Rights, Not Interests: Resolving Value Clashes under the National Labor Relations Act 9781501714276

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Rights, Not Interests

Rights, Not Interests Resolving Value Clashes under the National Labor Relations Act

James A. Gross

ILR Press an imprint of Cornell University Press Ithaca and London

Copyright © 2017 by Cornell University All rights reserved. Except for brief quotations in a review, this book, or parts thereof, must not be reproduced in any form without permission in writing from the publisher. For information, address Cornell University Press, Sage House, 512 East State Street, Ithaca, New York 14850. First published 2017 by Cornell University Press Printed in the United States of America Library of Congress Cataloging-in-Publication Data Names: Gross, James A., 1933– author. Title: Rights, not interests : resolving value clashes under the National Labor Relations Act / James A. Gross. Description: Ithaca : ILR Press, an imprint of Cornell University Press, 2017. | Includes bibliographical references and index. Identifiers: LCCN 2017021709 (print) | LCCN 2017023743 (ebook) | ISBN 9781501714269 (epub/mobi) | ISBN 9781501714276 (pdf) | ISBN 9781501714252 (cloth : alk. paper) Subjects: LCSH: United States. National Labor Relations Board. | United States. National Labor Relations Act. | Employee rights— United States. | Industrial relations—United States. | Labor laws and legislation—United States. Classification: LCC KF3372 (ebook) | LCC KF3372 .G764 2017 (print) | DDC 344.7301—dc23 LC record available at https://lccn.loc.gov/2017021709 Cornell University Press strives to use environmentally responsible suppliers and materials to the fullest extent possible in the publishing of its books. Such materials include vegetable-based, low-VOC inks and acid-free papers that are recycled, totally chlorine-free, or partly composed of nonwood fibers. For further information, visit our website at cornellpress.cornell.edu. Cover design by Scott Levine

To Cletus Daniel, Who, despite his lifelong commitment to economic and social justice and workers’ rights, was convinced that ultimately his salvation and the salvation of others from all that oppressed them was up to the oppressed themselves.

Contents

Introduction1 1. From Wagner to Taft-Hartley: From Rights to Interests

11

2. Conflicting Statutory Purposes: Conflicting Values

30

3. The Gould Board: Conflicting Agendas

57

4. Gould Board Decisions and Workers’ Rights

90

5. The Battista Board: Individual Not Collective Rights

121

6. The Liebman Board: The NLRA, at Its Heart a Human Rights Law

146

Concluding Comments

175

Notes197 Index231

Rights, Not Interests

Introduction

In 1935, Congress passed the Wagner Act (National Labor Relations Act, NLRA) which was intended to democratize a vast number of American workplaces to enable workers to participate in the employment decisions that most directly affected their lives. What was commonly termed “industrial democracy” was, through the statutory encouragement and protection of worker organization and collective bargaining and other forms of collective action, to replace industrial autocracy—employers’ unilateral determination of wages, hours, and working conditions. Today the Wagner Act, although battered by amendment and interpretation, is still in effect and is still a vibrant source of workers’ rights. For over forty years my research has concentrated on the National Labor Relations Board (NLRB), the administrative agency created by Congress to interpret and apply the Wagner Act. Rather than focus on the procedures and case doctrines of the NLRB, most of my prior NLRB-related publications, including three volumes dealing exclusively with the NLRB, have analyzed how the NLRB’s making of labor policy has been influenced

2    Introduction by the president, the Congress, and the United States Supreme Court as well as by the manipulation of public opinion, intense resistance by employers, the political and economic strategies of organized labor, and the ideological dispositions of NLRB appointees. For example, in the first volume, The Making of the National Labor Relations Board: A Study in Economics, Politics, and the Law, 1933–1937 (1974), I demonstrate that the major provisions of the Wagner Act were crafted out of the practical lessons learned by people who served on the pre–Wagner Act National Labor Board (NLB) and the “old” NLRB in conflicts with employers and unions: majority rule, and exclusive representation; the specifications of employer unfair labor practices; the right of employees to organize; and the obligation of employers to bargain with the representative of those employees. Equally important for the making of national labor policy was the transformation of what began in 1933 as a tripartite NLB created to settle strikes through mediation and voluntary cooperation into an independent quasi-judicial NLRB with enforcement power, deciding cases by setting forth binding principles of law. The second volume, The Reshaping of the NLRB: National Labor Policy in Transition (1981), covers the period from 1937 when the United States Supreme Court upheld the constitutionality of the Wagner Act to the 1947 enactment of the Taft-Hartley Act amendments to the NLRA. In that book I analyze the NLRB’s vigorous and uncompromising enforcement of the Wagner Act after constitutionality, and the intense hostile political pressure to which the Board was subjected as a consequence. More specifically, that volume reveals the direct connection between the work of a hostile congressional investigating committee (the Smith Committee) and an alliance of the American Federation of Labor (AFL), business, and Republicans with conservative southern Democrats in Congress and enactment of Taft-Hartley Act. In the third volume, Broken Promise: the Subversion of U.S. Labor Relations Policy, 1947–1994 (1995), I explain, among other things, how U.S. labor policy has been at cross-purposes with itself ever since Congress passed the Taft-Hartley Act amendments to the NLRA. Although the Wagner Act’s statement of purpose encouraging collective bargaining was carried over verbatim into Taft-Hartley, Taft-Hartley’s emphasis on the right of employees to reject collective bargaining, and the inclusion of union unfair labor practices in particular, led to claims that the purpose

Introduction   3 of the Act was no longer to encourage collective action but was rather to protect the rights of individual employees. This interpretation rejected the concept of the federal government as a promoter of collective bargaining; instead the federal government was perceived as a neutral guarantor of employee free choice between individual and collective bargaining, indifferent to the choice employees made. That volume concluded with the assertion that any reconstruction of national labor policy must start with a resolution of this fundamental disagreement about what the purpose of the law is. In other research and publications between 1995 and 2015, I came to the view that workers’ rights must be viewed as human rights, not just rights set forth in statutes or collective bargaining agreements subject to shifting political and bargaining power. That shift in perspective is detailed in, among other writings, A Shameful Business: The Case For Human Rights in The American Workplace (2010). This fourth volume, Rights Not Interests: Resolving Value Clashes under the National Labor Relations Act, applies that human rights framework of analysis to the work of the NLRB and to U.S. labor policy. This did require, of course, a review of my previous books but in a way that applied human rights standards to important events in NLRB history. This fourth volume brings a new, and needed, perspective to the reexamination and assessment of U.S. domestic labor policy and the NLRB, in large part but not exclusively, by using internationally accepted human rights principles as standards for judgment. The application of the human rights standard is long overdue because at its core the Wagner Act was a historic human rights statute. Although not using the term human rights, the Wagner Act was far ahead of its time in applying human rights principles to U.S. workforces. As set forth in the Act’s Statement of Purpose, the law was intended to promote the fundamental human right of collective action to protect other vital human rights, specifically “the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.” Violations of the Wagner-Taft-Hartley Act were never considered to be violations of human rights, however, even though that statement of purpose has remained unchanged even following the enactment of the Taft-Hartley Act.

4    Introduction As Senator Robert Wagner put it, the exercise of the right to organize and bargain collectively is a matter of basic social justice. The right of people to participate in and influence the workplace decisions that affect their lives is one of the most fundamental human rights and principles of democracy. Wagner understood that worker participation in the economic, as well as political and social aspects of their lives, would not only help free them from servility at the workplace but also enable them to protect themselves against the arbitrary exercise of power by others or the alleged impersonal forces of the so-called free market. The law was intended to give workers the opportunity, protection, and support they needed to secure their own rights through participation in workplace decision making.1 The values underlying many provisions of the Wagner Act, particularly its statement of purpose, are values most consistent with human rights values. The NLRA’s freedom of association meant not only collective action, labor organization, and collective bargaining but also the power to make the claims of workers’ human rights both known and effective. Wagner’s Act was intended to have workers stand before their employers as adult persons with rights, not as powerless children or servants dependent on the will and interests of their employers. His objective of having wages, hours, and working conditions determined by workers and their employers—through collective bargaining and not unilaterally by employers or an authoritarian state—recognized that servility is incompatible with human rights. The NLRA also was intended to enable workers, by exercising their freedom of association, to change those workplace power relationships whereby most people are subjected to economic forces and economic power over which they have little or no control. In that most significant sense, the framers of the Wagner Act were far in advance of human rights activists in recognizing that it was not only the state that had the power to violate people’s rights. More specifically, the Wagner Act emphasized the importance of economic rights—for example, the identification of wages, hours, and working conditions as subjects of collective action and collective bargaining. Wagner asserted that true freedom could not exist without economic security and independence. As the drafters of the Universal Declaration of Human Rights would state thirteen years after the Wagner Act became law, conditions for a fully human life are created only when all people enjoy their economic, social, and cultural rights as well as their civil and political rights.

Introduction   5 As discussed further in this book, the values of the Wagner Act, in part because of their potential for establishing workers’ rights as human rights, constituted a new vision and a new perspective on the traditional common-law values underlying labor-management relations, namely, property rights, freedom of contract, employment at will, management authority, limited government, and minimal regulations of the market. These same core human rights principles of freedom of association and collective bargaining are also set forth in the most important international human rights declarations, covenants, and conventions. The International Bill of Human Rights, consisting of the Universal Declaration of Human Rights (UDHR), the International Covenant on Economic, Social, and Cultural Rights (ICESCR), and the International Covenant on Civil and Political Rights (ICCPR), contains many labor relations clauses covering freedom of association, organizing, and collective bargaining; prohibitions on forced labor and child labor; nondiscrimination, health, and safety in the workplace; and decent wages and benefits; among others. More specifically, the UDHR, for which the United States voted, calls on all nations to promote human rights and to take “progressive measures, national and international, to secure their universal and effective recognition and observance.” Among the human rights in the Declaration are the right to freedom of association (Article 20) and the right to form and join unions (Article 23 [4]). The ICCPR, which the United States has signed and ratified with reservations, commits each state party to ensure the rights set forth in the covenant to all (Article 2), including the freedom of association, “the right to form and join trade unions for the protection of [his or her] interests.” The ICESCR, which the United States has signed but not ratified, obliges each state party to “take steps” to achieve the “full realization” of rights recognized in the covenant, including the right of everyone to join trade unions “for the promotion and protection of [his or her] economic and social rights” (Article 8). The Declaration of Philadelphia, annexed to the Constitution of the International Labour Organization (ILO), recognizes the solemn obligation of the ILO (of which the United States is a member) to further among nations of the world, programs that would achieve, among other things, “the effective recognition of the right to collective bargaining.” Even before that, over forty years before the UDHR, the ILO had incorporated into its constitution the right of freedom of association as a fundamental human right necessary for social justice. ILO Conventions nos. 87 and 98,

6    Introduction which became effective in the 1960s, affirm the right to freedom of association and the right to bargain collectively. In 1998, the ILO issued a Declaration on Fundamental Principles and Rights at Work, which obligates all ILO members, whether or not they had ratified the relevant ILO Conventions, to promote and respect certain core rights, the first of which is “freedom of association and the effective recognition of the right to collective bargaining.” The concept of human rights is certainly not new, but the notion of workers’ rights as human rights has emerged only in the past fifteen to twenty years. The human rights movement within the U.S. workforce is now growing and challenging long-held beliefs and practices in labor relations. The values underlying the Wagner Act, its conceptions of workers’ rights, and most (but not all) of its provisions are consistent with human rights values. The inward assessment of U.S. labor relations law using internationally accepted human rights principles as standards for judgment made in this volume—much as Human Rights Watch did fifteen years ago2—constitutes new and creative thinking about the Act. It creates new perspectives on old issues and introduces new standards of judgment that challenge much orthodoxy and many accepted rules in U.S. labor law and labor relations. Although the phrase human rights does not appear in the language of the NLRA, the theme of this book is the Wagner Act’s intention was to be at its core a workers’ rights statute. Senator Wagner was asserting more than an abstract philosophical position when he said that the achievement of social justice through collective bargaining at the workplace was the primary objective of his law. In this volume I explain how when the Wagner Act was passed, the dominant early New Deal objective of protecting the free flow of commerce to facilitate economic recovery had become at best a derivative or consequence of the promotion and protection of workers’ rights. Labor peace was not to be purchased at the price of workers’ rights. Not only is the NLRA a workers’ rights statute but it also promoted and protected collective action by workers to secure their rights at their workplaces. That “bottom-up” enforcement power was a radical idea then and remains a radical idea now. The NLRA is radical in other ways as well. It reversed the role of the state from one that consistently subordinated and permitted the subordination of the rights of workers to employer property

Introduction   7 rights and economic development to one that not only enabled workers to obtain sufficient power to make their rights both known and effective at their workplaces but also prohibited employers from using their economic power to prevent the exercise of those workers’ rights. The NLRA’s conception of the role of the state is identical to that set forth in Article II of ILO Conventions no. 87 on worker freedom of association and no. 98 on collective bargaining, which constitutes a detailed application of Article II. That article obliges a state to take all necessary measures to ensure worker freedom of association and to prevent any interference with the exercise of that right. In addition, the New Deal, of which the NLRA was a part, radically transformed the “government hands-off notion” requiring the protection of only civil and political rights into a vision of freedom and rights requiring the affirmative involvement of the government in securing economic rights, including decent work for all Americans. The NLRA reflected an understanding of the interrelatedness of political, civil, and economic rights—as do the ICCPR and the ICESCR. The NLRA part of the New Deal, however, left the economic rights of workers not to determination by the national government but to the employer-employee collective bargaining process. That was one of the Act’s unique strengths but at the same time one of its greatest weaknesses. The counterrevolution against the Wagner Act began with its enactment, intensified when the NLRB enforced the new law in a literal way that maximized the realization of workers’ rights, and it continues to this day. Over the years, the counterrevolution has been led by employer organizations (often seeking, among other things, to eliminate the Act’s statement that it was the policy of the United States to encourage collective bargaining); Congress (often using congressional hearings as partisan devices to achieve predetermined objectives and with “equalizing” amendments, such as Taft-Hartley, permitting and encouraging employer resistance to unionization while weakening unions); chief executives such as Ronald Reagan (whose appointments to the NLRB were hostile not only to the purposes of the Act but also to the entire system of government regulation); and, the judiciary (particularly through Supreme Court decisions that instead of moving toward the realization of the fullness of workers’ rights have back-tracked into the pre–Wagner Act values scheme

8    Introduction promoting and protecting employer property, authority, and economic development). Often ignored, but discussed in this volume, is the fact that a most effective obstacle to the realization of the workers’ rights set forth in the Act is the shift in control of the interpretation and application of the law from those who vigorously enforce workers’ rights to those who perceive the law as seeking workable, mutual accommodation and “balance” between labor and management. Rights become transformed into interests, and labor law becomes merely a means to find some balance between employers’ attempting to do business without interference and labor’s pursuit of its economic self-interest. This conflict-of-interest conception of the Act results in a fundamentally different labor policy far from a focus on workers’ rights—transforming the NLRA into a statute intended to change the labor-management relationship from an adversarial model into a cooperative, mutual-gains, high-productivity model that would enable U.S. firms to compete more successfully. This high-performance model allows for various forms of worker participation, mostly nonunion, with strong implications that unionization and collective bargaining are not compatible with the partnership model. The promoters of the Taft-Hartley Act talked of balancing the interests of labor and management, which still inspires talk of “a level playing field.” That approach also reflects the pluralistic notion in which all disputes are considered conflicts of interest—particularly economic interest—and in which everything is negotiable. Consideration of rights becomes an impractical, unrealistic impediment to compromise, the sine qua non of conflict resolution. The rights-versus-interest clash of values continues and explains much of the so-called flip-flopping of NLRB case doctrine over the years. It also explains the strong emphasis on the employee free choice provisions in the Act by some Board members who stress employees’ right not to join a union while still approving workers’ cooperative efforts with their employers. Values clashes and choices are major considerations in explaining the events discussed in this volume. One cannot judge or understand reality without reference to values and value choices underlying the decisions that help make that reality. Simply put, values are personal or societal conceptions of the way things ought to be. In varying degrees they influence the

Introduction   9 choices among conflicting alternatives or sets of principles,3 privilege some voices and stifle others,4 and create boundaries to thinking that make certain routes or directions rather than others seem right.5 Ultimately, the conscious and deliberate choices by legislators, judges, and governmental agencies among different value judgments about the worth of human life, about workers’ right to participate in the decisions that affect their workplace lives, and about the sources and extent of worker and employer rights underlie much of the decision making in regard to the clashes of rights at workplaces.6 At the same time, there is no escaping the reality of power in the protection and promotion of workers’ rights or the balancing of employer and union interests. The exercise of that power and the choices made as a result are value laden. There is no neutrality. The NLRA commits the government to protecting and assisting workers so that they can gain sufficient power to organize and engage in collective bargaining and other concerted activity in order to make their rights both known and effective. How that can be and how is that periodically but imperfectly accomplished, often in the context of the contrary sets of values, is the main subject of this book. In regard to where we go from here, a number of other subjects are explored, beginning with a reassessment of obituary writers’ contention that the Act is dead. On the contrary, despite the pounding of hostile forces over its entire existence, the core provisions and values of the Act remain solid foundations for the promotion and protection of workers’ rights—not only as statutory rights but also as human rights. The Act does need amending to eliminate impediments to the realization of workers’ rights and to realize those rights more effectively and broadly. During that process some old rules need to be reconsidered and some changed, but in the process, the old Wagner Act values have to be honored. Many proposals for change have been around for a long time yet still have merit. This book ends with a call for creative and visionary thinking beyond precedent-bound confines because more is required than fine-tuning for marginal adjustments. More specifically the call is for creative and visionary thinking concerning employment at will and its effect on the decisions of employees to exercise their right of freedom of association; taking workers’ rights as human rights seriously and opening U.S. labor law in all its aspects to the challenges and consequences of applying international human rights standards and principles, including asking

1 0    Introduction whether, if freedom of association is a human right, employers should be permitted to resist its exercise; understanding and using the wide latitude the NLRB still has through rule making, remedy powers, and doctrinal development to achieve the workers’ rights purpose of the Act more effectively; and exploring intellectually challenging and potentially transformative ideas on reconsidering the U.S. Constitution as a source for a national law of human rights, including the rights of labor. These are vital and exciting challenges. All is far from lost. It is time, not for morose expressions of futility, but rather for optimism in knowing that political winds change. It is time to think big. Opponents of the NLRA’s focus on workers’ rights persistently have tried and have consistently failed to eliminate the Wagner Act’s core statement of purpose, which remains unchanged: that it is the policy of the U.S. government to encourage—and protect and promote—workers’ full freedom of association and collective action for negotiating the terms and conditions of their employment and for other mutual aid or protection. Too often, however, workers have to risk their livelihood if they exercise their statutory and human right to organize and engage in other concerted activity. No worker should have to bear such risks in order to exercise his or her rights. The least that reform of the NLRA must do is to eliminate those risks.

1

From Wagner to Taft-Hartley: From Rights to Interests

The Transformation from Interests to Rights The Wagner Act’s statement of purpose and text outlined the same worker human rights and freedom of association and collective bargaining that are now well established in international human rights documents. The Act also embraced other important legislative goals of economic growth and stabilization through wider distribution of wealth and industrial peace by reducing strikes. Wagner was clear, however, that committing the national government to safeguarding the rights of freedom of association and collective bargaining “was the Act’s primary goal; its other goals of fostering industrial peace and increasing workers’ purchasing power were secondary.”1 The best evidence of the intent to give first priority to workers’ rights is found in the evolution or transformation of the two pre–Wagner Act labor boards, the NLB (1933) and the “old NLRB” (1934). These two boards evolved from agencies created to settle strikes through mediation by

1 2    Chapter 1 unpaid, high-ranking partisan representatives of labor and management, with a focus on compromises acceptable to the disputing parties, informal and friendly discussions, voluntary cooperation, and reliance on public sentiment, into independent quasi-judicial agencies with full-time paid neutrals and enforcement powers, deciding cases on the basis of evidence produced through a formal adversarial process, thereby developing a body of case law defining and developing the principles of workers’ rights. There were more strikes in 1933 than in any year since 1921. President Franklin Delano Roosevelt issued a plan for industrial peace and created the National Labor Board (NLB), chaired by Senator Wagner and three industrial representatives selected by the National Recovery Administration’s (NRA’s) Industrial Advisory Board and three labor representatives chosen by the NRA’s Labor Advisory Board to settle differences arising out of the President’s Reemployment Agreement.2 In part that assignment involved Section 7(a) of the National Industrial Recovery Act (NIRA), which provided that workers had the right to organize and bargain collectively free from employer interference, restraint, or coercion.3 The New Deal’s NRA, which administered the NIRA, had become committed to government-business cooperation and had decided that industry acceptance of its so-called codes of industrial self-government was essential. The NLB sought labor-management agreement through mediation. The NLB emphasized the importance of flexibility and informality in successful mediation and instructed its regional boards to “make settlements even though you are told it violates all the laws of the land.”4 Should voluntary cooperation fail, however, the NLB’s legal powers were uncertain. When employer challenges to the authority of the NLB became widespread, the NLB moved reluctantly and cautiously, and without formal authority, into a decision-making role of formulating principles rather than fashioning compromises. The mediation criteria of acceptability to the disputing parties, however, continued to guide the NLB so that many of its “decisions” were susceptible to compromise according to the circumstances and the pressures of each case. When the NLB issued decisions that employers found unacceptable, however, entire industries supported by trade associations and leading employer organizations engaged in an organized campaign of noncompliance with those decisions. The NLB had reached an impasse with employers by March 1934. By that time the NLB, in addition to promoting and conducting approximately

From Wagner to Taft-Hartley    13 forty representation elections, had begun to develop a common law of labor relations by ruling that an employee discharged for union activity be reinstated with back pay from the date of his discharge, that the employees’ right to bargain collectively imposed a corresponding duty on the employer, that the parties approach negotiations with an open mind and exert every reasonable effort to reach an agreement, that self-organization and representation elections concerned employees exclusively and employers must keep “hands off,” that strikers be given reinstatement priority over employees hired after the strike began, that all strikers be reinstated at the end of the strike when the board believed the strike was justified or when the strike was caused by an employer’s violation of the law, and that, in many cases involving representation elections in reinstatement, strikers were to be treated as employees.5

The NLB experience, moreover, had demonstrated the potential incompatibility of its two goals: strike settlements based on formulas mutually acceptable to employers and unions and the interpretation of Section 7(a) through decisions identifying and establishing rights and duties. Ironically, it was employer opposition to the NLB’s mediation efforts that forced the NLB toward the formal determination of rights and away from strike settlement by informal mediation. Employer opposition to mediation also led many to reject partisan representation on the Board and advocate for an independent, neutral, quasi-judicial agency free from the necessity of compromise.6 After the defeat of Senator Wagner’s Labor Disputes Bill in 1934,7 the NLB was abolished by the same Executive Order 6763 that created a new NLRB on June 29, 1934. Although that executive order conferred no decision-making authority on this pre–Wagner Act NLRB, the three full-time paid neutrals who comprised the Board decided at the outset to sit as judges, not to engage in mediation, and to reject strike prevention as its primary objective. They also decided that, unlike the NLB, their Board would not act as both mediator and judge, because Section 7(a) was law and the Board was set up to bring about compliance with it. In its reorganization of the regional Boards, the national Board worked to implement its decisions to abandon the informal, nonlegalistic mediation approach. The old NLRB continued to build a body of labor law while affirming the precedents established in the opinions of the NLB. In one case

1 4    Chapter 1 in particular, Houde Engineering Company, the old NLRB proceeded to weave what it found to be the meaning of Section 7(a) into labor policy that would become the core of the Wagner Act approximately eleven months later. The basic elements of the Board’s decision were that the purpose of Section 7(a) was to encourage collective bargaining, that under Section 7(a) employees have the right to organize and bargain collectively free from employer interference with the exercise of that right, that the workers’ right to bargain collectively implied a duty of employers to bargain with their employees’ representatives, that without this duty to bargain the right to bargain would be sterile, and that the “only interpretation of Section 7(a) which can give effect to its purposes is that the representative of the majority should constitute the exclusive agency for collective bargaining with the employer.”8 Despite the Roosevelt administration’s reluctance to make a firm commitment to the labor policy and collective bargaining rights set forth in NLB and old NLRB decisions, the old NLRB and the NLB had pioneered in the creation and development of the common law of labor relations rights and duties rooted in the principles expressed in Section 7(a) that workers have the right to organize and bargain collectively free from employer interference with the exercise of those rights. However, the old NLRB’s inability to obtain enforcement of its decisions amounted to a nullification of its case law. Given persistent employer opposition, it became clear to the old NLRB and others that this unenforceable common law had to be made into an enforceable statutory authority. When the Wagner Act was being drafted, the old NLRB’s staff was the largest outside contributor to the Act’s content in regard to both procedure and substance. Philip Levy, who had been on the legal staff of the NLB and the old NLRB, called the participation and experience of the two Boards the “vital added factor,”9 and Wagner’s chief draftsman, Leon Keyserling, credited the “great deal of help” he received from the staff of the nonstatutory Board and from Levy. The result was that every major provision of the Wagner Act was crafted out of the experiences and practical lessons learned by the NLB and the old NLRB. Wagner was asserting more than a philosophical position when he said that the achievement of social justice through collective bargaining at the workplace was the primary concern of his law, to which the other goals of economic recovery were subordinate. The practical experience of the NLB and the old NLRB

From Wagner to Taft-Hartley    15 provided ample evidence that the once-dominant objective of protecting the flow of commerce had become at best a derivative or consequence of the promotion and protection of workers’ rights. This was a momentous change. It did not mean that labor peace was unimportant. It did mean that, as Wagner put it, he “would not buy peace at the price of slavery.”10 Labor peace was not to be purchased at the price of workers’ rights. The right to bargain collectively was more than merely a system of countervailing power or a way of determining wages, hours, and working conditions. To Wagner the right to bargain collectively was at the core of social justice for the worker: “Denial or observance of this right means the difference between despotism and democracy.”11 The state, which until the New Deal and the Wagner Act had consistently subordinated and permitted the subordination of the rights of workers to employer property rights and economic development, was now committed by the Wagner Act to enabling workers to obtain sufficient power to make the claims of their human rights both known and effective. The government was to protect and empower those most in need of protection and empowerment. The New Deal, of which the Wagner Act was a part, was more than a mandate to expand government and the power of the federal government; it was a mandate to use governmental power to recognize, safeguard, and promote “new rights and new rights bearers”12 It envisioned an affirmative state that would use its power “to protect individual rights against debilitating private power.”13 The legislative design and intent of the Wagner Act sought to accomplish that end not only by enforcing the rights of workers to organize and bargain collectively, thereby promoting democratic self-government at the workplace, but also by seriously weakening employers’ common law power over workers and workplaces. The Act prohibited employers from interfering by restraining or coercing workers who exercise their right to organize, to bargain collectively, and to engage in other concerted activities for their mutual aid or protection; from maintaining employer-controlled labor organizations; from discriminating against workers to discourage or encourage union activity; from discriminating against a worker for filing charges or giving testimony pursuant to the Act; and from refusing to bargain collectively with the duly designated representatives of employees. The four U.S. Supreme Court justices who dissented in the Jones & Laughlin decision upholding the constitutionality of the Wagner Act14

1 6    Chapter 1 deplored these limitations on employers as “an arbitrary interference with the liberty of contract which no government can legally justify in a free land.” The dissenters called the right to contract “fundamental” and claimed it was “unduly abridged” because the Wagner Act deprived a private employer “of power to manage his own property by freely selecting those to whom his manufacturing operations are to be entrusted.”15 The five justices in the majority, however (although concentrating on the power to regulate commerce), saw the workers’ right to organize and bargain collectively as the prevailing “fundamental right.”16 For more than a century before the Jones & Laughlin decision, the dominant, common law–rooted employment right in this country was the freedom of contract—despite the fact that the reality of employer power made fiction of the conception of freedom of contract. The New Deal replaced this negative hands-off notion of freedom and rights with a far different vision of freedom, one that required affirmative economic rights, including decent work and livelihoods for all Americans.17 Those rights would be legislatively enacted and safeguarded by Congress.18 This new kind of economic freedom was one that “emphasized not formal rights to be free from government interference but effective rights to pursue happiness; one that depicted the guarantee of minimum conditions of economic security by government not as the paternalistic antithesis of freedom, but its precondition.”19 Asserting that political rights have proved “inadequate to assure . . . equality in the pursuit of happiness,” Roosevelt, in his January 11, 1944, message to Congress, specified some of these substantive economic rights in what has become known as the Economic Bill of Rights or the Second Bill of Rights: We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence. . . . In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basic security and prosperity can be established for all—regardless of station, race or creed. Among these are: The right to a useful and remunerative job; The right to earn enough to provide adequate food and clothing and recreation; . . .

