economy was in grave danger, unemployment was dangerously high.
There was an epidemic of disruptive, and sometimes violent, strikes by
employees trying to achieve recognition of the right to join unions.
During this period, an individual employee had no bargaining power
concerning wages and other conditions of employment.
Union organizing efforts were strongly resisted by employers.
Between 1933 and 1935, 70 percent of all strikes, involving two million
workers, resulted from the refusal of employers to recognize or bargain with
did Congress and the Executive Branch deal with this volatile labor relations
crisis that was threatening the country’s economic stability?
I will make three important points:
(1) Congress took an incremental approach, with step-by-step
experimental solutions to determine what made sense and would work.
(2) In moving the country toward a national labor policy, Congress also
’s traditional values of self-government, free choice, majority rule, and
good-faith dealings. (3) Congress
opted for the government to have a limited role as the administrator of its
various legislative solutions to labor relations problems.
It rejected solutions that were extreme, undemocratic, or with a heavy
1932, Congress passed the Norris-LaGuardia Act, which limited the power of the
courts to issue injunctions or restraining orders against strikes, absent
violence or fraud. More
importantly, the law declared that employees were free to join unions and
the following year, Congress embraced a government-industry cooperative
approach with passage of the National Industrial Recovery Act (NIRA) of 1933.
Antitrust laws were suspended to permit voluntary “Codes of Fair
Competition” and under Section 7(a) of the Act employees were given “the
right to organize and bargain collectively through representatives of their
own choosing without employer interference or coercion.” The
voluntary codes of the NIRA collapsed in May 1935 when the Supreme Court
declared the NIRA was unconstitutional.
February 1935, Senator Robert Wagner of
introduced a new bill, the National Labor Relations Act, which sought to
protect the right of employees to join unions without fear of discharge, to
guarantee the right to strike, and to require employers to bargain with the
union selected by their employees.
years ago this week the Senate passed S. 1958, which became the Wagner Act,
and referred it to the House for consideration.
The House and Senate resolved their differences on June 27, 1935, and
the new law was signed by President Roosevelt on July 5, 1935.
statute defined employee rights and sought to implement them by forbidding
certain unfair practices by management, including:
with employees in the exercise of legitimate union activities.
assistance, domination or control of an employee organization or union.
of or discrimination against an employee because of union membership or
against an employee for having filed charges or given testimony against an
employer under this Act.
to bargain collectively with unions chosen by the employees.
administer the statute, a new National Labor Relations Board was created.
The Act established a permanent board of three members with two primary
responsibilities: (1) to conduct elections among employees, upon request, to
determine if they want to be represented by a union (and, if so, which union);
and (2) to investigate and remedy unfair labor practices.
also empowered the new NLRB to make findings of fact and to issue
cease-and-desist orders and affirmative remedial orders enforceable in court.
The law also granted the Board the right to seek enforcement of its own
orders in the U.S. Courts of Appeals.
the new law, the secret ballot took the place of the recognition strike.
Representation elections were to be based on the concept of exclusive
representation. For the first
time, employees had the legal right to join unions and to bargain with their
employers over the terms and conditions of their employment. Introduction of
this innovative rule of law in labor relations met with massive opposition.
Over 80 injunctions were brought to prevent the Act’s implementation.
For 2 years, the Wagner Act was defied and ignored while industrial
strife continued. Then, in 1937
in the pivotal Jones and Laughlin case, the Supreme Court upheld the
constitutionality of the Act and sustained Congress’ power to regulate
employers whose operations affect interstate commerce, even though they were
not directly engaged in commerce.
over time, management and labor began the slow, and often difficult, process
of shared participation and shared responsibility for industrial
self-government. Strikes for
recognition, so common before the Act, sharply declined in number.
The ballot box became a substitute for the recognition strike.
The labor agreement, setting wages, hours, and working conditions
mutually agreed upon, came to be valued by both labor and management as the
standard by which they would judge each other’s conduct.
Contract disputes increasingly were submitted to impartial arbitration,
without resort to force or compulsion. Dire
predictions that free enterprise could not survive the rule of law in labor
relations proved wrong, for the economy began to prosper as never before.
1935 statute was criticized as one-sided since it prohibited only unfair labor
practices by management. This
onslaught of criticism grew over the years and gained momentum during World
War II when the shortage of employees gave unions additional economic power
which sometimes was abused. With
the end of the war, industry-wide strikes in coal mining, shipping, steel,
auto, and other basic industries, led Senator Robert Taft of
to propose amendments to the Wagner Act.
