Separation of Powers and the Labor Act: 1. Congressional Policies vs. Labor Board Policies

How a delegation of judicial power to an executive agency has brought about a loss of policy-making legislative power to the congress.

Dr. Petro is Professor of Law at New York University School of Law. He has written several books, including The Labor Policy of the Free Society (1957) and Power Un­limited: The Corruption of Union Leadership (1959), and is a noted lecturer and con­tributor to magazines.

When the Senate was considering the Taft-Hartley Bill in 1947, Senator Joseph H. Ball, though himself a leading proponent of the Bill, called attention to its out­standing weakness. He said: “The rights guaranteed to employees… could be made a complete dead letter overnight by a National Labor Relations Board that was so inclined.”¹

One of the major objectives of the Taft-Hartley Act was to se­cure a fairer administration of the national labor policy, an ap­plication of the Labor Act more faithful to Congressional intent, than the Labor Board had pro­vided under the Wagner Act.² Congress hoped in 1947 that such a result could be achieved by a number of provisions which ex­horted the Labor Board to oper­ate more in the manner of a regu­lar court.³ Unfortunately, how­ever, the Labor Board members were asked to produce judicial re­sults without being given one of the essential characteristics of Federal judicial office — life tenure — and without being placed in the only branch of the Federal gov­ernment which can, if it wishes, devote itself essentially to non­political, disinterested interpreta­tion and application of law—namely, the Federal judiciary. Asking the short-term, politically oriented Labor-Board members to act as a court was much the same as asking a baseball pitcher to call his own balls and strikes. This is what disturbed Senator Ball. His fears have been borne out.

The labor policies prevailing today are as much those of the Labor Board as they are those de­clared by Congress in the National Labor Relations Act. The two are radically different in certain crit­ical respects. Since the Labor Board is an administrative agency, and since the Constitution delegates all policy-making, legis­lative powers to Congress, a mis­carriage of the principle of the separation of powers has occurred.

This miscarriage was not brought about by any defect in­herent in the principle itself. It was brought about by a violation of the principle. Influenced by plausible error, Congress merged into a short-term politically ori­ented executive agency significant aspects of administrative, judicial, and legislative power. That mer­ger upset the delicate balance which the Constitution establishes.

It gave the administrative branch a critical edge over and above the natural advantage which it pos­sesses as the activist branch of government—the only branch which possesses and wields sub­stantial and sustained aggressive power, much money, and hordes of personnel.

The observable result is that Congress’s labor policies now pre­vail only to the extent that the United States Courts of Appeals continue to exercise in Labor-Act cases the fragments of their con­stitutional judicial power that Congress and the Supreme Court permit them to exercise.4

It adds up to this: If Congress wishes to preserve its legislative policy-making supremacy, it must respect the judicial supremacy of the Federal courts. We attain the height of practical realism today when we rediscover what Ameri­cans learned in the eighteenth cen­tury, what Englishmen learned and relearned a dozen times from the eleventh century to the seven­teenth century, and what Aristotle discovered in the fourth century, B.C., namely, that executive power is strong stuff which must be care­fully guarded.

Principles Pertaining to Separation

Here are the practical principles which should influence thought on the Separation of Powers:

·   1. That a wary legislature and an independent court system with com­plete and unfragmented judicial power — even working as deliberate allies—are by no means over­matched against an ambitious ex­ecutive;

·   2. That if the rule of law is to be roughly approximated, executive power must be confined to pure ad­ministration, even when plausible arguments, based on convenience or on necessity, are made in favor of adding legislative and judicial pow­ers to the executive power;

·   3. That if all the inordinately complex and intersecting interests of this nation are to be harmonized and reconciled tolerably, it is going to have to be done by policies and legislation wrought from the kind of deliberation and compromise available exclusively to the repre­sentative branch of government, namely, Congress;

·   4. That the executive branch is physically and politically unable to confine itself to disinterested inter­pretation and application of Con­gress’s policies and statutes — es­pecially those conceived and enacted in past times;

·   5. That an independent judiciary such as that envisioned by the Con­stitution may perhaps not be suffi­cient to insure faithful interpreta­tion and application of the laws, owing to the possibility that men in­herently lacking the requisite moral and intellectual virtues will be appointed for life to judicial office; but that nevertheless life tenure in ju­dicial office, as the Constitution re­quires, is absolutely necessary if the policy-making legislative supremacy of Congress is to be preserved; and that, to repeat, if Congress wishes to maintain its constitutional legis­lative supremacy, it is going to have to accept and affirm the constitu­tional judicial supremacy of the Federal judges.

