The New Deal, Collective Bargaining, and the Triumph of Industrial Pluralism

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THE NEW DEAL, COLLECTIVE BARGAINING, AND THE TRIUMPH OF INDUSTRIAL PLURALISM

CHRISTOPHER L. TOMLINS*

This paper addresses what the author views as a prevailing misconception of labor law theorists and practitioners: that the goal of the Wagner Act was no more than the promotion of peaceful negotiating procedures and written agreements between organized interests-unions and employers- presumptively equal in power. The author argues that in fact the NLRA was drafted, and for a time implemented, with the avowed purpose of giving workers equality with employers in all aspects of industrial policy making, and that the now-prevalent approach became ascendant only after considerable conflict and the displacement of the Act's original administrators.

law as nothing more than the facilitation of F courseOR the inlast the forty United years States labor haslaw beendis- this process. 1 dominated by a set of values and assump- Recently a new and skeptical school of tions that can conveniently be termed labor jurisprudence, associated with what "industrial pluralism." Industrial pluralism is known as the "critical legal studies" connotes a systematic approach to labor movement, has arisen to challenge the relations, informed by liberal political and industrial pluralist paradigm. These schol- social theory, whose point of departure is ars argue that the equality of labor and the belief that industrial conflict in demo- management in collective bargaining is cratic capitalist societies is best dealt with purely formal, concealing a substantive through routinized procedures of negoti- inequality that renders pluralist explana- ation and compromise leading to agree- tions of the purpose of labor relations law ments formalized in contracts. Its adherents incoherent. Indeed, once the false pre- conceive of management and labor as self- sumption of equality is removed, the crit- governing equals who, through collective ical scholars say, procedures represented bargaining, jointly determine the terms and as means to achieve peaceful labor- conditions of sale of labor power; and they management cooperation stand revealed as "an see the historic purpose of labor relations institutional architecture" that actually

'See Katherine Stone, "The Post-War Paradigm in *The author is Lecturer in Legal Studies at La Trobe American Labor Law," Yale Law Journal,Vol. 90, No. 7 University, Bundoora, Victoria, Australia. (June 1981), pp. 1509-80.

