Separation of Powers and the Labor Act: 2. "Expertise," Separation of Powers, and Due Process

Dr. Petro is Professor of Law at New York University School of Law. He has written several books, including The Labor Policy of the Free Society (1957) and Power Un­limited: The Corruption of Union Leadership (1959), and is a noted lecturer and con­tributor to magazines.

It is sometimes said that, what­ever their constitutional defects, quasi-judicial administrative tri­bunals are vital to good govern­ment because of the complexities of the modern world. One used to hear, too, that such tribunals are necessary in order to get speedy justice and broad-minded, flexible, sophisticated decisions. Lately, with the NLRB and other admin­istrative agencies demonstrating a truly remarkable talent for delay and for hide-bound mechanical de­cisions," one does not hear the latter encomium of administrative agencies so much. But "expertise," one still hears, is as necessary in government as it is in the other vital aspects of advanced, intri­cate, delicately interdependent con­temporary society.

According to this view it is un­realistic and "reactionary" to ex­pect the regular courts either to possess, to develop, or consistently to exercise the requisite expertise in so specialized and complicated a field as, for example, labor rela­tions. There, a tribunal manned by experts is needed. One does not ask a general handyman to build or repair a computer. In the same way, a judge of general jurisdic­tion cannot be expected to perform well in the complex, specialized area of labor relations. There, a specialized expert tribunal such as the National Labor Relations Board must do the job.

It will be observed that this ra­tionale is built around two assumptions: (1) that labor re­lations are a distinct, inordinately complex field; (2) that a specially qualified agency is thus required to administer them.

It is true that the employer-em­ployee relationship is distinct from such other relationships as husband-wife, parent-child, buyer-seller, contractor-subcontractor, government-person, and teacher-student. It is not self-evident, how­ever, that the employer-employee (or union-employee or union-em­ployer) relationship is either more sensitive, more complicated, or more critically a matter of public interest than those and other hu­man relationships. Society is a sensitive complex of human rela­tionships; all human relationships are relatively subtle and compli­cated. It is not possible to main­tain a priori that labor relations are more so. Such an assertion has to be proved. No one has ever done so — probably because it would be impossible to do so.

Complexity Requires Freedom

Even if it were conceded for the sake of argument that labor relations are exceptionally sensi­tive and complex, it would not fol­low that — the nation’s fundamen­tal policies being what they are —a specialized agency of govern­ment is necessary. The fundamen­tal policies of this nation call for the administration of labor rela­tions mainly by employers and em­ployees and, to some small degree, by trade unions and arbitrators. The more complex relationships become, indeed, the more neces­sary does it become to leave to in­dividuals the freedom to adjust their own relationships. The effect of thoroughgoing regulation of complex relationships is only frus­tration for both the regulating body and the persons regulated. Regulating an infant is relatively easy; the child grows more diffi­cult; the teenager almost impos­sible — all because the relationships have grown more complex. It is the nature and supreme advantage of a free society, as distinct from a command or totalitarian society, to leave the conduct of all human relations essentially to the persons immediately involved, or to their agents, subject only to general rules, equally applied.

Congress has followed this policy in the Labor Act. It has never empowered the Labor Board to administer labor relations (al­though that agency has frequently had to be reminded by the Su­preme Court, by the U.S. Courts of Appeals, and by Congress of the limited reach of its commis­sion). Congress has empowered the Labor Board and its General Counsel to administer the Na­tional Labor Relations Act, not the labor relations of the country.

No Need for Monopoly

The General Counsel’s functions are mainly to decide which charges should be prosecuted and then to prosecute them. The functions of the Labor Board and its subordi­nates are (1) to conduct hear­ings; (2) to interpret and draw conclusions from written and oral evidence; (3) to apply Congress’ law to the facts found in accord­ance with congressional intent; and (4) to issue appropriate orders.

No one has ever advanced a convincing reason for giving a prosecutional monopoly to a law­yer entitled "General Counsel of the National Labor Relations Board" as against vesting this power, say, in the Department of Justice. Moreover, no one has ex­plained why either policy or jus­tice in labor law is served by de­nying private parties — employees, employers, or union officials — the power to prosecute their own cases which private parties are ac­corded under the antitrust laws. No one has even attempted to justify this—again probably be­cause it would be impossible to do so.