There is more at stake here than an academic exercise in po­litical theory. The nation is in trouble. Some of this trouble traces directly to the Labor Board’s usurpation of the policy-making power and its clumsily biased exercise of judicial powers. While producing no perceptible social benefit, the Labor Board’s administration of the Labor Act has been the source of definite social harm. Since its policies are materially at odds with those of Congress and since Congress rep­resents public opinion far better than the Labor Board does, we may conclude that public senti­ment is being flouted. That is evil enough in a country which values representative government. But there are other evils. Perhaps the worst product of the Board’s un­representative labor policies has been a chronic, debilitating threat to the viability of the American economy, upon which rest both the well-being of American citizens and the hopes of decent men and women everywhere in the world.

The Principle of Free Employee Choice

Occupying the vital center of the labor policies declared by Con­gress is the principle of free em­ployee choice. This principle was not worked out overnight in Con­gress. On the contrary, it emerged from over a half-century of legis­lative experimentation. It is vis­ible in primitive and fragmentary form as far back as the Erdman Act of 1898. It figured implicitly in the Clayton Act of 1914 and ex­plicitly in the Railway Labor Act of 1925, the Norris-LaGuardia Act of 1932, and the labor rela­tions legislation of the mid-thir­ties. It has come to rest in com­plete and definitive form in the central, dominant provision of the National Labor Relations Act, Section 7, the most significant and most carefully considered expres­sion of Congress’s fundamental labor policy. Section 7 declares that:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bar­gain collectively through represen­tatives of their own choosing, and to engage in other concerted activi­ties for the purpose of collective bargaining or other mutual aid or protection, and shall also have theright to refrain from any or all of such activities….

Added in 1947, the italicized clause expressed what may be called a “quantum jump” in public and Congressional evaluation of employee rights and collective bar­gaining. Prior thereto, as illus­trated by the Wagner Act, public and Congressional opinion seemed convinced that collective bargain­ing was so unqualifiedly in the public interest that there was no need to subordinate it to any other principle or even to place any Federal restraints upon trade-union activities, however coercive, designed to spread col­lective bargaining. No doubt em­ployee rights to freedom of choice in collective bargaining were even then favorably evaluated; Section 7 of the Wagner Act stated them, and Section 8 was comprehensive­ly designed to forestall employer coercion of employee rights. How­ever, the absence of any prohibi­tion upon union activities designed coercively to impose unionization upon unwilling employees implies that Congress rated collective bar­gaining superior to employee free­dom of choice.

Events during the Wagner Act period (1935-1947) brought about what has proved to be a perman­ent change of mind both in the general public and in Congress.

Whereas previously unions and collective bargaining were thought to be unqualifiedly in the public interest, most people began seeing in the late thirties and forties that unrestrained power and priv­ilege in trade union officials and a monolithic pro-collective-bargain­ing policy could produce serious damage in the form of both abuse of individual employees and weak­ness in the economy.

Still unwilling to discourage either union expansion or collec­tive bargaining, however, Con­gress decided to subject them to another principle, the principle of free employee choice, and did so, as we have seen, by expressly de­claring a right in employees to re­frain from joining unions, or bar­gaining collectively, or participat­ing in other union activities. There can really be no doubt that in so legislating Congress faithfully represented persistent public opin­ion. The Congressional majority in favor of the Taft-Hartley Act was overwhelming. It remains so. So far as I can tell, and this is the field of my major long-run inter­est, public opinion today is more than ever suspicious of unre­strained power and privilege in trade unions. Legislative trends are toward more control of trade unions and collective bargaining, not less. The principle of free em­ployee choice, Congress’s basic principle in labor relations law, is tot only congruent with the tra­ditions of the country; it is also n accord with the present wishes of the American people as a whole.5 Notwithstanding all that, the Labor Board, sometimes blatantly, more often hypocritically and disingenuously, but ever persistently Las been attempting to restore the state of affairs prevailing under he Wagner Act. It has been trying, often successfully, to re-ele­vate union organizing privileges and collective bargaining over the principle of free employee choice.6

