The Role of the NLRB and the Courts in the Collective Bargaining Process: A Fresh Look at Conventional Wisdom and Unconventional Remedies

The amended National Labor Relations Act (the Act) guarantees that employers, employees, and labor organizations each recognize under law one another\u27s legitimate rights in their relations to each other. \u27 In furtherance of this objective, the Taft-Hartley and Landrum-Griffin amendments substantially increased the Act\u27s protection of individual employee rights and sharply restrained many union activities that were deemed economically and socially undesirable. Those amendments, however, left intact the basic structure of the original Wagner Act providing for establishment of collective bargaining whenever a majority of the employees in an appropriate bargaining unit designate a bargaining agent to represent them. Once a bargaining agent is designated by certification or by selection through other legal means by a majority of the employees, the National Labor Relations Board (the Board) be-comes by statute the nation\u27s chief overseer of the collective bar-gaining process. Thus, under the Act, union organizational activity, pre-election campaigns, and the elaborate legal proceedings ordinarily accompanying the election process are mere preludes to the main drama of collective bargaining. This Article will examine critically recent decisions of the Board and of the courts that attempt to effectuate the bargaining process. An examination is appropriate at this time because there are winds of change in the air far stronger than the gentle breezes that periodically have drifted from congressional hearings in recent years. In the foreseeable future Congress may act to improve some of the Board\u27s procedures and remedies. Although this Article will not comment directly upon proposed legislation, its analysis of the manner in which the Act has recently been construed and enforced in the area of collective bargaining may suggest that some of the objectives, though not the precise methods, sought by legislative reformers could be achieved by the Board and approved by the courts even without additional statutory authority