Document Type

Article

Publication Title

ABA Journal of Labor & Employment Law

Publication Date

2010

Abstract

Why has the NLRA been so resistant to legislative change for more than 60 years? How was Congress able to enact two major labor relations laws within a 12-year period (1935 and 1947) but then unable to approve proposed reforms in the years since 1947? In an effort to answer these questions, the article closely examines contemporaneous newspaper accounts from the 1935 and 1947 legislative “successes” as well as from two more recent congressional “failures” in 1978 and 1992. The article’s examination proceeds based on an analytic framework borrowed from political scientist John Kingdon that posits a recurring interplay among three separately developing process streams: problems that capture the attention of the policy community working in and around Congress; proposals generated and refined as potential solutions to the problems; and political climate that allows for or discourages openings in the legislative process to enact the possible solutions. The article concludes that all four legislative campaigns featured potentially enactable proposals that were concrete, feasible, and sufficiently refined by policy participants so that they might have ripened into statutory solutions. What separates successes from failures, however, are the magnitude and resonance of the perceived policy problems and also certain distinctive aspects of the political environment before and during floor consideration. An essential predicate for legislative success in 1935 and 1947 was that identified problems commanded exceptionally broad attention from the public at large as well as the labor-management policy community. The bills defeated in 1978 and 1992 involved far less public awareness of or investment in the policy problems identified by members of Congress, their staffs, and relevant interest groups. In addition, unusual extrinsic circumstances - such as the announcement of Supreme Court decisions, the fear of spreading communism at the dawn of the Cold War, and the presence of intense divisions over approval of the Panama Canal Treaties - generated either important momentum or substantial headwinds during key periods. The article describes in detail the factors contributing to legislative successes and failures, and then addresses possible lessons for the future of labor law reform.

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