From Wagner to Taft-Hartley    17 The right of every family to a decent home; The right to adequate medical care and the opportunity to achieve and enjoy good health; The right to adequate protection from the economic fears of old age, sickness, accident and unemployment; The right to a good education.20

Roosevelt’s Economic Bill of Rights, for example, had a powerful influence on the UDHR, which included economic rights as well as civil and political rights and did not distinguish between them. The Preamble of the ICCPR confirms the interrelatedness of these rights: “The ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his [sic] civil and political rights as well as his [sic] economic, social and cultural rights.”21 The ICESCR, which was joined with the UDHR and the ICCPR to compose the International Bill of Human Rights, affirms the same inextricable interrelatedness of economic and political rights: “The ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights as well as his civil and political rights.”22 Wagner’s law also reflected an understanding of the necessary interrelatedness of political and economic rights. He recognized that for those without bread, the guarantees of freedom of association, freedom of speech, and political participation are in reality meaningless. The fundamental rights that people need so they might live a human life, therefore, include not only those the government must not invade but also those the government must provide or promote.23 The philosophy and design of the Wagner Act was consistent with the interrelatedness of economic and political rights. The Act empowered the government to promote and protect the economic rights of workers to organize and bargain collectively and prohibited employers from exercising their economic power to interfere with or prevent the exercise of those workers’ rights. Beyond that, however, it left specific rights determinations to the joint employer-employee collective bargaining process and the mutual agreement, if any, of the negotiators. The satisfaction of material needs was not enough. The Act was radical in that it rejected employers’ unilateral determination of what workers’

1 8    Chapter 1 rights would be, if any. Wagner’s Act was intended, therefore, to democratize vast numbers of U.S. workplaces so that workers could participate in the employment decisions that most directly affected their lives. This is what Wagner meant when he said that the right of workers to participate in these decisions—and to establish, promote, and protect their rights—was essential for social justice. The Act’s success, therefore, depended on the realization of a major redistribution of power from the powerful to the powerless at U.S. workplaces covered by the statute. More precisely, the realization of workers’ rights, including workers’ human rights, became dependent on workers’ bargaining power. In that sense, the Act was also conservative because it rejected government determination of the specific economic rights of workers. The NLRB, of course, continued to be another most important determinant of workers’ rights. As Clyde Summers put it years later, “The Board, in exercising its functions of interpreting and elaborating the skeletal words of the statute, is compelled to mold and develop a body of law. It cannot act as a mechanical brain but must choose between competing considerations.”24

The Transformation from Rights to Interests Immediately after the Supreme Court declared the Wagner Act constitutional, the NLRB, chaired by J. Warren Madden, engaged in vigorous and uncompromising enforcement of the rights of working men and women set forth in the Wagner Act. By the end of 1937 the New Republic reported that the NLRB had “tackled the Big Boys in every industry,” and in July 1938 The Nation concluded that “inexorably the sharp hook of justice [was] sinking into the tough gullet[s]” of some of the nation’s staunchest opponents of unionism and the Wagner Act itself.25 Among those early decisions, the Board moved vigorously against the widespread use by employers of professional spies, armed guards, and strikebreakers, and it held companies responsible for the anti-union activities of their supervisors and managers as well as for discharging employees individually or in groups for union activity or membership. In the sensitive area of employer speech, the Board concluded that employer anti-union comments, even when containing no direct or even indirect

From Wagner to Taft-Hartley    19 threat, were designed to exploit a worker’s fear of losing his or her job. The Board also ruled that it was an unfair labor practice for an employer to refuse to enter into a written and signed collective bargaining contract once an agreement was reached with the union. Not only were employers ordered to cease and desist from engaging in unfair labor practices, but they were also required to take affirmative action to effectuate the policies of the Wagner Act, including the posting of notices in their plants with admissions of guilt of violations of the Act, or that recognition had been withdrawn from a company-dominated union, or that workers who had been discriminated against and discharged were reinstated to their former positions with full back pay. The NLRB also used its power to favor union organization of employees. Under the provisions of the Wagner Act, the Board could determine either by a secret ballot of employees or by any other suitable method, what labor organization, if any, represented the employees in an appropriate bargaining unit. Until July 1939, the Board regularly certified unions as exclusive bargaining representatives without conducting a representation election—(approximately 31 percent of the unions certified)—on the basis of signed authorization cards, membership applications, petitions signed by a majority of the employees, signatures of employees receiving strike benefits, or participation of a majority of the employees in a strike called by the labor organization. The NLRB also made it much less difficult for unions to win representation elections by certifying as exclusive bargaining representative the labor organization receiving a majority of the votes cast rather than requiring a majority of those eligible to vote, which had been the rule before July 1936. The Board continued its aggressive enforcement of the Wagner Act during the spring of 1938. In March 1938, the NLRB reinstated workers who had seized two buildings of the Fansteel Metallurgical Corporation in one of the more spectacular sit-down strikes that swept the country in 1937. The Board ruled that it did “not lie in the mouth of the respondent [Fansteel]” to assert that the offenses of its striking employees made them “any less fit to be employees than the respondent is to be an employer.” The Board reaffirmed its Fansteel decision in Republic Steel when it reinstated strikers guilty of violence in the infamous “Little Steel” strike. In sharp language, the Board said that Republic Steel did not “come before the Board with clean hands.”26 In December 1937, at the same time that

2 0    Chapter 1 the Appropriations Committees of the House and Senate were examining the Board’s budget request, the NLRB, in another strongly worded decision, found the Ford Motor Company guilty of an antagonism to labor organizations that was “brought home to its employees through constant hostility of foremen and supervisory officials, through the systematic discharge of union advocates [and] through the employment by the respondent [Ford] of hired thugs to terrorize and beat union members and sympathizers.”27 Senator Wagner approved of the Board’s “marvelous record of vigorously enforcing the law and not compromising” and believed that the Board’s “very strong position” had “vindicated the law very completely.”28 The NLRB’s literal enforcement of the Wagner Act, however, did not go unchallenged. As Time magazine put it, the NLRB had “applied a drastic statute so literally that it has accumulated a fine roster of enemies.”29 Powerful conservative groups within industry, the labor movement, and politics attacked the NLRB because the Board was at the cutting edge of changes taking place in the balance of rights and power in the U.S. economy. The counterrevolution that developed, however, was intent on defeating the entire New Deal, of which the Wagner Act was only a part, although an important part. Driving this counterrevolution was an alliance of southern Democrats and like-minded northern Republicans and employer associations and employers. The alliance shared a “Conservative Manifesto” in support of limited national government, states’ rights (home rule and local-self-government), common law freedom of contract, property rights of the owners of capital30 and attested to an aversion to the rise of the administrative state.31 The southern bloc of the alliance, in particular, sought to defend the “racial civilization” it prized by upholding the Constitution against “Negroes, the New Deal and . . . Karl Marx.”32 Given their numbers, seniority, and control over key committees, Southern Democrats had a “hammerlock on Congress” that resulted in a “sway of Jim Crow over the politics of New Deal lawmaking.”33 Among other things, they successfully insisted that key bills—not only the Wagner Act but also the Agricultural Adjustment Act, Fair Labor Standards Act, and Social Security Act—exclude from coverage agricultural and domestic workers, “thereby expelling the majority of black Americans who worked in these two sectors.”34 Although the

From Wagner to Taft-Hartley    21 NLRA excluded agriculture and domestic workers to accommodate Jim Crow, the Act in particular remained a focal point of the conservative alliance. Nonetheless, the one person, one vote policy implemented in thousands of NLRB elections enfranchised black industrial workers, who never before had voted or participated as rights bearers in the public sphere. The new unions, in turn, “offered black workers industrial citizenship—participating in union governance, deliberating and deciding upon workplace grievances and broader goals . . . to generate a militant rights consciousness among black workers.”35 The NLRB represented a new power being exerted by the federal government in ways that threatened the virtually unchallenged hegemony in labor relations that employers had enjoyed for decades. After the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) split in the late 1930s, moreover, the Board had the power to shape the nature of the new labor movement. The NLRB, therefore, threatened not only the power positions of American industry and its leaders but also the power position of traditional AFL craft unions and their leaders. Increasingly, almost every NLRB decision and representation election policy or practice became a matter of political controversy. The NLRB, although technically an independent administrative agency, is in many ways a creature of Congress and the executive. At the same time, the Board’s performance of its quasi-judicial duties is supposed to be independent of congressional or executive influence or control. At best it is a delicate balance of judicial independence and congressional and executive dependence. The first Wagner Act Board epitomized the independent NLRB to an extent unequaled by any subsequent Board. The Board’s then chair, J. Warren Madden, for example, believed “that if the President would leave us alone . . . then we would leave him alone and not get his undeliberated reactions and then feel as if we had to follow them or be embarrassed by not following them.”36 Madden also told a hostile congressional committee in 1938 that the Board would not try to avoid criticism by compromising the principles of the Act: “We have chosen instead to vigorously put into effect the principles of the Act. And we shall continue to do so.”37 In Madden’s opinion, “No law which was ever passed in this country has come so near to fulfilling what it was passed to accomplish as this law.”38

2 2    Chapter 1

The Counterrevolution: Pragmatic Balances So near, but for such a brief period of time. Only two years after the Supreme Court found the Wagner Act constitutional, internal and external pressures resulted in the beginning of the transformation of the Board from an aggressive worker rights–enforcing agency that played a major role in the formulation of labor policy into a conservative, insecure, politically sensitive agency preoccupied with its own survival. That transformation was brought about mainly through appointments to the Board and through congressional hearings and investigations leading to the Taft-Hartley Act in 1947. The consequences have been enduring. Hostile proposals to amend the Wagner Act were submitted to the Senate as early as June 1937. The Senate and House Labor Committees began hearings on bills to amend the Wagner Act in the spring of 1939. When pro-amendment forces charged that these committees were delaying their hearings, Congressman Howard Smith, a southern conservative farmer from Virginia, succeeded in having a House-sponsored “special investigation” of the NLRB.39 The AFL, after forming overt political alliances with employers and political conservatives in Congress in response to what it considered the NLRB’s pro-CIO bias, cooperated with Congressman Smith. While pressure from Congress was building, including from the pending Smith Committee investigation, President Roosevelt sought to relieve the pressure on himself and his administration by filling a vacancy on the Board in April 1939 with William Leiserson. This appointment was the beginning of the end of the Madden Board’s pursuit of independence. Leiserson, who was serving as the chair of the National Mediation Board at the time of his appointment to the Board, was a nationally known mediator and arbitrator and considered himself a mediator, not a judge. The impression was that Leiserson was appointed to “tone down” or moderate the NLRB. On the doctrinal front, for example, within three months of Leiserson’s appointment, the Board by a 2–1 vote abandoned its policy of certification of a union on the basis of membership cards, asserting that the policies of the Act would be best effectuated if representation questions were resolved by secret ballot elections.40 The Smith Committee intended to lay the foundation for amendments and to create anti-NLRB public opinion, gaining maximum publicity effect

From Wagner to Taft-Hartley    23 by feeding the press sensational stories.41 Smith introduced his amendments in the House in March 1940. Among other things, the committee majority drastically redefined the meaning of collective bargaining as developed by the NLRB, limiting an employer’s bargaining obligations to only “meet and confer” and excluding any employer obligation to submit counterproposals. The majority also proposed to permit employers to express opinions about unionism, provided those expressions were not accompanied by acts or threats of coercion, intimidation, or discrimination. According to the Madden Board, the objective of that proposed amendment was “to abandon the fundamental principle of the Act that the employer shall keep his hands off the self-organization of employees.” The Madden Board maintained that an employer could not express an opinion in a vacuum: “Behind what he says lies the full weight of his economic position, based upon his control over the livelihood of his employees.”42 The best evidence of the Smith Committee majority’s overall intent, however, was its proposal to eliminate the assertion in the Act’s Preamble that it was the declared policy of the United States to encourage collective bargaining.43 That struck at the core of the Act. Although the Smith bill passed the House but was bottled up in the Senate Labor Committee, the Smith Committee’s investigation had a dramatic and long-lasting effect on American labor policy and the NLRB’s administration of that policy. Most important was the direct line between the committee’s proposed amendments and the Hartley bill, which was rooted in those amendments, many of which became law when the Taft-Hartley Act was passed in 1947. The Smith Committee investigation also made it impossible for Roo­ sevelt to reappoint J. Warren Madden to the NLRB. One journalist wrote, “If Madden is dropped despite his record, the lesson for these quasi-judicial bodies is demoralizingly clear. It would be far safer for them to be quasi-political.”44 A new era began at the NLRB with the appointment of University of Chicago economics professor Harry Millis at the conclusion of the Smith Committee investigation. Millis was a peacemaker who believed that enforcing the law should never become a crusade. Millis referred to his chairmanship as a time for “emphasis on workable, realistic labor relations under the Act, [and] perhaps increased attention to criticism where found justified.”45 Millis acknowledged that while during his administration “unions considered the Board less militant in protection of workers’ rights[,] some employers at least considered that the Act was being

2 4    Chapter 1 administered more fairly.”46 While on the NLRB, Millis and Leiserson pursued what they considered “realistic industrial relations.”47 The Millis-Leiserson appointments to the Board marked a movement away from the fundamental rights–based understanding of the Wagner Act and the fundamental rights–based interpretations of the Madden Board to protect and promote unobstructed exercise of workers’ right to organization and collective bargaining. Those workers’ rights were treated as ends in themselves by the first Wagner Act NLRB. After Millis and Leiserson, rights were at best instrumental means to an end—to obtaining a better bargain.48 Millis and Leiserson evaded these supposedly “abstract” questions of rights and justice49 in great part because an emphasis on rights interfered with pragmatic bargaining.50 Millis and Leiserson saw worker-employer relations as a private process of mutual accommodation or “give-and-take” leading to collective contracts. Instead of promoting legalistic definitions and enforcement of workers’ rights, Leiserson was committed to the “whole idea of flexible and informal handling of modern economic problems by expert administrative agencies.”51 Workers’ rights were transformed into workers’ interests— self-interested, economic activity, the same as business activity. Labor law, U.S. Supreme Court justice Felix Frankfurter asserted, involved balancing “the effort of the employer to carry on his business free from the interference of others against the effort of labor to further its economic self-interest.”52 In other words, stable, efficient, and effective collective bargaining relationships required workers and employers to give up their fundamental rights claims.53 A congressional investigation, two appointments to the Board, and a great deal of politics and power of all sorts had changed the NLRB from being a workers’ rights–enforcing body into a balancer of the competing interests of workers, unions, and employers. President Harry Truman appointed Paul Herzog to replace Millis as the NLRB chair in 1945. Herzog was hailed as a stabilizing influence, as Millis had been. Herzog lamented that neither Madden nor Millis had any appreciation of public relations, which he considered “utterly essential.”54 The Herzog Board’s decisions continued the trend that began with Millis of being less militant in enforcing the Wagner Act: enunciating employer free speech policies far removed from the

From Wagner to Taft-Hartley    25 strict employer neutrality required in Madden’s days and moving toward the “equalization” of the Wagner Act that critics of the Act had long demanded.

Taft-Hartley: A New Statutory Purpose? After the Republicans gained control of the House and Senate in 1946 (for the first time since 1930), and the movement for what became the Taft-Hartley Act gained momentum, it was already clear that appeasement had not prevented the attacks on the NLRB. The Taft-Hartley Act, passed over President Truman’s veto in 1947, threatened most directly and sweepingly the workers’ rights nature of the Wagner Act. The Act contained many provisions that weakened unions and increased employers’ power to resist organization and collective bargaining. The new law contained, for example, a series of prohibited union unfair labor practices, an expansion of employer “free speech” rights, a prohibition of the closed shop, and provision for the use of injunctions against strikes that imperiled national health and safety. Labor relations experts at the time warned that employers would use the law to prevent unionization and avoid collective bargaining. One pointed to provisions that “encourage employers to take up the battle again over the question of whether or not their employees should be represented by unions.”55 Even former Board chair Millis deplored Taft-Hartley as a “bungling attempt to deal with difficult problems,” including the “weakening of restraints upon employers who still seek to avoid a democratic system of labor relations.”56 NLRB chair Herzog told President Truman when Taft-Hartley passed that it not only weakened the Wagner Act “as a shield for working men but converted [it] into a sword to be used to combat their collective action.”57 It was not clear at the time—and it remains a matter of heated debate today—the extent to which Taft-Hartley changed the core principle of the Wagner Act: that it was the policy of the United States to encourage collective bargaining. The Hartley bill, a direct product of the Smith investigation of 1939–1940, would have deleted the declaration of purpose from the Wagner Act and substituted a new declaration of policy, which

2 6    Chapter 1 contained no reference to collective bargaining. Among other things, that declaration defined the purpose of the Act as protecting “the legitimate rights of both employees and employers in their relations affecting commerce,” particularly the rights of individual employees in their relations with labor organizations.58 A compromise reached during closed-door House-Senate conference committee bargaining over the Hartley and Taft bills was to retain intact in Taft-Hartley the Wagner Act policy statement but also to add to the law the Hartley bill’s declaration of policy. This declaration of policy, read together with the amendment to Section 7 that affirms workers’ right to refrain from engaging in collective bargaining and the Act’s new union unfair labor practices section, have been used by many to maintain that the primary purpose of Taft-Hartley is to protect the rights of individual employees, particularly their right to refrain from engaging in collective bargaining, as well as employers’ rights to resist unionization and collective bargaining. This interpretation has also given rise to the concept of the federal government as a neutral guarantor of employee freedom of choice between individual and collective bargaining, indifferent to the choice made. That conception is clearly contrary to the Wagner Act’s statement of purpose, retained in Taft-Hartley, of the federal government as a promoter of collective bargaining. On the occasion of the fiftieth anniversary of the Wagner Act, labor reporter Abe Raskin attributed the “contradictory and, in considerable measure, irreconcilable purposes” with which the Board has been “saddled” to the “kind of legislative doubletalk that has filled our laws on taxes, environmental protection, health and safety and virtually anything else with loopholes that run counter to the law’s main thrust.”59 As recently as 2012, labor law scholar Charles Morris charged that “organized management and their political allies have deliberately disseminated false revisionist” versions of the legislative history. Morris contends to the contrary that Congress “reenacted—and even enhanced—the Wagner Act’s policy of encouraging and protecting union organizing and collective bargaining.”60 However justified, if justified at all, conflict and confusion over the central purpose of the Taft-Hartley Act remains. Consequently, NLRBs, in applying the statute to specific cases, can choose between these contradictory statutory policies and still claim that they are conforming to congressional intent. As I have pointed out previously, “For that reason, there

From Wagner to Taft-Hartley    27 have been not only revisions in NLRB case law (as would be expected and even necessary over the years) but radical changes that swing labor policy from one purpose to its direct opposite.”61

Concluding Observations At its inception, the Wagner Act was a workers’ rights law with values that were most consistent with human rights values. The Wagner Act was far ahead of its time in applying human rights to U.S. workplaces. The core rights of the Wagner Act are set forth in today’s human rights declarations and covenants and conventions. The principles of freedom of association and collective bargaining are internationally regarded as “minimum conditions of economic freedom and justice”; further, “they form the foundation of every labor relations system in the modern world.”62 Although the Act did commit the national government to promoting and safeguarding these rights and rights holders, it did not commit the national government to determining the specific economic rights of workers. Wagner left that to the employer-employee representative collective bargaining process. In one sense that constituted one of the Act’s greatest and most unique strengths: the participation by workers in the decisions that affected their workplace lives. In another sense, however, it constituted one of the Act’s greatest weaknesses in that it made the realization of workers’ workplace rights, including their human rights, dependent on workers’ bargaining power relative to the power of employers. Human rights, including workers’ human rights, are rights that all human beings are entitled to enjoy, without permission or assent, and that are beyond the moral authority of any person, group, government, or other entity to grant or deny. Consequently, as constitutional scholar Philip Bobbit put it, “human rights issues are not, at bottom, about politics.”63 Given an understanding of human rights, and the fact that many in the U.S. labor movement consider the Wagner Act a human rights statute,64 it seemed “unnatural and dangerous” to base the constitutionality of the Act on the Commerce Clause.65 That approach ran the risk of making the constitutional status of labor rights equal to that of business rights66 and reducing workers’ rights “to matters of ‘policy’ subject to the shifting outcome of ordinary politics.”67

2 8    Chapter 1 It has been argued that basing Wagner Act constitutionality on the rights-affirming Thirteenth or Fourteenth Amendment would have made it more difficult for future Congresses and courts to weaken or “balance away” workers’ rights.68 Possibly, but constitutions as well as statutes have to be interpreted and applied, and history makes it clear that no presumed constitutional or statutory rights are guaranteed in that process—the Supreme Court’s interpretations of the Thirteenth and Fourteenth Amendments provide persuasive evidence of that fact. Despite reliance on the Commerce Clause, and the U.S. Supreme Court’s upholding the Wagner Act as a permissible effort to reduce strikes and their disruption of interstate commerce, the same Supreme Court found that workers’ freedom of association was a “fundamental right.”69 Consequently, the “question whether labor’s ‘essential’ and ‘fundamental’ right to organize would receive meaningful constitutional protection remained to be answered.”70 At the time, the possibility remained open that workers’ rights could be protected and even expanded, or that they could be seriously diminished. The answers came quickly. For two years after the Act was declared constitutional, the NLRB vigorously protected and expanded workers’ rights under the Wagner Act. In the late 1930s and early 1940s, the U.S. Supreme Court also endorsed the rights of worker organizations and collective action, primarily on First Amendment grounds in picketing cases.71 The NLRB’s literal and aggressive enforcement of workers’ rights was met almost immediately with a counterrevolution. That counterrevolution was intent on defeating the entire New Deal, of which the Wagner Act was an important part, because it was at the cutting edge of dramatic changes taking place in the balance of rights and power in the U.S. economy. Choices were made through the political mechanism of presidential appointments (Leiserson, Millis, and Herzog), congressional hearings (Smith Committee), and subsequent legislative changes (Taft-Hartley) that amended the fundamental workers’ rights approach. Rights issues were subordinated to pragmatic “give-and-take” and “balancing” of labor-management interests. The NLRB became more of a balancer of the competing interests of employers and unions and less a rights-enforcing body. These conscious and deliberate choices to counter the New Deal, unions and collective bargaining, and the first NLRB were embodied in the Taft-Hartley Act of 1947. The change in values that occurred from Wagner

From Wagner to Taft-Hartley    29 to Taft-Hartley is evidenced in part by Congress’s decision to include in Taft-Hartley an employer’s statutory right to resist and obstruct workers’ exercise of their right of freedom of association at the workplace. There is no escaping the reality of power, whether in the promotion and protection of rights or the balancing of interests. All exercises of government power, including through the administrative state, are value laden. There is no neutrality. As administrative law scholar Cynthia Farina has written, the “pursuit of neutrality is not only illusory but dangerous, disguising the fact that certain conceptions of the good and certain distributions of power are being favored.”72 Post-Taft-Hartley NLRBs’ “conceptions of the good”—their values—and what distributions of power these Boards chose to make and the fate of workers’ rights in the process are explored in the following chapters.

2

Conflicting Statutory Purposes: Conflicting Values

Flip-Flopping Interpretations of the Act In the years since the Taft-Hartley Act, different NLRBs appointed by different administrations have interpreted the law in sharply contrasting ways. These “flip-flops” over the meaning of many important provisions of the Act have often resulted in confusing and inconsistent case law. Even more significant, however, these conflicting interpretations have revealed profound disagreements over the fundamental purpose of the law. After Taft-Hartley became law, a Joint Congressional Committee on Labor-Management Relations was established and asserted political pressure on the Herzog-chaired Board to handle and decide cases in ways that would prove that the new law was being applied “correctly” and not being “sabotaged.”1 After Harry Truman’s great political upset in 1948 and Taft’s subsequent offer to strike from Taft-Hartley some of its more severe provisions, NLRB chair Herzog told the Senate Labor Committee that it had “the greatest opportunity in American history to enact

Conflicting Statutory Purposes   31 fair, rational and sensible [labor] legislation.”2 The historical accuracy of that statement notwithstanding, Congress was not able to get beyond short-term manipulation for political advantage and support.