Industrialand Labor Relations Review, Vol. 39, No. I (October 1985). © 1985 by Cornell University. 0019-7939/85/3901 $01.00 INDUSTRIAL AND LABOR RELATIONS REVIEW serves to reinforce managerial domination controversy. First, they have been faulted of the workplace by narrowly confining for their lack of attention to the social and unions to the role of "fiduciaries of an political context in which legal events occur. imagined societal interest in industrial Melvyn Dubofsky, for example, argues that peace" more or less forced to serve "specific the evolution of labor law "must be seen in managerial and disciplinary functions."' light of shifts in the political balance of From this perspective the purpose of labor power and ebbs and flows in the labor relations law is not to facilitate wide-ranging movement."5 Second, it is argued that once and socially constructive interactions labor law has been placed in that context, between equals. Rather it is "to integrate attempts to portray it as the product of a the labor movement into the mainstream successful judicial campaign to thwart the contours of pressure-group politics and to Wagner Act's radical potential become institutionalize, regulate and thereby totally unconvincing. No dramatic "der- dampen industrial conflict."' adicalization" occurred in the 1930s and At first sight, such observations appear 1940s. Rather, the creation of a pluralistic little different from the "new left" analyses labor relations law was the culmination of of the late 1960s and early 1970s that a consistent pattern of development in reduced all law and reform activity to an American industrial relations discourse. epiphenomenal reflex of capitalist produc- The savage conflicts that attended the birth tive relations. The critical scholars have of that law were between reactionaries and avoided reductionism, however, by empha- liberals contesting the very existence of sizing that the legal outcomes they describe unions and collective bargaining, not have been "systematically fashioned," a between liberals and radicals over what the theoretical position that acknowledges the right to self-organization and collective contingency of those outcomes. The lead- bargaining actually meant.6 ing figure of the genre, Karl Klare, has Legal scholars should be castigated made this proposition the point of depar- whenever they pay insufficient attention to ture in his own work by arguing that the the circumstances within which legal doc- New Deal innovations on which modern trine unfolds. In this case, however, his- labor relations law is based were "not a crys- torical investigation of these circumstances tallization of consensus or a signpost indi- tends to confirm rather than rebut the crit- cating a solitary direction for future ical scholars' contentions. To intimate that development," but "a texture of openness the Wagner Act might have been the most and divergency." Only by engaging in a radical piece of legislation ever enacted by conscious process of "deradicalization," a Congress 7 is, perhaps, unnecessarily systematic and purposeful foreclosure of extravagant. Certainly, however, the act's all options save those serving liberal plu- legislative history discloses a marked will- ralist values, did the courts achieve the ingness on the part of at least some of its structure of labor law we know today.4 proponents to depart from the pluralist Their efforts to avoid reductionism have assumptions of American industrial rela- not saved the critical labor law scholars from tions discourse; certainly there ensued after its passage a struggle to impose a restricted 'Karl E. Klare, "Labor Law as Ideology: Toward a New Historiography of Collective Bargaining Law," Industrial Relations Law journal, Vol. 4, No. 3 (1981), 5 Melvyn Dubofsky, "Legal Theory and Workers' p. 452. Rights: A Historian's Critique," Industrial Relations Law 3 1bid. See also Karl E. Klare, "Critical Theory and Journal, Vol. 4, No. 3 (1981), p. 498. Labor Relations Law," in David Kairys, ed., The Politics 6 Matthew W. Finkin, "Revisionism in Labor Law," of Law: A Progressive Critique (New York: Pantheon, Maryland Law Review, Vol. 43 (1984), pp. 23-92; 1982), pp. 65-88; James B. Atleson, Values and Howell J. Harris, "The Snares of Liberalism?" in Ste- Assumptions in American Labor Law (Amherst: Univer- ven Tolliday and Jonathan Zeitlin, eds., Shop-Floor sityof Massachusetts Press, 1983). Bargainingand the State: Historicaland Comparative Per- 4 Karl E. Klare, "Judicial Deradicalization of the spectives (Cambridge: Cambridge University Press, Wagner Act and the Origins of Modern Legal Con- 1985). sciousness, 1937-1941," Minnesota Law Review, Vol. 62, 'Klare, "Judicial Deradicalization of the Wagner No. 3 (1978), p. 291. Act," p. 265. TRIUMPH OF INDUSTRIAL PLURALISM pluralist meaning on it; and certainly the missive of classical political economy's indi- result was the eventual triumph of that vidualistic faith in the market mechanism restricted meaning in labor relations law. as a harmonizing agency, specialists in this new sub-field argued that economic activity was a collective phenomenon and was thus The New Deal dependent on the development of social Collective Bargaining Policy mechanisms that could adjust differing col- Background lective interests. They seized upon the trade Innovations in public policy, we have agreement and collective bargaining as been reminded, do not occur in a vacuum. prime examples of such mechanisms. "[The In the case of the New Deal collective bar- trade agreement] implies the equal orga- gaining policy, the legislative and admin- nization of employers [and employees] and istrative contests that determined its the settlement of a wage scale and condi- substance were fought out in a context tions of work through conferences of rep- structured by long-term developments in resentatives," wrote the doyen of the field, the practice of collective bargaining as pur- John R. Commons, in 1907. "Itis a form sued by the American Federation of Labor; of constitutional government with its leg- the theories of collective bargaining islative, executive and judicial branches, its embraced by labor economists; and the common law and statute law, its penalties ' administrative strategies of state institu- and sanctions. tions vis-Ai-vis the labor movement. This approach was taken up and devel- Collective bargainingand the AFL. Collec- oped further by William M. Leiserson, a tive bargaining became fully established as student of Commons who would play a role the axis of labor-management relations in of major importance in the debates over AFL policy at the end of the nineteenth collective bargaining policy during the century. As the pace and scale of business 1930s. According to Leiserson, trade activity accelerated after the 1893-98 agreements were "nothing less than con- depression, unions responded by shifting stitutions for the industries which they their organizational orientation away from cover, constitutions which set up organs of local product markets to a regional and even government, define and limit them, pro- national focus, diluting their strategic reli- vide agencies for making, executing and ance on local craft control struggles and interpreting laws for the industry,0 and seeking instead to win material concessions means for their enforcement."' from employers through negotiated guar- Conceptualized politically, as a means of antees of uninterrupted production. Such resolving conflicts over the employment written "trade agreements" were not relationship by imposing a redistribution entirely twentieth-century innovations. of power on hitherto unequal parties, the Previous arrangements, however, had been trade agreement-as-constitution could have predominantly informal and of restricted become an instrument of real industrial ambit. Not until the late 1890s did national democracy. Commons and Leiserson, how- unions begin acquiring sufficient central- ever, did not take this approach. In their ized administrative and disciplinary capac- hands the agreement and the institutions ity to be able to offer employers permanent it created were procedural devices through routinized accommodations in exchange for which the quid pro quo of individual com- uniform wages and conditions on a market- mercial exchange might be reproduced in wide basis.' contemporary social and economic rela- Collective bargainingtheories. Few employers responded to these early union initia- 'John R. Commons, ed., Trade Unionism and Labor tives. Greater interest was shown, however, Problems (Boston: Ginn and Co., 1905), Vol. 1,p. vii. by contemporary labor economists. Dis- "'William M. Leiserson, "Constitutional Govern- ment in American Industries," American Economic Review, Vol. 12 (Supp.), No. 1 (1922), p. 61. See also 'See, generally, Lloyd Ulman, The Rise of the National Paul]. McNulty, The Origins and Development of Labor Trade Union (Cambridge: Harvard University Press, Economics: A Chapter in the History of Social Thought 1955), pp. 190-200, 519-35. (Cambridge: MIT Press, 1980), pp. 127-51. INDUSTRIAL AND LABOR RELATIONS REVIEW tionships through the interaction of orga- liam Green called on employers to endorse nizations presumed already to be equal in the establishment between themselves and power." Historically, both argued, indus- the unions of "a proper regard for the trial strife had developed not because rela- functional exercise of each within their3 rec- tions of dominance and subordination were ognized spheres of jurisdiction."'1 inherent in capitalist production but The associative state. Wider trends in the because the original organic mutuality of American political economy were creating employers and employees had been dis- the sort of environment in which these lib- rupted by the growth of competition among eral-labor themes of industrial accommo- employers during the nineteenth century's dation and self-government might become extension of markets. By setting up mech- the basis for a new mode of labor-capital anisms to govern the sale of labor power relations. Between 1890 and 1920 an aston- throughout a given market, employers and ishing efflorescence of collective organi- employees could together eliminate zation and group activity--corporations, destructive competition over wage costs. On professional organizations and peak asso- this basis they could achieve industrial peace2 ciations, reform movements, unions--swept and reconstitute their former mutuality. aside nineteenth-century individualism and Liberal-labor alliance. In the years after pointed the course of public life in a new 1900, developments in the structure and direction. The nation's mode of govern- ideology of the organized labor movement ment, in particular, underwent fundamen- and in industrial relations theory became tal alteration as state institutions closely related; so much so, in fact, as to increasingly sought to accommodate these constitute a common program for the new nonpublic groups and organizations future development of collective bargain- in the exercise of public power. This trend ing. Within the organized labor movement reached a climax during World War I, when the emergence in unions like the Machin- the establishment of functional interde- ists and the Carpenters of powerful national pendence between public and private bur- bureaucracies seeking routinized working eaucracies came to be regarded as the very relationships with employers confirmed the sine qua non of a successful mobilization AFL's evolution from a locally based quasi- policy. 4 syndicalist movement of self-governing Proponents of collective bargaining trades into a loose confederacy of self- applauded the emergence of this "associ- interested organizations. Simultaneously, ative state" and looked forward to the labor economists worked on refining their acceptance of labor unions into the com- sketchy ideas about constitutional govern- pany of policy-making institutions. But in ment into a comprehensive functionalist fact organized labor's role in the American theory of cooperative dispute adjustment. political economy remained marginal. The Key AFL officials endorsed this conflu- Wilson administration, it is true, treated the ence of union practice and industrial rela- AFL as the effectual wartime spokesman tions theory. In 1923, for example, the for the "labor" segment of American soci- Federation's executive council declared ety in wartime manpower and dispute- cooperative collaboration and the rejection adjustment matters, but the fruits of coop- of conflict to be the keystone of labor's relations with employers. Two years later Wil- 3William Green, Speech to National Civic Feder- ation Round Table (April 11, 1925), in The American Federation of Labor Records: The Samuel Gompers Era "John R. Commons, "Trade Agreements," in Com- (Microfilm edition, Microfilming Corporation of mons, ed., Trade Unionism and Labor Problems, pp. 1- America, 1979), reel 57; "Industry's Manifest Duty,"