In 1946 alone, there were 5,000 strikes, involving 4.6 million workers.
amendments were adopted in the Taft-Hartley Act of 1947, which balanced the
rights of employees and the obligations of employers against corresponding
rights and obligations of unions. The
amendments also sought to protect neutral employers from secondary boycotts,
and severely restricted recognition strikes.
sweeping changes brought by Taft-Hartley also affected the structure of the
Board and its administration. For
12 years, management groups had criticized the Board’s seeming dual role as
prosecutor and judge. Under
Taft-Hartley, an independent General Counsel was to act as a prosecutor, and
the Board would continue its judicial functions.
The Board was expanded from three to five Members and authorized to sit
in panels of three Members to decide cases.
Congress preserved the Wagner Act’s statement of employee rights in
Section 7, but new language was added to provide that employees had the right
to refrain from those activities.
reaction of organized labor against the curtailment of its new-found power was
at least as great as that of management after the passage of the Wagner Act.
Taft-Hartley was derisively termed the “Slave Labor Act” and great
efforts were made to nullify it through Presidential veto.
However, Congress overrode President Truman’s veto and Taft-Hartley
1959, Congress passed the Landrum-Griffin Act in response to congressional
findings of labor union corruption, racketeering, and other misconduct.
In addition to changes related to union corruption and racketeering,
including a “Bill of Rights” for union members, the Landrum-Griffin
changes tightened secondary boycott prohibitions, outlawed “hot cargo”
agreements, and authorized the Board to delegate most of its authority in
representation cases to its regional directors, subject to discretionary
steps I have outlined in the formation of a
labor policy, especially passage of the original Wagner Act and its subsequent
amendments, were dynamic experiments in our national industrial life.
They responded to changes necessary at the time and offered remarkably
reasoned and balanced solutions in the long run.
The result was a
labor policy that sets forth statutory rules to protect the legitimate rights
of employees, unions, and employers, while at the same time safeguarding the
overriding interests of the public.
that’s enough about legislative history.
As the saying goes – “That was then and this is now.”
What does all this history have to do with us today?
We are in another century. We
so to speak; things have changed. Global
competition requires flexibility and innovation.
How can an agency grounded in the New Deal era address the needs of the
public in the 21st century?
scholars, social scientists, and industrial relations practitioners have been
debating this issue for years. Some
observers argue that the NLRB is outmoded and becoming irrelevant.
Others argue that unions are no longer needed in the American workplace
or that unions cannot function within the structure of the National Labor
Relations Act. Allow me to offer
my assessment and leave you with some observations I have come to after 40
years in this business.
I have emphasized, the National Labor Relations Act is the cornerstone of
industrial democracy in this country. The
genius of the Act is that it sets forth enduring fundamental principles, and
yet allows for flexibility and change. It
accomplishes the former by setting forth fundamental principles in clear and
compelling language – again, principles that are grounded in
’s traditional values: self govern ment, free choice, majority rule, and
good-faith dealings. It allows
for flexibility and change by using broad language that gives the Board the
freedom to act within the parameters of those principles.
this approach, I think that the Board has been, and continues to be, a highly
effective institution. The Board
issued 576 decisions in fiscal
year 2004, and it collected $205.3 million in backpay.
Our productivity this past year was especially significant because the
output included eight major decisions that required extra attention and effort
by all the staffs: San Manuel,
IBM, Brown, Brevard, Oakwood Care, Lutheran
Heritage, Crown Bolt, and Harborside.
Getting these significant cases out the door was a major
accomplishment, especially in light of the Board’s overall productivity.
the past 70 years the Agency has processed over 2 million cases, issued over
65,000 published decisions in adjudicated cases, and collected $1.67 billion
in backpay. It also has conducted
415,000 elections involving over 40 million workers.
I think you will agree that these accomplishments are hallmarks of an
active, dynamic, and successful agency.
there are criticisms regarding the length of time it takes to fully litigate
an unfair labor practice case before the NLRB, and we are working to reduce
the time it takes to issue decisions. But
it is also true that the vast majority of cases are resolved without the
necessity of formal litigation.
the Board’s settlement rate has been extraordinarily high.