The Eisenhower Board Criticisms of the Truman Board peaked during the 1953 Senate and House hearings, during which Taft-Hartley advocates cited Herzog Board decisions in support of their charges of pro-union bias and disregard of congressional intent. By March 1954, the NLRB, for the first time in its history, had a Republican appointed majority and by March 1955, a Republican-appointed General Counsel. This “Eisenhower Board” was chaired by former NLRB attorney Guy Farmer, whose Washington, DC, law firm represented employers when he was appointed. Farmer believed that the least government is the best government and in moving control of labor relations from “Uncle Sam” in Washington to the states. He charged that the Herzog Board was a Wagner Act Board committed to helping unions organize and gain collective bargaining rights even after Taft-Hartley became law. In thinly veiled criticism of the Herzog Board, Farmer warned against interpreting the law to achieve some desired results “in accordance with the social, economic or political views of the majority of [the Board’s] members.”3 Although when he became chair, Farmer claimed that “politics play a proper part in the enactment of laws, but politics have no place in their administration,”4 in later years he claimed that the Board was a “political animal” and had been “since its inception.”5 In those later years, he also admitted that the political pressure on the Board was great because “this battle is over control of one of the most powerful agencies that ever existed in Washington—the NLRB.”6 Farmer set the stage for doctrinal change: “No precedent is good if it is wrong and we do not propose to treat a prior decision as a straitjacket, binding our discretion and unduly restricting us in the exercise of independent judgment as to Congressional intent.”7 Consistent with his own and the Republican Party’s states’ rights philosophy of government, the Farmer Board announced new and higher-dollar-volume jurisdictional standards that placed many firms and their workers beyond the reach of

3 2    Chapter 2 Taft-Hartley. A dissenting Board member warned that as a consequence of such values, “hundreds of thousands of employers and millions of employees at work in these enterprises are now cut off from the Act, [in] the very area in which organization of employees is least advanced and most vigorously pressed at the present time.”8 Within eighteen months, the Eisenhower-appointed majority had reversed, dramatically modified, or abandoned almost every Herzog Board doctrine to which employers had objected during the 1953 Senate and House Labor Committee hearings. Management witnesses before those committees claimed that the Herzog Board had denied them the right of free speech guaranteed by Section 8(c) of the Act; had created loopholes in Taft-Hartley prohibitions against secondary boycotts; had expanded the subjects about which management was obliged to bargain, including “traditional management rights”; and had required employers to bargain with unions on the basis of authorization cards rather than secret-ballot representation elections. The magnitude of these doctrinal changes and the value choices underlying them are illustrated in the cases involving employer “free speech,” particularly the captive audience line of decisions. Shortly before the passage of Taft-Hartley, the Herzog Board had ruled that a captive audience speech was a per se violation of the Wagner Act in part because it interfered with workers’ right not to receive information. After Taft-Hartley, the Board shifted from finding captive audience speeches unlawful to requiring employers to grant equalizing captive audience opportunities to unions, and from emphasizing the right of employees not to receive information they did not want to receive to emphasizing the employees’ right to receive all available information. One of the Farmer Board’s earliest decisions, Livingston Shirt, rejected that doctrine and held that employers do not commit an unfair labor practice if they make a preelection speech on company time and premises to their employees and deny the union’s requests for an opportunity to reply.9 Employers could now play an active role in influencing workers’ choice of union or no union, or collective bargaining or employer unilateral decision making. Representation elections became open contests between employers and unions for the support of employees, an approach rejected by the Wagner Act and prior NLRBs. The majority and dissenting opinions in Livingston Shirt, moreover, reflected the still-unresolved conflict over the statutory purpose of the

Conflicting Statutory Purposes   33 Taft-Hartley Act. The Republican majority talked of property rights, employer free speech, the individual worker’s right to choose, and the right of employers as well as unions to “be free to attempt by speech or otherwise to influence and persuade employees in their ultimate choice, so long as the persuasion is not violating the express provisions of the Act.”10 Board member Abe Murdock based his dissent on a different purpose of Taft-Hartley—the one carried over from the Wagner Act—which declared the congressional policy to be the encouragement of collective bargaining. He charged that employer speeches on company time and property were almost always intended to discourage collective bargaining and that a captive audience speech was “one of the most potent and effective methods by which self-organization of employees could be stifled.” Murdock concluded that the Board should effectuate the congressional policy of collective bargaining at least by guaranteeing labor organizations “an equality of opportunity to have their arguments reach the employees in the same effective forum used by those who would defeat collective bargaining.”11 It was misleading, however, for the majority and dissenter Murdock to treat this issue mainly as a matter of speech. That concealed the real policy issue: the extent to which, if at all, an employer was to be permitted to exert economic power through speech to resist and obstruct unionization and collective bargaining. An employer right to resist freedom of association and collective bargaining, human rights as well as statutory rights, is inconsistent with and contrary to the Wagner Act’s statement of purpose retained in Taft-Hartley. Shortly after Taft-Hartley, however, the NLRB’s position on employer anti-union speech had moved from absolute employer neutrality in the early years of the Wagner Act to one of sanctioning active employer resistance to unionization. In two terms, the Eisenhower administration and its appointees to the NLRB had substantially changed the direction of national labor policy.

The Kennedy-Johnson Board After John Kennedy’s 1960 victory over Richard Nixon, with Kennedy winning by less than 1 percent of the popular vote, Frank McCulloch, administrative assistant to Democratic senator Paul Douglas of Illinois, became the new chair of the NLRB. McCulloch’s understanding of the

3 4    Chapter 2 purpose of the Act differed fundamentally from that of Chairman Guy Farmer and other Eisenhower appointees. He not only rejected the claim that Taft-Hartley had shifted the law away from encouraging collective bargaining but he also, as did Wagner, saw collective bargaining as a means to achieve social justice through the creation of democracy at the workplace and in the larger society. McCulloch believed that labor-management issues went beyond wages, hours, and working conditions to include “civil rights, equality of opportunity, full employment, low-cost housing, improved medical care, better education at all levels, enriched leisure opportunities, a safe and satisfying life between retirement and death [and] a voice in one’s own destiny.”12 It was with that sense of values that McCulloch saw management opposition to collective bargaining as contrary not only to the law but also “to social policy as a democratic nation.”13 Years later, he was remembered as “a man of stern principle who would have resigned before he would hold that property rights are superior to collective bargaining or that employee rights are not superior to employer rights.”14 McCulloch maintained that the application of the law was not a purely mechanical function: “It would also be fatuous to assert that in this complex field, the personal orientation of a Board member plays no role in his interpretation of the Act.”15 In 1961, Democrats had obtained a majority on the House Labor Committee chaired by Congressman Roman Pucinski of Illinois. Just as the Republican-controlled House Labor Committee had set an agenda for the incoming Eisenhower appointees to the Board, the Pucinski committee criticized Eisenhower Board interpretations of the Act and set forth specific suggestions for changes intended to reestablish the encouragement of collective bargaining and the exercise of worker freedom of association as the declared national labor policy. The Board, chaired by Frank McCulloch, came as close to a full and effective implementation of the national policy of encouraging collective bargaining as the Wagner Act Board chaired by J. Warren Madden did immediately after the Wagner Act was ruled constitutional. It, too, evoked massive and active resistance from the country’s most powerful employers, among others. The Kennedy-Johnson (McCulloch) Board quickly set about reversing key Eisenhower-Farmer Board decisions just as the Farmer Board had done to the Truman-Herzog Board’s doctrines. The Kennedy-Johnson Board overruled much of the Eisenhower Board’s doctrine concerning employer

Conflicting Statutory Purposes   35 speech by reading employer statements about the possibilities of going out of business, relocating, strikes, shutdowns, and other dire consequences of unionization as threats, not predictions of events beyond an employer’s control. The McCulloch Board, as had the Madden Board, emphasized the inherently coercive nature of speech by employers who controlled workers’ jobs and income. Although the Kennedy-Johnson Board did not reverse the Livingston Shirt captive audience doctrine set forth by its predecessor, it did require employers to give the NLRB and the relevant union the names and addresses of all eligible employee voters within a specific period of time of a representation election.16 In addition, the Board made it easier for unions to organize and for collective bargaining to occur by finding smaller units appropriate for collective bargaining. As McCulloch put it, “Now it should be easy to say this made it easier for unions to organize and achieve recognition for bargaining. But that was the purpose of the law.”17 Among the most controversial and most strongly opposed decisions of the McCulloch Board were those making fundamental management decisions subjects of mandatory bargaining with unions. Those decisions included Fibreboard Paper Products Corporation,18 where the Board found that management violated the Act by contracting out all its bargaining unit maintenance work without bargaining with the union and ordered the employer to reinstate its maintenance operation and fulfill its statutory duty to bargain. This decision triggered a most contentious phase of the McCulloch Board’s existence because it posed a direct threat to management power and flexibility. Employers and other critics charged the Board with undermining free enterprise and forcing on U.S. businesses codetermination of fundamental business decisions, conjuring up un-American substitutes for the capitalistic system. The Kennedy-Johnson Board defined a broad scope for collective bargaining, seeing it as a method for resolving whatever conflicts between management and workers that directly relate to tenure of employment. In its brief to the U.S. Supreme Court in the Fibreboard case, for example, the Board asserted that “as a practical matter,” the “scope of collective bargaining is confined by the range of employees’ vital interests.”19 This Board was enforcing the concept of joint union-management participation contemplated by Senator Wagner. There were many employers whose workers were unionized that accepted collective bargaining; however, these employers wanted bargaining confined to negotiating with the

3 6    Chapter 2 unions only about the effects of management’s decisions on wages, hours, and working conditions. In 1967, the McCulloch Board proposed a new program of leaflets and election notices that would, in plain language, inform workers at their workplaces of their rights under the Act. Even though the Board made posting of such notices to employees voluntary, employers charged that this constituted bias and prejudice against them and amounted to direct encouragement of unionization. In the words of one former Board attorney, “The more you explained to people what the law was about, and what they were entitled to, the more they would become aware of this law and take advantage of it. Of course management didn’t like that.”20 During the 1960s, the U.S. Supreme Court also made national labor policy according to its own notions of what that policy should be. Although the court upheld the McCulloch Board’s ruling in Fibreboard,21 the concurring opinion, which has become the controlling definition of labor policy in this matter, excluded from an employer’s statutory duty to bargain even management decisions that ended employment entirely if those decisions were “at the core of entrepreneurial control” or were “fundamental to the basic direction of the corporate enterprise.”22 The issue of management prerogatives raised in Fibreboard was at the core of the national labor policy of collective bargaining. Yet the scope of collective bargaining was determined by concurring Justice Potter Stewart based on nothing more than his own value judgment commitment to a free enterprise economy. He noted, “Congress may eventually decide to give organized labor or government a far heavier hand in controlling what until now have been considered the prerogatives of private business management. That path would mark a sharp departure from the traditional principals of a free enterprise economy.”23 The Supreme Court also applied its own value judgments in making fundamental labor policy choices, contrary to the decisions of the McCulloch Board, in Darlington Mills,24 where the court raised an employer’s decision to go out of business to the level of an absolute right unaffected in any way by the statutory rights of employees. The McCulloch Board was sensitive to the steady barrage of charges that it was anti-employer, anti–free enterprise, and pro-codetermination through collective bargaining. Consequently, McCulloch and the Board

Conflicting Statutory Purposes   37 members participated in an ill-fated series of meetings with representatives of the National Association of Manufacturers in various cities around the country between 1964 and 1966. The McCulloch Board came to the realization that these conferences made no important changes in employers’ fundamental opposition to the Board and its decisions while the National Association of Manufacturers (NAM) concluded that the meetings proved that there was little chance that the Board would change its policies. The McCulloch NLRB and employers were proceeding from diametrically opposed premises concerning the objectives of the Act. During this same period, employers were becoming more sophisticated in the use of law firms, consultants, and others adept at union avoidance programs. In the mid-1960s, moreover, several top-level management executives, dissatisfied with the disorganized and uncoordinated nature of their anti-NLRB protest, organized what became an alliance of some of the most powerful corporations and trade associations in the country, which were determined to change the labor laws to suit their own interests. Although exorcism of the NLRB provided the organizing principle, the employer coalition, like the Smith Committee and Hartley bill advocates, was bent on eliminating from Taft-Hartley the affirmation that it was the policy of the United States to encourage the practice of collective bargaining. As the drafters (including Guy Farmer) of the coalition’s Labor Law Reform proposals emphasized, rooting out that statement of purpose carried over from the Wagner Act would make employee free choice to join or refrain from joining a union—not the encouragement of collective bargaining—the indisputable purpose of Taft-Hartley. That would be conclusive evidence that the lawmakers intended the federal government to be a neutral guarantor of employee rights, indifferent to employees’ choice between individual and collective action. The alliance’s tactics concerning secrecy and sophisticated manipulation of public opinion are detailed in my earlier work Broken Promise.25 Worth noting here, however, is that the employer coalition sidestepped the House and Senate Labor Committees and worked closely with a special subcommittee of the Senate Judiciary Committee chaired by conservative Democrat Sam Ervin of North Carolina—a maneuver similar to the Smith Committee’s investigation of 1939–1940. The composition of the Ervin subcommittee guaranteed hostile treatment of the NLRB, particularly

3 8    Chapter 2 given the committee’s close interaction and cooperation with the employer coalition. Once again, congressional hearings were used, not as a dispassionate investigation to inform lawmakers, but as a partisan device to help bring about predetermined objectives. Despite Nixon’s victory in the 1968 election, the employer coalition’s objectives were submerged in larger political issues, such as prosecution of the Vietnam War (including the Nixon-AFL-CIO alliance on Vietnam), inflation, and civil disturbances. In addition, a Democratic Congress meant that the House and Senate Labor Committees were controlled by pro-labor Democrats. Consequently, efforts to control labor policy returned to the goal of controlling appointments to the NLRB.

The Nixon Boards Nixon nominated Edward Miller, a management attorney and a member of the employer coalition to chair the NLRB. Miller, like Farmer, advocated minimum government involvement in labor-management relations. The new chair, also like Farmer, emphasized the individual free choice and individual rights purposes of the Taft-Hartley Act—an understanding of the Act that was fundamentally contrary to McCulloch’s: “Frank [McCulloch] says the purpose of the Act is to encourage collective bargaining. I say, ‘Frank, you didn’t read the revision of the preface to the Act at the time of Taft-Hartley, which now clearly sets forth two objectives. The first one is freedom of choice of employees in deciding whether or not they want to join a union and be represented by a union, and, if so, by which union.’ And that freedom of choice is to my mind the keystone of the Act.”26 Echoing Farmer, Miller said he wanted his Board to administer the Act with as little bias or sense of social mission as was humanly possible and that he, as Board chair, was not going there on any crusade. The Miller Board did not make immediate wholesale changes in McCulloch Board doctrine, because Nixon did not get three of his appointees on the Board until the last year of his first term. Although Chairman Miller’s Board was perceived as being moderate, it had a major impact on national labor policy. The Miller Board rejected many McCulloch Board decisions and applied its own understanding of the Act.

Conflicting Statutory Purposes   39 The most decisive change in Board doctrine under Miller’s chairmanship redefined the scope of the statutory obligation to bargain to exclude matters of fundamental managerial or entrepreneurial decision making. In General Motors,27 which involved the termination of a portion of the employer’s business, Miller and his colleagues followed the dicta in Justice Stewart’s concurring opinion in Fibreboard immunizing employers from the obligation to bargain about decisions that were at the core of entrepreneurial control. The Miller Board simply asserted the futility of bargaining over “core” entrepreneurial decisions: “Such managerial decisions oft times require secrecy as well as freedom to act quickly and decisively. They also involve subject areas as to which the determinative financial and operational consequences are likely to be unfamiliar to the employees and their representatives.”28 Two dissenting Board members objected to the Miller majority’s one-dimensional concern for the interests of General Motors while ignoring the rights of workers affected by the employer’s decision.29 In similar decisions, the Miller Board held that the duty to bargain must not significantly abridge an employer’s freedom to manage the business. The McCulloch Board had been reversed in that area most important to employers’ maintenance of power and prerogatives. The Miller Board also became much more tolerant of employer expressions of opposition to workers’ attempted unionization. Rather than overrule prior decisions, the Miller Board simply drew different inferences from employer representation campaign speech than did the McCulloch Board from essentially the same set of facts: rather than being coercive or intimidating, for example, employer assertions were considered merely expressions of opinion, permissible expressions of the possible results of bargaining, objective statements of financial problems employers have when they become unionized, or only predictions that such problems could require relocation. The deregulation of employer anti-union speech during Miller’s chairmanship increased the ability of employers and their consultants to resist unionization of employees by legal means. The Nixon Board’s reinstitution of the Eisenhower Board’s preferences for larger election units also made it more difficult for unions to organize. (The Ervin subcommittee had accused the McCulloch Board of union bias by finding smaller units appropriate for bargaining, thereby enabling unions to establish footholds by organizing only small groups of workers.)

4 0    Chapter 2 In 1975 Nixon named Republican Betty Murphy, a former NLRB attorney working with a private law firm, as NLRB chair to replace Miller when he resigned in December 1974. Murphy was chair for only two years, because of Jimmy Carter’s election. In the main, her Board continued the Miller Board policies. The Murphy Board, however, did expand the Miller Board’s deregulation of employer representation election campaigning by deciding that it would no longer set aside representation elections because of campaign misrepresentations.30 On the other hand, the Murphy Board did treat as protected concerted activity an individual’s filing of a claim under the Occupational Safety and Health Act because enforcement of the health and safety law benefited all employees. Overall, the Murphy Board in its brief stint was generally considered moderate and, therefore, disappointing to many employers.

The Carter Board After Watergate, the Democrats swept the 1974 congressional elections and dominated the House and Senate labor committees. Following the election of Jimmy Carter to the presidency in 1976, the AFL-CIO launched a major legislative campaign for labor law reform. Labor’s reform bill reached back to the Pucinski committee’s 1961 recommendations when McCulloch became NLRB chair. The bill’s key provisions expedited NLRB case handling to combat delays that deprived workers of their statutory rights; strengthened the Board’s remedy power to discourage violations of the Act; and gave unions equal access to employers’ property for representation election campaigning. In opposition, the Business Roundtable’s lawyers produced an “Employee Bill of Rights,” which was based on a report that had been written by the anti–McCulloch Board employer coalition. Prominent among these proposals once again was the elimination from the Act of language affirming that it was the policy of the United States to encourage collective bargaining.31 The battle over labor law reform was bitter and one of the most heavily lobbied in congressional history. Although an amended version passed in the House, the labor law reform bill was filibustered in the Senate and returned to committee, where it died. Neither side had the votes to change the legislation, but throughout the 1970s the McCulloch Board’s major

Conflicting Statutory Purposes   41 thrusts that encouraged collective bargaining and facilitated the exercise of workers’ freedom of association were blocked or reversed. The bitter labor-employer confrontation over reform legislation manifested, moreover, the conviction among employers that being competitive not only for domestic but also in international markets required getting or remaining free of unions. Carter’s White House, however, did have a short-lived effect on national labor policy through the appointment process. The Carter Board, chaired by John Fanning, reversed some Miller-Murphy Board decisions concerning employer interference with election campaigns, protected concerted activity, the scope of collective bargaining, and deferral to labor arbitration, but they amounted to no more than blips on the over twenty-year doctrinal trend line of Republican-appointed NLRBs.

The Reagan Boards: Hostility to the Act After a long delay in which no appointments were made to the Board, Ronald Reagan nominated John Van de Water, a professor and management consultant who advised employers on how to stay union free. When Van de Water failed to obtain Senate confirmation after a recess appointment, Reagan chose Donald Dotson, a former corporate labor counsel and Reagan administration assistant secretary of labor when he was nominated. Many business leaders opposed his appointment because they feared that he was too extreme, uncompromising, and abrasive. They wanted to keep moving the Board in a pro-employer direction but with the nonconfrontational, quiet approach of former chair Miller. Reagan, emphasizing ideology, “went wholly outside the mainstream labor relations community in his early appointments.”32 Samples of Dotson’s ideology included pillorying the Fanning Board as a “legal aid society and organizing arm for unions,” asserting that the strike had become a “concerted effort employing violence, intimidation and political intervention” and declaring that collective bargaining was often “labor monopoly, the destruction of individual freedom, and the destruction of the marketplace as the mechanism for determining the value of labor.”33 Not surprisingly, the Dotson Board decisions were neither objective nor balanced; nor were they merely a return to normalcy, as a Dotson Board member put it.

4 2    Chapter 2 This first Reagan Board reversed many major policy decisions covering at least two prior decades of NLRB history and, in so doing, pursued a policy of freeing employers from many of the most important constraints of unionization and collective bargaining. Although the Dotson Board was not the first to be guided by a conservative philosophy in interpreting the Act or to reverse case precedents quickly and extensively, its ideology was more intense and blatant: The Eisenhower and Kennedy-Johnson Boards also engaged in rapid reversals of many of their predecessor Boards’ major policy decisions. But in part because of Dotson’s missionary zeal and abrasive personality as well as the Reagan White House’s ideological anti-unionism, the Reagan Board’s decision-making was far more intensely and overtly politicized than any of its predecessors. As Business Week put it in 1987 as Dotson was preparing to leave the Board, “perhaps no appointments so symbolized the Reagan Administration’s simple-minded pursuit of conservative goals as the choice of Donald L. Dotson.”34

Among its more significant decisions, the Dotson Board facilitated employer resistance to unionization by deciding that it would no longer be an unfair labor practice for an employer to interrogate known union supporters during a representation campaign; that statements to employees associating unionization with plant closings, strikes, unprofitability, and layoffs were not threats but merely accurate descriptions of the “economic realities” of unionization and collective bargaining; and that it would never issue a bargaining order when an organizing union was unable to demonstrate that it ever had majority support among the employees, no matter how outrageous or persuasive an employer’s unfair labor practices were. While the Dotson Board was facilitating employers’ resistance to unionization, it and the Supreme Court were curtailing organized workers’ right to bargain, particularly their right to participate through bargaining in major business decisions. The worth of the Act depends in great part on the nature and extent of the subjects to be determined by joint union-management negotiation. Court and NLRB decisions that expand employer unilateral control over entrepreneurial decisions undercut collective bargaining and, therefore, the workers’ rights purpose of the Act.

Conflicting Statutory Purposes   43 The Supreme Court led the way in a value-laden decision in First National Maintenance Corporation,35 removing employers’ decisions to close part of their businesses from the list of mandatory subjects of bargaining. The court resolved the clash of workers’ rights and employer rights with a pronouncement: “Management must be free from the constraints of the bargaining process to the extent essential for the running of a profitable business.” “In view of an employer’s need for unencumbered decision-making,” the Supreme Court majority designed a cost-benefit standard that would require collective bargaining “only if the benefit, for labor-management relations in the collective bargaining process, outweighs the burden placed on the conduct of the business.”36 The dissenters rejected the cost-benefit test not only because it was based “solely on speculation” but also because it was a one-sided approach that took into account “only the interests of management” and failed “to consider the legitimate employment interests of the workers and their union.”37 In 1983, the Dotson Board reversed an earlier Board decision in Milwaukee Spring38 holding that the transfer of bargaining unit work to non–bargaining unit employees is a management right that could be limited only by a contractual provision explicitly prohibiting such transfers of work. Reversing another prior Board decision, in Otis Elevator39 the Dotson Board excluded from mandatory bargaining any managerial decisions that affected the “scope, direction or nature of the business.” In these decisions, the Board was influenced most by management’s need for predictability, flexibility, speed, secrecy and to operate profitably. The more important the management decision, the more the Board and the Supreme Court subordinated workers and their representatives’ rights and interests. In related decisions, the Dotson Board narrowed the circumstances under which an individual worker’s actions would be considered concerted activity protected by the Act. The Board reversed a long line of decisions of Democrat- and Republican-appointed Boards that had expanded the definition of concerted activity on the presumption that fellow workers shared the individual’s concern with the protested conditions and supported the individual worker’s complaint. In Meyers Industries,40 for example, the Dotson Board held that an individual’s action would not be considered concerted activity unless it could be shown that the worker was acting with or on the authority of fellow employees. The Dotson Board also reversed a prior decision that had allowed unorganized

4 4    Chapter 2 as well as organized employees to be represented by co-workers in employer-conducted investigatory interviews.41 The rights of unorganized workers under the Act were also being narrowed. The magnitude of the Dotson Board’s reversals were more profound and broader in scope than those that had occurred over the previous thirty years. Dotson’s actions, often minimized as merely a manifestation of an abrasive personality, indicated an intent either to turn the Board into an anti-union agency or to discredit and disable it from within. For example, the Taft-Hartley Act created a unique separation-of-powers structure between the Board and the general counsel of the NLRB, but it does not clearly delineate the precise balance of power between the Board and the general counsel. Consequently, the Board, shortly after Taft-Hartley, drafted a delegation agreement granting most administrative, prosecutorial, and enforcement functions to the general counsel. Among other functions, the general counsel reviews all charges filed with the Board and decides which cases to dismiss and on which cases the Board will rule. The general counsel’s decision to dismiss charges may not be appealed. Effective operations at the NLRB, therefore, depend “on congenial relations and cooperation between general counsel and Board members to strike an appropriate balance of power.”42 Rather than seeking to establish that necessary relationship with the new, young, and relatively inexperienced Reagan-nominated general counsel, Rosemary Collyer, Dotson harshly and publicly criticized her handling of unfair labor practice complaints. In a letter to the Business Roundtable, Dotson accused Collyer of litigating trivial matters, of pursuing “allegations which do not follow the letter or spirit of Board decisions,” and of conducting investigations “with an eye toward prosecution of employers.” In an obvious allusion to General Counsel Collyer, Dotson urged that appointees should have practical experience and complained that in the appointment process, employers had been “complacent, unimaginative . . . outmaneuvered, outhustled and taken for granted.”43 General Counsel Collyer was not the sole focus of Chairman Dotson’s Board-bashing. In mid-1986 in response to a congressional inquiry, Dotson criticized a proposal for a superagency to handle all labor issues, in part because he said that it was based on a “myth,” which had the “status of a legal presumption,” that agencies such as the NLRB had a special

Conflicting Statutory Purposes   45 expertise. This was a challenge to a core reason for the existence of administrative agencies such as the NLRB, and it was made more cutting by his charge not only that the NLRB “had only a superficial and spotty expertise in the ways of the industrial world” but also that the Board had willingly “distort[ed] some of the most fundamental legal principles to achieve results.”44 When asked about Dotson’s comment concerning the Board’s alleged lack of expertise, Dotson Board member Marshall Babson said he was not sure what Dotson was talking about and suggested that it might be a case of the chair’s “shooting himself in the foot.” When asked if he was aware of the “true depth of dismay” among workers and their representatives at “what the Board has become” and the concern that the Board had lost relevance, Babson responded revealingly that none of the Board members were “unaware of the criticism.”45 Dotson attributed all the negative reports about him and his chairmanship to organized labor, academia, and the news media, “bound together by ties of interest and ideology.”46 The Board’s chief counsel claimed that, “there is a small naïve and ambitious group inside the Administration who fail to grasp that they are being used by the liberal press, institutional labor and some academics for anti-Administration purposes.”47 In his letter to the Business Roundtable in 1986, Dotson called for appointees who had “dedication to the values and principles espoused by the President [Reagan] as they apply to labor policy.”48 By then, it was clear, not only to Dotson but also to the AFL-CIO, which had feared she would be Dotson’s pawn, that General Counsel Collyer was a professional and not an anti-union, anti-worker “doctrinaire ideologue.”49 The National Right to Work Committee (NRWC) “relentlessly opposed Collyer and ultimately prevented her from being considered for reappointment.”50 The NRWC accused her of an “oft-demonstrated hostility to employee freedom of choice.”51 The NRWC also objected when, in response to a request from the Supreme Court, Collyer signed an amicus brief supporting the union’s position that it should be able to use agency fees for organizing and political purposes52 and arguing that agency fee arrangements were the result of private choice and raised First Amendment questions.53 The NRWC called the brief a “scandalous flouting of the Reagan Administration and the Republican Party.”54

4 6    Chapter 2 Collyer and the NRWC also clashed over her decision to dismiss the NRWC’s unfair labor practice charge claiming that an agreement between the United Automobile Workers (UAW) and the new Saturn Corporation, a wholly owned subsidiary of General Motors, violated Supreme Court and NLRB precedent prohibiting employers from recognizing a union without consent of the workers, discriminating against non-union workers, and unlawfully encouraging union membership. Saturn Corporation was created to try to compete with Japanese small-carmakers by not only using new production methods but also implementing a nonadversarial labor-management cooperation system. The Saturn-UAW agreement provided, among other things, that “the majority of the full initial complement of operating and skilled technicians in Saturn will come from GM-UAW units throughout the United States” and that the “UAW is recognized as the bargaining agent for the operating and skilled technicians in the Saturn manufacturing complex.”55 The general counsel dismissed the NRWC charges because, among other things, the preferential hire agreement was the “product of legally required ‘effects’ bargaining over an employer decision which has potential adverse consequences for unit employees.”56 Although not part of the Saturn-UAW agreement, Collyer said that the Board would “read into the agreement” that recognition of the UAW was conditioned on the union’s achieving majority status.57 In addition to the important legal issues involved, Saturn was a clash between Republican conservatives and the “establishment Republicans” in the Department of Labor that advocated labor-management cooperation.58 The NRWC accused Collyer of making a political deal with the secretary of labor to bury Saturn. In 1988, the Sixth Circuit Court of Appeals dismissed the NRWC appeal of Collyer’s decision in the Saturn case, finding that the NLRB general counsel’s refusal to issue an unfair labor practice complaint was not subject to judicial review.59 The NRWC failed in the courts, but it did exert influence over nominations to the NLRB. The NRWC succeeded in blocking several Bush administration nominees to the NLRB on the grounds that they embraced or in some way supported the “evils of compulsory unionism.”60 NRWC opposition forced Bush to withdraw his nomination of Mary Cracraft to a second term on the Board.61 The committee also made the selection of Collyer’s successor

Conflicting Statutory Purposes   47 as general counsel and the removal from the Board of her former deputy general counsel, John Higgins, “the litmus test” for the Bush administration. Higgins, who had received a recess appointment to the Board from President Reagan, was also opposed by the conservative senator from North Carolina, Jesse Helms.62 NRWC opposition to other Bush nominees to the Board eventually forced the White House to grant recess appointments in order to keep the Board functioning with a quorum.63 After Dotson left the NLRB when his term expired at the end of December 1987, ultraconservatives, such as many in the NRWC, believed that Bush’s too moderate nominations indicated that their side was losing the war between liberals and conservatives for control of the NLRB.