12. 2 in Proceedings of the 43rd Annual Convention of the Amer- 1 lbid., p. 12; William M. Leiserson, "Labor Rela- ican Federationof Labor (Washington, D.C.:AFL, 1923), tions" (unpublished book manuscript), pp. ii-v, and p. 31. 4 Part 1, pp. 1-14, 57-68, 88-90, in Leiserson Papers Robert D. Cuff, The War Industries Board: Business- (State Historical Society of Wisconsin, Madison), Government Relations During World War One (Balti- Box 52. See also John R. Commons, Legal Foundations more: Johns Hopkins University Press, 1973). See, of Capitalism (New York: Macmillan, 1924), pp. 143- generally, Robert H. Wiebe, The Searchfor Order, 1877- 53. 1920 (New York: Hill & Wang, 1967). TRIUMPH OF INDUSTRIAL PLURALISM eration were soon forgotten in the savage ment broadly embodied the liberal-labor labor-management conflicts of 1919-20. consensus on union-employer collabora- Even those employers ready at war's end tion that had been gathering force over the to admit that some kind of continuing previous quarter-century. 7 Before this employer-employee relations might be consensus could become a viable founda- desirable were overwhelmingly hostile tion for labor-capital relations, however, its toward the AFL and almost invariably chose proponents had first to persuade employ- to experiment with nonunion institutional ers to entertain collective bargaining as an forms: shop committees, employee repre- acceptable "associational" activity. The sentation plans, company unions. Nor were refusal of employers to do so undermined the architects of postwar domestic policy the authority of the liberal-labor consensus much more forthcoming, preferring to and stimulated the emergence from within leave employers free to "reestablish an inti- the embryonic federal labor relations mate relationship" with their employees bureaucracy of an alternative and less unencumbered by guarantees to the accommodative approach to labor law unions. 5 Any lingering thoughts of policy reform predicated upon a radical expan- innovations to encourage peacetime collec- sion of the state's legal authority and tive bargaining that they might have enter- administrative capacities in the labor rela- tained were "regulated ... to the periphery tions arena and an uncompromising of national politics" after 1922 by the return enforcement of workers' civil rights of col- of prosperity.' 6 lective organization and representation. By early 1935 a contest for final authority to Development define the precise direction of labor rela- The onset of the Depression decisively tions policy was under way within Wagner's altered the context of labor relations policy reform coalition between advocates of these making. First, economic collapse compre- two approaches. hensively disrupted industry's existing labor Early initiatives. The early rounds of the policies. Second, as the crisis deepened it labor law reform campaign were clearly focused congressional attention more and dominated (on the reform side) by advo- more on the question of the distribution of cates of the liberal-labor position. Their national income. These circumstances premises are easily stated. The public inter- offered proponents of collective bargain- est lay in the stabilization of wages, hours, ing new opportunities to seek legislative and working conditions in industry at large. support. The result was a string of inno- In the first instance this required the res- vations endorsing collective bargaining and olution of "problems of economic control the right to organize: the Norris-LaGuardia and government,'18 that is, terms and con- Anti-injunction Act (1932); section 7(a) of ditions of employment, arising within each the National Industrial Recovery Act particular enterprise. Reform should thus (1933); Senator Robert F. Wagner's unsuc- be aimed at the establishment of mecha- cessful Labor Disputes bill (1934); and

finally, in 1935, Wagner's National Labor 7 Relations Act. On the maturation of this consensus, see David Brody, "On the Failure of U.S. Radical Politics: A The legislation passed during the early Farmer-Labor Analysis," Industrial Relations, Vol. 22, stages of the burgeoning reform move- No. 3 (Spring 1983), pp. 152-57. However, see also Steve Fraser, "From the New Unionism to the New

5 Deal," Labor Hi.tory, Vol. 25, No. 3 (Summer 1984), 1 Robert H. Zieger, "Herbert Hoover, The Wage- pp. 405-30, describing the partial displacement of the Earner, and the 'New Economic System,' 1919-29," AFL's voluntarism from the center of the liberal-labor Business History Review, Vol. 51, No. 2 (Summer 1977), trajectory by a newer proto-Keynesian impulse cen- p. 168. tered on the Amalgamated Clothing Workers. It is 1'Steve Fraser, "Dress Rehearsal for the New Deal: not unlikely that further exploration will reveal con- Shop-Floor Insurgents, Political Elites, and Industrial siderable symmetry in the relationship between Fras- Democracy in the Amalgamated Clothing Workers," er's proto-Keynesians and the pluralist impulse in labor in Michael H. Frisch and Daniel J. Walkowitz, eds., relations law. On this topic in the postwar period, see Working Class America (Urbana: University of Illinois Stone,5 "Post-War Paradigm," pp. 1509-80. Press, 1983), p. 241. 9Leiserson, "Labor Relations," Part 1,pp. 66-67. INDUSTRIAL AND LABOR RELATIONS REVIEW nisms to facilitate joint determination and any role for joint determination within the extend it to new areas of the economy. State recovery program. In their eyes the indus- intervention in the substance of the parties' trial order that the act was designed to pro- relationship, however, should be avoided. cure was predicated on cooperation among Collective bargaining should remain a self- employers, not cooperation between effectuating private process. employers and unions. This impasse meant The voluntarism of these early reform a rapid escalation in industrial unrest, initiatives struck a chord in a Congress still prompting calls in and out of Congress for under the influence of the associative ide- the creation of dispute-resolving mecha- ology of the New Era. As Charles 0. Gre- nisms. On August 5, 1933, Roosevelt estab- gory wrote many years ago of the passage lished the National Labor Board, an ad hoc of the Norris-LaGuardia Act in 1932, "It bipartisan body chaired by Senator Wag- is as if Congress had said in this act: '... We ner, and gave it the task of addressing dis- have instructed the judges to withhold the putes over employee representation and use of the injunction against your self-help other controversies impeding achievement coercive activities .... From now on it is up of the act's purposes. to you union people to promote your own The half-year following the establish- economic activities, as you see them, within ment of the National Labor Board was a the area of conflict we have defined.' "' period of considerable importance in the The National Industrial Recovery Act, further development of the reform impulse. approved the following year, represented Initially the Board approached conflicts in large part a further endorsement of the between employees claiming section 7(a) same approach. Unlike the Norris- rights and employers refusing to acknowl- LaGuardia Act, however, the Recovery Act edge them with the methods and ideology delegated substantial legislative authority of private dispute adjustment, primarily to the private sector to plan output, prices, mediation. Its choice of this strategy was wages, and hours. This precipitated bitter hardly surprising, for at this stage it was conflicts between unions and employers dominated by the liberal-labor allies of the over where the frontiers of associational 1920s, with AFL leaders sitting on the involvement in the planning process should Board and William Leiserson serving as its lie. chief administrative officer. But mediation To the AFL the endorsement of collec- proved increasingly incapable of coping tive bargaining in section 7(a) of the Recov- with determined employer opposition. ery Act underlined the legitimacy of union Two important developments followed. participation in policy making and imple- Leiserson left to join the Petroleum Labor mentation. Representation, code formula- Policy Board and, largely at the instigation tion, and code administration were to be of General Counsel Milton Handler, the matters for decision by the peak organi- NLB moved to abandon adjustment of 7(a) zations of capital and labor in place on each disputes in favor of establishing represen- side of industry. These would function in tation and collective bargaining as rights to their own right in partnership with the gov- be enforced. Handler was successful in ernment as regulators of both organized obtaining an executive order to this effect and previously unorganized areas of from the president in February 1934. industry."' Simultaneously a "Labor Disputes" bill giv- Employers and Recovery Administration ing statutory authorization to the new officials denied, however, that the act's approach was drawn up by the Board's tiny guarantees required them to countenance legal staff under the direction of Senator Wagner's assistant, Leon Keyserling.2" The Labor Disputes bill. The move away "9Charles 0. Gregory, Labor and the Law, 2d ed. from adjustment of 7(a) disputes to (New2 York: Norton, 1961), p. 192. enforcement of 7(a) rights was of major 1'"Administrative Principles of the American Fed- eration of Labor in Dealings Under the National 1 Industrial Recovery Act" (June 8, 1933), in AFL Rec- ' Peter H. Irons, The New Deal Lawyers (Princeton: ords, reel 57. Princeton University Press, 1982), pp. 205-11. TRIUMPH OF INDUSTRIAL PLURALISM importance to the development of federal to represent whatever workers occupied labor relations policy. Initially Wagner tied those particular jobs. the move to the requirements of the recov- This interpretation of representation ery program, particularly to the impor- rights was shared by the unions' pluralist tance of creating a balance of power within allies. Leiserson, for example, advised the associative state. "The keynote of the Wagner that his Labor Disputes bill should recovery program is organization and specify explicitly that employers bargain cooperation," he said on introducing the with "the labor organizations of [their] Labor Disputes bill. "Employers are allowed employees" through the officers "duly3 to unite in trade associations in order to designated" by those labor organizations.' pool their information and experience and To the pluralists, as to the unions, exercis- make a concerted drive upon the problems ing one's right to representation meant no of modern industrialism. If properly more than enlisting the appropriate union directed this united strength will result in to bargain on one's behalf. The real goal unalloyed good to the nation. But it is was the joint agreement, whereby relations fraught with great danger to workers and between the two sides of industry would be consumers if it is not counterbalanced by institutionalized in a system of counter- the equal organization and equal bargain- vailing power, and industrial peace ensured. ing power of employees. Such equality is The bill's attempts to enforce section 7(a), the central need of the economic world however, were susceptible to a different today. It is necessary to ensure a wise dis- interpretation, one that treated the desig- tribution of wealth between management nation of representatives not simply as a and labor, to maintain a full flow of pur- means to legitimize accommodations chasing power, and to prevent recurrent arrived at between union and employer but depressions."2 rather as an expression by employees of a No matter how instrumental the ration- much broader civil right of participation in ale, however, a policy of enforcing rights industrial government." Thus, the original still required its proponents to define what draft of the bill as introduced in the Senate the rights which they proposed to enforce- stated in section 4 that employees "shall the rights to representation and collective have the right to organize and join labor bargaining-actually meant. It was here that organizations, and to engage in concerted major differences were to emerge within activities, either in labor organizations or the reform consensus. otherwise, for the purposes of organizing and To the AFL, the character of represen- bargaining collectively through representation and collective bargaining was deter- tatives of their own choosing, or for other mined by its own jurisdictional structure purposes of mutual aid or protection."'25 Advo- and by the bargaining strategies of its mem-