Of the roughly 28,000 – 30,000 unfair labor practice charges filed
with the NLRB each year, about one-third are found to have merit, and over 90%
of those meritorious cases are settled. Overall,
about 98% of all unfair labor practice cases filed in the field offices are
resolved in a median of some 91 days, and without the necessity of an appeal
to the five-Member Board.
adjudicating unfair labor practice cases, the Board’s second major
responsibility is conducting union representation elections.
Although some critics say the election process takes too long, the
median time from petition to election is a respectable 42 days.
This includes the time necessary for parties to seek Board review of
the decisions of Regional Directors regarding preelection issues such as unit
scope and supervisory status, with the Board considering 12-15 such cases per
upon the cases the Board considers every day, I can attest that the Act is
alive and well, and that employees, unions, and employers are turning to the
Board and its processes to assert and protect their statutory rights.
this record of achievement, there are the nay-sayers.
They point to the decline of unions and collective bargaining in the
private sector and attempt to hold the NLRB partially accountable.
Historically, organized labor has served a vital role in this
country; I believe that it will continue to serve such a role in the future.
It is true that the percentage of union members in the private sector
work force has dropped to under 8%, but this statistic does not tell the whole
story. Organized labor represents
significant portions of the work forces in the defense, energy,
transportation, and shipping sectors of the economy, as well as the automobile
industry and at other major industrial employers.
Furthermore, organized labor is making major efforts to organize
workers in new industries, with the SEIU, and UNITE/HERE, leading the way in
the service industries. In short,
organized labor is rethinking and restructuring.
It is not going away.
submit that the debate about the relevancy of the NLRB continues for two
reasons. First, much of the
debate appears to be politically motivated – not in the Democrat vs.
Republican sense, but in the sense that the debate serves the self-interests
of some of its advocates. As I
noted previously, the Act brought forth a “rule of law” of
labor-management relations with attendant rights and obligations.
Neither management nor labor is able to use every weapon of industrial
warfare in its arsenal. Pardon
the military analogy, but in the interest of long-term industrial stability
there are rules of engagement to which each side must comply.
Some of those who argue that the NLRB no longer is relevant are openly
seeking a return to the “law of the jungle,” where there are no rules of
engagement and all weapons of industrial warfare can be used to accomplish
one’s objective. This is not
only irresponsible, it is short-sighted.
History shows that the balance of power in industrial warfare can shift
quickly and dramatically. Those
who see themselves in a position of power today may find themselves powerless
in the future. At that point, the
NLRB not only will be relevant, it will be their protector.
the debate about the relevancy of the NLRB continues because the intertwined
American and world economies are in a constant state of flux.
Much of this change is driven by the need for employers to adapt
quickly to competition at home and in the global marketplace.
Various management techniques have been developed, adapted, and refined
to maximize the ability to compete – indeed, to survive – in this
say that the Act is unable to protect employees in this environment, and at
the same time, give employers the flexibility to compete.
I disagree. The Act
protects employees and gives flexibility.
It does so through a prudent combination of enduring values and
capacity for change.
basic structure of the Act anticipates the need to address change.
The Board, however, is not free to rewrite the Act, it must remain true
to its enduring fundamental principles which include:
freedom of each employee to choose to be represented or not;
guarantee of good-faith bargaining if employees choose representation;
electoral mechanism to insure that employees are appropriately grouped
together, and can vote in secret;
duty to sign and honor contracts that are freely agreed to; and
protection of employers from disputes in which they are not involved.
these principles, there is considerable discretion vested in the Board.
Congress chose broad language, and then left it to the Agency to act in
its discretion, so long as it did not depart from the principles.
A few examples will suffice:
said that an employer shall not “interfere with” Section 7 rights.
Is it “interference” to prohibit employees from engaging in union
solicitation on company property? The
simple answer would be “yes,” but the Board has the discretion to
distinguish between working time and nonworking time.
employees have the right to oust or change a representative?
The simple answer is “yes,” but the Board has the power to limit
this through contract-bar rules, certification year rules, and “reasonable
time” insulated periods.
the duty to bargain include the duty to supply information?
Again, the simple answer is “yes,” but the Board has the discretion
to determine such matters as relevance and confidentiality.
that in mind, it is not surprising that Board law changes from time to time.
The Board’s freedom to act within parameters means that different
Boards will act in different ways. Congress
envisioned this freedom and basically said: so
long as the Board does not stray from fundamental principles and explains
itself, it has the power to change.
changes can come about because of social and economic developments, or because
of differing perceptions of what is right and just.
As to the former, we must realize that the Act of 1935 must now be
applied to such new phenomena as a world of computers, transformed industries,
global trade, and employee involvement committees.