Favoring Unionization

Upon occasion one may observe he process clearly at work. The ^relatively recent Garwin case is an example. There the Board ordered an employer to bargain with L union even though none of his current employees belonged to hat union. According to the Board, the order was necessary in order to remedy prior unfair practices. The fact that the order would have fastened upon em­ployees a union which they obviously had not chosen seemed less important to the Board than the desirability of maintaining the) bargaining status of the union involved. Fortunately, a panel of judges was formed on the Court of Appeals for the District of Columbia a majority of which considered itself duty-bound to chal­lenge the Board’s evaluation of the policy issue. That Court, which does not habitually question the Board’s policy determinations when they favor unionization or collective bargaining, held in this case that free employee choice is the paramount principle of the national labor policy and that the Board had incorrectly subordin­ated it to the bargaining prin­ciple.8

An almost equally egregious dis­placement of Congressional policy may be seen in the collective-bar­gaining rules which the Board has laid down. Congress guardedly and conditionally approved collec­tive bargaining as an institution potentially in the public interest. The approval was conditional upon the free choice of employees; there was to be no collective bargaining unless a majority of employees in the appropriate unit desired it. Moreover, the duty to bargain was carefully guarded by an explicit qualification in Section 8 (d) to the effect that neither concessions nor agreements were required.

Employer Harassment

Defying these unmistakable in­dications of Congressional intent, the Labor Board has held in hun­dreds of cases that employers must make concessions if they are to satisfy the good-faith bargainingrequirement.⁹ In the hands of the Labor Board, collective bargaining has become an institution encour­aging unreasonable, uneconomic demands by unions and discourag­ing resistance to such demands by employers.¹º

It is true that the Board does not straightforwardly and explic­itly compel concessions — as Judge Wright in an extraordinary opin­ion recently said it should do.¹¹ But any specialist in the field will agree that the employer who ada­mantly refuses to make any conces­sion can expect to be harassed in­definitely by the Board, no matter how honest he is. As a result, em­ployers tend to make concessions or offer counterproposals whether or not they think it correct or eco­nomically feasible to do so. As a further result, collective bargain­ing practices are developing in an unwholesome way, and the law of collective bargaining surpasses the comprehension of even able practitioners.

A long string of NLRB deci­sions might be presented — each one requiring sustained and com­plicated analysis — in illustration of the Labor Board’s persistent determination to replace Con­gress’s policies with its own.¹² However, being less interested in the substantive minutiae of cur­rent labor law than in the general aspects most relevant to the separation of powers, I confine myself to an account of only some of the outstanding examples of the Board’s negation of Congressional policies in favor of its own.

One of Congress’s dominant purposes in labor legislation over the past twenty years has been to apply equal rules to employers and unions in organizing cam­paigns. Even a superficial glance at the parallel subdivisions of Sec­tion 8 of the National Labor Re­lations Act will convincingly re­veal an intent to govern even­handedly the activities of these normal rivals.” Again, this ap­proach faithfully mirrors public opinion, which has always favored the equal rule of law. Yet again, the Labor Board has flouted both Congressional sentiment and the community consensus. The Board has stretched the rules relating to employer conduct to the point where infringement of constitu­tional right is a daily occurrence.¹4 On the other hand, it has confined regulation of even the most ag­gressive, coercive, and monopolis­tic union conduct to the level, at most, of mere annoyance.15