ber unions. In practical terms the right to 3 " Leiserson to Wagner (March 8, 1934), in Leiserson representation and collective bargaining Papers, Box 33. meant the right of a particular worker to , Leon H. Keyserling, "The Wagner Act: Its Origin join the union to which the federation had and Current Significance," George Washington Law assigned jurisdiction over his job. The Review, Vol. 29 (1960), pp. 199-233, notes that Wag- ner's "was no simple doctrine of countervailing power." assignments themselves were based on a Rather, Wagner viewed collective bargaining as "an complex web of considerations internal to integral part of an ever larger cooperative process the organized labor movement: custom, guided by intelligence which would animate the whole bargaining history, and, above all, the dis- economy, including the governmental sector." tribution of power within the federation. Pp. 220-21. "5U.S. Congress, Senate, "S 2926, A Bill to equalize Each affiliate was well aware of the precise the bargaining power of employers and employees, extent of its jurisdictional "property" rights; to encourage the amicable settlement of disputes each was perennially insistent upon its right between employers and employees, to create a National Labor Board, and for other purposes," 73d Cong., 2d sess., February 28, 1934, p. 4 (emphasis added). The 2 National Labor Relations Board, Legislative History draft also made it an unfair labor practice "for an of theNational Labor Relations Act (Washington, D.C.: employer, or anyone acting in his interest, directly or NLRB, 1949), p. 15. indirectly, to attempt, by interference, influence, INDUSTRIAL AND LABOR RELATIONS REVIEW cating the bill's passage, NLB member duced by Senate Labor Committee Francis Haas adverted to "the inherent chairman David Walsh. Subsequently the rights which all possess to participate in Walsh bill was also discarded. Nevertheless, making regulations to govern them." The the debate over the Labor Disputes bill had rights the bill sought to protect were rights been of considerable significance. First, it given by nature, indistinguishable from the had revealed to all proponents of collective rights which "our Federal and State con- bargaining the depth of opposition among stitutions declare that [workers] may exer- employers to labor reform proposals of any cise . . . to elect their representatives in26 sort; this convinced Wagner that meaning- Government, whether local or national. ful reforms could never be achieved Seen from this perspective, the bill pre- through compromise. Second, the debate sented the prospect of using the power of had suggested the existence of significant the state to create an entirely new presence, differences of emphasis and interpretation a citizenry of employees, in industry. Rather within the ranks of the coalition supporting than a procedural means to an essentially labor law reform. limited end-the "cooperative marketing" These differences grew firmer over the of labor27 through the negotiation of sta- next six months. By the end of 1934 they bilizing collective agreements-the rights had matured into two distinct programs for of employees to representation and orga- labor law reform, one focusing upon the nization were treated in the bill as ends in strengthening of existing private institu- themselves. They were "fundamental tions and the creation of mechanisms to rights," the unobstructed exercise of which encourage their interaction, the other comprised a non-negotiable prerequisite for geared to the protection of workers' civil "frank and friendly relations in industry. 28 rights and to the production of a trans- Here, inconclusively, matters rested. formed institutional order in industry. Wagner was unable to marshal sufficient The Wagner Act. The development of two congressional support to overcome the distinct approaches within the reform coa- opposition of employers, and the Labor lition is relatively easy to trace, because by Disputes bill was shelved in favor of a sub- late 1934, when planning for new legisla- stitute "Industrial Adjustments Bill," intro- tion began again in earnest, two separate centers of discussion and drafting had appeared. One was in Washington where, restraint, favor, coercion, or lockout, or by any other coordinated by Leon Keyserling and under means, to impair the right of employees guaranteed in section 4." P. 5. the political direction of Senator Wagner, It is worth noting, if only to point up the contrast, the legal staff of the Garrison Labor Rela- that a copy of the bill marked, apparently, by William tions Board was engaged in completely Leiserson, recommends that section 4's general state- rewriting the Labor Disputes bill. The other ment of employee rights be deleted (by reason, in part, was in New York, where Edward A. Filene's of its "tautology and verbal confusion") and that the language of the subsequent unfair labor practice pro- Twentieth Century Fund had assembled a vision be amended so as to prohibit an employer or committee of lawyers, industrial relations his agent from attempting "to impair the right of experts, economists, social scientists, and employees to engage in concerted activities for the progressive employers-William H. Davis purpose of bargaining collectively through representatives of their own choice." S 2926 "Marked Copy," (Chairman), the peripatetic Leiserson, Sumner Slichter, Robert S. Lynd, William in 2Leiserson6 Papers, Box 28. U.S. Congress, Senate Committee on Education Chenery, Henry Dennison, and others-to and Labor, Hearings on S 2926, 73d Cong., 2d sess.,