With these new realities, the law must adjust and change.
respect to the differing perceptions, it must be recognized that Congress
established an agency whose Members would serve relatively short and staggered
terms. Obviously, the Board
majority would reflect, to some degree, the governing philosophy of the
appointing President. Purists may
gnash their teeth at this, but it was part of the congressional design.
is not to say that Congress intended that one party would blindly overrule the
precedents of the other party. As
stated before, all holdings must be within the fundamental principles set out
in the Act, and all changes must be explained.
The Board is an administrative agency, charged with not only an
interpretative, but a policy-making role.
It is not an Article III court and thus the doctrine of stare decisis
does not strictly apply. However,
all responsible Members recognize the value of having stability,
predictability, and certainty in the law.
But, if a Member honestly believes that a prior precedent no longer
makes sense, and that a change would be within the fundamental principles
described above, he/she can vote to change the law.
To be sure, the values of stare decisis counsel against an onslaught of
changes. But prudently exercised,
change is proper and indeed was envisioned by Congress.
because of the limited terms of Members, and the fact that a Board majority
will generally reflect the philosophic views of the President, it is not
surprising that some Boards will be viewed as leaning liberal and pro-union
and other Boards will be viewed as leaning conservative and pro-employer.
In view of the structure set up by Congress, this should not be seen as
startling. But again, prudence
requires that a given Board not swing radically to the left or right.
the Board has not had radical swings to the left or right.
Most of the law is well-settled, and the parties litigate the facts
under those principles. In a few
areas, the law has gone through periods of flux, but it has ultimately settled
at an accepted point. For
example, the Board struggled for years on whether misrepresentations are
objectionable conduct in an election context.
But, in Midland National Life Insurance, 263 NLRB 127, the Board
ultimately held that such conduct would not ordinarily be objectionable.
The law has been so for 23 years.
Similarly, the Board wrestled for years as to the burdens of proof in
discrimination cases under Section 8(a)(3).
Finally, the Board articulated a clear test in Wright Line, 251
NLRB 1083. The law has remained
stable for 25 years. In addition,
the Board held for a time that interrogation about Section 7 activity was per
se coercive. After judicial
criticism, the Board abandoned this approach in Rossmore House, 269
NLRB 1176. The law has been so
for over 20 years. Finally, the
Board once held the view that plant relocations were contract modifications,
even if the contract contained no clause proscribing relocations.
Milwaukee Spring I, 265 NLRB 206.
The Board later abandoned that view, and held that, at most,
relocations were bargainable.
Spring II, 268 NLRB 601. The
law has remained unchanged for over 20 years.
are examples of Board fluctuations that ultimately resulted in stability.
I submit that the fluctuations are part of the deliberative process
built into the Act and that the ultimate stable point was true to the Act’s
being true to its principles, and yet flexible enough to change, the Board has
continued to serve the national interest in having a living industrial
democracy. Notwithstanding this,
we hear cries that the Board is becoming irrelevant.
Some of these cries come from organized labor.
These critics believe that unions could do better without the electoral
procedures and protections built into the Act.
They endorse neutrality agreements and other mechanisms for private
resolution of questions concerning representation.
At bottom, they seek card-check recognition, either through agreement
or through legislation. The
notion of ballot box democracy, that is, voting in the privacy of a booth, is
viewed with suspicion.
sentiment is understandable. Union
membership in the private sector has declined.
There are those who say that the Board is responsible for this decline
in union strength, i.e., that Board law and lax enforcement are the reasons
for the decline. I do not believe
that this case has been made. There
are a host of social and economic changes that bear on this issue.
A few of these are: the change from an industrial economy to a service
economy; the pressures of a competitive global economy; the fact that
employees no longer work for one employer for their entire working lifetime;
and indeed, the social legislation, which organized labor to their credit has
championed, has made unions less necessary to some.
respect to the impact of the law on the decline of union membership, I would
note first that the Act is neutral. It
does not encourage employees to vote one way or the other.
It does not put its thumb on the scale in employer-union bargaining.
To be sure, there may be instances where one party or the other
interferes with employee free choice, and, in some cases, the law deals with
this too slowly and ineffectively. However,
as I stated, the vast majority of our cases settle quickly.
Furthermore, the Act is not punitive.
We are forbidden to use punishment as a deterrent.
may be that, with the decline in union density in the private sector, the
Board does not play as prominent a role as it did in the past.
