agency standards would induce Congress to perform "its assigned task of legislating." 81 Some may feel that in this case the effectively mobilized interests of the tobacco producing and cigarette manufacturing states and the power of the advertising lobby overcame the interests, largely unheard, of the prospective consumer and of the nation in the health of its people. But dissatisfaction of this sort is disillusionment with the democratic process itself—more especially with a situation in which the vote of a congressman on such an issue, if known to his constituents at all and even if challenged by his opponent as it likely would not be, will have only the slightest bearing on his re-election. At least the line of responsibility is clear. The FTC did its job, Congress approved in minor and disapproved in major part, and the difference was left open for future review. DEFINITION OF STANDARDS TODAY The recognition by many agencies of the need for better definition of standards and their progress in attaining them, which have been briefly reviewed here, might seem a sufficient answer to suggestions of scholars that I sounded the trumpet too loud four years ago.82 I could also defend on the basis that mine may not have been the first case where forensic considerations led a proponent to state his thesis a bit on the strong side. But, apart from all this, I am largely unrepentant; I feel like the classmate of long ago who, when reprimanded for cheering a rare Harvard first down against Princeton, achieved through a penalty, responded in a delightfully bleary-eyed way, “If I've said anything I'm sorry for, I'm damned glad of it!" The criticism, summarily stated, is that I indiscriminately leveled my complaint over the entire range of the administrative agencies without adequate regard for differences in their assignments and the alleged unfeasibility of better definition of standards for those engaged in "allocative" functions. Although I could point to passages in the lectures that recognized these differences in tasks and the greater difficulty of the latter, I am quite ready to concede that greater emphasis on the distinction would have been in order. But one must not go too far, as Professor Fuller does when he speaks of the NLRB as exercising a jurisdiction 81 P. 105 suprа. 82 The two criticisms to which I shall address myself are those in Professor Jaffe's generous Book Review, 76 Harv. L. Rev. 858 (1963), and in Professor Fuller's Storrs lectures, THE Morality of Law 173-77 (1964) · 83 See, e.g., FRIENDLY 14-18, 106-07. "closely akin to the criminal law." " Determinations when cessation of business may be a forbidden antiunion discrimination, when subcontracting is a mandatory subject of collective bargaining, and when an employer may utilize the lockout, to take only three recent examples, involve broad policy questions wholly unlike those confronting a court in the enforcement of a criminal code. On the other hand, by no means all the work of the ICC, FCC, CAB, and FPC is the "managerial allocation of resources." 85 Maximum rate making, prevention of discrimination, regulation of acquisitions of control, and approval of conference agreements do not seem to me to be primarily "allocative" or inherently unsuited to the definition of standards. If the FTC can work out intelligible standards for determining when the antitrust laws should prevent a merger, the ICC and CAB should be able to develop understandable principles for determining when an exemption from them should be accorded. 86 Moreover, I remain of the view that, even in what is clearly an allocative function, e.g., determining whether a third airline should be certificated for a route already served by two, or fixing minimum rates in cases of intermodal competition, an agency serves the public better by sharpening principles and policies and stating them in a manner that Congress can understand and, if it desires, alter." Indeed, as I suggested, the ICC did precisely this in handling its first allocative assignment, the long-and-short-haul clause. Conceding to Professor Jaffe that the problem was somewhat less difficult than airline route certification and much. less so than the wide sweep of minimum rate regulation today," the text belies his assertion that "the statute itself was a fairly precise congressional reaction"; apart from other uncertainties, the phrase "under substantially similar circumstances and conditions" "1 does not fit my notions of precision, fair or otherwise. 88 89 88 Some kinds of prevention of discrimination, e.g., port differentials or equalization, do present problems akin to minimum rate regulation; indeed the same case may involve both types of action. 87 In saying this I accept Professor Davis' caveat: "In some circumstances, both Congress and the regulatory agency are wise in refraining from making a headlong choice among competing policies, and this is so not merely from the standpoint of escaping the disadvantage of turning the losers into political opponents but also from the standpoint of facilitating the process of ultimately arriving at policies which are both sound and acceptable." § 1.04 at 38 (1965 pocket part). 88 FRIENDLY 27-35. Rather the statute became fairly precise because of the ICC's interpretations and Congress' reactions to them. The instance where the criticisms are most valid is the award of broadcasting licenses. Although I applaud the recent efforts of the FCC to define its standards for deciding between competing applicants, I confess that even the new regulations afford a slender basis for the award of what may be a multimillion-dollar prize," and even the best of choices is not good enough without subsequent control. Here the trouble comes from an attempt by Congress to apply a procedure developed for traditional areas where economics are thought to set a limit on the amount of useful competition to the allocation of a scarce natural resource. Doubtless at the start there was inadequate recognition of this distinction and, equally important, of the unavailability of price regulation as a tool to see that the privilege was used in the public interest; in this instance, in contrast to other licensed activities, the price of the service to the users is zero. Controlling the price charged to the advertisers would be of little public benefit; indeed, unless such control were accompanied by holding the present levels on commercial time, the total amounts spent for advertising might remain the same, or even increase so that listeners would fare still worse than now. The only effective regulation is to keep advertising to the minimum needed to sustain high-quality programs with a reasonable return on the investment; but the broadcasters, who do not even recognize that the business is "affected with a public interest," " have successfully resisted that." If we were starting fresh, there would be much attraction in the 92 Representative Celler, whose speech against the Rogers bill was an honorable exception to the general character of the debate, supra note 73, stated he was informed "that a New York outlet which sold for $10 million in 1962 cost the seller less than a half million dollars in 1953-an impressive profit by any standard." 