The Bush Board In fact, the Bush Board, chaired by James M. Stephens since January 1988, was perceived and described itself as more moderate or different from the Reagan-appointed Dotson Board. When Jerry Hunter became general counsel in December 1989, he expressly avoided an “ideological agenda” and emphasized administrative goals instead. When an NLRB regional director lauded Stevens for restoring a “degree of scholarship” to the decision-making process,64 Stephens replied that when an appointee “disappoints someone’s ideology” he is often accused of forgetting who won the election. Stephens said that his goal at the NLRB was to maintain the Board’s credibility through reasoned decision making.65 John Irving, NLRB general counsel in the 1970s, allowing that the Dotson Board did act “sometimes with a bit of excessive zeal,” characterized the Bush Board as more moderate in that “both sides dislike some of [its] holdings, and applaud others.”66 Harry Bernstein of the Los Angeles Times put it more precisely and accurately: “[The] turnabout doesn’t mean that the powerful agency is becoming pro-union. Far from it. But at least it is no longer unabashedly anti-union.”67 The Stephens Board, for example, did substantially modify a Dotson Board ruling concerning union access to employer private property, only to have its decision reversed by the Supreme Court. In Jean Country the Stephens Board decided, contrary to the Dotson Board, that “the

4 8    Chapter 2 availability of reasonable alternative means (of communicating with employees) is a factor that must be considered in every access case.”68 One researcher reported that in the overwhelming number of cases after Jean Country, the Stephens Board held that union access was required because alternative means of communication were impracticable and employer private property interests were “lightweight.”69 The Supreme Court struck down the Stephens Board Jean Country test as it applied to nonemployee union organizers’ access to employer property in its 1992 decision in Lechmere, Inc. v. NLRB.70 The court’s decision in Lechmere granted employers essentially complete freedom to bar nonemployee union organizers from their premises unless their employees were “isolated from the ordinary flow of information that characterizes our society” such as in “logging camps, mining camps, and mountain resort hotels.”71 As with so many other Supreme Court decisions in the labor-management area, the values of the decision makers in Lechmere dictated the outcome: not only the overwhelming deference to employer property rights over the statutory right of employees to organize but also hostility to collective bargaining and the “distrust and antagonism toward collectivity.”72 The Court’s employer property rights values clearly surpassed even those of the solidly conservative Bush Board. Even after the Supreme Court’s decision in First National Maintenance73 and the Dotson Board’s interpretation of that decision, great confusion remained about employers’ obligation to bargain about partial closures, relocations, mergers, and similar decisions affecting employment. In 1989, the District of Columbia Circuit Court of Appeals remanded the Board’s 1987 decision in Dubuque Packing Company74 and urged the Board “to articulate a majority-supported single rule for determining if a particular management decision was a mandatory subject of bargaining.”75 In its Dubuque II decision76 the Stephens Board applied the rationale and balancing requirements of the Supreme Court in its decisions in First National Maintenance77 and Fibreboard78 and developed a new test, limiting that test to relocation decisions, and concluded that relocation decisions as a class could not be labeled as mandatory or nonmandatory. Under the new test, the general counsel had the initial burden of establishing that relocation of bargaining unit work was unaccompanied by “a basic change in the nature of the employer’s operation.”79 If successful,

Conflicting Statutory Purposes   49 the general counsel would have made a case sufficient on its face that the employer’s decision to relocate was a mandatory subject of bargaining. An employer could rebut that case by establishing that the work performed at the new location varied “significantly from the work performed at the former plant” or that the “work performed at the former plant is to be discontinued entirely,” or that the “employer’s decision involves a change in the scope and direction of the enterprise.” Alternatively, an employer could still establish that its decision to relocate was not a mandatory subject of bargaining by showing “the labor costs (direct and/or indirect) were not a factor in the decision” or that, even if they were, “the union could not have offered labor costs concessions that could have changed the employer’s decision to relocate.”80 John Irving, former Board general counsel, saw Dubuque II as a middle ground decision because the Stephens Board rejected not only the union contention that a decision to relocate bargaining unit work is always a mandatory subject of bargaining but also the management position that relocation of work decisions are entrepreneurial nonmandatory subjects of bargaining. A more critical management attorney called the decision a “legal hatchet job” and a “bastardization of First National Maintenance.”81 What had become “middle ground” for some might have been a backtrack from the Dotson Board era, but it was a long way from Wagner’s workers’ rights statute and the federal policy of collective bargaining set forth in the Wagner and Hartley Acts. Dubuque II at its core still elevated profitability and unfettered management prerogatives over the fundamental purpose of the Act. In addition, in its 1988 decision in Pierce Corp.,82 the Stephens Board reaffirmed the Dotson Board’s Midland ruling83 that representation election results would not be disturbed because of misstatements made during the campaign, conformed to another Dotson Board precedent84 by concluding that a single employee’s attempts to enforce statutory rights were not presumed to be on behalf of other employees. It reaffirmed another Dotson Board decision when in E. I. DuPont deNemours85 it held that nonunionized employees are not entitled to representation in an employer’s investigatory interview. The most publicized and publicly debated case before the Stephens Board, Electromation Inc.,86 turned out to be an ordinary company-dominated union situation. Prior to the Board’s Electromation decision, management

5 0    Chapter 2 organizations had proclaimed a new era of labor-management cooperation through worker participation programs that had been embraced by companies to improve American manufacturing competitiveness domestically and globally. They urged the Board to reject “anachronistic” interpretations based on a fear of company unions that were “a thing of the past”87 and warned that a Board decision prohibiting such joint labor-management committees would be a disaster for U.S. employers trying to compete in the global marketplace.88 The specific issue in Electromation was whether six “Action Committees,” comprised in part of employees and established by the employer, constituted a labor organization and, if so, whether it was an employer-dominated organization. On December 16, 1992, the Stephens Board ruled that Electromation’s Action Committees were labor organizations dominated and controlled by management in violation of the law.89 As Professor Charles Morris put it, the outcome came as no surprise and the “sky is not falling.”90 The Stephens Board made it a point to emphasize that its decision in Electromation was strictly confined to the facts of that case and that other employee participation plans could be lawful.91 Discussions of Electromation, both before and after the decision, were often influenced by a commonly accepted presumption that adversarial relations between labor and management had either become cooperative or needed to become cooperative in order for employers to be competitive, jobs to be created, and the economy to grow. Cautionary notes were sounded, however, including those of the National Conference of Catholic Bishops in its 1986 pastoral letter Economic Justice For All: “Partnerships between labor and management are possible only when both groups possess real freedom and power to influence decisions. This means that unions ought to continue to play an important role in moving toward greater economic participation within firms and industries.”92 Others maintained that “it is idle, if not fatuous, to talk theoretically about new forms of labor-management cooperation unless and until a consensus is reached that effective unions are not only legitimate but . . . truly indispensable.”93 Although the Electromation decision set no new labor law precedent, the nature and intensity of the discussion of the issues raised made it clear that for U.S. employers, participation by groups of employees did not include unions or collective bargaining.

Conflicting Statutory Purposes   51

Concluding Observations Historian James McGregor Burns, in a 1941 article about the NLRB, expressed his belief that the Board was administering “a right of labor which ultimately may rival our traditional constitutional liberties as a basic American right.”94 By the end of the era following Taft-Hartley and up to the Reagan-Bush Boards, however, the subordination of workers’ rights to the economic interests of employers had become more established and widespread. The Wagner Act NLRB’s strict, employer-hands-off neutrality in employees’ exercise of their right of freedom of association—given the coercive power of employers—was rejected in favor of the statutory right of employers to resist the exercise of that right by exerting their economic power through speech. Permitting employers to give anti-organizing speeches without requiring equal time to organizers and denying nonemployee organizers access to employees on employer property rejected the heralded concept of speech as a marketplace of ideas and thereby increasing the likelihood that “truth” “can result only from the triumph of power rather than the triumph of reason.”95 In the main, the pre–Wagner Act values of property and managerial prerogatives have remained decision makers’ values of choice. The workplace is the most effective location for organizational activity. Limiting nonemployee organizers’ access to workplaces to the rarest of situations, as the Supreme Court did in Lechmere, is contrary to the Act’s stated purpose of encouraging collective bargaining. The “balancing” rhetoric used in Lechmere and many other Supreme Court and NLRB decisions conceals (sometimes not very effectively) the underlying value (or ideological) choice of decision makers. In Lechmere, for example, property and managerial rights are unquestionably considered more worthy of judicial protection and promotion than the freedom of association rights of workers—as they were before Wagner-Taft-Hartley.96 That value judgment was evident in the reaction following the Kennedy-Johnson (McCulloch) Board’s decision to make fundamental managerial decisions the subject of mandatory bargaining with labor organizations. It also is evident that the McCulloch Board’s literal enforcement of workers’ rights to bargain collectively evoked the same intense opposition that the Madden Board’s enforcement of workers’ rights experienced almost thirty years before that.

5 2    Chapter 2 Excluding subjects from mandatory bargaining increases employer power and, of course, limits worker participation in the decisions that affect their workplace lives.97 The Act, by promoting and protecting workers’ concerted activity, including collective bargaining, was designed and intended to change much of management’s unilateral decision making into joint labor-management bargaining decisions. Disregarding that intent, the concurring (and, to this day, controlling) opinion in Fibreboard excluded from mandatory bargaining those managerial decisions at the “core of entrepreneurial control” even when such decisions will result in the termination of employment. The Fibreboard property-managerial-rights value judgment, particularly given the vagueness of what constitutes the “core of entrepreneurial control,” created wide leeway for courts and the NLRB to make that same value judgment controlling in subsequent cases. The Supreme Court in First National Maintenance, for example, presumed the priority of a management need for “unencumbered decision-making.” The court then devised a vague and indeterminate test to “balance” or “weigh” the needs of employer control against the value of collective bargaining. The test itself is constructed so that it defers to property-management rights rather than to the right of workers to participate in management decisions through collective bargaining. The Supreme Court in First National Maintenance and the subsequent Dotson Board decisions concerning the scope of bargaining in particular treated collective bargaining as an encroachment on management rights rather than as a workers’ right.98 Yet the McCulloch Board treated Taft-Hartley as promoting collective bargaining consistent with the statutory statement of purpose set forth in the Wagner Act and incorporated into Taft-Hartley. McCulloch echoed Wagner in asserting that collective bargaining was more than a method of resolving labor-management disputes; it brought about a democratic movement to correct workplace injustices and to replace workplace autocracy with workplace democracy through the enforcement of workers’ rights and social justice. A comparison of decisions and value judgments of the McCulloch (Kennedy-Johnson) and Fanning (Carter) Boards with those of the Miller (Nixon), Murphy (Nixon), Dotson (Reagan), and Stevens (Bush) Boards makes it clear that the same law was read as promoting collective bargaining and as promoting resistance to it. Professor Morris has written a persuasive article refuting the conventional wisdom that the Taft-Hartley

Conflicting Statutory Purposes   53 Act changed the Wagner Act’s basic policy of encouraging and protecting workers’ freedom of association and collective bargaining.99 In practice, however, for the forty-seven years from Taft-Hartley to the end of the Stephens chairmanship in 1994, successive NLRBs have operated as if there were different, conflicting statutory purposes. NLRBs applying quite different purposes can choose between these two contradictory statutory purposes and still claim that they are conforming to congressional intent. Consequently, the power to appoint has become the power to determine which national labor policy would be chosen—or even if the Act and the NLRB would remain “relevant.” In the forty-one years from the Farmer (Eisenhower) Board to the end of the Stephens (Bush) Board, Republican appointees were in the majority for twenty-eight of those years and in the position to determine that choice. From the drafting of the Taft-Hartley Act to the end of the Stephens (Bush) Board, Congress was unable “to get past short-term maneuvering for political advantage, political horse-trading, ideologically inspired emotion, unfounded and unsubstantiated beliefs about unions and labor relations, and the cavalier manipulation of labor policy to achieve other political objectives.”100 Throughout that time, Senate and House committees failed to conduct the dispassionate and expert oversight that could have informed lawmakers about needed legislative reforms. Instead, congressional committees were used, too often, to prepare an agenda for doctrinal changes for a new Board of the same political party to follow. The Supreme Court, moreover, in key decisions took the lead in freeing management from the constraints of the law solely on the basis of value-laden dicta about the inviolability of management rights. The persistence and intensity of employer opposition demonstrated the extent to which the most powerful employers in the country would resist any threat to their management prerogatives. For them, workplace democracy and free enterprise were fundamentally incompatible. Employers in this period promoted a nonunion form of worker participation and representation that denied any conflict of interest between labor and management; deplored the detrimental economic consequences of adversarial unions; and was purported to increase efficiency, quality, and profitability to the benefit of workers as well as employers. Some saw this as a strategy to keep unions out by “drench[ing] employees in a corporate ideology” of common cause that made unions unnecessary.101

5 4    Chapter 2 At the end of the Stephens Board, Clifford Oviatt, a member of that Board, made the case for his Board’s impartiality and moderation. He cited pragmatic decisions that provided “instructive rules” to employers and unions, and praised the Board for acting in a judicial capacity by following established case law and resisting the “temptation to rewrite the law.”102 Oviatt’s assessment of moderation was in the context of his understanding that the drafters of the NLRA “were clearly cognizant of the delicate balance between management and labor that is necessary to sustain a healthy economy.”103 A workers’ rights statue had been twisted into an economic development law promoting and protecting employers’ economic rights. In that context moderation had an entirely different meaning. Most would agree that many American workers do not know what their rights are under the NLRA. In the late 1960s, employers succeeded in preventing the McCulloch Board from posting workplace notices that would explain those rights to workers in plain language. How ironic and revealing of dominant values that President George H. W. Bush in 1992 required government contractors to post notices informing employees that they could not be required to join the union or to maintain membership in the union to retain their jobs, and that those who chose not to be union members but were covered by a union-security agreement could object to the use of their compulsory union dues for activities other than collective-bargaining and the administration of contracts. The Bush White House explained that the postings were necessary because many employees were unaware of the rights they had under the Supreme Court’s Beck decision.104 In the early 1990s, the AFL-CIO and the United Food and Commercial Workers International Union (UFCW) shifted their pursuit of workers’ rights to the International Labor Organization’s (ILO) Committee on Freedom of Association (CFA). In March 1990, the UFCW complained that, among other things, the Supreme Court’s Lechmere decision would have a “devastating impact” because the court had “declared that private property will assume absolute priority over rights to freedom of association wherever union organizers were involved.” The ILO CFA found the Supreme Court’s decision to be contrary to the principles set forth in ILO Conventions nos. 87 and 98 and called on the U.S. government to “guarantee access of trade union representatives to workplaces, with due

Conflicting Statutory Purposes   55 respect for the rights of property and management, so that trade unions can communicate with workers in order to apprise them of the potential advantages of unionization.”105 In July 1990, the AFL-CIO filed another complaint with the ILO CFA, charging that U.S. labor law and jurisprudence allowing for the permanent replacement of workers engaging in lawful economic strikes violated freedom of association and rights to organize and bargain collectively. The CFA emphasized that the right to strike “is one of the essential means” workers and their organizations have to “promote and defend their economic and social interests.” The CFA concluded that “this basic right” was not guaranteed when a worker who exercises it risks being permanently replaced by another worker. The CFA asked the U.S. government to take that “into account.”106 The government, however, no matter which political party is in power, has taken no action concerning either CFA recommendation. Edward Potter, the representative of U.S. business at the ILO, in a still-influential book, warned against the U.S. government’s ratification of ILO Conventions nos. 87 and 98 concerning freedom of association, the right to organize, and collective bargaining. If ratified, those conventions would become treaties that would supersede existing federal and state laws that were inconsistent with those ILO conventions. Among the “fundamental changes” that ratification would require, Potter listed the following: Repeal of the employer free speech provisions under Section 8(C) of the NLRA and the prohibition of all acts of employer and union interference and organizing; Broadening the classes of employees entitled to NLRA protection; Limiting restrictions on the right to strike, including secondary boycotts, in both public and private sectors; Elimination of the distinction made between the employer’s obligation to bargain on mandatory and permissive subjects of bargaining.107

This would also occur, Potter cautioned, because ratification would be taken seriously by the courts, administrative agencies, unions, and employers “because the Conventions would become the law of the land.”108 One of Potter’s major concerns centered on Article 11 of ILO Convention no. 87 and its provision that “each member of the International Labor Organization for which this Convention is in force undertakes to take all

5 6    Chapter 2 necessary and appropriate measures to ensure that workers and employees may exercise freely the right to organize.” As Potter put it, “In sum, Article 11 broadly lays down an obligation for the State to take measures to prevent any interference with such rights without qualification, that is, ‘interference by individuals, by organizations or by public authorities.’ ”109 Those obligations were not met in the overall period from Taft-Hartley to the end of the Bush Board. Potter’s book remains the employers’ core document setting forth reasons against ratification of ILO Conventions nos. 87 95. The objective, however, should not be to decide how to continue to avoid meeting those obligations. The objective should be to try to understand how and why those obligations to protect workers’ rights have not been met and to propose ways to bring about commitment to worker rights and human rights at the workplace.

3

The Gould Board: Conflicting Agendas

Fear of a Restoration of Workers’ Rights The election in 1992 of William Jefferson Clinton as president was a critical turning point for the Democratic Party, which had controlled the White House for only four of the previous twenty-four years. It triggered extensive speculation about new directions in labor-management relations and generated a range of proposals concerning labor law reform. In February 1993 union activists demonstrated at NLRB regional offices, protesting delays in handling complaints against employers and demanding reform of U.S. labor law. Union protesters entered the regional office in San Antonio, Texas, and read a “bill of rights for American workers.”1 In 1993, AFL-CIO president Lane Kirkland called for the exclusion of employers from the representation election process, declaring that the “ultimate aim of the labor laws and enforcement should be the principle that a worker’s decision on whether or not to join a union is none of the employer’s damn business.”2 This, of course, was the principle enforced

5 8    Chapter 3 by the Wagner Act Board over fifty years before Kirkland’s advocacy of its reinstitution. In the same year, Professor Charles Morris, deploring that most American workers were unaware of their rights under the Act and had never heard of the NLRB, petitioned the NLRB to use its rule-making authority to require all employers and unions subject to the Board’s jurisdiction to post notices advising employees of their rights and how to enforce those rights.3 Professor Morris, now almost thirty years later, was trying to revive the defeated effort of the McCulloch Board to post workforce notices that in plain language would explain to workers what their rights were. More controversy, however, was created by legislative efforts to prohibit employers from using permanent replacements for striking workers in a labor dispute. As far back as 1938, Supreme Court dictum in NLRB v. Mackay Radio & Telegraph Co.4 had elevated this state common-law right of employers over the federal statutory right of workers to strike for better wages and working conditions.5 Critics of the Mackay decision contended that it rendered strikes useless or “suicidal,”6 by applying to workers in the real world, a meaningless distinction between the existing statutory protection against being discharged or disciplined for engaging in protected concerted activity such as an economic strike and being permanently replaced at the workplace when exercising that allegedly protected right to strike. The court-proclaimed right to replace strikers permanently also gave employers the power “to transform an economic dispute about wages and benefits into an epic struggle for a union’s survival” and to undercut union-organizing efforts by advising their employees that they could be permanently replaced when they strike.7 Employers and their advocates in Congress warned that the strikerreplacement bill (the Workplace Fairness Act) would guarantee union success in any strike, upset the delicate balance of power between labor and management, lead to more strikes, and increase mutual distrust and conflict. Republican senator Orrin Hatch and others foresaw a sharp and dramatic “turn to the left” at the NLRB that could make legislative changes unnecessary if Clinton’s appointees to the Board accomplished labor’s objectives through interpretation of the Act. Hatch also cautioned that there could be an onslaught of federal regulations designed to “direct social change through control of management practices.”8

The Gould Board   59 Both sides expected and feared too much, even discounting for hyperbole. Clinton was a centrist, moderate, pragmatic “New Democrat” who for over ten years as governor of Arkansas had economic growth, job creation, and education as his highest priorities. When he was president, his centrist “Third Way” approach placed more importance on getting the North American Free Trade Agreement (NAFTA) signed into law than on enactment of the striker-replacement bill, which ultimately was defeated. While presiding over the longest period of economic growth in the nation’s history, Clinton also angered liberals by signing a welfare-reform bill (the Personal Responsibility and Work Opportunity Act of 1996) that was the cornerstone of the Republican Party’s agenda and fulfilled Clinton’s promise to reform the welfare system. On the other hand, he also signed the 1993 Family and Medical Leave Act (FMLA), which required covered employers to grant to employees unpaid leave for pregnancy or a serious medical condition; the Omnibus Budget Reconciliation Act of 1993, which cut taxes for low-income families as well as most small businesses; and an omnibus crime bill that included expansion of the death penalty. In addition to the Clinton administration’s less than all-out support for the striker-replacement bill, the nature of Clinton’s approach to labor was revealed in the makeup and mission of the Commission on the Future of Worker-Management Relations (the Dunlop Commission) announced by Secretary of Labor Robert Reich on March 23, 1993. The charge to the commission was conspicuously devoid of any mention of workers’ rights issues but was limited to finding new methods and changes that would “enhance cooperative behavior, improve productivity, and reduce conflict and delay.” Rather than seeking to impose new federal regulations and administrative agency rules as employers warned Clinton would, his secretary of labor asked the commission to determine what should be done to increase the resolution of workplace problems by the parties themselves, “rather than through recourse to state and federal courts and governmental regulatory bodies.”9 The commission of twelve members was dominated by eight distinguished professors who were well established in the mainstream thought and practice of U.S. industrial relations and labor law. Three were Harvard professors, including Chair John Dunlop, and the others were faculty members from Stanford Law, the University of Texas (former secretary of labor Ray Marshall), Duke University (former secretary of commerce Juanita Kreps), the University of Wisconsin, and

6 0    Chapter 3 the Massachusetts Institute of Technology. The Commission on the Future of Worker-Management Relations, in regard to both its mission and membership, was in the Millis-Leiserson pluralistic tradition that reduces matters of rights to matters of conflicting interests to be resolved through a process of “give-and-take” negotiation and compromise.

