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Gould Recommendations For An Obama NLRB

Publication Date: 
November 05, 2008
Workplace Prof Blog
A speech Professor William B. Gould IV gave to the California state bar was summarized In Workplace Prof Blog:

* [M]aking lawful union and employer negotiated “conditional” recognition agreements where workers and employers are able to know the bargain that the union is likely to obtain before they vote simultaneously on the union and a proposed contract. Why shouldn’t both workers and employers know the economic facts of life at the campaign’s onset? This might diminish acrimonious propaganda from both sides and employer anti-union behavior.

* [EFCA] must be amended so as to both eliminate any automatic resort to arbitration after a designated number of days as EFCA presently provides and to provide that an employer’s ability to pay rather than an industry wide pattern be the dominant consideration in arbitration. Without these measures, unions will simply turn the tables that have been turned against them and sit back without bargaining in good faith—a result which will be just as counterproductive as our inability to address employer surface bargaining and one which will undermine the collective bargaining process itself. Arbitration must be both rare and sensitive to management competition needs.

* [Another problem with the NLRB] is the ability of employers to delay administrative procedures, in order to discourage unionization, a phenomenon which has properly focused attention on remedies beyond the mere slap on the wrist inherent in a cease and desist order and the license fee that a back pay award minus interim earnings constitute for employer misconduct designed to prevent unions. The only tool available today is an injunction against unfair labor practices – an approach which my Board used more than any other during the 73 year history of the NLRA. Inextricably related to this is the inability or unwillingness of the Board itself to act responsively and responsibly in processing cases without delay.

* [Increase] the use of more rulemaking in lieu of adjudication. The emphasis should be on representation – voting cases which are in special need of acceleration – and these Board rulings should not be appealable to the courts.

* The worst thing that a new Obama Board can do is to simply come into office and reverse the decisions of the Bush II Board through adjudication, bad as so many of them are! If a new approach such as rulemaking is undertaken—my Board unsuccessfully tried to do it in the hostile political environment of the ‘90’s—this will involve all parties in the decision making process and make it more difficult for previous decisions to be reversed with ease. The Board will be more depoliticized and rapid oscillations between labor and management with each new administration diminished.ration diminished.

Gould also encourages experimentation with efforts to protect employee rights through processes involving employers, citing to the experience of a multinational British company that he acted as a monitor for.

...Gould is thinking outside of the box as usual...Gould also identifies a major, yet underappreciated, effect of EFCA--the arbitration clause.


...Gould notes, rulemaking provides an opportunity for longer-lasting policies--both because both sides have input as well as the relative "stickiness" of formal rules.