On the contrary, the General Counsel’s prosecutional monopoly works against both policy and justice. Denying persons the right to a day in court more markedly denies justice than does a denial of due process. It is a denial of all process. This denial cannot be justified on "policy grounds," either, for its effect has been and must continue to be to inhibit and frustrate the development of labor law.

As matters now stand, only such developments occur as the Gen­eral Counsel wishes; dozens of de­cisions could be cited to the effect that there is no appeal from a refusal by the General Counsel to issue a complaint. Without in any way impugning the good faith of the General Counsel, it remains self-evident that he and his limited personnel cannot possibly equal the range, the vigor, and the liti­gational fertility of the nation at large. Even if it be conceded — as I do, at least for the sake of argu­ment — that the General Counsel’s staff includes lawyers as learned and as clever as those in private practice, the fact remains that the latter are more numerous and more zealous to serve their clients. The General Counsel’s prosecu­tional monopoly should obviously be withdrawn.

Expertise in What?

If it is difficult to understand why the General Counsel should have a prosecutional monopoly, it is at least equally unobvious that human beings who become mem­bers of the National Labor Rela­tions Board are more qualified to perform the judicial functions which Congress created in the Na­tional Labor Relations Act than are the men who occupy the Fed­eral bench. Conducting hearings, ruling on sufficiency of complaints and answers, admitting or exclud­ing evidence, evaluating testi­mony, interpreting documents, drawing inferences, arriving at conclusions of fact and of law, fashioning appropriate orders —these are all activities requiring a certain level of competence, training, and experience. The "man in the street" is not likely to carry out these functions very well without special training and experience.

The question, however, is not whether the NLRB is more quali­fied than the man in the street to carry out these functions. For the purposes of this investigation into the separation of powers, the main question must be whether Con­gress has a reasonable basis for delegating judicial powers to an administrative agency, rather than to the judges of the Federal bench. Admitting that "expertise" is a good thing, we must then ask: expertise in what? If it is exper­tise in legal administration — in the arts and skills of judging —prima facie, at least, one would think that career-judges are the true experts.

In a period when principled analysis counted for more than it does in these "pragmatic" days, it would have been enough to point out that the members of the Na­tional Labor Relations Board are appointed for limited terms of of­fice. That fact would alone serve to disqualify them for the exer­cise of any part, however small, of the judicial power of the United States. For the Constitution in­sists that the judicial power of the United States be exercised only by men appointed to the Fed­eral bench for life.

The times being what they are, the analysis must extend beyond and behind the Constitutional standard, even though in doing so it will only confirm the acuteness and the wisdom of that standard. Two integrated inquiries suggest themselves: (1) Are Board mem­bers and their subordinates better qualified than Federal judges to carry out the judicial functions created by the Labor Act? (2) Are the Congressional policies em­bodied in the Labor Act likely to be accepted with better grace and more faithfully effectuated by the Labor Board or by the Federal courts?

The Judicial Temperament

No extensive "empirical re­search" is necessary in order to establish that the Labor Board members and their subordinates begin their careers with no sig­nificant training or experiential advantage over the men who are appointed to the Federal bench. As a matter of fact, the only rele­vant specialist training for the functions under consideration is legal training. All Federal judges nowadays, so far as I have been able to discover, are legally trained. Most Labor Board mem­bers and personnel have likewise had legal training, although some have not. There is a stand-off here, and I doubt whether it could be resolved by reviewing the law-school records compiled by the judges and the Board people re­spectively.

As far as experience is con­cerned, it is quite probable that Labor Board personnel, if only for being younger on the whole, have had less general experience at the beginning of their Board careers than the Federal judges (who come mainly to office after years of practice) have had in the beginning of their judicial careers. On the other hand, Labor Board personnel, since their efforts are confined to the labor law field, tend to build a concentrated and extensive experience in labor law much more quickly than the Fed­eral judges are ever likely to ac­quire.

Careless thinking might lead one to conclude from the forego­ing that the Labor Board people soon acquire a significant advan­tage, even if they do not begin with one. More careful considera­tion leads to a different conclu­sion, however.

Of course, a person specializing in labor law is likely to know more about that subject than the person who does not specialize in it. No court of general jurisdic­tion will ever be able to match a specialized court in the mastery of the minute detail of the sub­stantive law in which the latter specializes.

It is a serious mistake, however, to regard this as a significant point. What we desire primarily in judges is not exhaustive mas­tery of the substantive details of any particular field of law. It is the job of the opposing lawyers to bring all the relevant law and doc­trine to the court’s attention.