Clinton’s Nomination of William Gould: An Agenda for Reform On June 28, 1993, President Clinton nominated a member of the Commission, Stanford University law professor William Gould, to be the chair of the NLRB. Gould, who would become the first African American chair in the history of the NLRB, was described in the press as “an outspoken advocate of workers’ rights.”10 President Clinton, in announcing this nomination, remarked that Gould “stands for the principles I want the NLRB to uphold—the rights of all workers to participate in labor organizations, and the need for labor and management to work together to increase our nation’s competitiveness in a global marketplace.”11 Gould had a great deal of practical and scholarly experience and was a prolific writer of books and articles concerning U.S. labor law; racial discrimination at the workplace and in unions; professional sports; international and comparative labor law; and workplace conflict resolution procedures, including labor arbitration. Although all those writings gave insight into Gould’s views, critiques, proposals, and values, none figured prominently in the firestorm that developed around his nomination. It was a manuscript yet unpublished in May 1993 that fueled most of the heated opposition. Ironically, Gould himself had urged his publisher to accelerate the book’s publication because he believed the appearance of the book would help his nomination. Gould’s book, Agenda for Reform: The Future of Employment Relationships and the Law,12 was published in July before Gould’s Senate nomination hearing on October 1, 1993. In his book, Gould addressed labor issues that he considered the central issues confronting labor-management relations at the time, many of which he had “reflected upon and addressed in his teaching and his practice” during the thirty-two years since his graduation from law school.13 He concluded that the NLRA, once considered

The Gould Board   61 a model statute, was “now in complete disarray”; unions looked “wobbly and obsolete at this point”; “strikes [were] declining because they [were] no longer credible weapons,” since employers were “increasingly resorting to the permanent replacement tactic”; and employers needed to have “greater latitude in devising systems that promote and provide for communication between employees and employers” without condemnation under the anti-company union provision of the Act.14 More pointedly, Gould wrote that he “advocated labor law reform that would facilitate trade union organization and collective bargaining.” He reasoned that the decline of the labor movement had “erode[d] the fabric of democratic institutions and is thus profoundly worrisome to all who value pluralism and a system of checks and balances in the work place where ‘workers compete for jobs and management competes for labor.’ ” Gould believed that his proposals would help restore “the balance [that had] been tilted in favor of management and against labor” and that no lasting solution could “be fashioned in the absence of labor law reform that promotes collective bargaining” as the best way to resolve differences.15 Gould’s vision, therefore, was “that maximum reliance should be placed on free collective bargaining to protect employees and provide workplace participation.”16 Gould expressed “alarm” that interpretations of the Act by the NLRB and the Supreme Court were at odds with his values of encouraging union organization and collective bargaining. He cited in particular the Supreme Court and NLRB’s “genuflection to management prerogatives” and the Dotson-chaired Board that between 1983 and 1986 was on a “mission” to reverse prior decisions that promoted collective bargaining—concluding that the Supreme Court was even “more pro-employer and anti-collectivebargaining” than the Reagan-era Dotson Board.17 According to Gould, U.S. labor law had failed to protect workers’ freedom of association but that was not because of failings inherent in the law. Consequently, he called for reform, not repeal, of the Act. Among those reforms, Gould asked Congress “to overrule Mackay altogether” because the Supreme Court’s decision permitting the permanent replacement of economic strikers was “badly flawed,” a “most pernicious . . . treatment of the strike,” and “hypocritical” in a system in which the law purports to protect workers’ right to strike.18 In what was a rarity for the time, Gould placed his discussion of striker replacement in a global context by referring to ILO Conventions nos. 87

6 2    Chapter 3 and 98 (which the U.S. had not ratified) that guaranteed workers the right to freedom of association, which included the right to strike. He cited a 1991 ILO Committee on Freedom of Association (CFA) case19 in which the committee held that “respect for the principles of freedom of association requires that workers should not be dismissed or refused re-employment on account of their having participated in a strike or other industrial action.” Gould did not mention a case involving the United States that the CFA also decided in 1991. In that case the CFA held that the right to strike was an essential means whereby workers and their union organizations promote and defend their economic and social interests. The CFA concluded that “this basic right is not really guaranteed when a worker who exercises it legally runs the risk of seeing his or her job taken up permanently by another worker, just as legally.”20 Gould’s alternative approaches revealed his main objectives of achieving balance between the interests of labor and management and avoiding or at least minimizing adversarial conflict. He recommended permitting employers to operate during a strike with temporary replacements while providing strikers with the right of reinstatement, thereby accommodating “considerations of both equity and balance to the competing interests of labor and management.”21 He also recommended public policies that would promote third-party intervention (mediation, arbitration) as an alternative to strikes consistent with his “efforts to find ways to reduce conflict and settle disputes by more rational processes.”22 Gould also saw worker participation and cooperative relationships with employers as means, not only to increase productivity but also to change “the adversarial ‘them-us’ labor-management mentality which promotes or accedes to conflict.”23 He advocated revision of Section 8(a)(2) of the Act in ways that would promote labor-management partnerships and cooperation. Gould criticized Supreme Court decisions (such as First National Maintenance) that created exclusive management prerogatives for fueling the adversarial approach contrary to cooperative partnerships.24 Although Gould opposed repeal of the NLRA, he did propose several changes, in addition to those involving striker replacement. He proposed countering employer anti-union campaigning during the representation election process with “widespread access for nonemployee union organizers to distribute their message to employees during nonworking time on company property.” He advocated tilting the balance he sought between

The Gould Board   63 labor and management to the side of freedom of association because the Act provided explicit protection for those rights and not for private property. As another counter to employer anti-union campaigning, he would allow the NLRB to certify unions on the basis of authorization cards rather than secret ballot elections.25 Yet Gould made no mention of other significant concerns such as captive audience issues. Even more unusual, Gould, who throughout his book reaffirmed his commitment to employees’ right to organize and bargain collectively, argued for the elimination of the Board’s efforts to regulate employer anti-union statements and granting of benefits “regardless of the impact that the campaign has upon the minds and actions of the workers.”26 As Clyde Summers pointed out, this “would strip from Section 8(C) the limiting clause constraining employer action, ‘if such expression contains no threat’ of reprisal or force or promise of benefit.”27 Gould called the Board’s effort to regulate representation campaign speech a waste of time, counterproductive because of the delay-inducing litigation it produced, merely providing “full employment for lawyers.”28 Consistent with this concern for worker participation in the decisions that would affect their workplace lives, Gould urged abolishing the distinction between mandatory and permissive subjects of bargaining and compelling bargaining on all subjects of mutual concern to management and labor. Consistent with his advocacy of union-management cooperation, Gould proposed that an employer be required to disclose to its union (without a request from the union) all information that could have an impact on employment conditions. Other changes he proposed in the duty to bargain included third-party arbitration in first contract negotiations where parties are unable to agree on the provisions of the collective bargaining agreement.29 Gould proposed another change that would compel employers to bargain with a union that represented a minority of employees on a members-only basis where no majority union existed. Consequently, a majority of employees could not deny collective representation to fellow employees who wanted to exercise their freedom of association. Gould advocated applying to egregious employer law violations the “more effective remedies set forth in the unsuccessful 1978 Labor Reform Bill: denial of government contracts, double or triple back-pay awards, and no deductions of interim earnings from back pay due a worker who lost employment because of unlawful conduct.” Finally, two recommendations,

6 4    Chapter 3 discussed more fully later but only mentioned in Agenda—increased use of Section 10(J) injunctions and NLRB rule making—would become major sources of contention after Gould became chairman of the NLRB.30 In his first year in office, President Clinton had the opportunity to reshape the NLRB and change its direction by filling three of the five Board seats and appointing a new general counsel.31 Filling those seats and appointing a general counsel became a difficult nine-month process marked by acrimony and political deal making with Chairman Gould’s nomination and book at the center of it all. Even before Gould was nominated, the National Association of Manufacturers warned that “Gould’s decisions are predetermined” as evidenced by Agenda for Reform.32 In a later published memoir,33 Gould wrote that the “drumbeat of criticism” and resistance to his confirmation was led by the Labor Policy Association, “an extreme right-wing business group,” and the National Right to Work Committee, which “as the summer of 1993 wore on . . . turned up the decibel level of its critical barrage and labeled the book a liberal or union Mein Kampf.”34 Senators who opposed Gould’s confirmation accused him of advocating extremist and radical changes that would detrimentally affect what they contended was the then properly established but delicate balance between labor and management.35 At his nomination hearing on October 1, 1993, before the Senate Committee on Labor and Human Resources, Republican senators Nancy Kassebaum and Orrin Hatch pressed Gould to explain how he could enforce laws that he believed were unfair, at the same time insinuating that Gould would remake the laws through reinterpretation of the Act and reversal of Reagan-Bush Boards’ precedents.36 Gould’s consistent reply was that he would “interpret the law as written” and would not rely on “theories” that he had espoused with regard to legislative reform. Gould tried to reassure his critics that “changing the law . . . is the province of the Congress” and that he would not use his position at the NLRB to advance his ideas on labor law reform.37 Of course, there is no such thing as applying the law as written. Impartiality means the absence of bias, but realistically it cannot mean the absence of personal beliefs and values. Judicial and administrative agency decision making is not mechanical or devoid of subjective input or creativity. It unavoidably requires choosing from among several applicable sets of often competing principles and outcomes. Neutrality, therefore, cannot

The Gould Board   65 mean that each judge of workplace disputes has no beliefs, values, or assumptions about the nature of the enterprise and the place of employees in that enterprise. It is at least close to certain that no one, opponent or supporter, embraced the “apply the law as written” claim—maybe not even Professor Gould. His nomination hearing was fairly successful, Gould concluded, because he used “Washingtonese,” which he described as “the art of answering questions in an evasive manner rather than displaying one’s substantive knowledge.” The basic strategy that he followed during his nomination hearing “was to say as little as possible and not to answer questions directly but rather to give bland, general responses that were, in essence, nonresponsive.”38 The Senate Labor and Human Resources Committee approved Gould’s nomination. The committee’s vote was split along party lines, with ten Democrats voting yes, five Republicans voting no, and two Republicans voting present.39 However, President Clinton’s nominations of Gould, Margaret Browning as member, and Fred Feinstein as general counsel were roadblocked by the insistence of key Republicans that President Clinton acquiesce to their choices for Board membership as the price of getting any of his Board nominees confirmed—a deal-making approach to the appointment process involving other agencies as well that became known as “packaging” or “batching.”40 After initial resistance, the White House capitulated rather than risk a threatened filibuster.41 The Republicans’ uncompromising position on packaging also threatened to immobilize the NLRB, which when Congress recessed at the end of November would be down to two members and without a quorum. In anticipation of that, incumbent Board chairman James Stephens and his fellow Board members agreed to delegate to the general counsel the power to seek injunctive relief under Section 10(j) of the NLRA until a third seat was filled.42 On January 24, 1994, President Clinton named John Truesdale, the NLRB’s executive secretary and a former Board member, to a recess appointment. During the two months without a quorum the Board issued no decisions. As a consequence, its backlog of cases had grown from approximately four hundred to nearly six hundred at the time of Truesdale’s recess appointment.43 Abandoning the strategy he used during his nomination hearing and disregarding the advice of the Clinton administration to keep silent, Gould

6 6    Chapter 3 lashed out at the opponents of his nomination. He told a labor law conference in Florida on January 27, 1994, that he had decided to counterattack because of the incessant “drumbeat” against him. Gould charged that his experience and views had been lost “in the babble of scurrilous lies” that had been told about him “both professionally and personally over these past eight or nine months.”44 In a January 28, 1994, entry in his diary, Gould called his public comments “a stupid move” and a mistake that gave his opponents “a new opportunity to create an issue and a delay.”45 On March 2, 1994, the Senate by a vote of 58–38, confirmed Gould as chairman of the NLRB. Three Republican senators voted for Gould and no Democrat voted against his nomination. By voice vote the Senate also confirmed Fred Feinstein as general counsel and Margaret Browning and Charles Cohen as members of the Board.46 Cohen, a management attorney in Washington D.C., was the Republican-chosen part of the package deal. On the day of his confirmation, Gould called the Senate vote “a victory over a determined campaign of character assassination waged against me for these past nine months by right-wing ideologues in the Republican Party and some elements of the business community.” He also said that he would work “to return the Board to the center” and to promote a balance between labor and management “that is inherent in both the National Labor Relations Act and in good sense.”47 Harold Coxson, who headed an advisory committee of lawyers within the National Association of Manufacturers, said that Gould’s statement was “ill-advised” and that now that he was confirmed Gould needed “to put all that behind him.” A spokesman for the Labor Policy Association, emphasizing Gould’s characterization of the “entire Senate Republican leadership as right-wing ideologues engaged in character assassination,” commented sarcastically, “So much for reducing polarization.”48 Only two months later, Gould told the Detroit AFL-CIO in his first speech as NLRB chairman, that he intended “to let bygones be bygones” but that he also wanted them to know that he wore “that 58–38 confirmation vote”—the largest number of no votes of any Clinton nominee— “as a badge of honor.” Gould recalled that “the crowd cheered lustily and I received a standing ovation.” He acknowledged that the comment, which angered “the enemies” of his confirmation, perhaps was impolitic.49 Gould objected to the packaging or batching that produced the Board he now chaired. He deplored an appointment process that had become

The Gould Board   67 little more than the “sum of the set of disjointed political calculations  . . . in which the juggling of political interests dominates.”50 As Gould wrote after he left the NLRB, “The price of my confirmation was acceptance of a right-wing, Republican, conservative Board member who was to be a thorn in my side during my NLRB tenure.” He charged that Republican senator Kassebaum, the ranking minority leader on the Senate Labor Committee, and her fellow Republicans supported only those potential Republican nominees to the Board who pledged to dissent from his position whenever Gould was in the majority.51 According to Gould, Kassebaum’s approach brought onto the Board Charles Cohen, who “displayed the personality of a bull in a china shop, staking out consistently conservative positions and dissenting as often as possible” to the extent that the “staff called him ‘Dr. No.’ ”52 In his memoir, Gould expressed his conviction that his nomination and tenure “fused together the ever-deepening antipathy of the Republican Right, particularly members of the House of Representatives, toward labor and race issues.” He was convinced that, while the formal debate in Congress focused on the ideas in his books and articles, his opponents were “playing the race card” behind the scenes with rumors and “dirty tricks.” In his diary entry for November 22, 1993, Gould remarked that he was surprised that it had taken so long for some “to see the racial issue” in the Republicans attack on Clinton’s African-American nominees. When he was introduced to Republican senator Strom Thurmond, former presidential candidate of the Dixiecrats in 1948, Gould believed that Thurmond “saw before him only a black Californian who was supportive of the NLRA and spoke in the urban accents of the Northeast.”53 Still, Gould felt “cheerful and optimistic” because he thought he “had taken all the hits it was possible to take.” He soon realized, however, “that all this was a mere prelude” to conflicts that would arise within the Board and with Congress.54 All that mattered, however, was whether these conflicts, be they internal and self-inflicted or external and imposed, would prevent or limit the Clinton Board from promoting and protecting workers’ rights by implementing Congress’s intent expressed in Section 1 of the NLRA, that it “is declared hereby to be the policy of the United States . . . [to] encourag[e] the practice and procedure of collective bargaining and [to] protect the exercise by workers of full freedom of association, self-organization and designation of representatives of their own choosing

6 8    Chapter 3 for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.”55 After the November 1994 elections, Republicans controlled both the House and Senate for the first time with a Democratic president since the Hartley Act was passed in 1947. Gould noted the “increased assertiveness and aggressiveness” on the part of Congressional Republican leadership and that their assault on the NLRA and the NLRB began immediately.56

A Business Manifesto: Employer Competitiveness, Not Workers’ Rights Ideology did matter for the opposition. It was an ideology that rejected as extremism the encouragement of collective bargaining and unionization. It was articulated most effectively in the book Keeping America Competitive: Employment Policy for the Twenty-First Century, coauthored by Edward Potter and Judith Youngman,57 which became a conservative business manifesto and a reply to Gould’s Agenda for Reform. The core message of Keeping America Competitive was that the employment policy issues that should be at the top of the national agenda were not collective bargaining and union security but rather job creation, education, and training; flexibility in compensation, benefits, and scheduling; alternatives to litigation; and employee involvement in workplace decision making. A primary goal of U.S. employment policy “should be to preserve and enhance the ability of American companies to create and provide jobs,” not the promotion and protection of workers’ rights. Job creation could not occur unless employers had the labor market flexibility to adjust quickly to changing domestic and global, competitive, and economic circumstances.58 There were two major reasons, however, why employers had been denied the flexibility essential for competitive success: collective bargaining and union contracts that “regulated virtually every step of the production process” and the “regulatory burden” that government imposed on employers “without consideration for the costs and effects of regulation on production, business and the economy,” including the effects on competitiveness. Potter and Youngman maintained that the value to employees of another new workplace protection can be outweighed by unemployment

The Gould Board   69 “resulting from the inability of U.S. companies to continue to absorb additional labor costs or to operate efficiently in the face of further workplace restrictions.” The authors claimed that the misguided attitude that business can afford to pay had permeated government’s social and employment policy making. It was now, more than ever before, necessary for America’s competitive future to realize that “expanded rights and remedies are counter-productive” to achieving competitiveness and that the protection of any worker employment right should be done in a way that was not detrimental to America’s competitiveness.59 Yet the authors saw a bright side to the “steady expansion of protections for workplace rights under federal and state laws”: The almost ninety-five employment laws enacted since the 1960s provided employees with “protections that were once the exclusive province of collective bargaining agreements,” thereby removing much of the incentive for employees to unionize. These employment laws substituted the “plaintiff’s bar” for union representatives. Given that their employment rights were protected by these laws, employees had good reason to reject unions, because of the greater likelihood of job losses in anticompetitive unionized firms.60 In addition, what the authors called “enlightened human resources management policies” at nonunion workplaces had been “effective in reducing employee interest in unionizing.” Why would employees need a union, when as part of an employer’s union-avoidance or union free strategy, enlightened human resources departments “provide employees with benefits and treatment equal to or better than they would receive if they were unionized.” This new approach rejected the adversarial system of labor-management relations on which laws such as the NLRA were based. In contrast to the idea of “competing interests in perpetual conflict,” new employee-involvement structures rested on the premise that “all those working for an enterprise share a common interest in its success” and focused on generating employees’ commitment to the success of that enterprise. All the forms of employee involvement discussed in the book gave employees a “larger role.” What was emphasized, moreover, was that the term workplace democracy was not synonymous with collective bargaining and that modern forms of employee involvement “differ fundamentally in both method and purpose from traditional collective-bargaining” and that the two “are not interchangeable.”61

7 0    Chapter 3 Although Keeping America Competitive did not mention Gould’s Agenda for Reform explicitly, it did address many of Gould’s proposals, characterizing them as “reopening old debates over changing our labor laws to expedite union organizing and increase the power of unions and collective bargaining.” These proposed changes were also “outdated” and futile “attempts to exempt unions from market forces both domestic and global.” Without apparent irony (or knowledge of history) the authors, tracing many of the proposals for reform to the Labor Reform Bill of 1977, recounted that opposition to that bill was led by a coalition of Republicans and southern Democrats and that the southern opponents “were particularly virulent in their opposition.”62 The conservative economic ideas contained in Keeping America Competitive were not new, but they were being sharpened and restated at a time of employer apprehension about what changes might occur after twenty years of Republican-appointed majorities on the Board. By this time, conservatives presented as uncontested the claim that the NLRA, as amended by Taft-Hartley, had been transformed from a workers’ rights statute into a laissez-faire policy featuring employee freedom of choice, government nonintervention in the collective bargaining process where used, and the “reduction of strikes that interfered with commerce.”63 Consequently, Potter maintained, debating amendments to the NLRA that Gould and others proposed would be “extremely divisive” and polarizing in ways counterproductive to the effort to improve workplace productivity, worker-manager cooperation, and competitiveness. Card check certification of unions would violate the NLRA’s cornerstone principle of employee freedom of choice through secret ballot elections and deny employers their free speech right to respond to union organizing promises and employees their right to hear from both sides. Expanding the scope of mandatory collective bargaining would “bar employers from making any changes in business operations unilaterally” and compel employers to bargain about business changes unions are powerless to alter, thereby making unionized U.S. firms “more vulnerable to nonunion and foreign competition.” Mandating arbitration of first contracts was “simply another form of government-imposed workplace regulation” and the “very antithesis of labor-management cooperation where the best solutions are those devised by the parties involved.” Finally, banning permanent replacement of economic strikers would cause “more strikes, longer lasting

The Gould Board   71 strikes, and new rigidities that would make it more difficult for unionized companies to adapt to changing marketplace conditions.” It would also be self-defeating for workers because “it would increase incentives for employers to devise new business structures and human resources strategies that would allow them to operate ‘union free.’ ” Keeping America Competitive concluded with an ironic message warning against employment policies “driven more by the concerns of special interests than by the legitimate needs of employers and employees alike.”64

The Chairman–House Republicans Battle Begins Although he had characterized his confirmation as a “victory over a determined campaign of cynical character assassination,” Gould, upon assuming chairmanship of the NLRB, said publicly that he looked forward “to a very constructive relationship with the Republicans and the Democrats” in the House and Senate and, by “evenhandedness and neutrality,” to restoring the NLRB’s credibility, which the NLRB’s “one sidedness” in the 1980s had undermined.65 Gould and General Counsel Fred Feinstein also promised to revitalize the agency by adopting procedures and policies that would improve the NLRB’s ability to act quickly and decisively.66 The initial approaches to the revitalization process included the formation of labor and management advisory panels, new administrative law judge procedures, increased use of Section 10(j) injunctions, mail ballots in representation elections, and rule making. Each of these efforts generated opposition from inside as well as outside the NLRB and achieved limited success at best. One of Gould’s first actions after he was confirmed was to appoint two advisory panels—one representing employees and the other representing employers and each with twenty-five lawyers—who served pro bono and met separately twice a year to advise the Board and general counsel concerning key issues and policies.67 The first meeting of the advisory panels, in June 1994, discussed Chairman Gould’s proposal to change Board policy to encourage greater use of postal or mail ballots in representation elections. The union panel endorsed mail balloting, maintaining, among other things, that management domination of the election process and intimidation of employees would not end until the conduct of representation elections

7 2    Chapter 3 was removed from the job site.68 The management panel, however, told the Board not to interfere with procedures that were working. One panel member, former Board member Marshall Babson, described the agency’s manual secret ballot election process as the NLRB’s “crown jewel.”69 In July 1994, the management advisory panel reinforced its decision on mail balloting with a thirty-five-page position statement allowing for mail balloting only in exceptional cases in which long distances were involved or eligible voters were scattered because of their job duties. Consistently, management attorneys asked how union attorneys’ acceptance of lower voter participation in mail balloting could be reconciled with “the central objective of the Act, which is to encourage the practice of democracy in the workplace” and to protect the “exercise by workers of full freedom of association, self-organization and designation of representatives of their own choosing.” After appropriating, without apparent reservation, the purpose of the Act long advocated by their opponents, the management advisory panel just as freely argued against that purpose by pointing out that mail balloting would unfairly limit the time employers would have to communicate their views on unionization to their employees.70 Memoranda from internal NLRB staff sent to Gould in response to a solicitation of their views revealed a sharp split within the agency concerning making routine the use of mail ballots. Some felt strongly that the “presence of a Board agent at an election gives employees a greater sense of security that their Section 7 rights are being preserved.”71 In a speech in August 1994, Gould said that to opponents the use of the postal ballot “somehow signifies the demise of Western civilization.”72 The Board postponed indefinitely any vote on the use of mail ballots after Member Browning offered new proposals on the issue and Member Cohen called for maintenance of the status quo.73 This apparent reason for delay masked suspicions and hostilities inside the Board that would bedevil the work of not only the first Gould Board, but also subsequent Gould-chaired Boards on which John Truesdale, John Higgins, Sarah Fox, Wilma Liebman, J. Robert Brame, and Peter Hurtgen would serve. During the early discussions of mail balloting, Gould commented in his diary that former chairman and now Board member James Stephens “suspected a cabal of myself [Gould], Peggy [Browning] and Feinstein” and feared that “publicity about our work” would “politicize matters” and

The Gould Board   73 threaten his (Stephens) reappointment to the Board.74 According to Gould, Member Cohen had “emerged as the main thorn in my side” and was unwilling to compromise.75 More than two years later, as the battle over postal ballots continued, Gould complained in his diary that Democratic member Fox played a “truly pernicious role” by siding with Republican member Higgins, who “was talking a great deal of nonsense” when he “pontificate[d] about how manual ballots are the crown jewel of the Act and the heart of the Act.” Gould was convinced that Higgins’s underlying motivation for defending the manual ballot was the same as that of his Republican successors Hurtgen and Brame: to preserve employers’ effective use of captive audience speeches to workers just before elections.76 The debate culminated in 1998 in a 3–2 Board decision in San Diego Gas and Electric.77 In that case Members Fox and Liebman, noting that only about 2 percent of all elections involved mail ballots, agreed that it was appropriate for regional directors to direct the use of mail ballots when eligible voters were scattered and their job duties were spread over a wide geographic area, or when their varied work schedules prevented them from being present at a common location at common times or “where there is a strike, lockout or picketing in progress.”78 In a concurring opinion, Gould said that he would not limit the use of mail balloting only to those circumstances but would use mail ballots where the conditions made that “necessary to conserve Agency resources and/or enfranchise employees.”79 Gould was more successful in gaining acceptance of changes in administrative law judge procedures intended to reduce delay by resolving unfair labor practice disputes quickly, informally, and early in the proceeding, thereby avoiding long and costly litigation, hearings, and appeals. Under the new procedure, the chief administrative law judge could appoint a settlement judge to work informally with the parties to try to reach a settlement and avoid a formal hearing. If a settlement was not reached, an administrative law judge (ALJ) rather than the settlement judge would hear and decide the dispute—a process that took at least four or five months from the close of the hearing. Rather than continue the practice of requiring written ALJ decisions after full briefing by the parties, the new procedure gave ALJs the discretion at the conclusion of the hearing to decide to hear oral closing arguments in lieu of written briefs and then to

7 4    Chapter 3 issue a bench decision to be read into the record.80 The Board and general counsel proposed several other changes to speed up agency decisions.81 Although Members Cohen and Stephens disagreed with the oral argument and bench decision aspects of the proposed changes82 and filed a nine-page dissent declaring their strong opposition, they joined the majority in announcing that the new ALJ procedures would be instituted on a one-year experimental basis.83 In the period February 1–December 1, 1995, settlement judges had been assigned in fifty-five cases, thirty-five of which were settled, and ten bench decisions had been issued out of approximately four hundred ALJ decisions.84 The Board, with Member Cohen dissenting, agreed in February 1996 that its one-year experiment with the new ALJ procedures would become a permanent change in the NLRB’s rules.85 The ALJ rule making was accomplished in great part because, as Gould put it, these reforms “did not really get on the Republican Party’s radar screen in 1994 or thereafter.”86 There was, however, bureaucratic infighting within the agency. Gould believed that Browning and Dennis Devaney were trying to delay Gould’s ALJ rule in an attempt “to tone down Cohen’s angry dissent.”87 Gould also believed that field agents of the general counsel’s office who settled many cases in the regional offices saw dispute resolution as within their jurisdiction and regarded the ALJ mediation not only as “an incursion onto their turf”88 but also as a threat to regional directors’ autonomy89 Consequently, Gould noted that General Counsel Feinstein “was not too friendly” to the settlement judge idea.90 What Gould considered the most important reform—the increased use of Section 10(j) injunctions—required coordination and cooperation with General Counsel Feinstein.91 Feinstein and Gould agreed that more could and should be done by the agency to use this powerful remedial device that, when granted by a federal district court, restored the status quo and forbade the commission of further unfair labor practices during the Board’s full consideration of the merits of the case.92 Feinstein made the increased use of Section 10(j) injunctions the cornerstone of his administration.93 Within the first few months of becoming general counsel, Feinstein issued a Section 10(j) internal staff manual that set forth fifteen situations where 10(j) relief could be appropriate, discussed how those cases should be investigated, and stressed the importance of early identification of 10(j) cases. The priority to be given to 10(j)

The Gould Board   75 cases was conveyed to the regions not only by the issuance of the manual but also by training sessions conducted at NLRB headquarters for representatives from each region.94 By the end of the Gould-Feinstein-led NLRB in 1998, the NLRB had sought injunctive relief more often than any Board in a comparable period in the history of the agency.95 During his term, Feinstein sought Board authorization to institute injunctive proceedings in federal district courts in 313 cases, and the Board granted authorization in 292 of those cases, or 93 percent. The parties reached a settlement in 133, or 49 percent, of those cases either before or after a petition was filed in court. Feinstein obtained a favorable court order granting injunctions in whole or substantial part in 105 of the 137 cases, or 77 percent. When favorable court decisions were combined with settled cases, Feinstein claimed an 80 percent success rate.96 The largest number of authorized Section 10(j) proceedings, 41 percent, were intended to prevent what Feinstein called the “irreparable destruction of a union’s organizational campaign” caused by serious employer unfair labor practices that threatened to “nip in the bud” the union’s campaign. Cooperation and coordination between the chairman and general counsel decreased especially after 1995 when the 10(j) injunctive procedure was most used. Gould began to see himself as “the man in the middle” of “political and ideological divisions,” between Board members Browning and Truesdale and later Fox and Liebman, who believed, in Gould’s view, that “whatever the General Counsel requested should be authorized” and the “Board Republicans [who], of course, dissented on numerous occasions.” Gould “resisted entreaties” by Feinstein to delegate the 10(j) authorization decision to the regional offices because that would be a de facto transfer of power from the Board to the general counsel, whose recommendations Gould “did not always view . . . with unbounded confidence.”97 In his memoir, published two years after he left the NLRB, Gould noted without comment a Business Week article claiming that the decline in injunction authorizations—(from a high of 104 in 1995 to 53 in 1996 and 1997, and 45 in 1998)—occurred because Feinstein “blinked and bowed to the political pressure” of the Republicans.98 In a 2008 article, Gould asserted that Feinstein had requested fewer 10(j) authorizations because of congressional pressure.99 The Board’s proposed rule making on single bargaining unit locations drew a level and intensity of congressional opposition that, to use