However, unions continue to organize, and recent developments suggest
that union organizational efforts may be intensifying.
In addition, when unions do organize, and proceed to NLRB elections,
their “win” rate is substantial, 57% in fiscal year 2004.
As I have said many times, the forecasters of doom for unions have
generally been wrong.
sum, while I have no crystal ball, I believe that unions will continue to play
an important role in our society, and the Board stands ready, willing, and
able to protect the rights of employees who choose to unionize as well as the
rights of those who do not. But,
more fundamentally, I believe that the Board has a statutory obligation to
protect ballot box democracy. By
saying this, I do not mean to signal a result on any particular case that
comes before me. Nor do I suggest
that voluntary recognition, based on signed union authorization cards, is
improper. The Board may wish to
tinker with procedures, and devise ways to expedite them, but one must be
careful to preserve the fundamental values that underlie the Act.
need to adapt to changing times is an ongoing challenge for the Board.
Technology also is bringing changes to the workplace, and the Board
must consider issues that were only science fiction at the time the Act was
are a number of areas where the Board will need to consider the impact of
technology and the evolving workplace. For
illustrative purposes, I would like note three: electronic mail, supervisory
status, and the mobile work force. These
are by no means the only issues we are facing, but they illustrate the tension
between technological advances and other workplace changes, and the boundaries
of our New Deal-era statue.
consider how E-mail has become an integral part of the American workplace.
Are the computer systems used for E-mail a tool, like a phone, or
should “cyber-space” be viewed as a work area?
Is E-mail more analogous to solicitation, or to distribution of
literature? Should the Board
attempt to apply its traditional access, time and space limitations to email
and other technological issues, or should it develop new principles?
What factors should be taken into account? These are difficult
questions with potentially wide-ranging implications on how business is
turn to the second area, determining supervisory status in an era of an
empowered work force. As you
know, in NLRB v. Kentucky River, 532 U.S. 706 (2001), the Supreme Court
admonished the Board to be attentive to the statutory definition of a
supervisor, while also acknowledging that the Board may determine, within
reason, what scope of discretion a person must have to constitute a supervisor
under the Act. While
arose in the context of registered nurses and their professional status, the
court did not limit its comments to professional employees.
Rather, the court spoke in broad terms about the statutory definition
of supervisor and the Board’s authority to interpret the Act.
the context of an empowered work force, the Board will have to address a
number of questions. For example,
has sufficient authority has been granted to the empowered work force to
satisfy the statutory definition of supervisor?
What is the significance of the fact that this authority may have been
granted through collective bargaining? How
does group authority differ from individual authority?
If group authority is managerial in nature, what is the impact of the
decision finding faculty members to be managers, not employees, based upon
their collective authority?
the Board must address how to deal with an increasingly mobile work force.
Technology has made it possible for many businesses to allow workers to
work in nontraditional settings. Telecommuters
can work from anywhere – at home, on the beach, or on a mountaintop.
Traveling workers no longer need to return to a central office to
process their work. E-mail and
the Internet allow for orders to be submitted, work to be distributed, and for
business otherwise to be transacted without the necessity for face-to-face
interaction. Operations can be
decentralized, in many cases without regard to geographic boundaries.
a union cannot stand at the gate and hand out literature to the work force at
shift change, what access rules apply? Is
the mobile work force analogous to the logging camps, mining camps, and
mountain resort hotels mentioned by the Supreme Court in Lechmere, Inc. v.
NLRB, 502 U.S. 527, 439 (1992). If
access to the employer’s property were justified under a Babcock/Lechmere
analysis, what “property” exists that would allow the union reasonable
access to the work force? What
significance, if any, should be given to the fact that a work force is truly
mobile? What if the employer
offers to accommodate the union’s request for access to its work force?
What if the union objects to the accommodation offered?
the trends in technology and the evolving workplace, it is only a matter of
time before the Board will be considering these and other related questions.
Some may be addressed in the context of our consideration of E-mail
related issues. Others will arise
separately. Still others will
arise in other contexts entirely.
future will present the Board with a wide array of issues as it continues to
adapt to the constantly changing American workplace.
As the Supreme Court noted in
, however, the Board’s ability to adapt is limited by the text of the Act.