A solid grasp of basic principles of law in the various fields is more than enough such equipment for any judge. What a democratic so­ciety wants essentially from its judges, however, is a complex of other qualities. It requires what is perhaps best comprehended with­in the term "judicial tempera­ment": a strong but open mind; a habit of reserving judgment till all the facts are in and disinterest­edly evaluated; a willingness to listen — really listen — to argu­ment; patience; respect for the opinions of other judges; a good logical mind which will adequately distinguish the relevant from the irrelevant facts and the cogent from the illogical arguments; an inclination to start out every case believing that the facts, the law, and the arguments — not the iden­tity of the parties — should de­termine the decision. There is no basis for the belief that NLRB members, trial examiners, or other Board personnel rank higher than the Federal judges on this all-im­portant standard of judicial tem­perament. Quite the contrary.

In a representative government, there is one more supremely de­sirable judicial quality. If repre­sentative government is to func­tion properly, the judges must be satisfied to leave the policy-mak­ing to the legislature; they must be committed to interpreting and applying the statutes which the legislature has passed, not to com­peting with the legislature as a lawmaking, policy-making organ of government. For neither judges nor administrators can ever represent the nation and its people in the way that Senators and mem­bers of the House of Representa­tives do. It is physically impos­sible for judges and administra­tors to constitute themselves the deliberative and consultative mi­crocosm of the nation which the House and the Senate do without even thinking about it.

Leave Policy to Congress

When judicial officers take on a legislative role, they make a mess all around. They produce neither good legislation nor good deci­sions. Litigation, the courtroom, and the judicial opinion are func­tionally neither adapted nor adapt­able to either gathering the sense of the whole community or ex­pressing it in legislative form. On the other hand, litigation, the courtroom, and the judicial opin­ion are the best means thus far devised for applying established law and policy to the facts of the individual dispute which every case or controversy involves.

This is why it is good for legis­latures to stick to legislating and for judges to stick to judging. It may be all right for legislatures to care little about the facts of particular cases when they are contemplating general legislation. But the judicial officer who fails to attend excruciatingly to the facts of the particular case he is deciding, on the contrary, is fund­amentally and dangerously untrue to his function and duty.

One of the characteristic de­fects of the NLRB is that it is continually forcing the facts to fit its predetermined policies. Instead of fitting Congress’s law to the facts as they exist, the Board per­sistently manhandles the facts so that they will produce the results it wants. The Board wants every employee in the nation to wear a union label. If Congress says that employees need wear a union label only when it fits them, the Board does what it can to make a fit. If the facts don’t fit, the Board will make them fit. If there are no ma­terial facts at all, the Board will frequently use adjectives to make up the deficiency. Thus in Rivers Mfg. Co., the trial examiner de­livered himself of the following comments: "In this setting of in­tensive and extensive [sic] inter­ference, restraint and coercion, the Respondent terminated the em­ployment of nine employees… known by management to be union adherents…. The evidence sus­taining General Counsel’s allega­tions that these October 2 dis­charges were designed to discour­age further self-organization is overwhelming."37

After a painstaking examina­tion of the entire record, Circuit Judge O’Sullivan concluded that the trial examiner’s characteriza­tions were not only exaggerations but "without foundation." "A right to infer," he said, "is not a right to create."38

The point is that it is unrealis­tic to expect patient, painstaking analysis of fact and application of existing law from committed ide­ologues; for they are interested more in molding the world to their desires than in doing justice in the immediate dispute. The close­ly related point is that such ide­ologues cannot be expected to sub­ordinate their policy wishes to those of the legislature. Hence, if Congress wishes its policies to govern the country, it must insist upon judges who are willing to confine themselves to judging and to leave the policy-making to Con­gress.

The Representative Function

Some will perhaps challenge this view of the necessity of Con­gressional policy-making suprem­acy. We have heard a great deal of talk in recent years, for ex­ample, about the superior repre­sentative qualities of the presi­dency. However, disinterested analysis of the relevant facts must quickly dismiss such talk. As re­markable as the Presidents of this country have been, it is impossible for any one man — even before be­ing elected President — to equal Congress’ representative capacity. And it is simply absurd to ex­pect him to sustain a broadly representative character after he takes up the consuming burdens of office. No one man can even meet and know as many people in as many places as five or six hun­dred Congressmen and Senators can. Still less can he reconcile within himself the kind of con­sensus or compromise which is possible in a multitudinous con­sultative assembly originating in all the geographically distinct areas of which the country is composed.