Whereas Congress in Section 8 (c) of the NLRA expressly im­munized expressions of opinion in order to make sure that employees would hear both sides in union or­ganizational campaigns, and could thus register an informed choice on the issues, the Labor Board has steadily constricted those free speech rights. So much so that it is dangerous nowadays for an em­ployer to open his mouth at all during an organizing campaign.16 And yet, as an outstanding Fed­eral judge, Judge Friendly of the Second Circuit, has said, “If Sec­tion 8 (c) does not permit an employer to counter promises of pie in the sky with reasonable warnings that the pie may be a mirage, it would indeed keep Con­gress’s word of promise to the ear but break it to the hope.”¹7

Common sense would seem to suggest that an employer cannot coerce employee free choice by un­conditionally offering benefits. Yet the NLRB, with the approval of the Supreme Court, has been hold­ing that an employer violates the Act in granting even the most in­nocuous benefits, or merely prom­ising them, during an organiza­tional campaign.” This may not seem a vastly important point. The fact is, though, that, together with the extra statutory limitations im­posed upon employer free speech and other strained extensions of the law, it has made it possible for the Board to find employers guilty of unfair practices when­ever they vigorously resist an or­ganizational drive. The Board’s apparent objective is to quell all resistance to union expansion. If it succeeds, employees and their freedom of choice will be the prin­cipal victims.

The Bryant Chucking Grinder Case

With its powers in such for­midable array, the Board is in a position to impose collective bar­gaining virtually at will, quite re­gardless of the preferences which employees might register in the secret-ballot elections which the Board is tending to avoid. And this in spite of the fact that Con­gress has indicated that the pre­ferred — if not the exclusive —means of establishing bargaining status for unions and imposing bargaining duties on employers is the secret-ballot election.” The tortured, devious methods by which the Board has thus flouted Congressional intent is well worth serious attention. The recent case of Bryant Chucking Grinder Co. v. NLRB^²º will serve as an ex­ample of how the Board is manag­ing to impose collective bargain­ing, either without elections or, worse, in spite of election defeats. Here is an outline of the case.

1.     A union had been defeated in a secret-ballot election in 1959.

2.      In 1962 that union began an­other organizing campaign. The rec­ord showed that the union circulated employee authorization cards on the basis of both public and private representations that the cards would be used in order to secure another election, not in order to secure im­mediate recognition of the union as exclusive bargaining representative.

3.      Cards were signed by 198 of the 337 employees in the bargaining unit, but the employer refused to recognize the union on the basis of the cards, insisting instead upon an election (as the law permits the employer to do).

4.      An NLRB-conducted secret-ballot election was held in November, 1962. The union was rejected in this election by a vote of 184 to 124.

5.     In December of 1962 the union filed objections to the election alleg­ing employer interference.

6.     Entertaining the objections, the Board ordered a new election.

7.      After the Board ordered the new election, the union (for reasons not explained) withdrew both its objections to the past election and its petition for a new election; in­stead, in January of 1963, the union filed unfair labor practice charges against the employer based on his pre-election conduct.

8.      The NLRB Regional Director dismissed these charges on the ground that they were disqualified by the Board’s decision in Aiello Dairy Farms,^²¹ establishing the rule that charges would not be enter­tained when they related back to pre-election conduct.

9.      The union appealed the dis­missal to the NLRB General Coun­sel.

10.    The General Counsel sat on this appeal for roughly two years while prosecuting other cases in which he argued that the Board should overrule the Aiello Dairy Farms decision.

11.    Finally, in Bernel Foam Prod­ucts Co., Inc.,^²² the Labor Board overruled Aiello.

12.      The General Counsel there­upon ordered the Regional Director to issue a complaint based on the charges filed by the union in this, the Bryant Chucking Grinder case.

13.      Owing in part to delays com­mon in the Board’s general proc­esses and in part to exceptional in­eptitude on the part of the Board’s Trial Examiner, an NLRB decision was not reached till late in 1966 —some four years after the events in issue and the union’s defeat by a vote of 184 to 124.

