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Labor Board Struggles For Relevance

Publication Date: 
November 08, 2010
The National Law Journal
Marcia Coyle

Professor William B. Gould IV is quoted by the National Law Journal in the following story on recent changes in the direction of the National Labor Relations Board. Marcia Coyle reports:

The National Labor Relations Board, in Democratic hands for the first time in almost a decade, is preparing to steer the nation's labor laws in a pro-union direction.

But lawyers on both sides of the partisan divide say this NLRB is driving the labor law equivalent of a Packard ­ at a time when it needs a Prius to cope with the fast-changing global economy. The National Labor Relations Act, which the board administers, is 75 years old this year and hasn't been changed significantly in more than 60 years. The law and the board are in danger of becoming irrelevant as the world changes around them, labor law experts argue.

"I think the act is badly tattered and in disarray as it is written today," said former board chairman William Gould IV of Stanford Law School, a Clinton appointee. "The board has fallen into disrepair. There isn't any doubt about the fact that the board has become kind of a sideshow in the labor law arena."

Partisan battles over appointments to the five-member board, lengthy board vacancies, delays of five years or more in decisions and flip-flopping of precedents are forcing workers to seek other avenues through which to deal with employers, he and others said.

But Gould and some union supporters said the board is trying to breathe new life into the act, which was designed in 1935 to encourage collective bargaining. That "new life" is evident, they said, in a series of rulings since last summer led by the board's three Democratic members and opposed by its now lone Republican member (a second Republican seat became vacant in August).


But the flip-flopping is also because the nature of board appointments has changed in the past 40 years, according to Gould, Craver and others. "It's a political agency," Craver said. "Always when you have a new administration, the president will name three people. Richard Nixon started appointing advocates for management. Prior to that time, they tried to have more neutral appointees. Now it goes back and forth between labor and management."

Gould added, "These kinds of appointments have produced more polarization. The fundamental problem is the political parties themselves have become more polarized, and labor and management have become more polarized as labor's influence in the economy has so precipitously declined."


Stanford's Gould noted that a number of workers and employers are turning to private "machinery," such as neutrality agreements or card-check mechanisms for organizing, to circumvent the board. Gould himself has been serving as an independent monitor for a very large British multinational corporation that has about 100,000 employees in the United States. "Anytime a complaint comes up that would ordinarily go the NLRB, it comes to me, not as final arbiter, because the board is always there. But most complaints this company has had about union-organizing disputes have been resolved through this kind of mechanism."