If the President wished realisti­cally to gather the consensus of the whole country on all issues, he would as a practical matter have available to him no better mechan­ism for doing so than the one al­ready available in the House and the Senate. There is really a very peculiar meaning in the assertion that the President represents the whole country better than Con­gress does. Persons using such language mean that they have been able to convince the Presi­dent of the worth of their pro­posal while Congress has re­mained unmoved. But when Con­gress remains unmoved — it being the genuine representative of the whole country — the meaning is that the whole country is not ready to endorse, as the President may be for his own reasons, the desires of the pressure group involved.

No Job for the President

Many Presidents have agonized over the "loneliness" of their posi­tion. This phenomenon, grown more frequent of late, is of poten­tially great significance to any study of the Separation of Powers. The lament grows out of the con­dition of executive power which, presumably, the person who gains the presidency has more or less actively sought. Executive respon­sibility must ultimately be con­centrated in one person. In this country, with government grown so great, presidential responsibil­ity absorbs as much time and en­ergy as the incumbent is willing and able to give it. An executive decision always has to be made, one way or another, clean-cut or ambiguous. There is no way in the world for the President to share his responsibility in the way that Senators and Representatives not only can do — but must.

This is not to say that Senators and Congressmen do not have to make "lonely" and difficult deci­sions with respect to their own personal choice of action. Of course they do, as all human beings must. But it is in the nature of legisla­tion in a representative govern­ment that the responsibility for every legislative act is a well-divided and broadly shared responsi­bility, arrived at deliberately —with each Congressman or Senator in a position to be fairly confident that his vote either reflects the majority sentiment of his constit­uency or at least does not violate that sentiment sufficiently to lose him his office. It is physically im­possible for a single person over any sustained period, however deli­cately tuned his antennae, to main­tain such rapport with the whole nation, especially when he has heavy executive responsibilities to dispatch. He can take only one position on an issue at a time. That is the ineluctable consequence of being a single human being. Five hundred or so elected repre­sentatives can take five hundred positions, and each, theoretically, may be satisfying his duty to his own constituency.

The merit of representative gov­ernment in the form established by the Constitution of the United States lies mainly in its realistic response to such practical consid­erations. No better way to run a country in accordance with the dominant wishes of the community has as yet been discovered.

The Labor Board Out of Order

If it is true that the President — the outstanding politician of the country (I use the word with no pejorative intent) — cannot repre­sent the sum of the country’s pol­icy wishes as well as the Congress does overall, it would seem to go without saying that no bureaucrat, no administrative agency, no judge or body of judges can do so. This is why, in a country which prides itself upon being a representative government, it is supremely desir­able that anyone exercising judi­cial power be content to leave the policy- and lawmaking to Con­gress. For the alternative involves the abandonment of representa­tive government and a substitu­tion in its place of rule by the one or the few. In Aristotle’s termi­nology, the commonwealth gives way to democracy, and democracy to tyranny.

If judicial temperament and a willingness to leave policy-making to the legislature are the two basic and reciprocal requirements for a proper exercise of judicial power, it is difficult to see how Labor Board members and personnel qualify better than do Federal judges. On the contrary, a Federal judgeship is far more likely to secure those qualities than is an administrative appointment. Con­sideration of our second basic question will further illuminate this matter.

That question is whether the Congressional policies embodied in the Labor Act, and with them the supremacy of legislative policy‑making, are likely to be better en­forced and preserved by the Labor Board or by the Federal courts.

I happen to believe that, over the years, decisions of incompar­ably higher quality, greater fair­ness, and more cogency have been produced by the United States Courts of Appeals than by the Na­tional Labor Relations Board.39 But it is not enough simply to register the opinion that better decisions have come from the courts than from the Board. I as­sume that the reader is interested in looking into the question wheth­er there is something inherent in the character of Federal judge­ships or Board memberships on the basis of which a fair predic­tion about the future conduct of the respective incumbents can be made.

Human beings, customarily with legal training, man both the Fed­eral courts and the NLRB. We must assume, if we are to avoid interminable and inconclusive per­sonality comparisons, that agency members and judges begin with equal moral and intellectual char­acteristics. The question then fo­cuses on the respective institu­tional settings and the probable effects of those settings on the performance of their judicial du­ties. This will be the subject of a concluding article in this series.