March27 15, 1934, p. 115. The phrase is Leiserson's. See Hearings on S 2926, "5This agency, the first to bear the title "National March25 16, 1934, p. 232. Labor Relations Board," was created by the Roosevelt Keyserling, "The Wagner Act," p. 217, quoting administration at the end of June 1934 following pas- remarks made by Senator Wagner during a radio sage of Public Resolution 44 by Congress. Chaired debate with James A. Emery, counsel for the National initially by Lloyd K. Garrison, and subsequently by Association of Manufacturers. Wagner concluded, Francis Biddle, the board had no more power than "Peace rests upon freedom, not restraint; upon equal- the old National Labor Board which it replaced. It ity, not subservience; upon cooperation, not could investigate 7(a) disputes and conduct elections domination." but lacked any authority to enforce its decisions. TRIUMPH OF INDUSTRIAL PLURALISM determine the appropriate role for gov- encouragement of organization and collec- ernment in labor relations. tive bargaining .... [The other] is the pro- The National Labor Relations Board motion of industrial peace." staff's priorities in rewriting the Labor Dis- In the same vein, Leiserson argued that putes bill were clear and unambiguous. simply denouncing the sins of employers "The board wanted Congress to state clearly and creating a powerful new agency to the obligation of the employer to bargain stamp them out was not a realistic approach collectively, endorse and define the prin- to industrial relations. The government ciple of majority rule, create a judicial and should instead concentrate on developing administrative agency 'wholly independent procedures that parties to collective bar- of any executive branch of the govern- gaining should be obliged by law to follow. ment,' provide for vigorous and prompt Leiserson proposed that the Committee enforcement of the board's rulings, grant make a particular point of recommending the board 'the widest scope ... to permit it that "a definite procedure should be laid to build up a constructive body of labor down which must be gone through before law,' and apply the legislation to all workers any group may assume the right to strike.32 in all industries engaged in interstate com- The divergence between the positions of merce., 3 0 This pointed the board away from the two groups was accentuated by the associative concepts of the state and the ide- absence of any sustained contact between ology of adjustment among "interests" that 2 informed those concepts. It placed the 3 Ibid. Provisions to this effect were included in the emphasis in labor relations policy squarely committee's final report. See Twentieth Century Fund upon expansion of the state's administra- Committee, "Memorandum of Findings and Rec- tive capacity to establish substantive rights ommendations" (March 20, 1935), in U.S. Congress, Senate Committee on Education and Labor, Hearings and enforce correlative duties. on S 1958, 74th Cong., 1st sess., April 1, 1935, p. 723. The priorities of the Twentieth Century Robert S. Lynd was the only member of the com- Fund Committee contrasted in a number mittee to question the emphasis upon "modest and of respects. Whereas the NLRB stressed practical" measures that Slichter and Leiserson argued the enforcement of individual rights, the should characterize the committee's report. Lynd took the position that it was the committee's responsibility Fund Committee continued to address itself "to open up wide, at this time of national re-appraisal, to expediting the adjustment of group the question as to how modern democratic govern- interests. "We are part of a competitive ment may best function in relation to a realistic con- economy in which ... various groups are ception of labor as a part of a socially guided economy." He was critical of his colleagues for failing, at a time struggling for immediate economic advan- when "the present psychology of Washington is so tage. The government should create rules heavily that of dealing with immediate troublesome and mechanisms which will guarantee to issues on a liberal basis that will pacify contending both parties to the industrial bargain a fair factions and break new ground only to the extent of field in negotiations."'" The committee rectifying a few of the more glaring discrepancies," to set their sights any higher than "simply augmenting accepted that those rules and mechanisms the volume of suggestions for immediate action by should be founded on effective implemen- Congress." Lynd proposed that the committee instead tation of 7(a), but it tied enforcement spe- adopt as its point of departure the proposition that "equality of cifically to the peaceful adjustment of bargaining power [is] not possible, even with complete organization of labor," as long as "one disputes and the promotion of agreements. party to the bargain owns and controls the necessary As Slichter put it, "What we are trying to tools for work for private gain and the other party is get in the report is a public policy. That in the position of the outsider forced to . . . win the public policy has two main parts: one is the opportunity to work." Robert S. Lynd, "Memoran- dum on Work of Twentieth Century Fund's Com- mittee on the Relation of Government to Labor" "'James A. Gross, The Making of the National Labor (December 15, 1934), in Leiserson Papers, Boxes 40- Relations Board: A Study in Economics, Politics and the 41. In response to Lynd's suggestions, Slichter retorted Law (Albany: State University of New York Press, that "in many industries labor had so much power 1974), p. 130. that it could 'ruin the industry,' " and urged the com- 3'Special Committee on the Role of Government in mittee to reject Lynd's proffered approach. (Twen- Labor Relations, Twentieth Century Fund, Minutes tieth Century Fund Committee, Minutes of the Second of the Third Meeting (January 18, 1935), in Leiserson Meeting [December 14, 1934], in ibid.) Three weeks Papers, Boxes 40-41. later, Lynd resigned. INDUSTRIAL AND LABOR RELATIONS REVIEW