14.    This NLRB decision^²3 held:

(a)            that the employer had never been entitled to the 1962 election because he had not had a reasonable basis for a “good-faith doubt” of the “majority status” established by the 198 signed authorization cards prof­fered in 1962;

(b)            that the employer’s conduct prior to the election interfered with the free choice of the employees and thus invalidated the election; and

(c)            that the employer had a duty to bargain with the union from late 1966 on, despite the election defeat, because of the card majority in 1962. The employer appealed to the Sec­ond Circuit.

Writing the court’s decision, Judge Hays enforced the Board order with little attention to the facts of the case. Judge Friendly concurred specially, broadly indicat­ing that he would much rather have denied enforcement of the Board order. He went along with Judge Hays, he said, because the Supreme Court’s decision in NLRB v. Katz²4 “was couched in terms so strong that to impose an exception requires more boldness than I possess.” ²5

Judge Anderson, dissenting, took the position that it was not a matter of boldness at all but simply one of keeping the Board from inflicting another travesty of Congress’s poli­cies on the nation. He pointed out that the employer’s pre-election con­duct was innocuous; that the union had misrepresented the purpose of the cards, thus disqualifying them as evidence of representative status; and that the Board’s decision was imposing a bargaining representa­tive upon employees who had shown only, if they had shown anything, that they did not wish to yield their individual rights to a union. Perhaps the most impressive fact adduced in Judge Anderson’s powerful dissent was the difference in the bargaining unit in 1967 from what had been in 1962, when the 197 cards were signed. There were 337 employees in the unit in 1962. There were 400 in 1967. Equally significant, at least sixty of the card-signers had left Bryant Chucking in the intervening years. Thus, Judge Anderson con­cluded, the Board was giving the union exclusive bargaining status for over 400 employees in 1967 on the basis of signatures by roughly 135 employees in 1962 — signatures gained, moreover, on the representa­tion that the cards would be used to secure an election! ²6

The importance of the process illustrated by the Bryant Chuck­ing case can scarcely be exagger­ated. In the last two or three years that process seems to have become the preferred method of establish­ing bargaining status. If this is true, a wholesale departure from Congressionally declared rules and policies has occurred. It is not a matter only of abandoning the sec­ret-ballot elections which Congress so clearly envisioned as the main means of establishing bargaining status. The full nature of the travesty cannot be appreciated un­less one knows that the Board it­self has frequently characterized authorization cards as unreliable methods of ascertaining employee choice.²7

Moreover, the rigged processes evident in Bryant Chucking illus­trate another radical departure from Congressional intent. One of the main objectives of the 1947 amendments of the Wagner Act was fairer and more judicious con­duct by the Labor Board. The 1947 amendments sought to induce Board members to deal more scrupulously with the facts and to give more sensitive heed to due process requirements.^²8 But the Labor Board has repaid this Congressional solicitude in customary coin. Since 1947, and especially in the last few years, the Board has issued a long series of decisions which, in terms of arrogant fact-distortion, questionable legal interpretation, and callousness toward due process requirements, at least equal and often surpass the worst that it had produced under the Wagner Act.²9

NLRB and the Kohler Case

Perhaps the outstanding histor­ical example of such Board con­duct is to be found in its decisions in the Kohler case. Since I have written a book^³º about the NLRB’s first decision^³¹ in the case and an article^³¹2 about the second,^³¹³¹ I do not think it necessary to spend time and space on that affair here. Suffice it to say that, in my opin­ion, that litigation provides in it­self sufficient basis for a re-evalua­tion by Congress of its grant of judicial power to the NLRB.

So disturbing has the Board’s performance been that it seems in­creasingly to try the restraint of Federal judges.^³4 The Federal cir­cuit-court judges habitually bend over backwards in an effort to respect the limits on their review­ing power which Supreme Court decision and the statute to some extent impose. Judge Friendly’s comment reflects the sentiment of a good many of his brethren on the Federal bench and will be found repeated in one form or an­other in dozens of decisions each year. In short, the U.S. courts of appeals frequently enforce Board orders even when it is perfectly clear that, given a freer hand, they would vacate them.³⁵ In the opinion of easily a majority of the Federal judges, I would say, the NLRB has a policy of its own which only accidentally intersects and coincides with the policies of Congress.