7 6    Chapter 3 Gould’s word, “dwarfed” its opposition to the use of Section 10(j) injunctions.100 The proposed rule provided that in representation cases where unions sought single-facility bargaining units and employers sought multiple-facility units, the Board would find the single unit appropriate. This had been an issue in NLRB representation cases for almost sixty years. The Board wanted to use rule making rather than continue case-by-case adjudication in order to provide more certainty and less time-consuming and costly litigation as well as to use its own limited and declining resources more efficiently.101 Although the proposed rule initially governed single-location units only in the retail, manufacturing, and trucking industries, the Board subsequently proposed that the rule “apply to all industries to which the Board currently applies the single location presumption.”102 Internally, the Board’s three Democrats—Gould, Browning, and Truesdale—endorsed the proposal while Republican members Cohen and Stephens did not. The intensity of former chairman Stephens’s opposition was evidenced by his decision to place a ten-page dissent authored before his term expired in the public comment file concerning the proposed rule. Stephens argued that the rule was unnecessary, arbitrary, and mechanistic and that it dismissed the possibility that a multifacility unit could meet the organizational desires of employees and “enhance efficient and stable collective bargaining.”103 Industry and business groups charged that the proposed new singlelocation rule had only one purpose, to boost union organizing,” thereby “hampering competitiveness.”104 The Wall Street Journal reported that the list of companies opposing the rule read “like a Who’s Who in the fast-food industry: Burger King, McDonald’s, Pepsi Company, Bob Evans Farms and Frito-Lay Inc.” The Journal emphasized that the restaurant industry and its political action committees had “emerged as a lobbying powerhouse among GOP lawmakers.”105 Large retail chains that had escaped unionization long maintained that because their restaurants and fast food franchises were managed from a central headquarters, a union, in order to become the bargaining representative, would have to get the support of a majority of all employees in a chain. Under the proposed single-location rule, a union could organize a single facility in the chain with the support of a majority of the employees voting in a representation election only at that one facility. An analysis of representation elections confirm that unions won more elections in smaller than in larger units.106

The Gould Board   77 A Republican-controlled House Subcommittee of the Committee on Business held a hearing in March 1996 to permit business groups to express their opposition and to question Gould on whether Gould’s real motive was to make it easier for unions to organize. Within days of that hearing, the NLRB extended the time period for filing comments on the proposed single-location rule.107 Within two weeks of the House subcommittee hearing, The Wall Street Journal reported that congressional Republicans and business lobbyists, including the Labor Policy Association, had begun a campaign to exempt small firms from the jurisdiction of the NLRB by adjusting for inflation the gross sales thresholds established in 1959 that triggered NLRB jurisdiction.108

“Legislation by Stealth” On June 13, 1996, the House Appropriations Subcommittee on a straight party-line vote by a legislative rider on spending bills barred the NLRB from issuing the single-location rule and raised the amount of annual revenues a business must make before the NLRB would assert jurisdiction. The House Appropriations Subcommittee also proposed a 15 percent cut in the NLRB’s fiscal 1997 budget.109 The extent of the ill will between Republicans in Congress and NLRB chairman Gould as well as the Republican anti-NLRB sentiment was evidenced in part by congressional Republicans’ persistence in prohibiting the Board from using any funding to take action on the single-location rule through the use of legislative riders on every NLRB appropriations bill. Despite Chairman Gould’s own persistence, in February 1998 the Board voted 4–1, with Gould dissenting, to withdraw the proposed single-location rule from active consideration indefinitely.110 Gould derided the use of riders to the appropriations bill that funds the NLRB as an attempt to influence Board policy, as “legislation by stealth,” and as a “mischievous tactic.”111 The political turmoil generated by the attempt at rule making concerning single versus multiple locations as bargaining units caused Gould to rethink his original determination to make rule making one of his major reform initiatives.”112 Writing later, Gould acknowledged that he had not foreseen that rule making by its nature created publicity, attracted attention, and “advertised what we were thinking of doing before we did it thus inviting political interference from those

7 8    Chapter 3 unconcerned with the rule of law”—interference that “could stop the Board in the starting block.”113 Despite that realization, Gould opposed the Board’s decision in 1998 to withdraw the proposed single-location rule. In retrospect, he believed that decision simply whetted the Republicans’ appetite to intervene because they “smelled blood” and would interpret the withdrawal as a sign of weakness. Gould also felt that the withdrawal denied the administration a bargaining chip in its budget battles with Congress.114 In 1996, the House appropriations bill rider designed to shrink the NLRB’s jurisdiction failed in part because the NLRB’s union and management advisory committees agreed that the proposal would create an unregulated no-man’s-land of unknown scope if the NLRB ceded jurisdiction to states, only eighteen of which had private-sector laws governing representation and collective bargaining.115 As Gould saw it, this political pressure—or what he termed “more aggression by the bully”—involved the Board’s adjudicative function, particularly because he was convinced that several Board members’ desire for reappointment made them vulnerable to political pressure.116 As a result of the November 1994 elections, conservative Republicans with strong ties to employers controlled the House and Senate labor committees. They were only part, however, of a wide-ranging Republican effort to root out and terminate burdensome federal regulations, block the issuance of new federal rules, and require empirical cost-benefit justification for existing regulations. To these Republicans, federal regulations hurt employers, job growth, and economic development and were strangling American competitiveness. The Republicans’ push for a balanced federal budget was not only an objective but also a tactic that targeted all federal agencies and increased substantially the influence of the House and Senate Appropriations Committees. The appropriations process became an effective way to deal quickly with unpopular programs without using the legislative process.117 Gould later said that the House Appropriations Subcommittee, which commenced NLRB hearings in February 1995, contained the Board’s most persistent critics and opponents during the next three and a half years. Gould noted, as did members of the labor oversight committees of the House and the Senate, that the Republicans on the Appropriations Committees “tended to be from the fringe of the right wing and disproportionately from the South.” According to Gould: “The NLRB was in their

The Gould Board   79 sights: they targeted labor issues—just as they had previously gone after policies involving race and civil rights. As Jesse Jackson said to me early in 1995 . . . , ‘You really have the white folks all stirred up these days.’ ”118 Gould singled out Representative Jay Dickey of Arkansas as the NLRB’s “major tormentor on the [Appropriations] subcommittee, and, indeed in Congress.” Along with Congressman Dickey, Gould identified House Appropriations Committee members Ernest Istook of Oklahoma, Henry Bonilla of Texas, and Dan Miller of Florida as “extreme right-wing Republicans” who “were the ideological mirror images of those southern Democrats who had left the Democratic Party over civil rights; they now represented the far right wing of the party that was so dominant in the House.”119 The NLRB faced increased hostile congressional oversight, budget cuts, and political battles over future nominees. The question discussed publicly was whether the agency would adopt a “go for broke” attitude that could invite retaliation by Republicans or take a lower-profile approach.120 Chairman Gould rejected the lower-profile approach. In the words of one academic commentator: Chairman Gould . . . seemed to take no notice whatsoever of the now critical need to avoid offending Congressional Republicans. To the contrary, for the next three years he continually irritated both the Republican majority and its allies in the management community in countless ways, most notably by speaking out on pending or potential legislation. Indeed, Gould seemed never to have met a legislative issue that he did not like—or like to talk about—and the more controversial the better.121

What began in February 1995 as the proposed 15 percent reduction in the NLRB’s budget became by mid-July a proposed 30 percent slash by the House Appropriations Subcommittee.122 Gould stated publicly that cuts of that size would cripple the agency, and Feinstein said that hundreds of NLRB employees would have to be laid off and half its field offices closed.123 The initial hostility of the House Appropriations Subcommittee to the NLRB had intensified during that period of time. On April 10, for example, the Republican chairman of the newly renamed House Committee on Economic and Educational Opportunities (formerly the House Education and Labor Committee) and two of his subcommittee chairmen sent a letter to Gould expressing their “serious concerns”

8 0    Chapter 3 about the numerous public statements he had made since becoming NLRB chairman advocating a change in the current law regarding the hiring of permanent replacements for economic strikers. They charged that Gould’s public advocacy of those views made it “virtually impossible for any party facing the prospect of coming before you in a case involving the hiring of permanent replacements not to question your impartiality with regard to the subject.” They also charged that Gould’s public statements since becoming chairman exceeded the appropriate role of the office, and they called upon him to recuse himself from any case before the Board that involved the replacement of strikers.124 In an April 19, 1995, letter to the Republican leaders of the House Committee on Economic and Educational Opportunities, Gould rejected both the charge that his public statements concerning striker replacements in any way compromised his role as adjudicator and the contention that he should recuse himself from such cases before the Board. Gould asserted emphatically that an agency chairman’s expression of views concerning how the law his or her agency administers ought to be reformed “is in the greatest tradition of administrative agencies, including the National Labor Relations Board.” He added that this was particularly appropriate when the chairman had “a lifetime of involvement with the interpretation and administration of the law both prior and subsequent to assuming that position.”125 Gould, a little more than a month later, delivered a speech at New York University in which he proposed that the Supreme Court reverse its decision in Lechmere;126 that the NLRA be amended to permit certification of representatives who obtained a substantial majority of membership authorization cards; that the duty to bargain be changed to include the imposition of first-contract arbitration and expanded to oblige employers to bargain over any policy that affected conditions of employment; and that Congress overrule the Supreme Court’s decision in NLRB v. Truitt,127 to require employers to provide employees with the information available concerning an employer’s ability to offer wages and conditions of employment at the bargaining table. Gould repeated his position that employers should be precluded from permanently replacing economic strikers, and also affirmed his support for President Clinton’s March 8, 1995, executive order prohibiting federal government contracting agencies from contracting with employers that permanently replaced lawfully striking employees.128

The Gould Board   81 In the same speech, Gould also asserted that, although it might be necessary to amend the NLRA to permit genuine labor-management cooperative initiatives to exist, he opposed the Teamwork for Employees and Management Act, introduced by Republicans Senator Nancy Kassebaum (chair of the Senate Labor and Human Resources Committee) and Representative Steven Gunderson because of inadequate protection for employee free choice.129 In the face of criticism, Gould said that he intended to continue to speak out concerning matters involving the NLRA and the Board.130 In July 1995, while the House Appropriations Committee’s 30 percent budget cut was pending, management attorney and former NLRB general counsel John Irving criticized Gould for pushing “employer hot-buttons” in his speeches and held Gould responsible for the politicization of the NLRB. Irving observed that when the “NLRB’s own Chairman placed the NLRB in the vortex of heated public debate,” the agency had only itself to blame when “their political activities draw congressional scrutiny and their agency budget is put at risk.”131 On August 4, 1995, the House by a vote of 219–208 and after heated debate, approved the 1996 spending bill with the 30 percent cut for the NLRB. Washington, D.C., management attorney and lobbyist Harold Coxson, addressing the Labor and Employment Law Section of the American Bar Association, said that the Gould Board had “done more in 15 months than the Dotson Board did in four years to raise the ire of Congress.” He added that it was unwise to take on Congress because “you cannot win.”132 While addressing the same group on the same day, NLRB general counsel Feinstein deplored the fact that “the wounding of an institution that so recently had been celebrated for its effectiveness [was] now being cheered by some in incendiary rhetoric.”133 Still, as late as the annual pre-Labor Day breakfast sponsored by the San Francisco Labor Federation in September, Gould, while urging unionists to make their views known to the Senate Appropriations Subcommittee chaired by Republican Arlen Spector, made it a point to express his pride at having received the highest number of no votes during his Senate confirmation.134 In mid-September 1995, Spector’s Senate subcommittee rejected the cuts proposed by the House and restored the NLRB’s 1996 budget to its fiscal 1995 level. The Senate subcommittee also refused to include in the spending bill a series of labor-related riders attached to the House bill. Spector,

8 2    Chapter 3 granting that it was not unheard of to legislate through the appropriations process, expressed dismay at the House’s attempt to use the process to make wholesale alterations to standing legislation.135 On September 15, the Senate Appropriations Committee voted 14–12, however, to attach a rider to the spending bill that would bar the Labor Department from enforcing President Clinton’s executive order concerning striker replacements.136 The appropriations battle would continue for seven months into fiscal year 1996 through a series of continuing resolutions and two government shutdowns. In the meantime, Gould, addressing a Cornell University conference celebrating the sixtieth anniversary of the NLRA and the NLRB, condemned the congressional attempt to use the appropriations process to defang the NLRB and thus limit the right of employees to form unions and bargain with their employers. He contended that “the attack this year is the most severe since the 30’s.”137 When asked at a subsequent conference if congressional threats to reduce funding for the NLRB had a chilling effect on the Board, Gould replied, “From a personal perspective, it’s not going to chill me in my attempt to enforce this law in any respect whatsoever.” He added that he would not “run for cover because [his] views were unpopular,” as evidenced by the fact that he had “stayed the course” during a rough Senate confirmation process.138 At a March 14 House appropriations hearing, during which Representative Bonilla of Texas sarcastically referred to Republican senator Spector as the NLRB’s “guardian angel,” Gould said that a significant cut in the NLRB’s budget would result in the substitution of the law of the jungle for the rule of law.139 In anticipation of a budget cut of this magnitude, the NLRB had begun implementation of a strategic cost-savings plan that included the elimination of almost all travel in the regions, with investigations conducted by telephone; reduction of supervisory staff; suspension of the printing of bound volumes of the Board’s decisions; a hiring freeze; elimination of maintenance contracts; and the elimination of resident office space.140 After what was described as intensive negotiations between the White House and congressional leaders, the NLRB incurred only a 3 percent budget cut—slightly over a $5 million reduction in its 1995 $176 million level. The final budget did include, however, a House rider barring the NLRB for the remainder of the fiscal year from expending any funds on its proposed single-location rule making.141

The Gould Board   83 Highly contentious congressional appropriations confrontations plagued the NLRB for the remainder of Gould’s chairmanship. House Republicans persisted in seeking major reductions in the agency’s budget and continued to attach riders prohibiting the Board from engaging in a range of activities in addition to the single-location bargaining unit rule, such as Section 10(J) injunctions relief; sanctioning “salting,” the hiring of a paid union organizer on a job site to solicit workers to unionize; requiring employers to provide back pay to undocumented workers; and forcing the NLRB to increase its jurisdictional dollar volume standard, thereby removing small businesses from the NLRB’s reach. Responding generally to these riders and specifically to the rider prohibiting the Board from requiring employers found guilty of unfair labor practices to provide back pay to undocumented migrant workers, Gould issued a statement maintaining that independent regulatory agencies needed to be protected from the “emotions of immediate political passions,” and warning that this and the other riders were “unwise and unwarranted interference[s] in the quasi-judicial process entrusted” to the NLRB.142

Dissention inside the Board Chairman Gould continued to be outspoken. He publicly opposed the Republican-sponsored TEAM Act and was quoted by Democratic senator Paul Wellstone as having referred to that legislation as the “employee domination act.”143 Gould recorded in his diary on May 23, 1996, that he was “attacked” by Jonathan Hiatt, the general counsel of the AFL-CIO, who told Gould, “We have always been against the idea of your speaking out on legislation.” Gould also noted that Hiatt denied that he was trying to “muzzle me.”144 Senator Kassebaum, chair of the Senate Labor and Human Resources Committee, held an oversight hearing in September 1996, during which Gould’s public comments were criticized—particularly the “employee domination act” comment, which Kassebaum found particularly objectionable because Congress was debating the TEAM Act at the time.145 On February 24, 1998, during Gould’s last year as chairman and after the Board, over Gould’s dissent, had withdrawn the proposed single-location rule, all eight Republican members of the House Appropriations Subcommittee, citing case decisions by the Board in 1997,

8 4    Chapter 3 signed a letter to Gould accusing the Board of carrying out policies that were contrary to the rider prohibiting the NLRB from using any funds to promulgate a final rule concerning single-location bargaining units. The Republican House Appropriations Subcommittee members also asked, among other things, that NLRB regional directors be instructed in writing “that their determinations regarding requests for single-facility units are to be handled according to the rules that were in effect” prior to the 1995 issuance of the proposed rule.146 Gould responded first in a March 10 speech, claiming that the House Republicans were attempting to substitute “political input” for “principled adjudicatory processes.”147 In a formal March 19, 1998, letter of reply, Gould expressed grave concern about the eight-member Appropriations Subcommittee tactics: Never before has the Board been instructed or requested to advise Regional Directors how to proceed in a substantive area of Board law. Never before has Congress attempted to intrude on the adjudicatory responsibilities of the Board with respect to classes of pending cases and I fear that the tendency reflected in your letter, if left unchecked, will erode the system of independent adjudication of democracy in the workplace which has been such a valuable and important aspect of national labor policy.

Gould concluded by saying that compliance with the request for instructions to regional directors would be “inconsistent with our responsibilities as an independent administrative agency with quasi-judicial responsibilities.”148 The years of controversy generated by Gould’s public statements as chairman culminated in 1998 in the turmoil created by his public opposition to California’s Proposition 226, a ballot initiative that would have required a union to obtain authorization from the workers it repre­ sented before it could spend their dues money for political purposes. In an April 28, 1998, written statement, which for a time was posted on the NLRB’s website as a press release, Gould’s comments included the remark that Proposition 226 would “cripple a major source of funding for the Democratic Party, given the fact that most donations by unions go to Democrats rather than Republicans.”149 On May 7, 1998, Gould wrote in his diary that a “veritable firestorm emerged” over his Proposition 226 statement.150 He also recorded what to him was a most shocking phone conversation that day with David

The Gould Board   85 Obey, ranking Democrat on the House Appropriations Committee, whom Gould considered “caustic” and “abusive.” Those assessments were based in part on Obey’s reaction the previous year to the NLRB’s request for a budget increase when Obey criticized the Board for “crying” to the White House and labor leaders, for not recognizing “who their friends are before they have no friends,” for failing to get the message that the NLRB was “not universally loved,” and for having members whose “political antennae are obtuse.”151 Gould wrote in his diary that Obey began his May 7, 1998, telephone conversation “in a more venomous, derisive tone” than he had used during the budget incident in the previous year, “if that is possible.” After expressing dismay that Gould would make “such a partisan statement” about the Democratic Party’s losing funds if Proposition 226 was passed, Obey told Gould that he had laid himself open to attack by conservative Republicans and that he (Gould) was “not in a position to lead the agency.” When Gould commented, “Perhaps someone else can do it better and I should simply step aside,” Obey replied, “I think you should resign as chairman.”152 Gould “sprang into action” and called a number of friends. One, Congresswoman Nancy Pelosi, was not helpful, telling him that it would be better to leave the post before the Republicans asked for his resignation. When Gould told her that he would be leaving when his term expired in August, Pelosi responded that “there was some belief that all this was not soon enough,” adding that the House of Representatives was a very rough place.153 Gould characterized the House Appropriations Committee hearing that followed later in May as the “most tumultuous and wrenching” of his time in office—“a raw summation of nearly four years of outright hostility by Congressional Republicans.” In 1996 Steven Greenhouse of the New York Times described Chairman Gould as “a proud, often prickly man,” who “stood his ground” and “goaded his opponents,” an approach that “provokes some supporters to call him impolitic, unwise and arrogant.” He quoted Gould as saying, “I don’t think the bully is ever discouraged from a fight by someone who runs.”154 When Gould left the NLRB in July 1998, Greenhouse described him as “a bitter figure frustrated that he had accomplished far less than he had hoped and widely accused of having politicized the Board and antagonized Congress as well as fellow Board members.”155 Gould dismissed the “mantra of many of my Washington insider critics” that his speaking out was unwise and had invited budget slashing.

8 6    Chapter 3 As he saw it, his “occasional” speeches on law reform had little, if anything, to do with the appropriations process.156 He also denied that his speaking out and related travel affected in any way the Board’s lagging case production, which dropped more in 1997 and 1998.157 Despite congressional hostility to the NLRB and to him personally, Gould felt that throughout most of his chairmanship, Congress, as well as the bar, the academic community, and the press were more likely to recognize his stature and to defer to his leadership than were his fellow Board members and the general counsel. He at times also “felt melancholy” at the “divisiveness and distrust inside the Board,” where he had no vote on which he could count. He wrote in his diary on April 21, 1997, that the worst part of his job at the Board was dealing with fellow Board members. In his diary entry for July 3, 1998, the month he resigned, Gould noted that the “hostility and coolness to me by all of the Board members was so thick that you could have cut it,” that 1099 Fourteenth Street, the NLRB’s Washington offices, had become “a very, very depressing place,” and that “it will be good to get out of there.”158 Gould was particularly disdainful of what he referred to as Washington insiders who operated “in a walled-in and rarefied environment shot full of conventional wisdom and nostrums devised by a few senior bureaucrats who had occupied Washington offices for decades.” He believed that Washington insiders’ desperate desire for reappointment led some of his Board members to think that they could appease Republicans in Congress by not deciding controversial cases. He also attributed what he called internal paralysis on case processing to the fact that insiders were almost always influenced by the political environment and the need to survive in it—“because they have no home other than Washington.”159 Gould considered John Truesdale, who served as a Board member more than once, among other NLRB positions, the ultimate “Washington insider—career bureaucrat.”160 “As much as anyone,” Gould wrote, Truesdale “was responsible for the nostrum that Board Chairman and members should not speak out on law reform.”161 The effects of Board members’ public statements and positions not only on their interpersonal working relationships but also on the good of the agency itself was demonstrated most clearly in the publicity surrounding the 1995 Major League Baseball case. On March 23, 1995, Chairman

The Gould Board   87 Gould told a news conference in his office that the five-member Board was considering General Counsel Feinstein’s request to seek an injunction against the league’s owners. Gould told the assembled reporters that the Board wanted to get the matter resolved as quickly as possible because “baseball is really the heart and soul of America.”162 After Gould had further contact with the press, publicity was a major topic at the Board’s Sunday, March 25, 1995, meeting. The Board voted 4–1 to have no contacts with journalists about the baseball case. Gould, the sole dissenting vote, stated that he “would not be bound by the vote; the Board could not tell me what to say, whom to say it to, and when to say it.”163 The internal confrontation escalated and became public after Gould was quoted in the New York Times the next day. Gould told the Bureau of National Affairs’ Daily Labor Report that he did not recall “in my 34 years of professional life ever being confronted in such an abusive manner.”164 The Daily Labor Report also included what it described as a salvo from Gould’s chief counsel, William Stewart, in reply to Truesdale. Stewart called Truesdale’s advice that Chairman Gould restrain himself from discussing internal matters with the press “unsolicited, unwanted, and groundless.” The intensity of the clash is evident in the intemperate language used in Stewart’s public admonition to Truesdale: Bill Gould was not appointed to be Chairman by Present Clinton to speak only when and to say only the things that a majority of the Board deigns that it will permit him. Senior though he is, John Truesdale is not the font of knowledge of Board history, tradition, and appropriateness that he so self-righteously clothes his contentious pontifications. John Truesdale would do well to heed his own unsolicited, unwanted and groundless admonition and restrain himself and refrain from public discussion of internal matters.165

Gould contacted counsel to President Clinton Abner Mikva to tell him that Truesdale was about to publish critical comments about him (Gould) and that other Board members were joining Truesdale. Gould asked Mikva “to see if Truesdale still could be taken to the ‘woodshed.’ ” Mikva and Department of Labor officials to whom Gould had made the same inquiry “thought this was inadvisable because of the potential for being charged with political meddling in the Board processes.”166 Although Gould did

8 8    Chapter 3 not agree at the time, in retrospect he acknowledged that “even the appearance of White House intervention in the dispute would have been unseemly.” In Gould’s words, “buffeted though I was by the winds of high visibility in this important case I erred in making the request and Mikva was correct in rejecting it.”167 When General Counsel Feinstein suggested to Gould during the baseball injunction deliberations that they, in Gould’s words, speak “with one voice and one decision,” Gould wrote in his diary that Feinstein was trying to “create the impression in the public . . . that he is the Board and speaks for the Board.” Gould also recorded in his diary that this “incident” with Feinstein reminded him that “all the principal players [inside the Board] here are not friends, in any sense of the word.” Gould wrote later that, after his “Washington stint,” he was convinced that the Taft-Hartley amendments’ creation of an independent general counsel had produced a two-headed monster that posed serious problems, particularly when the general counsel had the advantage of not sharing his authority—such as with Board members.168 The abrasive interpersonal relations on the Board led to a significant decline in case decision output. Some of that decline (or increase in case backlog) was the result of time spent jousting with the House Appropriations Subcommittee and the related internal clashes protesting Gould’s public speaking about agency matters—involving people identified by Gould as Fox, Higgins, Truesdale, Browning, Feinstein, “and all the rest.” Gould attributed most of the backlog, however, to internal ideological divisions. He asserted, for example, that “my last Board 1997–1998 . . . was the most inactive and least productive of all my Boards.” He perceived himself as the centrist in the middle of a sharp ideological divide. On one side were Peter Hurtgen, who “hardly ever found an employer he did not like,” and Robert Brame, who was driven “by a kind of ideological fever” that produced “a series of unrelenting dissents.” On what Gould described as the other end of the political spectrum were Wilma Liebman, who was “very meek and mild and quite under the influence of both Fox and Feinstein,” and Fox, who, Gould said, “was the greatest cross I had to bear while in Washington.”169 The ideological split, Gould maintained, required him to vote with the Republicans on certain issues and to write separate concurring opinions, because his view of a case did not fit with those of either side. Gould said

The Gould Board   89 that he spent 1997 and his last eight months as chairman in 1998 attempting to induce Board members to do their work, only to have internal Board feuding cause paralysis. He found these internal struggles with Fox and Liebman and others “even more draining” than his confrontation with congressional Republicans.”170

4

Gould Board Decisions and Workers’ Rights

“Principled Decision-Making and Balance” Qualitatively, many important NLRB decisions during William Gould’s term promoted and protected workers’ rights under the NLRA, whereas others were management friendly.1 Aside from individual case decisions, workers’ rights fared best in cases involving the scope of the NLRB’s jurisdiction, conduct during representation election campaigns, and situations requiring extraordinary remedies for egregious violations of the statute. The management-friendly outcomes occurred most frequently in cases concerning collective bargaining tactics, employer speech, and alleged union secondary boycotts, as well as cases that raised matters related to issues previously decided by the Supreme Court, such as Lechmere,2 concerning nonemployee union organizers’ limited access to employer property, and Beck,3 pursuant to which nonmembers could refrain from paying union dues unrelated to collective bargaining.