them. Each expressed considerable interest should be affirmed insofar as to do so would in the work of the other, but little concrete advance the purposes of peaceful and construc- information was exchanged until relatively tive collective bargaining. "We believe.., that late in the day; the Fund Committee it is possible and desirable to go beyond the decided early on that none of its findings mere assertion of right and prohibition of should be communicated to anyone until interference, in the direction of positive and its report and proposals were complete, useful encouragement of collective agree- while for its part the Board group did not ments between management and labor. The provide the Fund with a draft of its bill organization of workers and their choice of rep- until the middle of February 1935, three resentatives are, after all, only means to an end- months after the two groups had begun the establishment and observance of written their separate discussions and only five days agreements."4 before Wagner was to introduce the bill in To that end the committee proposed that the Senate. the act include a "more comprehensive def- The Twentieth Century Fund Commit- inition of unlawful practices,"35 by which it tee's reaction to the Wagner bill, once it meant the inclusion of provisions regulat- had finally seen a copy, is extremely inter- ing employee and union behavior. It also esting. "It was the consensus of the com- proposed that the "Federal Labor Com- mittee that the Wagner bill was in all mission," which it advocated as a replace- probability a bargaining bill. Mr. Dennison ment for the NLRB, be empowered to expressed the opinion that the committee register collective bargaining agreements should not throw their recommendations and enforce compliance with them. 6 In into the discussion of the Wagner bill, but addition, the committee's amendments that they should be released to the public narrowed somewhat the definition of after the Wagner bill had been introduced employee rights contained in section 7 of and the opposition had launched its fight the Wagner bill, and opened the door to against the bill. The committee's recom- employer suits against employees and mendations might then become the basis for a compromise bill." The committee's minutes report "general agreement" with 3 4 these proposals. Y Plainly, the committee " Twentieth Century Fund Committee, "Recom- thought the bill should not pass as it stood. mendations" (February 22, 1935), in Leiserson Papers, Boxes 40-41. The Fund Committee underscored its 35 opinion of the Wagner bill by offering Twentieth Century Fund Committee, "Memoran- dum of Findings and Recommendations" (March 20, amendments during the Senate hearings 1935), in Leiserson Papers, Boxes 40-41. that diluted the bill's emphasis upon the tlbid. Describing the committee's recommenda- use of public authority to entrench fun- tions to the Senate Committee on Education and Labor, damental employee rights. Acknowledging William H. Davis went to some lengths to emphasize that that employees had a right to freedom the "Federal Labor Commission," although of otherwise modeled on the Federal Trade Commis- association and self-organization, the com- sion, would not enjoy any of the initiating or inves- mittee simultaneously qualified its tigatory powers claimed by the latter, but would be acknowledgment by arguing that the right confined to rulings on matters brought before it by the parties. Hearings on S 1958, pp. 707-9. 37The Wagner bill reads: "Employees shall have the right to self-organization, to 3'Twentieth Century. Fund Committee, Minutes of form, join, or assist labor organizations, to bargain collectively through repre- the Fifth Meeting (February 16, 1935), in Leiserson sentatives of their own choosing, and to engage in Papers, Boxes 40-41. "Dr. Slichter said he thought concerted activities, for the purpose of collective bar- the big thing would be for the President himself to gaining or other mutual aid or protection." In con- get the credit for bringing the two sides together. trast, the Twentieth Century Fund Committee defined Nothing, he said, could do more to improve business employee rights as follows. "The right of the employees sentiment and to help the general process of recov- to full freedom of association, self-organization, and ery .... [He] suggested that nothing be done until designation of representatives of their own choosing after the introduction and discussion of the Wagner for collective bargaining with their employers is here- bill, that the committee then approach the President by recognized and affirmed. It shall be the duty of and suggest the possibility of his getting the two sides the Commission to foster that right and to encourage together and getting the credit for it." collective bargaining." TRIUMPH OF INDUSTRIAL PLURALISM employee organizations engaging in Conflicts over Policy disputes.38 The Twentieth Century Fund Commit- Despite the development of two distinct tee was wrong, however, in assuming that reform strategies within the coalition sup- the Wagner bill could not be enacted as it porting collective bargaining, there were stood. The failure of the Fund's amend- no open quarrels during the congressional ments, moreover, meant that the three-year debates. Labor leaders, the nascent federal labor law reform drive had culminated in labor relations bureaucracy, and pluralist legislation geared to lawyerly preoccupa- industrial relations experts remained suf- tions with the precise definition and active ficiently united to ensure passage of the enforcement of workers' rights and Wagner Act. Once the new Board moved employers' correlative duties rather than to to implement the act, however, rifts began the pluralists' instrumental insistence on to emerge. The fault line lay between the legislative prescription of procedures established liberal-labor constituency, on whereby collective contracts might be writ- the one hand, and the NLRB and its law- ten, executed, and enforced. As the recon- yers on the other. The immediate occasion stituted NLRB approached the task of for these strains exploding in conflict was implementing labor relations policy, it the split within the labor movement between tended to accent further those aspects of the AFL and the CIO and the controversy the act most characteristic of its lawyerly which this provoked over the NLRB's exer- provenance. The result was a mode of cise of its powers to intervene in represen- administration and an articulation of goals tation disputes. Board policy was profoundly disturbing to the pluralist ele- condemned both by liberal pluralists and ment in the reform coalition. Within a few by AFL unions as an assault on union cus- months of the act's passage, Leiserson, for tom and practice. In 1938-39, AFL hostil- one, could be heard privately expressing ity toward the Board peaked in a campaign his "grave doubts" as to whether members for legislative curbs on the NLRB's of the new Board could be successful "under authority. the procedure that they have adopted."'" The appointment of William Leiserson to the NLRB in 1939 added a crucial new dimension to the controversy by providing "8Section 10(a) of the Wagner Act reads: "The Board a focus within the federal labor relations isempowered, as hereinafter provided, to prevent any bureaucracy around which critics of the person from engaging in any unfair labor practice Board's reform strategy could coalesce. It (listed in section 8) affecting commerce. This power shall be exclusive, and shall not be affected by any was here that the struggle climaxed with other means of adjustment or prevention that has the replacement in November 1940 of the been or may be established by agreement, code, law, incumbent chairman, J. Warren Madden, or otherwise." Compare the Twentieth Century Fund by the labor economist and arbitrator Committee's section 10(a): "The Commission is empowered, as hereinafter provided, to issue a cease Harry A. Millis. Millis's appointment con- and desist order to prevent any person from engaging firmed the defeat of the line followed by in any unfair labor practice (listed in section 8) affect- the Board during its first five years and ing commerce. The power to issue such cease and marked the ascendancy of the industrial desist orders shall be vested exclusively in the Com- pluralists and the triumph of their para- mission: Provided, That nothing in this section shall limit the jurisdiction of the several district courts of digm in American labor relations. the United States, as provided in section 11." The AFL and the NLRB. Compared with The committee's version would thus have allowed the contributions of the Twentieth Century courts to adjudicate unfair labor practice disputes. As Fund Committee and of the NLRB's legal we have seen, among the passages on unfair labor practices in the committee's amendments were pro- staff, the role of the AFL in the 1934-35 visions restraining "anyone" from interfering with an debates was a minor one. AFL represen- employee's exercise of section 7 rights, and "either tatives were kept informed of the general party" from "violat[ing] or fail[ing] to observe any nature of the Washington discussions, and condition" of a collective bargaining agreement reg- istered with the Commission. the Federation's general counsel, Charlton 39Leiserson to Stanley Mathewson (September 27, Ogburn, sat in on some sessions, but the 1935), in Leiserson Papers, Boxes 40-41. Federation satisfied itself comparatively INDUSTRIAL AND LABOR RELATIONS REVIEW early on that the proposed legislation was ification as the bargaining representative in its interests, and from then on limited for all Pacific Coast longshoremen over the its participation in the policy-making proc- opposition of the International Longshore- ess to attempts to amend the legislation so men's Association-AFL, which sought rec- as to retain a degree of procedural initiative ognition as the bargaining representative over employment of the act's sanctions in of longshoremen in four ports in the Pacific its own hands. Rejection of its amendments Northwest. The Board found that the entire did not appear to weaken the AFL's overall Pacific Coast constituted one bargaining support for the bill.4" unit and certified the ILWU. Elements within the AFL leadership, The AFL challenged the Board's author- however, were always uneasy about partic- ity to make such a determination on the ular facets of the bill, notably the sections grounds that the decision deprived the ILA giving the NLRB final authority over the of its "right to engage in business as a labor structure of labor representation. With the organization." According to AFL general development, by mid-1935, of serious chal- counsel Joseph Padway, unions, once rec- lenges to the authority of the incumbent ognized, acquired vested interests- leadership over the allocation of represen- property rights-in their contractual rela- tation rights in mass production industries, tionships with employers that no merely assurances were sought that determination administrative agency could vacate. The of representation questions would not enter AFL accepted that passage of the Wagner the public domain and thus move beyond Act had made it "a necessary and vital pre- the incumbent leadership's control. Once requisite or condition of the proper func- given, these assurances temporarily tioning of any labor organization seeking restored to the legislation the quantum of to represent employees for the purpose of ambiguity necessary to quiet the AFL's collective bargaining" that it first obtain the unease and ensure harmony in the reform Board's certification that the group of 4 coalition. ' But the question reemerged employees for whom it sought to bargain almost immediately after the act was passed. was an appropriate group. But, the AFL By the end of the year, prompted by the argued, as long as the union could show formation of the minority CIO faction that it had the support of a majority of the within the Federation and the threat, ulti- group it had designated, it was "entitled" mately realized, of a split, AFL leaders had to be certified so that it might retain its embarked upon what would become an property rights.43 increasingly bitter campaign to ensure that The Board argued differently. First, the the Board's discretion in determining rep- right to organize and bargain collectively resentation would be subordinated to the was not a property right of unions but a dictates of official Federation policy. civil right of workers. Where challenged, it The main points at issue between the AFL was to be exercised through administrative and the NLRB are illustrated in Shipowners' action in accordance with statutory pre- 4 2 Association of the Pacific Coast. In this case scriptions. Second, a union could have no the International Longshoremen's and legal claim to a particular certification. The Warehousemen's Union-CIO sought cert- Board's "finding of fact" was the only basis upon which assertions of union right might 4 1In 1960, however, Leon Keyserling revealed that be made, and then only by a union already "the head of one powerful union" pressed William certified as the designated representative Connery, the chairman of the House Committee on of workers in a unit found by the Board to Labor, to withhold support from the bill, and further 4 that "some of the older types of craft unions, fearful be appropriate. of the effect of some of the provisions of the bill upon Pre-enactment ambiguity gave rise to the structure of their organizations, did not lend it their support and may even have worked against it." Keyserling, "The Wagner Act," p. 207. 4 41 "Informal File R-638, Shipowners' Association of the rving Bernstein, The New Deal Collective Bargain- Pacific Coast, in Record Group 25, Records of the National ing Policy (Berkeley: University of California Press, Labor Relation Board (National Archives and Records

