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II Irreconcilable Differences Everyone but Congress Making Labor Policy The events of the 1960s illustrated how national labor law had been made and the inadequacy of the process. The issue of management prerogatives raised in Fibreboard,1 for example, was at the core of the national labor policy. The determination of what business decisions should be subject to collective bargaining with a labor organization was, as one scholar put it, "but a step removed from the determination of whether or not there shall be collective bargaining at all."2 Yet Congress defaulted and resolved no basic labor policy issue. It settled for merely tinkering with Taft-Hartley and having various Senate and House labor committees prime one Board or another to change doctrines to represent the different attitudes or policies of a new administration in the White House. Even the Taft-Hartley Act was to a great extent an amalgamation of conflicting Wagner Act and Taft and Hartley labor policies, leaving congressional intent unclear. As a consequence of this legislative vacuum and ambiguity, national labor policy was made by the Supreme Court, which applied its own notions of what that policy should be. The personal values and ideologies of judges and a politically vulnerable administrative agency under constant hostile fire, therefore, made labor policy in the 1960s. The Supreme Court upheld the McCulloch Board's Fibreboard ruling, although the Court carefully limited its decision to the facts of the case. It empha" sized that the company's decision to contract out maintenance work did not alter the company's basic operation, that no capital investment was involved, and that the company merely replaced existing employees with those of an independent contractor to do the same work under similar conditions of employment . Under those circumstances, the Supreme Court said, requiring the employer to bargain about its decision to subcontract would not significantly reduce its freedom to manage the business.3 Justice Potter Stewart's concurring opinion, however, with which Justices 192 Irreconcilable Differences 193 William O. Douglas and John Marshall Harlan joined, became the controlling definition of labor policy in this matter. Stewart's opinion was based on nothing more than his own notions of what the extent of an employer's obligation to bargain should be. In still-quoted language, Stewart excluded from an employer 's statutory obligation to bargain even management decisions that ended employment entirely if those decisions were "at the core of entrepreneurial control" or were "fundamental to the basic direction of the corporate enterprise ." Here national labor policy was made according to Stewart's own visceral test and ideological commitment to a free enterprise economy: "Congress may eventually decide to give organized labor or government a far heavier hand in controlling what until now have been considered the prerogatives of private business management. That path would mark a sharp departure from the traditional principles of a free enterprise economy."4 The Supreme Court used value judgments in making fundamental labor policy choices not only in Fibreboard but also in remanding Darlington Mill~ to the Board and overruling the Board in two lockout cases, American Ship Building and Brown Foods.6 In Darlington, for example, the Court raised an employer 's decision to go out of business to the level of an absolute right unaffected in any way by the statutory rights of employees, even if vindictiveness toward the union was the reason for the liquidation.7 In American Ship Building and Brown the Board had denied employers the use of the bargaining lockout because it gave employers "too much power" and defeated the congressional purpose of placing employees on a par with employers at the bargaining table.8 After accusing the McCulloch Board of exceeding its authority by trying to balance the competing interests of labor and management, the Supreme Court proceeded, in permitting these lockouts, to set forth its own notion of the proper balance of economic power between labor and management.9 The role the Court assumed in making labor policy was due not only to legislative inaction by Congress but also to what some commentators on labor law saw as a loss of confidence in an NLRB whose judgments from the beginning always seemed to bend with the political winds.iO But how much confidence could be placed in a Supreme Court that without empirical evidence made fundamental labor policy choices on the basis of ideological value judgments? As much as Congress deserves to be faulted for not resolving basic issues of labor...

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