The NLRB: What Went Wrong and Should We Try to Fix It?

For eighty years, national labor policy as set forth in the National Labor Relations Act has been committed to overcoming the ¿inequality of bargaining power between employees . . . and employers¿ 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.¿ The basic tenants of national policy may be restated in terms of a series of commands directed at the National Labor Relations Board and the courts. These may be stated as follows: (1) Promote and protect the right of workers to organize for the purposes of collective bargaining. (2) Prevent employers from using their economic power to inhibit free choice by workers. (3) Leave the parties free to negotiate their own agreements. (4) Recognize and protect the right to strike. The key to turning these commands into a living reality was the establishment of the NLRB, an expert agency that was to use its understanding of labor relations reality to establish national labor policy by defining more precisely the general terms of the NLRA subject to minor and supportive review by the courts. When the law was first enacted, its drafters probably assumed that the Court would be instructed in the realities of labor relations by the newly established NLRB and its presumed expertise. That has failed to happen, in part because the expertise of the Board is largely fictional and because the Court regularly ignores and overrides even sensible Board opinions