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14 Conclusion Conflicting Statutory Purposes u.s. labor policy has been at cross-purposes with itself ever since Congress incorporated into the Taft-Hartley Act in 1947 not only the Wagner Act statement that it is the policy of the federal government to encourage collective bargaining but also a new Declaration of Policy saying that the purpose of the act is to protect the rights of individual employees. Although there is no necessary conflict between the encouragement of collective bargaining and the protection of individual rights, experts at the time Taft-Hartley became law predicted correctly that the written affirmation of the protection of individual rights, particularly the right to refrain from engaging in collective bargaining, would be read as statutory justification for both the promotion of a policy of individual bargaining and employer resistance to unionization and collective bargaining. Since many of the most important employment decisions cannot be individually negotiated, the choice is not simply between individual and collective bargaining but rather between participation in and exclusion from that decision -making process.1 The concept added to Taft-Hartley, of the federal government as a neutral guarantor of employee free choice between individual and collective bargaining, and indifferent to the choice made, is clearly inconsistent with the Wagner Act's concept, retained in Taft-Hartley, of the federal government as a promoter of collective bargaining. The Taft-Hartley Act contains both conceptions of the government's role. NLRBs applying quite different policies, therefore, can choose between these contradictory statutory purposes and still claim that they are conforming to congressional intent. For that reason, there have been not merely revisions in NLRB case law (as would be expected and even necessary over the years) but radical changes that swing labor policy from one purpose to its direct opposite. These swings directly affect the ability of unions to organize and of managements to resist organization as well as the relative bargaining power of the parties. In sum, a Board's interpretation of the act determines the extent to 272 Conclusion 273 which there will be mutuality of decision making at the workplace. As a consequence , after more that forty-seven years of Taft-Hartley (and fifty-nine years since the Wagner Act) the United States has no coherent or consistent national labor policy. Under the Wagner Act the right of workers to participate in decisions affecting their workplace lives was considered a fundamental compontent of social justice, and collective bargaining was deemed critical for a free and democratic society. The Wagner Act statement of purpose was carried over into Taft-Hartley , and Senator Robert Taft claimed that his and Congressman Fred Hartley's amendments did not change the essential collective bargaining theme of the Wagner Act labor policy. Yet Taft-Hartley's emphasis on the right to reject collective bargaining, the protection of employee and employer rights in their relations with unions, the inclusion of union unfair labor practices, and the federal government's new statutory image as neutral between individual and collective bargaining encouraged employers to resist unionization and collective bargaining. The same law, therefore, has been read as promoting collective bargaining and as promoting resistance to it. The current state of U.S. labor policy cannot be fully understood without knowledge of the existence and influence of these conflicting interpretations of statutory purposes on the development of that policy. Any reconstruction of national labor policy must begin with a resolution of this fundamental disagreement about what the purpose of the law should be. In the meantime, the act is being interpreted to promote individual bargaining and undermine collective bargaining; at the same time, the claim is made that collective bargaining is still favored by government policy. The NLRB's Role In Making Labor Policy The existence of these potentially conflicting statements of purpose in the act has given the NLRB, and the political officials who appoint its members, a de facto power far beyond that ordinarily necessary for the interpretation and application of any statute. Lawmaking by the NLRB or by any other administrative agency is inevitable under any circumstances. The NLRB, in applying the act, must give specific meaning to broad statutory language, interpret where neither congressional intent nor statutory language is clear and unambiguous, and even fill gaps in the legislation. The Board, therefore, is never neutral. In carrying out its statutory mandate, the Board must choose among competing alternatives. Those alternatives represent the vital interests of opposed constitu- 274 Chapter 14 encies and conflicting views...

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