Gould Board Decisions and Workers’ Rights    91

Protecting and Restoring Workers’ Rights Whenever the Board determines its own jurisdiction, it is deciding which workers and which workers’ rights would be protected by the NLRA and which would not. Various Boards over time, through their case decisions, have expanded or contracted the coverage of the Act. Chairman Gould expressed the philosophy underlying the more inclusive approach in a case involving supervisory status defined in Section 2(11) of the Act—in other words, in determining whether certain workers were protected employees or unprotected supervisors: “The Board has a duty not to construe the statutory language too broadly because the individual found to be a supervisor is denied the employee rights protected under the Act.”4 The application of that guiding principle led to important decisions finding, for example, that charge nurses were not supervisors because they did not use the independent judgment the Board found that Section 2(11) required.5 The decision to include rather than exclude resulted in notable rulings: The professionals who supervise only non-unit employees may be included in a bargaining unit of professionals;6 that work-release inmates shared a sufficient community of interest with “free world” bargaining unit employees to be included in the unit;7 and that the NLRB had jurisdiction over employers as diverse as a language school operated by a religious institution8 and a slot machine enterprise conducted by a racetrack.9 Chairman Gould, concurring, called for the immediate revocation of a Board rule rejecting jurisdiction over the horse-racing industry itself because otherwise, “the many employees working in this industry will continue to be denied the protection of the National Labor Relations Act.”10 In two cases decided on the last day of Gould’s chairmanship, the Board split over whether over-the-road drivers were employees or independent contractors. A Board majority, applying the common law agency test, found Roadway Package System drivers to be employees11 but the drivers for Dial-A-Mattress Operating Corporation to be independent contractors excluded from the Act’s coverage.12 In his dissenting opinion in Dial-A-Mattress, Gould said that he was “baffled” by the decision and accused the majority of failing to consider the powerful incentives some employers have to evade the Act and the federal laws regulating the employment relationship by calling workers “anything but ‘employees.’ ”13

9 2    Chapter 4 In 1966, during Frank McCulloch’s chairmanship (the Kennedy-Johnson Board), the Board in Excelsior Underwear14 established the rule that, in all representation election cases, employees must file a list containing the names and addresses of all eligible voters. The Supreme Court approved the rule because it ensured free choice of bargaining representatives by encouraging an informed electorate and allowing unions the right of access to employees that management already possesses.15 As Gould emphasized in a concurring opinion in Fountainview Care Center,16 union reliance on this form of access to workers took on even greater significance after the Supreme Court in Lechmere asserted broad presumption that nonemployee union organizers do not have access to employer’s property. Gould wrote, “The result is that, in virtually every circumstance, non-employee union organizers may only have access to employees through the use of the Excelsior list.”17 In another concurring opinion involving the Excelsior rule, Chairman Gould asserted that even a union’s ability to communicate with employees by means other than voter eligibility lists was irrelevant to a determination of whether an employer had complied with the Excelsior duty.18 In another case the Gould Board by a three-two vote, agreed that although “manual elections were still the adhered-to long-standing policy, mail balloting was appropriate when circumstances made it difficult for employees to vote in a manual election,” advising regional directors to consider mail balloting when voters are scattered because of job duties over wide geographic areas or have varied work schedules at different locations or when a strike is in progress as well as other factors such as the ability of voters to read and understand mail ballots and the efficient and economical use of Board agents.19 The dissent in this case and in London’s Farm Dairy, Inc.20 unsuccessfully raised the same objections that were raised during the mail-balloting discussions at the beginning of Gould’s term. As dissenter John Higgins put it in London’s Farm Dairy, the manual election process “is the crown jewel of the Board’s accomplishments” and “workers should know that the Board is not just a postage stamp away” but, rather, experience the “critical importance of Board agent presence at an election.” He and the other dissenter would have limited mail balloting to those situations in which manual balloting is, in Higgins’ word, “infeasible.”21 Other significant decisions that protected workers’ right to organize included Comet Electric, Inc.22 where the Board set aside an election and

Gould Board Decisions and Workers’ Rights    93 ordered a second one when an employer interfered with employee free choice by requiring attendance at a captive audience speech that extended beyond the end of the regular work day without paying them for all time spent in the meeting and delaying their paychecks, which “effectively punished them for seeking union representation.”23 In Bro-Tech Corp.,24 the Board concluded that the union’s broadcast of Teamsters songs from the sound truck parked outside the plant on the day of the election was not “traditional campaign speech set to music,” which would be prohibited in the twenty-four-hour period before the election, but constituted “appeals to vote set to music.”25 Overruling precedent,26 the Board held in Broward County Health Corporation d/b/a Sunrise Rehabilitation Hospital,27 that monetary payments offered to employees by an employer as a reward for coming to an NLRB election constituted objectionable benefits tending to influence the election outcome conduct, if those payments “exceed reimbursement for actual transportation expenses.”28 In Novotel New York29 the question was whether the union that won a representation election had engaged in preelection conduct that impermissibly influenced the outcome of that election by providing bargaining unit employees legal services to investigate, prepare, and file a lawsuit asserting their overtime pay claims under the Fair Labor Standards Act (FLSA). The employer charged that those legal services constituted a grant of substantial benefits to employees. The Board used the issues raised in this case as a platform for asserting not only a workers’ rights basis but also a constitutional basis for its decision. The Board cited the historical role of unions as advocates on behalf of the rights of workers they represent, workers they are trying to organize, and workers in general. The Board then addressed the constitutional protection of union conduct to improve employee working conditions. There was no dispute that, under Supreme Court precedent, the First Amendment would have protected the union’s funding of the FLSA litigation for its own members. The Board concluded that relevant Supreme Court jurisprudence strongly suggested that the First Amendment also protected a union’s funding of litigation brought by workers who are not members of the union.30 The Board cited Supreme Court decisions affirming that the constitutional protections that unions have in communicating with employees concerning unionization are based not only on free speech but also on free assembly.31 The Board maintained that this constitutional

9 4    Chapter 4 protection “necessarily includes the opportunity to persuade employees to action and to assist them in doing so.”32 The Board in Novotel also relied on the Supreme Court’s decision in NAACP v. Button,33 a school desegregation case, holding that the First Amendment protection afforded the NAACP legal program was not limited to the financing of litigation on behalf of only its members; it included NAACP lawyers, members, and nonmember sympathizers involved in the NAACP-funded litigation.34 The Board also found that the employees’ efforts in Novotel to realize their most basic rights under Section 7 might have been fruitless without union assistance. The Board stated that the union “here did precisely what the Act intended labor organizations to do. It aided employees engaged in concerted activity.”35 According to the Board, given that the union’s conduct fell within the labor movement’s historical role, it “is protected by the First Amendment to the Constitution,” and it is “blessed by the Act.” The Board concluded, “We would be standing this statute on its head” if the election were set aside because the legal services that the union provided were considered financial benefits to which the employees were not entitled.36 The Board’s decision in Novotel demonstrated that constitutional provisions other than the Commerce Clause can be used to determine workers’ rights. In Nabors Alaska Drilling, Inc.,37 Chairman Gould, dissenting in part, also demonstrated the potential that exists for the NLRB itself to restore the NLRA as a workers’ rights statute. Gould agreed with his colleagues on the Board that the employer had violated the Act by denying nonemployee union organizers access to remote work camps during the preelection period (unlawful even under the narrow Lechmere exceptions), by telling employees they would “lose their asses” if the union came in and that the employer would run off union supporters after the election, and by questioning employees about how they would vote in the representation election. Gould wrote separately because he considered traditional remedies that the Board applied in Nabors—cease-and-desist and a new election—inadequate to restore to the employees their Section 7 free choice rights. Gould wrote: “I would order the [Employer] to recognize and to bargain with the Union for a reasonable period of time and I would overrule Board precedent holding that the Board lacks authority to impose a remedial bargaining order in the absence of a showing that the union has at one time achieved majority support among the employees it seeks to represent.”38

Gould Board Decisions and Workers’ Rights    95 Although the union in Nabors had obtained signed authorization cards for approximately 49 percent of the employees before the employer’s vigorous anti-union campaign “among its captive employee audience at the remote drilling camps,” the union lost a mail ballot election by a substantial margin. Gould cited Supreme Court language in NLRB v. Gissel Packing Co.39 indicating that the Board had the statutory authority, in cases involving unfair labor practices so outrageous and pervasive, to issue a remedial bargaining order without a prior showing of majority union support. On remand from the Third Circuit, the Board in 1981 issued its first nonmajority bargaining order40 and its second the next year in Conair Corp.41 When the D.C. Circuit became the only court to hold that the Board lacked the authority to issue a nonmajority bargaining order, the Dotson-chaired NLRB in Gourmet Foods42 overruled Conair and ruled that under no circumstances could the Board issue a nonmajority bargaining order. Gould rejected the argument that nonmajority rule orders contravened the Act’s majority-rule policy. He maintained that it was the failure to recognize the Board’s authority to issue nonmajority bargaining orders—in cases where but for an employer’s lawlessness a union would have attained an authorization cards majority—that undermined the principle of majority choice. Denial of bargaining orders in these situations, Gould added, would allow the coercive effects of an employer’s misconduct to go unremedied. Gould acknowledged that in many areas, the Board cannot fully achieve the Act’s purposes because it lacks effective remedies. He concluded: In some instances, only Congress can redress the situation. In the present case, however, I see no reason to refrain from using a remedial tool that the Supreme Court and several courts of appeals have suggested or held is within the Board’s authority to use under circumstances such as these [where the employer’s] unfair labor practices are of a nature that precludes any rational expectation that a fair election among the employees can possibly take place in the foreseeable future.43

The Board did agree in Fieldcrest Cannon44 to order access and notice remedies because the employer’s violations were “numerous, pervasive, and outrageous.”45 The Fourth Circuit, in enforcing the Board’s order, found that Fieldcrest had “adopted a scorched earth, take no prisoners

9 6    Chapter 4 approach to stop unionization without regard to statutory limitations,” including threats of termination and plant closure, threats of deportation directed at Spanish-speaking employees who signed union cards, orders to wear pro-employer T-shirts, and surveillance of union employees.46 The extraordinary remedies included an off-premises election; posting notices in company plants stating the Board’s findings and requiring a company representative to read the notice to convened employees during working time; publishing the Board’s notice in local newspapers twice a week for four weeks; upon request, granting the union access to company facilities and nonwork areas during employees’ nonwork time; granting the union equal time and facilities to respond to any employer address to employees concerning union representation; and affording to the union the right to deliver a thirty-minute speech to employees during working time prior to any NLRB election.47 Myth Inc. d/b/a Pikes Pain Program48 was another case where the Board had the opportunity to abandon an interpretation of the Act more restrictive of workers’ rights and to return to a more expansive interpretation. In this case, however, all four of the chairman’s colleagues followed the precedents established by the Dotson Board, which concluded that an individual employee would not be regarded as engaged in concerted activity unless it could be shown that the employee was acting with or on the authority of fellow employees.49 The Dotson Board had reversed a long line of Board decisions that had expanded the definition of concerted activity to include not only a unionized individual’s assertion of rights under a collective bargaining agreement but also all workers, organized or unorganized, who filed individual claims under a statute.50 Boards before Dotson’s presumed that fellow workers shared the individual worker’s concern about the protested conditions and supported the individual’s complaint. Gould acknowledged that neither the language of the Act nor Supreme Court decisions compelled only one theory of concerted activity. In his opinion, however, the use of the term concerted in the evolution of labor law “indicates that its use in the Act was intended to expand employee rights.”51 Returning to Alleluia Cushion’s expansive definition of concerted activity, Gould maintained, was “particularly critical now when so large a percentage of the employees covered by the Act did not have a collective bargaining representative or the protection of a collective bargaining agreement.” For such employees the assertion of work-related statutes

Gould Board Decisions and Workers’ Rights    97 other than the NLRA “is one of the only means they have to oppose the economic power of their employers.”52 Gould considered it unnecessary and undesirable to allow the determination of whether an employee’s action is protected by the Act to depend on whether the employee asserts a right under a collective bargaining agreement or a right embodied in a work-related statute: “In both cases, there is reason to believe that the assertion of the right by an individual employee is at heart a concerted act, consented to by other employees.”53 He said it was “with disappointment” that he stood alone while his four Board colleagues rebuffed General Counsel Fred Feinstein’s “offer to revisit this most important area of law.”54 During Gould’s chairmanship the Board promoted and protected workers’ rights in other important cases, such as International Paper Company,55 McClatchy Newspapers, Inc.,56 and A.P.R.A. Fuel Oil Buyers Group, Inc.57 In International Paper, the Board ruled that the employer’s permanent subcontracting of bargaining unit work during a lockout was inherently destructive of employees’ Section 7 rights.58 Guided by Supreme Court decisions in NLRB v. Great Dane Trailers59 and NLRB v. Erie Resistor,60 the Board in International Paper found that some employer conduct was so inherently destructive of employee rights and so devoid of economic justification that no evidence of employer intent of anti-union animus is required.61 The Board emphasized that employees whose work was permanently subcontracted lost their jobs and that there can be no greater obstacle to the exercise of employee rights than loss of employee status.62 In addition, there was no evidence that converting temporary subcontracting to permanent subcontracting was essential to the employer’s business.63 International Paper raised the question of how it could be unlawful to subcontract work permanently during a lockout when under Mackay Radio & Telegraph Co.64 it was lawful to replace economic strikers permanently.65 After seeking distinctions between the two, the Board sidestepped the question, as did the Supreme Court in Erie Resistor Corp.: “We have no intention of questioning the vitality of the Mackay rule, but we are not prepared to extend it to the situation we met here.”66 A Board majority in McClatchy Newspapers, Inc. held that the employer could not implement merit pay proposals even after bargaining to impasse on its merit pay plan. The Board found that the merit plan was a mandatory subject of bargaining on which the employer could and did lawfully

9 8    Chapter 4 resist to impasse. The majority, however, considered the impasse doctrine “not as a device to allow any party to continue to act unilaterally or to engage in the disparagement of the collective bargaining process” but rather as a “temporary circumstance,” allowing implementation of employer proposals only as a method for breaking the impasse and continuing collective negotiations.67 The majority concluded that, if the employer after impasse could exert unlimited unilateral managerial discretion over future pay increases, such application of economic force, rather than furthering the bargaining process, could reasonably be viewed as a means of destroying it. If the employer was granted carte blanche authority over wage increases, the Board decided “it would be so inherently destructive of the fundamental principle of collective bargaining that it could not be sanctioned as part of a doctrine created to break impasse and restore collective bargaining.”68 The issue in A.P.R.A. Fuel Oil was whether the language and intent of the Immigration Reform and Control Act of 1986 (IRCA) overruled the NLRB’s authority to remedy unfair labor practices. The Board concluded that, in enacting IRCA, Congress had approved the view of the Supreme Court in Sure Tan, Inc. v. NLRB69 that undocumented workers are entitled to established labor protections, particularly those provided by the NLRA, and “that any other policy would put such workers even more at the mercy of their employers.”70 Consequently, the Board ordered the employer to reinstate two undocumented workers who were discharged because of their union activities.

Gould as Centrist In his 1966 book, NLRB: Agency in Crisis, Daniel Yager, vice president and general counsel of the Labor Policy Association, charged that Gould and Feinstein had “stripped the agency of not only the appearance but also the actuality of impartiality” and that the “current Board is one that is interested only in furthering unions’ interests regardless of the wishes of employees.”71 Other management representatives, however, such as Harold Coxson and former chairman Miller, commented during Gould’s term that Gould’s “bark has been worse than his bite,” that under his leadership the Board had not made radical changes in precedent, and that there were some good things going on at the Board.72

Gould Board Decisions and Workers’ Rights    99 Miller’s and Coxson’s tempered views were the more accurate assessments of the overall range of Board decisions and, more particularly, of Gould’s perception of himself as the “centrist” at the Board. Gould, in one commentator’s opinion, showed “extraordinary scrupulousness in following Supreme Court decisions with which he strongly disagreed.”73 For example, Gould believed that the Supreme Court’s 1992 decision in Lechmere was “bad law and contrary to the basic policies of the National Labor Relations Act,” which supported collective bargaining and employees’ right to learn about unionization from unions as well as from employers.74 Yet in several cases Gould joined with Republican-appointed members to form a majority that not only enforced Lechmere but also extended its reach. Although Lechmere concerned nonemployee union organizers’ access to employer private property and did not discuss nonemployee access for other purposes, Gould and his Republican-appointed colleagues decided in Leslie Homes, Inc.75 that given the court’s concern with protecting employers’ private property rights, there was no reason to assume that the court would apply its reasoning only to organizing cases.76 The Board majority found that the employer had the right to bar nonemployee union organizers from engaging in area standards handbilling on the employer’s private property. Dissenters Browning and Truesdale maintained that the majority had engaged in an unwarranted extension of Lechmere to Section 7 activity other than organizing. (The area standards handbilling informed potential purchasers that the employer was paying workers on the project below area standards.) The majority’s approach, Browning and Truesdale wrote, was “an abdication” of the Board’s role as the protector of employee rights to organize, to bargain collectively, and to engage in other concerted activity. They added, “In any event, the Act does not charge the Board with diminishing the scope of protected activity based on a ‘sense’ that the Supreme Court is ‘concerned’ for employers’ property rights.”77 In Galleria Joint Venture,78 a panel composed of Gould, Stephens, and Cohen agreed that Lechmere also gave an employer the right to exclude from its private property nonemployee union representatives who were distributing handbills informing consumers of a strike caused by the alleged unfair labor practices committed by a tenant of the shopping center. Adding to the large number of decisions issued on the last day of his term, Gould joined with Republican appointees Peter Hurtgen and Robert

1 0 0    Chapter 4 Brame in Farm Fresh, Inc. t/a Nicks79 in holding that it was not a violation of the Act for the employer to eject nonemployee organizers from the snack bar of one of its grocery stores. In that case, the majority contended that since the Supreme Court in Lechmere found that an employer did not violate the Act by excluding nonemployee organizers from its parking lot outside its store, it would be illogical to conclude that the employer violated the Act by excluding nonemployee organizers from the snack bar inside the store.80 Ten years before Farm Fresh, the Board, in Montgomery Ward & Co.,81 upheld the right of nonemployee organizers to solicit in an employer’s public food service establishment located on its premises as long as they were not disruptive. Gould explained in a concurring opinion that while Lechmere itself did not reverse Montgomery Ward, “the tenor of the Court’s opinion and its logic reversed that holding.”82 Dissenting members Wilma Liebman and Sara Fox believed that the Montgomery Ward doctrine was still valid.83 What they considered the “most disturbing aspect” of the majority’s decision was the reversal of Montgomery Ward “under the guise that these precedents have already been ‘effectively overruled’ by the Supreme Court’s decision in Lechmere.”84 The Supreme Court had decided in 1988 in Communication Workers v. Beck85 that the NLRA did not permit a union representative, over the objections of dues-paying nonmember employees, to spend funds collected under a union-security provision on activities unrelated to collective bargaining, contract administration, or grievance adjustment. In its seminal decision seven years after Beck,86 the Gould Board held that a union violated its duty of fair representation when it failed to inform newly hired nonmembers of their Beck rights at the time the union sought to obligate those nonmembers to pay dues. A union seeking dues from nonmembers under a union-security clause was required to inform those employees that they had the right to remain nonmembers and that nonmembers had the right to object to paying for union activities not germane to the union’s duties as bargaining agent, were entitled to receive a reduction in fees for such activities, were to be given sufficient information to enable employees to decide whether to object, and were to be apprised of internal union procedures for filing objections.87 In regard to collective bargaining, Gould expressed an ­expansive view of what should be mandatory subjects of bargaining under the Act, including reversing Board precedent when necessary. Gould concurred with his

Gould Board Decisions and Workers’ Rights    10 1 colleagues on the Board that the employer in Q-1 Motor Express, Inc.88 unlawfully failed to bargain about its decision to transfer certain bargaining unit work and to switch to a new driving system. The majority, in deciding this case, found it unnecessary to apply the Dubuque Packing analysis developed during James Stephens’s chairmanship.89 Gould, in his concurring opinion, advocated overruling Dubuque Packing to the extent that under that ruling an employer’s decision to relocate is considered subject to the bargaining process only when that decision implicates labor costs.90 According to Gould, the fact that labor cost was a factor in the decision is not dispositive of the question of whether the dispute is amenable to the collective bargaining process. He pointed to the success of the General Electric–IUE National Agreement, under which the relocation of production work was subject to collective bargaining, whether the relocation is desired to reduce labor costs or to move work to a more efficient facility. As a consequence of that arrangement, Gould maintained, genuine reasons for decisions are provided and ideas are sought about alternatives to the proposed decision.91 By contrast, Gould asserted, Dubuque, by making labor costs the domi­ nant factor, was a “clear invitation to posturing, game-playing and obfuscation in an attempt to conceal and deceive”—all of which “harm the collective bargaining process . . . which is the public policy of the United States.”92 In Detroit Newspaper Agency d/b/a Detroit Newspapers,93 Gould dissented from his colleagues’ decision to sever and defer for future decision the question of the employer’s statutory obligation, if any, to bargain about the terms and conditions of employment for striker replacements. Gould advocated overruling Board precedent, particularly, Service Electric,94 in which the Board held that there was no obligation to bargain about the terms and conditions of employment for striker replacements. He also advocated imposing on the parties the same bargaining obligations concerning striker replacements as existed for any other unit employees. In Gould’s opinion, Service Electric’s “exaggerated concern for an employer’s Mackay right imperils both the statutorily protected right to strike, and, ultimately, the stability of collective bargaining relationships.”95 In regard to bargaining tactics, however, Gould relied on a freedom-ofcontract-based Supreme Court trilogy of cases permitting the negotiating parties to “take the gloves off” and to use whatever economic pressure

1 0 2    Chapter 4 they could bring to bear on the other side.96 In a case in which he agreed with the majority that an employer’s aggressive bargaining conduct did not violate the Act’s good-faith bargaining requirements, Gould wrote separately “to stress that tough and sometimes distasteful tactics are often lawful” under the NLRA.97 In Gould’s view, it was the willingness to reach an agreement that was the measure of good-faith bargaining, whereas “harsh regressive tactics against the union” may seem “to those uninitiated to the world of ‘hardball bargaining’ overwhelming evidence of bad-faith intent.”98 In Telescope Casual Furniture, Inc.,99 for example, a panel majority concluded that the employer, after the parties had bargained to an impasse, did not violate the Act by implementing provisions that were harsher than the terms of its final proposal to the union. The majority of Gould and Hurtgen emphasized that regressive bargaining was not per se unlawful and that in this case the employer used its harsher proposal only to press the union to reach an agreement.100 Gould, in a concurring opinion, quoted the Supreme Court in Insurance Agents: “Collective bargaining is a brute contest of economic power somewhat marked by polite manners and voluminous statistics.”101 He contended that there were fundamental differences between unilateral changes that precluded bargaining altogether, such as in McClatchy Newspapers, Inc.,102 and those constituting weaponry in the bargaining process.103 Gould added, as he had in other cases, that—although he did not like the employer’s tactics in Telescope Casual Furniture, thought them not good industrial relations, and believed that the vague concept of impasse and subsequent unilateral implementation “weigh the scales against the labor movement improperly in a democratic pluralistic society such as ours”—“we are obliged to subordinate our personal views to the rule of law.”104 Dissenting member Liebman considered the employer’s unilaterally implemented changes “not as an offer to engage in bargaining, but rather as an ultimatum or as a club to force the union to accept the terms of the final offer; it was the antithesis of bargaining.” Liebman maintained that “it is no response to say, as does the majority, that by attempting to club the union into accepting its final offer [the employer] actually wished to promote agreement.”105 Gould also had an expansive view of what constitutes lawful workplace speech for both employers and workers. In a concurring opinion, Gould

Gould Board Decisions and Workers’ Rights    10 3 in Quamco106 agreed with his panel colleagues that the employer had violated the Act in several ways sufficient to set aside the results of a representation election but disagreed that the employer’s “Wall of Shame” display was a threatened plant closure. The United Automobile Workers (UAW) Wall of Shame was a display identifying plants with UAW-represented employees that had closed, each closed plant depicted as a tombstone marked “RIP.” The employer added a new tombstone each day until the day before a representation election (which the union lost) when the employer added a tombstone with the company’s name on it and a question mark. Gould considered the Wall of Shame references to the union’s record at other plants “part of the rough and tumble of electioneering” and “a fact of industrial life.”107 Gould repeated that freedom of expression is secured by the First Amendment and by the NLRA and was intended “to assure unfettered interchange of ideas for the bringing about a political and social changes desired by the people.”108 In Gould’s view, absent coercion, the Board should not seek to regulate either employer or union speech. According to Gould, the proper response to any speech is more, not less, speech. Consequently, the Board should be concerned with only the union’s inability to respond. The ability of both employers and unions to speak and respond at the workplace was the central issue in Beverly Enterprises-Hawaii, Inc. d/b/a Hale Nani Rehabilitation and Nursing Center.109 A Board majority in that case, with Fox, Liebman, Brame, and Hurtgen filing separate concurring opinions and Gould a dissent, found that the employer did not violate the Act by having its supervisors distribute anti-union literature to employees in areas where employees were prohibited from distributing literature. Member Hurtgen based his position on principles of private property and free speech. He argued that the workplace is not a neutral site during organizing activity. He also maintained that “there is no basis for the Government to proscribe employer free speech on employer private property” or to restrict employer efforts to protect working areas on its own property.110 Member Brame, in a twenty-one-page opinion, echoed his colleague Hurtgen’s concern for property rights. Brame asserted that the right of a labor organization does not mean that the employer must promote unions by giving them special access to bulletin boards.111 Brame also quoted from the Board’s opinion in Livingston Shirt:112 “We do not think one

1 0 4    Chapter 4 party [to a representation election] must be so strangely open-hearted as to underwrite the campaign of the other.”113 Gould asserted in his dissenting opinion that the case was not about prohibiting employer free speech on employer private property or about tying the hands of an employer concerning its communication with employees on its premises. Gould emphasized his belief that the case was about “promoting free speech rights for all who are involved in the workplace—employers, employees and unions.” He found the majority’s decision inconsistent with the principles of democracy in our political system and in the workplace and an “uncritical acceptance of the long discredited maximum that ‘the King can do no wrong.’ ”114 He charged that the majority’s decision sanctioned discrimination against employees who from the beginning of the Act had the right to communicate about unionization at the workplace—a place most appropriate for dissemination of views concerning unionization.115 Brame accused Gould of seeking “to shackle non-coercive employer speech with chains the Board and courts struck off decades ago” and leading the country back to the years before the Taft-Hartley Act, “when under the euphemism of strict neutrality, the Board deprived employers of the right to communicate with their workers about unionization.”116 Brame also rejected what he said was Gould’s premise that the Act promotes a symmetry of communication avenues for unions, employees and employers as “wholly without basis in law.”117 Gould also responded to Brame by emphasizing that while “employees and even union representatives have the right of free speech,” in Member Brame’s opinion “only employer free speech and interest are considered.”118 He concluded by saying that the Board’s decision upholding an employer’s disparate enforcement of its no-distribution rule “mocks the idea that the National Labor Relations Act is a Magna Carta or bill of rights for workers.”119 Gould reaffirmed his position that employee and employer free speech at the workplace is secured constitutionally by the First Amendment and statutorily by the NLRA in Shepherd Tissue, Inc.120 In that case, the employer charged that the union had destroyed the “laboratory conditions” needed for a valid representation election by injecting racial considerations into the campaign, namely, the inclusion on a campaign handbill of a statement by a discharged bargaining unit employee concerning a

