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NLRA: Former NLRB Chairman Urges Reform Of Board, NLRA In New Administration

Publication Date: 
November 03, 2008
Daily Labor Report

Professor William B. Gould IV is quoted in the Daily Labor Report in a story about the NLRB and the new administration:

Former National Labor Relations Board Chairman William B. Gould Oct. 31 urged the next president to reach out to Democrats and Republicans as well as to the labor movement and the business community to enact long overdue reforms of the board and the National Labor Relations Act.

In a written speech prepared for delivery in San Diego in an evening session at the annual meeting of the Labor and Employment Law Section of the California State Bar, Gould called on the next president and Congress to "shape a balance between enhanced employee bargaining rights and opportunities on the one hand [and] employer concerns with flexibility and competition on the other."

"[T]here can be no doubt about the fact that the labor law system is broken and that something needs to be done," Gould said. Although labor law and the board are only partly to blame for the decline of union representation, they "should be changed so that the NLRA's objectives of freedom of association and collective bargaining promotion can be better realized," he said. Gould served as NLRB chairman from March 1994 to August 1998 and is now professor emeritus at Stanford Law School.

The proposed Employee Free Choice Act (H.R. 800/S. 1041) "is an improvement over the status quo" but "is only worthy of faint praise," Gould said. EFCA would allow employees to choose union representation through a board-conducted check of authorization cards signed by a majority of employees, require mediation and arbitration through the Federal Mediation and Conciliation Service if the parties fail to reach a first bargaining contract within certain time limits, and impose tougher remedies for unfair labor practices committed during an organizing campaign or during bargaining for a first contract.

The NLRB's current process for representation elections "is badly flawed through its association with the decades old cottage industry of anti-union propaganda in multi-month campaigns sometimes made one sided by virtue of the captive audience and exclusion of non-employee union organizers from the workplace," Gould said. He argued that instead of promoting card checks, the NLRA should be amended to provide "both sides with the right to communicate" and to provide for expedited elections within five to 10 days of filing a representation petition, with voter eligibility issues resolved after the election.

Gould also called for a legislative change to allow "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."

Although Gould said EFCA properly addresses the problem with the high rate of failure to reach a first bargaining contract, he urged revisions "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 revisions, "unions will simply turn the tables that have been turned against them and sit back without bargaining in good faith," he said.

To address delays in board decisionmaking, Congress should impose time limits through legislation, Gould said. He also recommended amending the NLRA to extend board members' terms from five to eight years and to limit them to one term. Longer terms would allow members to develop their expertise, while term limits would allow members to focus on decisionmaking without political pressure, Gould said. "I would like to see geographical as well as racial and sexual diversity in the appointment process, including more NLRB career regional officials, with real hands-on practical experience as well as the knowledge of the law," he said.

Another area for reform is "the use of more rulemaking in lieu of adjudication," especially regarding representation cases, Gould said. He asserted that rulemaking would involve all parties in the process, make the board less politicized, and diminish reversals of decisions when a new administration creates a new board majority.

There also is a place for "the development of private procedures as surrogate for some of the functions of today's moribund NLRB," Gould said. As an example, he explained that the British company FirstGroup PLC last December appointed him as an independent monitor "to hear freedom of association complaints" stemming from union organizing of employees of the company's American subsidiary First Student Inc. (246 DLR A-8, 12/24/07).

Under FirstGroup's freedom of association policy, management refrains from noncoercive as well as coercive speech to influence employees' views or choice regarding union representation, Gould said. Although recognition disputes are resolved through NLRB-conducted elections, complaints about violations of freedom of association can be submitted to him to make a recommendation within 30 to 60 days. Employees and unions still may file unfair labor practice charges with NLRB, Gould said. The company so far "has accepted a substantial majority" of his recommendations, including a prohibition on management interrogation of employees about their union views, he said.

The FirstGroup policy is an example of "a dispute resolution system which is a substitute for sometimes acrimonious litigation which is promoted by the statute," Gould said. He also suggested that parties be given the option of having an administrative law judge or a private citizen selected by both sides resolve disputes based on their own investigation or an NLRB investigation lasting just 30 to 60 days.