Policy Formulation in the Executive Branch: the Taft-Hartley Experience

• Date: 01 September 1960
• Author: Seymour Z. Mann
• DOI: 10.1177/106591296001300303
• Published date: 01 September 1960
• Subject Matter: Articles

POLICY FORMULATION IN THE EXECUTIVE BRANCH:
THE TAFT-HARTLEY EXPERIENCE*
SEYMOUR Z. MANN
Southern Illinois University, Southwestern Illinois Campus
LMOST
ALL the line departments and a number of the independent com-
missions and agencies participated in the legislative history of the Taf t-
~C
Hartley Act. The principal participants were the National Labor Rela-
tions Board, the Department of Labor, the Bureau of the Budget, and individuals
in the Executive Office of the President. Proposals were offered, rejected, or
modified. Important in determining official policy, at both the executive and the
congressional levels, were the activities of individuals who occupied influential
positions in the network of communications. A case analysis of the complex
interplay involved in formulating the executive policy on the Taft-Hartley Act
seems to show that the decision-making process, while shaped in its general con-
tours by the major institutions of government, takes on special characteristics
peculiar to the particular policy problem, the individuals involved, and the con-
sequent communications process that develops. Certainly one does not perceive
a centralized deliberative activity.
THE NATIONAL LABOR RELATIONS BOARD
More than any other single agency the National Labor Relations Board had
reason to anticipate -
and fear -
legislative developments in the Eightieth Con-
gress. The labor policy expressed in the Wagner Act had been its most intimate
concern and responsibility for twelve years. The Board had been the subject of
bitter attack from many sides throughout these years. A portion of the divided
labor movement had stood strongly against it for at least the first five years of its
life. In 1946 and the early weeks of 1947 the Board was aware of the difficult
defensive position it was in.
The members of the Board were faced with several related problems. First,
what position were they going to take on revision of the Wagner Act? Were they
to announce publicly for change? If so, for how much revision? Secondly, what
kind of case were they going to make against the decade-old and now renewed
charges against them of bias and maladministration? Thirdly, in view of their
position as an independent agency, how vigorous a stand could they take and
how active and open a relationship could they establish with the Democratic
administration and the Democratic minority in Congress? Fourthly, they were
faced with the problem of orienting one completely new member of the Board at
this critical time.’
* The gathering of materials for this paper was made possible through a Social Science Research
Council fellowship.
1
The writer is much indebted to former NLRB Chairman Paul Herzog for generously affording
time for interviews and for permission to view his personal Board files on the subject of
this paper. The writer’s first conversations with Mr. Herzog occurred while he was still
Chairman of the Board in 1950. Access to his files was also gained at that time. Most
helpful also in giving extensively of their time and information and/or opening their files
were former General Counsel Van Arkel and former Assistant General Counsel Herman
Lazarus.
597

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598
Immediately after the 1946 election Chairman Herzog wrote the President
a rather long letter advocating the adoption of a bipartisan technique for work-
ing out a long-run labor policy. He adverted to the President’s success in estab-
lishing a bipartisan foreign policy and the receptivity of Republican Senator-elect
Ives to bipartisanship on labor questions. Chairman Herzog won the informal
support of Secretary of Labor Schwellenbach, and actively advised the President
for a time; but the bipartisan approach never materialized. After his first weeks
in the Senate Ives gave no support to such a program. It was clear that the
Republican majority would not accept it, and Herzog and Ives were forced to
follow different courses. Although they remained friends, they battled each other
on the &dquo;hill.&dquo; 2
John M. Houston was the second member of the Board. James Reynolds re-
placed Gerard D. Reilly as third member late in 1946.~ Reilly had come increas-
ingly to disagree with the majority of the Board during the latter part of his
term,4 and there was doubt as to the point of view Mr. Reynolds might adopt.
General Counsel Van Arkel felt that with Mr. Herzog relatively new and Mr.
Reynolds brand-new it was essential for the Board to examine its record for con-
sistencies and inconsistencies, and to agree on a position. He was anxious to con-
front Congress with a unanimous Board.5
5
With the failure of the bipartisan
approach, Chairman Herzog gave his approval to the &dquo;self-study&dquo; proposal.
Supervision of the effort was given to Van Arkel. Herman Lazarus was brought
in from the Philadelphia office to serve as his assistant; Lazarus had active charge
of the group preparing the studies, and was to be responsible for the presentation
of the materials to the Board members. Most actively associated with him was
Morris Weisz, chief of the economics section of the Board, who assigned and
supervised the personnel doing the research.
On December 5, 1946, Weisz sent a memorandum to Lazarus outlining the
studies under way. They concerned: (1) strike data - here in particular the
purpose was to compare the period after World War I with that after World
War II, and also to compare the record of industries over which the Board had
2
The idea of a bipartisan approach followed a meeting of the NLRB Chairman with Senator
Ives in mid-November. It is Mr. Herzog’s recollection that President Truman and other
members of the Board were apprised of this visit shortly thereafter. Non-Board personnel,
however, were probably not aware of this meeting nor of the communications with the
President until sometime later.
3
Reilly’s term expired August 27, 1946.
4
Harry A. Millis and Emily Clark Brown, From the Wagner Act to the Taft-Hartley Act (Chicago:
University of Chicago Press, 1950), chaps. 4-6, documents in detail the trend of the Board’s
decisions through the years and of Reilly’s increasing dissents.
5
While this was the attitude and objective of Van Arkel and other Board personnel, it is doubt-
ful that the Chairman agreed to this study procedure with the "winning over" of Mr. Rey-
nolds as a primary objective. In a later exchange of correspondence, after reading a draft
of this article, Mr. Herzog indicated that he would not have accepted as a purpose of the
"self-study" period the influencing of Mr. Reynolds. Mr. Herzog wrote in part: "I certainly
would not have countenanced that, as my personal relationships with Mr. Reynolds were
extremely close, despite our disagreements on policy questions, and the best way to bring
him about to supporting a later unanimous viewpoint was to give him the facts directly and
then appeal to the team spirit of an ex-Columbia football star. That this was successful and
did him great credit is shown by the fact ... that he stood with Houston and me
in taking a unanimous position before the outside world later, whenever he was ’outvoted’
at executive sessions."

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599
asserted jurisdiction with that of those where it had not; (2) the organization of
foremen and related issues, particularly to assess the effect of the Packards and
Jones and Laughlin7 decisions, and to estimate the consequences if the rules had
been applied earlier; (3) agricultural amendments; (4) employers’ petitions;
(5) labor groups as monopolies; (6) minority union coercion of employers;
(7) freedom of speech of employers; (8) the time elapsed between various stages
of Board cases; (9) craft severance cases; (10) repeated violations of the act by
the same employer; and (11) the Rutland Court cases8 -
to determine what the
Board’s rules in these cases had been, the effect of these rules upon stability of
collective bargaining relationships, and the impact of the rules upon democratic
procedures within unions. In addition, a series of files was set up...