1950), p. 126. Service,44 Washington, D.C.). 427 NLRB 1002 (1938). Ibid. TRIUMPH OF INDUSTRIAL PLURALISM conflicts other than that over representa- enforcement of the act in independent tion. Union behavior was similarly affected. actions; denied the Board power to inter- Section 8 of the Wagner Act, for example, vene in jurisdiction disputes; required it to prohibited employers from "dominating or respect contracts made by bona fide unions interfering with the formation or admin- on behalf of minority groups of workers istration of any labor organization" and pending final determination of a majority from entering into an exclusive agreement representative, even where it found that with any organization that was not the cer- the employer had been partial; and pro- tified representative of employees in a col- vided that unions should have unrestricted lective bargaining unit approved by the rights to seek review of Board decisions Board. The purpose of this provision was that affected their interests.48 to ensure disestablishment of company The appointment of Leiserson. The AFL's unions. The Senate Labor Committee campaign against the NLRB failed to bring report on the Wagner bill had recom- about the substantive limitations on the mended, however, that the provision be Board's discretion that the Federation interpreted also as prohibiting exclusive sought. It did, however, alarm the Roose- agreements made by independent unions velt administration. Conscious in the wake that did not represent a majority of the of the 1938 elections of waning domestic employees concerned.4 5 The NLRB's con- support, Roosevelt sought to appease the currence meant that a collective bargaining AFL by denying retiring Board member technique employed by unions for many Donald W. Smith reappointment, and put years was rendered illegitimate.4" Hence- William Leiserson in his place. Already forth, any employer who signed a closed known as a critic of the current Board, shop contract without proof that the union Leiserson was under instructions from in question represented the majority of his Roosevelt to "clean up"4 the NLRB's admin- workers in an appropriate bargaining unit istration of the act. T could be held guilty of improperly assisting Leiserson's appointment precipitated a labor organization, Under such circum- bitter conflicts within the Board, for Leis- stances, said the Board, it would "restore erson arrived determined to rebuild labor the status4 7quo by obliterating the illegal relations law around the private processes contract. of accommodation engaged in by the orga- To the AFL, such policies threatened the nized parties. By undertaking to "protect entire panoply of collective bargaining by law the wage earners who cannot by their practices and union-employer accommo- own strength overcome the oppressions of dations that it had been trying to develop their employers," Leiserson argued, the since 1900. Consequently, in April and May Wagner Act had projected public authority of 1939 its leadership appeared before the into a field already occupied by nonpublic House and Senate Labor Committees to rule-making bodies: unions and employ- press a series of amendments to the Wag- ers. For government policy to succeed, the ner Act designed to force the Board to move public agency created to administer it toward a more accommodating model of should learn from the institutions already labor relations. These amendments established in the field and seek harmony required the Board to grant workers rep- with their environment, not "impose new resentation in accordance with the juris- rules [based] on50 [its] own notions of dictional structure of their unions; reasonableness. guaranteed unions the opportunity to seek 4"Testimony of Joseph A. Padway, in U.S. Congress, House Committee on Labor, Hearings on Proposed 4 "Legislative History of the NLRA, p. 2311. Amendments to the National Labor Relations Act, 76th 46 National Labor Relations Board Memorandum, Cong., 1st sess., June 14, 1939, pp. 753-81, passim. 4 "Invalidation of Contracts," in Wagner Papers James A. Gross, The Reshaping of the NationalLabor (Georgetown University, Washington, D.C.), Labor Relations Board: National Labor Policy in Transition, 1937- Files47 706-19. 47 (Albany: State University of New York Press, 1981), 1bid. For examples of the impact of this policy, p. 89. see National Electric Products Corporation"3 NLRB 475 5°Leiserson to John R. Commons (September 9, (1937); Consolidated Edison Company, 4 NLRB 71 (1937). 1939), in Leiserson Papers, Box 9. INDUSTRIAL AND LABOR RELATIONS REVIEW