It would be inaccurate to con­clude, however, that no vestige of Congress’s policies survives today in labor relations law and practice. Those policies do survive to some extent. And in this fact resides another fact of significance to this inquiry into the separation of powers: Congress’s labor policies survive in about the same propor­tion and to about the same extent as do the reviewing powers of the Federal courts of appeals.

A subsequent article will con­sider the constitutional validity, the practical worth, and the con­sequences of Congress’s having transferred so much judicial pow­er from those courts to executive agencies.      

 

—FOOTNOTES—

^¹ 93 (Daily) Cong. Rec. 5013, 2 Leg. Hist. of the LMRA 1947, p. 1495.

2 Cf. Rep. No. 105 on S. 1126, pp. 1-3, 8-10 (80th Cong. 1947); H. Rep. No. 510 on H.R. 3020, pp. 36-38 (80th Cong.1947).

³ Ibid. And see Sec. 9 (c) and Sec. 10 (b) and (c) of the Act as amended. An amendment to 10 (b) is typical. It ex­horted the Board to follow the rules of evidence and procedure prevailing in the Federal district courts, but only “so far as practicable.”

4 The U.S. Courts of Appeals cannot vacate NLRB findings of fact unless there is no substantial evidence in the record considered as a whole to support those findings. Cf. Section 10 (e) of the Act and Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951). Obviously circuit judges will vary considerably in both interpreting and exercising such reviewing power as this necessarily vague standard imposes. Cf. the varying views of Judges Knoch and Schnackenberg in Lincoln Mfg. Co., Inc. v. NLRB, 55 CCH

5 Lab. Cas. 11 12044 (7th Cir. 1967). With Judge Hays’ view in Bryant Chucking Grinder Co. v. NLRB, 56 CCH Lab. Cas. 11 12344 (2d Cir 1967), compare that of Judge Anderson, dissenting in the same case. With Judge Bryan’s opinion com­pare that of Judge Boreman in NLRB v. Dove Coal Co., 54 CCH Lab. Cas. 11 11604 (4th Cir. 1966).

6 For particularly able criticisms of the Board’s distortion of the Congres­sional policies, see the notes: Card Checks and Employee Free Choice, 33 U. Chi. L. Rev. 387 (1966); Union Author­ization Cards, 75 Yale L. J. 805 (1966).

⁵ I have discussed the evolution of Con­gressional labor policy at greater length in The Labor Policy of the Free Society at pp. 125 et seq. (Ronald Press, 1957).

⁷ ILGWU Local 57 v. NLRB; Garwin Corp. v. NLRB, 54 CCH Lab. Cas. 11 11664 (D. C. Cir. 1967), opinion by Burger, J., Bastian, J., concurring; McGowan, J., dissenting on the critical issue.

⁸ Judge McGowan dissented on the ground that the Board, “if it is to medi­ate between clashing interests with mod­eration and restraint, must have scope for inventiveness and experiment.” Ibid. at pp. 18084-85. This is about as close as one normally comes to an explanation of the rationale which affirms the existence and endorses the exercise of policy-mak­ing discretion in the Board.

⁹ The outstanding example of the Board’s insistence that employers must make concessions to the union’s demands (concessions to employees and obvious good-faith intent to reach an agreement not being enough) is the General Electric case, 150 NLRB No. 36 (1964).

¹º For typical examples of NLRB de­cisions requiring concessions from em­ployers as an aspect of the duty to bar­gain, see California Girl, Inc., 129 NLRB No. 21 (1960); Cummer-Graham Co., 122 NLRB No. 134 (1959); Fetzer Television, Inc., 131 NLRB No. 113 (1961); James Rubin, 155 NLRB No. 37 (1965). The Board rarely reveals the facts in its de­cisions, tending as a rule simply to en­dorse the findings made by the trial ex­aminer in his frequently prolix reports, and the reader is accordingly required to piece out the basis of the holding.

^1¹ Cf. United Steelworkers v. NLRB (Porter Co.), 56 CCH Lab. Cas. 11 12332 (D.C. Cir. 1967) (Miller, J., dissenting) and the same case at an earlier stage: 53 CCH Lab. Cas. para. 11238 (D.C. Cir. 1966).

