Organizational Picketing and the NLRB: Five on a Seesaw

Abstract

Act, Congress sought to curb organizational and recognitional picketing by adding section 8(b)(7) as an amendment to the National Labor Relations Act.That effort was, however, marked by calculated and inadvertent ambiguities, which reflected both the political obstacles to a solid consensus and the intellectual difficulties of devising new regulations for pliable instruments of unionization.Those ambiguities, coupled with changes in the Board's personnel, have resulted in a striking degree of instability in the Board's decisions.At first, the Board, although frequently divided, gave generous scope to the new restrictions.But, after two appointments by President Kennedy, 2 the Board reconsidered 3 and reversed some of its initial decisions 4 or modified its reasoning even when it left the original results unchanged. 5 Those reversals progressively blunted the effectiveness of section 8(b)(7) and of section 8(b)(4)(C) of the amended NLRA.The Board's changes were too rapid to be ascribed to institutional developments or to new insights produced by a maturing expertise; they reflected the different value preferences of new appointees interacting with loose statutory provisions.It is the Board's reversals, their impact on the purposes behind section 8(b)(7) and on the over-all statutory scheme, that I am to examine here.

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