110 CONG. REC. 3881 (1964). He might also have referred to the enormous salaries of broadcasting executives and employees; each of the two top executives of the Columbia Broadcasting System received compensation of $352,888 in 1964 in addition to large contributions for pensions and stock options, and six-figure salaries for quite minor writers appear to be common. See Life Magazine, Feb. 18, 1966, p. 49. This in an industry licensed to utilize a scarce public resource and thereby largely protected against serious risks from new competition! 93 This, of course, is the answer to the broadcasters' efforts to analogize themselves to the airlines. The other analogy they seek to draw-the lack of control over the volume of newspaper advertising—is also fallacious, on different but equally obvious grounds. 94 P. 149 supra. The last word is a proposal to purchase an FM station in Los Angeles for the sole purpose of broadcasting advertisements. N.Y. Times, Dec. 24, 1965, p. 11, col. 2-4. Another indication of the depth to which this new medium has sunk is that what has been heralded as this season's outstanding television achievement was the broadcasting of an old motion picture. An article commenting on a recent episode where certain Wall Street houses utilized a news documentary for proposal for competitive bidding among applicants meeting certain tests" or perhaps in a graduated profits tax on broadcasters with the percentages rising with the ratio of pretax income to recognized investment. Today, despite the theoretical three-year limit on licenses," account would have to be taken of the amounts expended by the broadcasters and by public investors on the assumption that a station that has performed no worse than the industry average will have its license renewed. While I am not persuaded that a compromise fair both to the industry and to the public could not be devised, it is plain that, given the proved strength of the broadcasting and advertising lobbies, no such compromise would stand a chance of enactment unless the public takes a much greater interest than it has done to date. Perhaps some daylight can be seen in the recent proposal of the Ford Foundation for a satellite operated by a non-profit corporation offering non-commercial programs financed by revenues from transmitting network programs-with Batman thus bailing out Bach! Meanwhile the FCC must manage an essentially unmanageable system as best it can; it deserves sympathetic understanding as long as it faces up to its task. The danger is that the Commission's sense of frustration at its inability to prevail over the broadcasting lobby will translate itself into a view that everything is all right. 98 advertising suggests that the only true solution for these and similar abuses would be "no sponsorship of news documentaries” but this “never would be adopted." N.Y. Times, June 17, 1966, p. 91. Is government really so powerless to control an industry operating under three-year licenses? 95 Pp. 148-50 supra. 28 See Coase, The Federal Communications Commission, 2 J.L. & ECON. 1, 17-40 (1959); Evaluation of Public Policy Relating to Radio and Television Broadcasting: Social and Economic Issues, 41 LAND ECONOMICS 161 (1965); Levin, Regulatory Efficiency, Reform and the FCC, 50 Geo. L.J. 1, 22–45 (1961). 97 98 This is not meant to be facetious. Possibly most people like the current diet of soap operas, sports and news programs, and old films, all liberally interlarded with commercials, and a good solution would be to require a modest part of the gigantic revenues stemming from their patronage to be used to provide better fare for the minority. Reprinted From INDUSTRIAL AND LABOR RELATIONS REVIEW UNION ORGANIZING OF NEW UNITS, 1955-1966 JOSEPH KRISLOV HE National Labor Relations Board Tis increasingly making available data on election results in previously unorganized units, but there have been few recent efforts to analyze this information.1 Data on new organizing elections are useful in evaluating union organizational efforts; they can also be used to determine the impact that NLRB decisions have upon election results. This study of elections in previously unorganized units during 1955-1966, based on published and unpublished NLRB data, indicates that unions have increased their organizational efforts, particularly during the past three years. *These efforts have resulted in only modest membership additions, however, because the union victory rate has not changed significantly. The decisions of Although unions have been actively seeking to increase membership in recent years, their organizing efforts have resulted in only modest membership gains. This study of election results in previously unorganized employee units discloses no significant change in the percentage of union victories since the mid-1950's. Comparison of election results under the Eisenhower and Kennedy-Johnson administrations reveals little difference in organizing gains. Fluctuations in economic activity, however, appear to have had some influence on election results. Joseph Krislov is professor of economics in the College of Business and Economics, University of Kentucky. He received financial assistance from the Kentucky Research Foundation in preparation of this article. He wishes to acknowledge the comments and assistance of his colleagues, David Booth, Virgil Christian, and Robert Stroup.-EDITOR the Kennedy-Johnson Board appear to have had little impact upon election results; fluctuations in economic activity, however, appear to have had some influence. New Boards-New Decisions The President appoints the members of the NLRB for five-year terms. A new President, particularly one of a different party than his predecessor, usually names a new Board member when a previously appointed member's term expires. After the new President has named a sufficient number to achieve a majority, the "new" Board overturns some of the previous Board's decisions. Thus, the Eisenhowerappointed Board modified TrumanRoosevelt Board decisions, and the Kennedy-Johnson Board has, in turn, reversed Eisenhower Board decisions. The new decisions are criticized. If they favor management, labor representatives claim that the Board is pro-management. If the decisions favor labor, management representatives claim that the Board is pro-labor. In rebuttal, a spokesman for the majority claims that "reconciling conflicting precedents inevi 'John V. Spielmans, "Measuring the Results of Organizational Union Representation Elections," Industrial and Labor Relations Review, Vol. 9, No. 2 (January 1956), pp. 280-285; and Joseph Krislov, "New Organizing by Unions During the 1950's," Monthly Labor Review, Vol. 83, No. 9 (September 1960), pp. 922-924. |