¹2 I cite the following cases as a mere cross section of decisions in which the U.S. courts of appeals have found more or less serious shortcomings in the Board’s handling of fact or law. In some cases, the court completely denied en­forcement; in others, partly. The classi­fication is in the numerical order of the circuits: Caribe General Electric Co. v. NLRB, 53 CCH Lab. Cas. 11 11094 (1st Cir. ¹966); NLRB v. Purity Foods, Inc., 55 CCH Lab. Cas. 1 11896 (1st Cir. 1967); Cooper Thermometer Co. v. NLRB, 55 CCH Lab. Cas. 11 11868 (2d Cir. 1967); NLRB v. Nichols, 55 CCH Lab. Cas. 12016 (2d Cir. 1967); Firestone Synthetic Fibers Co. v. NLRB, 55 CCH Lab. Cas. 11 11783 (4th Cir. 1967); NLRB V. Logan Packing Co., 56 CCH Lab. Cas. 11 12278 (4th Cir. 1967); Home Town Foods, Inc. v. NLRB, 55 CCH Lab. Cas. 11 12019 (5th Cir. 1967); NLRB v. Or­tronix, Inc., 56 CCH Lab. Cas. 11 12051 (5th Cir. 1967); Southwire Corp. v. NLRB, 56 CCH Lab. Cas. para 12110 (5th Cir. 1967); Rivers Mfg. Corp. v. NLRB, 55 CCH Lab. Cas. 1 11902 (6th Cir. 1967); NLRB v. Swan Super Cleaners, Inc., 56 CCH Lab. Cas. 11 12239 (6th Cir. 1967); Frito-Lay, Inc. v. NLRB, 56 CCH Lab. Cas. 1 12264 (7th Cir. 1967); National Can Corp. v. NLRB, 55 CCH Lab. Cas. 1 11771 (7th Cir. 1967); Dierks Forests, Inc. v. NLRB, 56 CCH Lab Cas. 11 12274 (8th Cir. 1967); NLRB v. Frontier Homes Corp., 54 CCH Lab. Cas. 4 11701 (8th Cir. 1967); NLRB v. Transmarine Navig. Corp., 55 CCH Lab. Cas. 1 12028 (9th Cir. 1967); NLRB v. TRW Semi-Conductors, Inc., 56 CCH Lab. Cas. I 12299 (9th Cir. 1967); J. C. Penney Co. v. NLRB, 56 CCH Lab. Cas. 11 12150 (10th Cir. 1967); NLRB v. Groendyke Trans­port, Inc., 54 CCH Lab. Cas. 11 11690 (10th Cir. 1967); Retail Clerks v. NLRB, 54 CCH Lab. Cas. 1f 11653 (D.C. Cir. 1967): Clothing Workers v. NLRB, 53 CCH Lab. Cas. 1 11335 (D.C. Cir. 1966).

^¹3 Section 8 (a) (1)-(5) defines em­ployer unfair practices; Section 8 (b) (1)-(7) defines roughly parallel or an­alogous union unfair practices. Sections 8 (c)-(f) establish certain principles and provide for certain types of rules ap­plicable to both unions and employers.

¹4 See the cases cited in note 12, supra.

^¹5 Documentation of this assertion is beyond the scope of this paper. The proc­ess has been too long and too tortured for any kind of brief treatment. I have, however, written two books which dem­onstrate in painstaking detail how—con­trary to Congressional intent—the Board has liberated unions from any serious control by the NLRA. See: How the NLRB Repealed Taft-Hartley (Labor Policy Assn., 1958); and Power Unlimited: The Corruption of Union Leadership (Ronald Press, 1959). See also my labor law articles in the N.Y.U. Annual Sur­vey of American Law dating back to 1951, and my Unions, Housing Costs, and the National Labor Policy in 32 Law and Contemp. Prob. 319 (1967).