Our challenge is to address these new issues with flexibility and
innovation while remaining faithful to the 70-year old statue we are charged
brief historical overview was intended to convey a picture of the Board as an
institution that has encountered and withstood difficult times, has ably dealt
with change, but has shown a vitality, energy, and resilience, that has
enabled it to be so successful over 70 years.
mission has been to resolve labor disputes peacefully by providing an orderly
regulatory process within which labor, management, and employees can resolve
their differences. Fulfilling
this important mandate has been an immense task but we have succeeded for 70
years and will be successful in the future.
those nay-sayers who want to marginalize the NLRB, they should not forget the
bitter lessons of history that we have experienced.
The NLRB was challenged in its early days, first by management, and
later by labor unions leading to the 1947 and 1959 amendments.
Congress found the voluntary approach of the NIRA boards didn’t work
so it moved on to the framework we have with the NLRB today that does work.
To be sure, there have been pitfalls, but if the Board were no longer
here -- would labor upheavals so prevalent in the 1930’s be more
commonplace? Would the law of the
jungle prevail? I assure you we
are better off with the road taken. The
congressional give and take has reached a point of equilibrium in the
Board’s history, assuring its continued success.
genius of the statute, the wisdom of Congress to change direction, and the
flexibility of the NLRB to make adjustments to a changing industrial landscape
over the years, all have resulted in a success story for this great agency.
adapting to changes over time the Board should look to its origins for
guidance. As I have shown, the
Act was not created in one step in a sweeping, comprehensive approach to
regulate all aspects of all industries. Rather,
it came about in a series of steps, some of which were admittedly
this mission was a premise advanced by the statute’s proponents that was
stated as follows by its main author, Senator Wagner:
cannot work unless it is honored in the factory as well as the polling booth;
men cannot be truly free in body and in spirit unless their freedom extends
into the places where they earn their daily bread.
preservation and advancement of democracy, including the protection of human
rights, was a guiding principle of the Twentieth Century in the
. This march for democracy,
which of course continues to this day in all parts of the world, was achieved
at great cost in lives and treasure, after four major wars.
Now in this new century, we find ourselves in a global war on
democracy is not easy and never cheap. This
country has initiated and maintained massive foreign aid programs which have
enhanced economic well-being, health, and stability around the world.
Domestically we enacted legislation and developed many programs to meet needs
of all Americans.
is this more apparent than in the
system of industrial democracy that grew out of the New Deal era and has
expanded with the enactment of legislation in the areas of occupational safety
and health, equal employment opportunity, pension reform, health care, minimum
wage, family leave, among others. None
of these were in place when the National Labor Relations Act was enacted seven
statute has been a major contributor to the success of all these programs by
establishing and promoting the principles of individual and
collective-bargaining rights, freedom of choice, and by recognizing that human
rights in the workplace are deserving of governmental protection.
In sum, the
has found a long-term, satisfactory solution for dealing with labor-management
problems with this remarkable statute.
Reagan recognized the linkage between the Act and democracy when he stated on
the occasion of the NLRB’s 50th anniversary in 1985, a message that still
free labor movement is essential to the preservation and expansion of free
enterprise. Since its passage in
1935, the National Labor Relations Act has been a bulwark of support for this
vital American heritage. In
conducting union representation elections and processing unfair labor practice
charges, the NLRB has helped build a peaceful industrial relations system that
is the model for the free world.
Churchill once said that “Democracy is the worst form of government, except
for all those others which have been tried from time to time.”
It is true that, in a democracy, decisions can take an enormous amount
of time; the debates can be contentious; policies can change from A to B and
back to A; partisan views are expressed and acted upon; and the whole system
can be wracked by inefficiencies. And
yet, the fundamental values that are inherent in a democracy far exceed these
transitory problems. We would
not, for even one moment, trade away the principles of free speech, open
debate, and uncoerced and independent free choice.
so it is with the industrial democracy that is enshrined in the Act.
There are cases in which the Board decision takes too long; the
arguments of the parties can be contentious and sometimes bitter; the law has
sometimes gone from A to B and then back to A; Board members may reflect their
prior background, including their social and political views; the
decision-making system is less efficient than would be true of a one-person
dictatorship. And yet, we would
not, for even one moment, trade away the fundamental values of free speech,
open debate, and uncoerced and independent free choice.
as with democracy itself, we must forever strive to improve the system.
We must search for ways to eliminate unnecessary delay, to be
open-minded about new ideas, to lower the decibel of contentious debate, and
to make the system more efficient, while at the same time remaining true to
the statute that we administer. Nothing
more is required; nothing less is permitted.
you for your attention.