The struggle was played out in the arena by unions and employers. "The develop- of bargaining unit determinations. Here, ment of the proper unit for collective bar- diametrically opposed views of how an gaining," Madden believed, "is an appropriate unit should be determined evolutionary process." The Board should contested for dominance. encourage and accommodate this evolu- To Leiserson the Wagner Act had been tion by allowing employee groups to design passed to secure stable and responsible col- and redesign their bargaining arrange- lective bargaining. Hence the appropriate ments with a minimum of restriction from unit in any case was that which best afforded any quarter.5 3 the parties an opportunity to develop a sta- These differing approaches clearly illus- ble and responsible bargaining relation- trate the major difference of principle sep- ship. The best guide to what was arating Leiserson on the one hand from appropriate was provided by the parties' Smith and Madden on the other. Smith and own customs and practices. In particular, Madden believed that the Wagner Act gave if the parties had already arrived at a con- the Board widespread power to protect the tract, that contract should define the unit. self-determination of employees and, cru- Leiserson repeatedly condemned "units cially, to establish them in bargaining rela- established by Board members on the basis tionships that maximized their opportunity of their own opinions as to appropriate- for further substantive self-determination. ness" in disregard of arrangements already Leiserson, in contrast, held that the act did established and functioning. Only units not authorize the Board to exercise inde- developed in the course of dealings between pendent judgment as to the appropriate- unions and management could form the ness of units but only gave it fact-finding basis for "sound labor relations." 51 powers to, in effect, register and certify Leiserson's colleagues rejected his con- whatever units organized labor established tention that their discretion was limited by in its relations with organized employers. private contractual arrangements entered His emphasis upon the determinative into by the parties. "I do not agree ... that influence of the contract further expressed the Board 'is not authorized by the Act' to his conviction that the Board's overriding find a different bargaining unit from that function was to achieve stability, order, and which has been previously embodied in an efficiency in collective bargaining and that exclusive bargaining contract," wrote vet- the proper way to do that was for the Board eran NLRB member Edwin S. Smith. "I simply to lend its imprimatur to whatever think the past history of collective bargain- working arrangements had been estab- ing in a plant ... is an important ... factor lished by the parties concerned.54 in the determination of the appropriate bargaining unit. But I do not believe that 53 Ibid., p. 1260. the Board is precluded by anything in the 54 Act from finding a different unit to be The difference, stated in the broadest possible 5 2 terms, was between a position that took seriously the appropriate." For his part, Smith argued act's commitment to the achievement of an equality that the Board's statutory obligation was to of bargaining power and saw section 9 as the key to find the unit in every case that would most that commitment, and a position that held, as nearly match the bargaining power of the William H. Davis put it in his testimony before the Senate Committee on Education and Labor in 1935, employees in question with that of their that the equality mooted in the act was not an equality employer. of power between employees and employers but an The chairman, J. Warren Madden, also equality of opportunity to be represented in collective denied that the Board's authority could be bargaining. "You cannot get strong, outright, friendly vacated cooperation, unless you have equal parties on the two by the arrangements entered into sides of the table. By that we mean equallyfree to represent the people they are there to talk for." Hearings on S 1958, p. 713 (emphasis added). Davis also here expresses 5 'See, for example, Leiserson's opinions in American the pluralist view that the union is the party principal Can Company, 13 NLRB 1252 (1939), and Milton Brad- on the labor side, and that the significance of section ley5 2Company, 15 NLRB 938 (1939). 9 resides primarily in its provision of a channel through American Can Company, 13 NLRB 1252 (1939), p. which employee consent to union decisions might be 1258. obtained. TRIUMPH OF INDUSTRIAL PLURALISM

The Board remained in a state of fun- gaining structures wherever they were damental disagreement on the unit issue established and functioning. This offered throughout the first fifteen months of Leis- incumbents a considerable degree of relief erson's term. This did not prevent it from from the insecurities engendered by the making decisions. It was even able to achieve unit policies of the Madden Board, and with unanimity on many occasions. Neverthe- CIO as well as AFL unions increasingly less, its disagreements were more than suf- interested in establishing institutional sta- ficient to obstruct the further development bility through permanent bargaining rela- of the unit policies it had pursued before tionships with employers, the triumph of Leiserson's appointment. an industrial relations paradigm based on The obstruction was not destined to last. entrenched contractual relations was Both Madden and Smith were close to the assured. 7 ends of their terms of office, and in each Commentators writing in the pluralist case renewal was refused. Madden, the first tradition have, unsurprisingly, denied that to go, was retired after the 1940 election; any sort of "thermidor" in employee rights his replacement as chairman was an avowed accompanied the transition from the Mad- pluralist, the University of Chicago econ- den Board to the Millis Board. Millis him- omist and labor arbitrator Harry A. Millis. self represented the changes he helped to Smith remained for another year but was institute as little more than a logical and rendered powerless by the pluralist axis of largely complementary extension of the Millis and Leiserson. Leiserson was Madden Board's policies. The Madden delighted that the conflict of the previous Board, he wrote, had established "the major fifteen months had at last been resolved so outlines of the application of the law." Its decisively in his favor. "Now if the Presi- successor's task had been to tidy up the dent only appoints Ed Witte next August loose ends: "to improve administration, in when Smith's appointment expires, then we the interest of prompt, efficient and eco- would have a real Board," he wrote to nomical handling of cases, and to increase John R. Commons a week after Millis's the emphasis upon good and workable appointment had been announced. "You industrial relations practices, which had to would have all three of the Board members some degree been lost sight of in the tend- your boys-and you would be sure that the ency to legalistic emphasis in the first five ,,58 administration of the law was both proper years. and intelligent."56 Subsequent writers have followed the same track, ignoring the differences within The Triumph of Industrial Pluralism the original reform coalition and minimiz- ing the ideological conflicts over the imple- The appointment of Harry A. Millis as mentation of federal policy that dominated chairman left the NLRB committed to the the Board's first five years. This is typified achievement of stable collective bargaining in Philip Selznick's insistence that the Wag- relationships as the sole object of federal ner Act was a "celebration of voluntarism labor relations policy. Having defined this and bargaining," which was "in spirit akin essentially limited goal as the abiding pur- to traditional contract law in that its chief pose of the representation of labor envis- aim was to facilitate private transactions and aged by the Wagner Act, Millis and arrangements." According to Selznick, the Leiserson used their majority to ensure that act's contribution began and ended at the self-activity of workers became focused fully on its realization by entrenching bar- "7Gross, The Reshaping of the National Labor Relations Board, pp. 55 232-40; Nelson Lichtenstein, Labor's War See, for example, Edwin Smith's comments on the at Home: The CIO in World War Two (Cambridge: Cam- course of Board policy since Leiserson's appointment bridge University Press, 1982), pp. 8-25. contained in his dissent to the majority decision in "Harry A. Millis and Emily Clark Brown, From the Libbey-Owens-Ford Glass Company, 31 NLRB 243 (1941). Wagner Act to Taft-Hartley: A Study of National Labor Leiserson to John R. Commons (November 22, Policy and Labor Relations (Chicago: University of Chi- 1940), in Leiserson Papers, Box 9. cago Press, 1950), p. 52. INDUSTRIAL AND LABOR RELATIONS REVIEW

"creat[ing] the conditions for bargaining and relations.6 ° Only then did labor relations ' formalized agreement. "" law begin to proliferate administrative Pluralist writers like Millis and Selznick innovations safeguarding incumbents and correctly describe what has become the role circumscribing collective activity. Only then of American labor relations law. As we have did it become apparent that in the service seen, however, it is questionable whether of that "give and take" the values of free their description proceeds from assump- choice and self-determination-values that, tions about the function and goals of labor it had once been claimed, would make the relations law consistent with those embraced Wagner Act the symbol of a new age- by the Wagner Act's mentors and early would, where necessary, be allowed to fall administrators. The ideology of industrial by the wayside. pluralism, I would argue, was not inscribed in the Wagner Act from the outset, nor was its hegemony necessarily what the act's 6°Millis and Brown, From the Wagner Act to Taft- architects intended. Rather, pluralist hege- Hartley, p. 673. And see pp. 669-77, passim. The contribution historical analysis might make to a critique mony came about only after bitter conflicts of the pluralist paradigm in industrial relations theory over labor relations policy had under- and practice is canvassed by Robert H. Zieger in a mined "debate in terms of legal and natural short but suggestive essay, "Industrial Relations and rights" in favor of "recognition of the Labor History in the 1980s," Industrial Relations, Vol. 22, No. 1 (Winter 1983), pp. 58-70. My own necessity of 'give and take'" in industrial attempt at such a critique has received its fullest development in The State and the Unions: Labor Relations, "gPhilip Selznick, Law, Society and Industrial Justice Law, and the OrganizedLabor Movement in America, 1880- (New York: Transaction Books, 1969), p. 139. 1960 (Cambridge: Cambridge University Press, 1985).