¹6 Cf. NLRB v. TRW Semi-Conductors, 56 CCH Lab. Cas. 11 12299 (9th Cir. 1967); National Can Corp. v. NLRB, 55 CCH Lab. Cas. 11 11771 (7th Cir. 1967); South-wire Corp. v. NLRB, 56 CCH Lab. Cas. para 12110 (5th Cir. 1967); Amalgamated Clothing Workers v. NLRB (Hamburg Shirt Corp.), 54 CCH Lab. Cas. 11 11609 (D.C. Cir. 1966).

¹7 NLRB v. River Togs, 56 CCH Lab. Cas. 11 12097 at page 19624 (2d Cir. 1967).

¹⁹ NLRB v. Exchange Parts Co., 375 U.S. 405 (1964).

^¹9 See the note, Union Authorization Cards, 75 Yale L. J. 805 (1966), against which the only authority of any signif­icance is the Supreme Court’s opinion in UMW v. Arkansas Oak Flooring Co., 351 U.S. 62, 71-72 (1956). As Judge Friendly has pointed out, the brief dis­cussion of the question found in that case “would hardly preclude Supreme Court re-examination of this issue.” See NLRB v. S. E. Nichols Co., 55 CCH Lab. Cas. 1 12016 at page 19359, note 1 (2d Cir. 1967).

20 56 CCH Lab. Cas. 4 12344 (2d Cir. 1967). The facts here recounted are drawn mainly from Judge Anderson’s dissenting opinion.

2¹ 110 NLRB 1365.

22 146 NLRB 1277 (1964).

23 160 NLRB No. 125.

²⁴ 369 U.S. 739 (1962).

²⁵ See 56 CCH Lab. Cas. 4 12344 at p. 20476.

26 Judge Anderson said: “… I think a bargaining order, by imposing on respon­dent’s employees a form of representa­tion concerning which a substantial ma­jority has never had an opportunity to express a preference, disregards the em­ployees’ Section 7 rights, and undermines the most fundamental policies of the Act.” Ibid. at page 20476.

²⁷ See: Union Authorization Cards, 75 Yale L. J. 805, 828-31 (1966).

28 See notes 2-3, supra.

29 A goodly number of these will be found among the cases collected in note 12, supra.

^³¹0 The Kohler Strike: Union Violence and Administrative Law (Regnery, 1961).

^³¹1 128 NLRB 1062 (1960).

32 “Reward the Guilty,” Barrons (Jan. 1965).

^³¹³¹ 148 NLRB 1434 (1964).

³¹4 In NLRB v. Purity Foods, Inc., 55 CCH Lab. Cas. 1 11896 at page 18952 (1st Cir. 1967), Judge Woodbury said after reviewing the testimony: “The Board’s conclusion to the contrary flies in the face of reality.” This is among the milder of the many critical references which cir­cuit judges continue to make to NLRB findings. In NLRB v. Getlan Iron Works, Inc., 55 CCH Lab. Cas. 1 11950 at page 19116 (2d Cir. 1967), Judge Feinberg said: “Because this is one of those rare instances where we find a lack of sub­stantial evidence to support one of the Board’s key findings, we decline to en­force the order to bargain and remand for further evidence.” I doubt that Judge Feinberg could find any considerable number of other Federal judges who share his confidence in the Board’s fact-finding.

³⁵ Year after year numerous court of appeals decisions contain the following observation in one or another form:.. we have no hesitancy in saying that were we the fact finders we would have difficulty finding support for the charges of unfair labor practices.” NLRB v. Witbeck, 56 CCH Lab. Cas. 11 12148 (6th Cir. 1967). See also: Int. Tel. & Tel. v. NLRB, 56 CCH Lab. Cas. 1 12101 at page 19643 (3rd Cir. 1967); NLRB v. Plym­outh Cordage Co., 56 CCH Lab. Cas. 11 12135 (5th Cir. 1967); NLRB v. Elco Corp., 55 CCH Lab. Cas. 1 11898 (9th Cir. 1967), where the court said: “Had this court been called upon to pass originally on the merits of this case, we might have disagreed with the ultimate conclusion of the Board.”