Gould Board Decisions and Workers’ Rights    10 5 sexual harassment investigation: “Black folk have been wrongly touched by whites for over 300 years.”121 Gould found applicable the Board’s lead case in this area, Sewell Mfg. Co.,122 because in his opinion the statement was not inflammatory, or designed to set white workers against black workers. In Gould’s opinion, campaigning that took race into account was legitimate because it was part of the reality of the workplace. In this case, moreover, racial appeals during an organizing campaign, germane to the solidarity of a racial group, are not objectionable regardless of their truth or falsity. Consequently, Gould contended, the objecting party should have the burden of proving that a racial remark was intended to incite racial hatred—regardless of whether a union or an employer made the statement.123 Gould went on to say, however, that the Board’s concern about racial appeals expressed in Sewell were more concerned with the remarks of employers than with the remarks of unions because the employer controls the employment relationship.124 That economic power, which enabled employers to control workers’ jobs, particularly when workers were employed at the will of an employer, must surely be a consideration in any critique of Gould’s advocacy of free speech for all at the workplace. In addition to his deregulatory views on employer free speech rights and employer bargaining tactics, there were other important Board decisions in which Gould’s position would not be considered pro-union. In concurring opinions in two Beck-related cases,125 Gould maintained that union-security clauses compelling membership or membership in good standing were invalid and that a union-security clause could lawfully compel only the payment of fees and dues related to representational activities.126 By “whittling down” the meaning of membership to its “financial core,” Gould considered unlawful the dismissal of employees for not complying with “full membership” obligations.127 In Monson Trucking, Inc., Gould said he would require unions and employers to revise their collective bargaining agreements to define membership as only the obligation to pay dues and initiation fees related to representational costs.128 In Group Health, Inc., decided the following year, Gould said that he deeply regretted that unions, employers, and the Board had not undertaken to change the language of union security clauses to conform with his opinion.129 He also proposed a model clause in his opinion.130

1 0 6    Chapter 4 Gould was also willing to find unlawful secondary boycotts by unions. In Oil Chemical and Atomic Workers International Union, Local 1–591,131 for example, he joined with Hurtgen and Brame in ruling that the union had engaged in picketing at a refinery gate reserved for what the majority considered a neutral railroad that transported the refinery’s product. Gould recognized that “it may be that the law of secondary boycott, in part or in whole, is inequitable or unwise or, in some sense, inconsistent with the Act’s purpose.” As he had in other cases, however, Gould said he was bound by the “High Court’s” decision in Denver Building Trades Council v. NLRB,132 which established the core “common situs” precedent. In his decisions, Gould persisted in his commitment to labor-management cooperation or worker participation committees, organizations that most unions viewed with suspicion at the least. Gould used his concurring opinion in Keeler Brass Automotive Group133—a case where the Board found the company’s grievance committee to be an employer-dominated labor organization—as a platform for stating his position. He cited cases where the Board had found that employee participation groups were not labor organizations. He said those decisions were consistent with the movement toward cooperation and democracy in the workplace that he had long supported. Gould described it as a movement that would “transform that relationship between employer and employees from one of adversaries locked in inalterable opposition to one of partners with different but mutual interests who can cooperate with one another.” Although Gould believed that this transformation was “necessary for the achievement of true democracy in the workplace,” he saw conflict with the NLRA, which was enacted at a time “when the adversarial struggle between management and labor was at its height.”134 On July 8, 1998, Chairman Gould notified President Clinton that he planned to resign before his term expired and to rejoin the Stanford Law School faculty.135 In his final “Four-and-One-Half Year Report,” Gould asserted that his Board’s decisions, particularly his own concurring and dissenting opinions, had “restored the credibility” of the NLRB by seeking the middle ground—that vital center—that reflected a balance of the competing interests of labor, management, and individuals as well as a commitment to collective bargaining and the promotion of the parties’ own voluntarily negotiated procedures.136 Yet Gould maintained that during his chairmanship the Board stressed the central focus of the NLRA as set

Gould Board Decisions and Workers’ Rights    10 7 forth in the unamended portions of the Preamble of the Act, “the promotion of collective bargaining and freedom of association for workers.”137

The Truesdale Board: Decide Cases and Avoid Politics A few weeks after his resignation, Gould predicted that the relationship between the NLRB and Congress was not likely to become less acrimonious simply because he was no longer chairman. Gould admitted that he was a lightning rod for criticism of the NLRB and the NLRA but he maintained that the “enmity Congress holds for our statute and our agency is much more deep-rooted than its feelings for Bill Gould or Bill Gould’s view of the law.”138 Before the end of 1998, President Clinton announced the recess appointment of John Truesdale to replace Gould as chairman and member.139 In an interview after being named chairman, Truesdale said that the Board “needs to be out of politics and stick to being adjudicators.” He emphasized that he did not come with any policy agenda but rather wanted the Board “to be a professional organization that gets the case decisions out the door as soon as possible.” In another obvious allusion to his predecessor, Truesdale said that it certainly would be his intent not to propose substantive policy changes in legislation or to comment publicly on proposed legislation. He added, “And I know the other Board members agree with me.”140 Truesdale believed that it was appropriate for the Board to advise Congress on procedures or questions such as “If we change the law to cover agricultural workers could you conduct these elections?”—but on the substance of legislation, “that’s for Congress.”141 In Truesdale’s opinion, collegiality among Board members was of critical importance.142 When Truesdale returned to the Board he found Democratic members Fox and Liebman and Republican members Hurtgen and Brame “happily working together” despite their different views about what Board law is and should be. Truesdale recalled that they called themselves the “Gang of Four” and that when he returned as chairman “we became the Gang of Five.”143 Truesdale described his own style as getting along with people: “I think my whole life at the NLRB was getting along with people.”144 During his first year as chairman after replacing Gould, NLRB veteran Truesdale stated that “this is one of the most

1 0 8    Chapter 4 collegial Boards I’ve ever seen.”145 Commenting further on his leadership style, Truesdale said that a chairman could “get himself in trouble by doing something that he hasn’t taken up with his fellow members”; a successful chairman knows how to walk the line between consultation and not annoying fellow Board members.146 When Truesdale appeared before the House Appropriations Subcommittee on March 25, 1999, and repeated his intent to decide cases and to avoid political entanglements, he received a warm welcome as one who would end the divisiveness between the Subcommittee and the Board.147 In February 1999, President Clinton nominated former United Automobile Workers associate general counsel Leonard Page to replace Feinstein as NLRB general counsel.148 In November, Clinton announced Page’s recess appointment as general counsel.149 When sworn in by Truesdale in December 1999, Page said that he was deeply honored to have taken the oath from the man who had “done more than any other living person to make this agency the great institution it is.”150 In an important line of decisions, the Truesdale Board, like the Gould Board, consistently expanded coverage of the NLRA, often reversing precedent in the process. Many of its key decisions involved cases that had been on former chairman Gould’s list but “just did not make it out.”151 In Boston Medical Center152 for example, a divided Board in November 1999 overturned more than twenty years of precedent153 when it ruled that interns and residents were covered by the NLRA because they were employees as well as students learning their medical craft. Truesdale, Liebman, and Fox emphasized the striking breadth of Section 2(3)’s definition of employee and concluded that exclusions from coverage were intended to be limited and narrow. There was nothing in the statute, they asserted, “that even suggested that persons who were students but also employees should be exempted from the coverage and protection of the Act.” The majority found that its broad interpretation of who was an employee was consistent with the Act’s purposes, including protecting the right of employees to organize for mutual aid without employer interference and encouraging and protecting the collective bargaining process. The majority also affirmed that its reading of the Act in Boston Medical Center was intended to “accord individuals who clearly are employees within the meaning of the Act the rights that are afforded

Gould Board Decisions and Workers’ Rights    10 9 all such employees, and likewise impose the responsibilities commensurate with those rights.”154 Dissenting member Hurtgen allowed that interns and residents could fall within the statutory definition of employee but argued that there was no change in circumstances or manifest need that would justify changing Board policy. All that changed, Hurtgen charged, was the composition of the Board membership, which did not justify altering long-standing precedent. Dissenter Brame affirmed that under Board precedent, medical residents were students, not employees; that the Act did not require the Board to define residents as statutory employees; that the Board majority was “more enticed by expanding its jurisdiction then by a reasoned analysis of the Act’s policies”; and that the majority’s “ill-conceived” decision would irreparably harm graduate medical education by forcing it “into the uncharted waters of organizing campaigns, collective bargaining and strikes.”155 Relying on its decision in Boston Medical Center156 the Board subsequently agreed that the graduate assistants at New York University (NYU) were also statutory employees within the meaning of Section 2(3).157 Once again the Truesdale Board interpreted the definition of employee in what it termed a “historic, broad and literal” way, exempting from the Act’s promised rights and protections only those groups of workers specifically exempted from coverage.158 It was enough that the graduate assistants performed services under the direction and control of the university and that the university-employer paid them for performing those services. The Board dismissed the university’s argument that extending collective bargaining rights to graduate assistants would infringe on academic freedom as only speculation over what a union of graduate assistants might seek in bargaining or what might become part of any collective bargaining agreement.159 Member Hurtgen, who dissented in Boston Medical, did not dissent in New York University because the Board, in his opinion, was not imposing collective bargaining on an educational institution, given that at NYU, unlike at Boston Medical, “working as a graduate assistant is not a requirement for completing graduate education.”160 In M. B. Sturgis Inc.,161 a long-awaited decision issued four years after oral arguments were made to the Gould Board, the Truesdale Board reconsidered case precedent concerning the representation rights of contingent workers. The Board, explaining why reconsideration of precedent

1 1 0    Chapter 4 was needed, cited changes in the American workforce and workplace and the increasing use of companies that specialized in supplying temporary and contract workers to augment the workforces of traditional employers.162 A scathing General Accounting Office study prior to the Sturgis decision accused many companies of attempting “to avoid legal responsibility for workers by claiming that they are not the employer,” while others “misclassified their full-time workers as temps to avoid paying them benefits.”163 Two key NLRB decisions, one in 1973 in Greenhoot, Inc.164 and the other in 1990 in Lee Hospital,165 had made it difficult, if not impossible, for temporary workers to join established bargaining units of permanent employees who worked for the same companies. Under the Greenhoot rule, for example, where two or more otherwise separate user employers obtained employees from the same supplier employer (staffing agencies, for example) and a union sought to represent those employees in a single bargaining unit with the user employers, the Board would consider that the bargaining unit sought to be a multiemployer unit. Under Board rules, the NLRB cannot find a multiemployer bargaining unit appropriate without the consent of the affected employers166—consent that is rarely granted.167 Seventeen years later in Lee Hospital, the Board extended the Greenhoot rule for multiemployer bargaining units to situations where a single user employer obtained employees from one or more supplier employers and a union sought to represent those jointly employed employees and the user’s solely employed employees in a single bargaining unit. Consequently, employer consent was required in those situations as well.168 Given the Truesdale Board’s broad and inclusive interpretation of who is a worker with rights guaranteed by the Act, the expectation was that the Board would reverse both decisions.169 In Sturgis, the Board did say it had “erred” in treating the proposed bargaining unit in Lee Hospital as a multiemployer unit with the consequence that a growing number of employees who are part of a contingent workforce were being effectively denied representational rights guaranteed them under the Act. The Board rejected the “faulty logic” of Lee Hospital in order to restore these rights to these workers.170 The Board emphasized that its mandate under Section 9(b) was to decide appropriate bargaining unit questions in a way that ensured employees “the fullest freedom in exercising the rights guaranteed by the Act.”171 The Board majority concluded, “Unless we are to

Gould Board Decisions and Workers’ Rights    11 1 jettison important statutory rights for a growing segment of the workforce, we should alter our policy.”172 Member Brame in his dissent charged that the majority, in pursuing its “laudable goal” of eliminating the possibility that thousands of employees suffer the effective loss of representation rights guaranteed by the Act, had violated what he maintained was Section 9(b)’s denial of Board discretion to find appropriate a bargaining unit broader than employer-wide. Brame concluded that the majority in Sturgis “by verbal sleight of hand” had combined employees of a sole employer and joint employers to form a unit that would guarantee “uncertainty and frustration in the collective bargaining process.” In addition, Brame said that overruling Lee Hospital would have “serious negative implications concerning the ability of employers to manage their businesses in a dynamic economy.”173 Employers and their representatives deplored the possible consequences of Sturgis,174 while unions and their representatives felt that Sturgis did not go far enough.175 In overruling Lee Hospital, the Truesdale Board did remove the joint employer consent barrier that had kept most temporary or contingent workers from collective bargaining in Lee Hospital–like circumstances. Most contingent workers, however, remained outside the scope of Sturgis.176 In addition, the Truesdale Board reaffirmed Greenhoot except to make it clear that the requirement of employer consent to the creation of a multiemployer unit “has no application when the bargaining relationship sought is only with the supplier employer.”177 The Truesdale Board also reversed precedent in several other cases involving matters of representation. In Randell Warehouse of Arizona,178 the Board overruled Pepsi-Cola Bottling Co.179 and its premise that union videotaping or photographing employees engaged in protected activities during a representation election campaign in itself interfered with employee free choice.180 The Board justified applying a different standard to certain types of employer and union conduct because of “the fundamental fact that an employer, unlike a union, has virtually absolute control over employees terms and conditions of employment.”181 Consequently, the coercive impact of employer actions on employees is far different from that of union actions.182 Member Brame concurred in the result but rejected the majority’s “blatant ‘double standard.’ ”183 Member Hurtgen dissented in part because the majority offered “no empirical justification for this overruling of precedent.”184

1 1 2    Chapter 4 In St. Elizabeth Manor, Inc.,185 the Truesdale Board overruled Southern Moldings, Inc.186 by holding that even in situations where a successor employer has not adopted a predecessor’s collective bargaining contract, the incumbent union “is entitled to a reasonable period of bargaining without challenge to its majority status through a decertification effort, an employer petition, or a rival petition.”187 Under Southern Moldings, an incumbent union was subject to those challenges, if the successor employer did not adopt its predecessor’s contract with the union. Members Hurtgen and Brame dissented, claiming that the majority’s doctrine seriously infringed on employees’ Section 7 rights to choose whether to engage in or refrain from engaging in union activity.188 The majority acknowledged that employee freedom of choice was a “bedrock principle of the statute” but pointed out that the dissenters had ignored the equally important statutory goal of encouraging the practice and procedure of collective bargaining.189 In further response to the dissenters’ concerns about employee free choice, the majority quoted from the Supreme Court’s comments in Auciello Iron Works:190 “The Board is . . . entitled to suspicion when faced with an employer’s benevolence as its workers’ champion against their certified union. . . . There is nothing unreasonable in giving short leash to the employer as the vindicator of its employees’ organizational freedom.”191 In Springs Industries, Inc.,192 the Truesdale Board addressed precedent that had “not been entirely uniform” on the question of whether employer threats of plant closure during representation election campaigns, “arguably the most serious of all the ‘hallmark’ violations of Section  8(a)(1) of the Act,” could be presumed to have been disseminated to other employees.193 The majority in Springs Industries applied a presumption of dissemination of threats of plant closure thereby overruling Kokomo Tube Co.,194 which required evidence of dissemination. In two widely publicized and controversial unfair labor practice cases, the Truesdale Board reconsidered the question of whether an employee in a nonunionized workplace had the right to have a co-worker present in an investigatory interview that the employee reasonably believed could result in discipline195 and the circumstances under which an employer could lawfully withdraw recognition unilaterally from an incumbent union.196 In 1975, the Supreme Court, in NLRB v. J. Weingarten,197 had held that workers at J. Weingarten, a unionized workplace, were entitled under the Act to representation in employer investigatory interviews they reasonably

Gould Board Decisions and Workers’ Rights    11 3 believed could result in discipline. In 1982 in Materials Research Corp.,198 the Board extended Weingarten rights to a nonunion setting. Three years later in Sears Roebuck & Co.,199 the Dotson Board changed direction limiting Weingarten to unionized workplaces, maintaining that its conclusion was compelled by the Act.200 The Stephens Board modified the Sears rationale, but not the outcome, in E. I. DuPont Co.,201 concluding that its determination in Sears was “a permissible construction of the Act, but not the only permissible construction.”202 The Truesdale Board decided to return to the rules set forth in Materials Research holding that Weingarten rights are applicable in the nonunionized as well as the unionized workplace.203 The Board asserted that its decision was most consistent with the purposes of the Act, “specifically the right to engage in ‘concerted activities for the purpose of mutual aid or protection’ ” and that the “Act clearly protects the right of employees—whether unionized or not—to act in concert for mutual aid and protection.” Acknowledging that in the absence of union representation an employer is generally free to deal with employees individually, the Board cautioned that “an employer may not mask the obstruction of employee efforts to exercise Section 7 rights by asserting a right to deal on an individual basis.”204 Member Hurtgen, dissenting in part, charged that his colleagues, by abruptly reversing precedent, had taken away “from a non-union employer its heretofore unfettered right under the Act to deal individually with its employees.” He protested that if in a nonunion setting, an employer decided that the presence of a third party would impair an investigative interview, “it is not the role of the Government to say that this judgment is incorrect.” Member Brame found the majority’s opinion, forcing nonunionized employers to deal collectively with their employees, “completely at odds with the intent and structure of the Act” and with a nonunionized employer’s freedom to deal with an employee on any basis it chooses. He claimed that a return to Sears was compelled by the Act.205 The Truesdale Board’s decision in Epilepsy Foundation triggered heated reaction and debate.206 In May 2001 eight trade associations, including the U.S. Chamber of Commerce, the National Association of Manufacturers, and the Society for Human Resource Management, representing large segments of the business community, joined the Epilepsy Foundation in an effort to have the U.S. Court of Appeals for the District of Columbia Circuit

1 1 4    Chapter 4 overturn the Truesdale Board’s decision in that case because of, among other things, its disruptive impact on nonunion employers and their employees.207 The D.C. Circuit court upheld the Truesdale Board’s decision,208 and the Supreme Court declined to review the appeals court’s decision.209 Often lost in the furor surrounding this case was the fact that an employer, unionized or not, is not required to inform an employee of his or her Weingarten rights or to tell an employee about the right to representation. One union attorney lamented that the Truesdale Board’s decision did not go far enough because it did not require employers to inform employees of their rights.210 Given past concern about workers’ lack of knowledge of their workplace rights, it is reasonable to conclude that the vast majority of nonunion workers in the United States had and have no knowledge of their Weingarten rights to representation in investigatory interviews.211 AFL-CIO associate general counsel Nancy Schiffer confirmed that the “key is for employees to know their rights.” She speculated that employee access to the Internet could help disseminate rights information and that “maybe someday employers will have to post a notice” about workers’ rights in investigatory interviews, as they are now required to post notices about equal employment opportunity and wage and hour laws.212 Levitz Furniture213 was a landmark decision that overruled a fifty-yearold precedent. In 1951, the NLRB in Celanese Corp.214 ruled that an employer could withdraw recognition from an incumbent union by showing either that the union had actually lost the support of a majority of the bargaining unit employees or that it had a good-faith doubt. In Levitz, the Truesdale Board decided that it would no longer allow an employer to withdraw recognition unless it could prove that an incumbent union had, in fact, lost majority support. Lawful withdrawal of recognition could no longer be based on a good-faith doubt, uncertainty or disbelief, about the union’s continued majority status.215 The Truesdale Board concluded that Celanese was contrary to the Act’s fundamental principles of encouraging the practice of collective bargaining and protecting the right of employees to be represented by unions in their dealings with employers.216 The majority, however, declined to adopt the general counsel’s and unions’ contention that the Board should forbid employers to withdraw recognition except pursuant to a Board election.217 Member Hurtgen in his concurring opinion defined the purpose of the Act differently. He accused his colleagues of relying on the Act’s Preamble,

Gould Board Decisions and Workers’ Rights    11 5 which states that it is the policy of the United States to encourage the practice and procedure of collective bargaining to the exclusion of the Act’s provision setting forth the “fundamental right to choose whether to engage in collective bargaining or not.” “Read together,” Hurtgen wrote, they constitute a policy under which “our nation protects and encourages the practice and procedure of collective bargaining for those employees who have freely chosen to engage in it.”218 During the Truesdale Board period, General Counsel Page stated publicly that the Act was not being obeyed; that he continued to see “a certain percentage” of employers acting as if this then-sixty-five-year-old statute did not exist. Page said frankly, “If we cannot deal effectively with these cases, then we are committing a fraud on workers [by] telling them they have a right to organize.”219 Consequently, Page was convinced that it was the NLRB’s institutional duty to ensure that it uses its arsenal of remedies to achieve the purposes of the Act.220 He advocated increased use of access and notice remedies as employers countered organizational activity with serious and pervasive unfair labor practices: the practice of posting notices through electronic media such as e-mail and electronic bulletin boards, the use of a front-pay remedy—income an employee would have received but for the unlawful actions of an employer—when reinstatement is not feasible, the use of make-whole remedies that include not only lost wages but also other damages such as loss of a car or house or damage to a credit rating, the compounding of interest on monetary rewards,221 and the continuation of the emphasis of his predecessor Feinstein on aggressive use of Section 10(j) injunctions—which Page considered among the Board’s most effective weapons to remedy NLRA violations and protect employee statutory rights.222

Concluding Comments In a 2005 law review article, Gould identified the overriding themes of his Board as “principled decision-making and balance.” He described himself as “an impartial arbitrator of labor disputes,” whereas the “politically charged appointments process induced other members of the Board to function more like labor and management representatives.”223 Gould assessed his “political juice” as “zero” when he arrived in Washington

1 1 6    Chapter 4 in 1994. He recalled that he could not get one person appointed to the Board who would be a real ally and follow his lead.224 There were no further appointments to the Board until 1997, and Gould considered them the “ ‘most naked’ representatives of constituencies . . . labor members and business members whose vote is automatic and who will not depart no matter the facts or the law.”225 A review of NLRB decisions during Gould’s chairmanship confirms that there was no relentless attempt to rewrite the labor law, no total abandonment of neutrality in favor of unions, no extensive reversal of precedent, and no implementation of Gould’s Agenda for Reform, as opponents had claimed during the confirmation process would happen and as the conservative management Labor Policy Association later claimed was happening.226 Joan Flynn, a leading Gould critic, acknowledged that his case decisions demonstrated a “high degree of objectivity and intellectual independence, whether measured qualitatively or quantitatively”—with some decisions “solidly ‘pro-union’ ” and others “management friendly.”227 She also found Gould’s opinions scholarly in that they were thoughtful and “consistently evidenced a willingness to reexamine the conventional wisdom.”228 Among his accomplishments as chairman, Gould cited the appointment of labor and management advisory panels; the reduction of case backlog during the first two years of his chairmanship; new administrative law judge procedures that included settlement judges, bench decisions, and time targets; the increased use of Section 10(j) injunctions in cases where the passage of time would render NLRB remedies ineffective; and the increased use of mail ballots in certain situations.229 General Counsel Feinstein deserves a major portion of the credit for some of those accomplishments, particularly the increased use of Section 10(j) injunctions and creative administrative measures to improve and accelerate case handling. Over strong opposition from employers, management attorneys, and Republicans in Congress, Feinstein and his staff sought not only to increase the use of the interim Section 10(j) injunction in cases where “a respondent might otherwise be able to accomplish its unlawful objective before being brought under legal restraint by a Board order”230 but also to ensure that all NLRB regional offices were using this remedy and using it appropriately, effectively, and in a consistent manner. The general counsel, for example, initiated training for regional personnel

Gould Board Decisions and Workers’ Rights    11 7 in investigation techniques and analysis of issues unique to Section 10(j) relief and prepared and distributed to all regional offices a Section 10(j) manual covering the investigation and litigation of Section 10(j) issues. Feinstein was convinced that the general counsel’s greatest challenge is dealing with the day-to-day caseload.231 He was committed to broad staff participation and developed an Agency Partnership Counsel that included, among others, the NLRB union. That group developed a system of case prioritization whereby incoming unfair labor practice cases were categorized according to assessed impact. The categorization of the case determines the resources and the urgency given to the investigation of that case.232 Significant doctrinal and administrative accomplishments occurred during the Gould chairmanship, but self-destructive inside-the-Board hostility and suspicions, coupled with strategically placed, ideologically driven, outside-the-Board opposition, particularly in the House of Representatives, resulted in a history of accomplishments far shorter than it could have been. In his review of Gould’s book Labored Relations, Clyde Summers accurately summed up personal relations at the Board, noting that Chairman Gould “felt himself embattled and isolated from everyone, but his own staff,” and that Gould not only had little favorable to say about any Board members or the general counsel but also “believed that they were acting in bad faith and conspiring against him.”233 Liebman described Gould as “a difficult person to deal with in a collegial body;”234 former general counsel Feinstein recalled that Gould “did not bring people together—quite the opposite.”235 In regard to his own relations with Board members, Feinstein denied Gould’s notion that he was “playing Board members” against Gould but said that “Board members came to his office to talk about their differences with Gould.”236 Joan Flynn attributed the alienation of colleagues to Chairman Gould’s “temperament,” his insensitivity to colleagues, and his inability to “eschew self-aggrandizement” and “to hide one’s own light under a bushel.”237 John Higgins blamed Gould’s greater interest in Bill Gould than in the welfare of the NLRB and his “inability to say anything without beginning and ending with the ‘first-person singular.’ ”238 Summers found the chairman’s memoir “too colored by self-justification.”239 Chairman Gould still sees it differently. In a recent oral history interview, he recalled that when he became chairman he wanted to produce

1 1 8    Chapter 4 decisions, to have the system move forward “in terms of my ability to substantively reshape the law.” By the end of this term, Gould said that he was pleading with his colleagues on the Board to “do something, do anything, so that we can adjudicate these cases.” He continued to blame Washington insiders, Board members who wanted to be reappointed and, in any event, did not want to antagonize their own political support; colleagues who resented the “attention associated with my nomination”; and colleagues who resented the fact that he “had ideas that were set forth and ready” when he arrived at the NLRB. Gould also stated that he “had difficulty working with the other Board members because of race.” He characterized the NLRB as a “white organization” where there have been very few black members and he was the first black chairman. He recalled being “mightily rebuffed” when he pushed for affirmative action in the appointment of regional directors, when there was only one black regional director.240 In regard to key cases, Gould became convinced, as his chief counsel Bill Steward told him, “they are not going to let key cases out until you go because they don’t want you to get credit for those cases.”241 At the conclusion of his chairmanship, Gould told New York Times reporter Steven Greenhouse that there were “a lot of very big cases pending that we should have dealt with years ago,” including cases in which, Greenhouse wrote, Gould was “eager to leave an imprint.”242 Years later, Gould still regretted the missed opportunities to overrule Board-established precedents concerning minority bargaining orders (Gourmet Foods),243 the lack of any employer obligation to bargain about permanent replacements’ terms and conditions of employment (Service Electric),244 the requirements for concerted activity (Meyers Industries),245 and the entire Dubuque Packing doctrine.246 In retrospect, Gould believed that he “could have accomplished more” if he “had spoken more directly both publicly and privately to members of Congress about the reality” of delayed decision-making rather than waiting until the end of his term, as he did, and then only in response to Congressman Bonior’s and Senator Sanders’ inquiries about delays in specific cases.247 Defining the political role of an agency head as building up the agency’s relationship with Congress,248 Gould critic Joan Flynn, concluded that “Gould’s chairmanship of the NLRB must be deemed a little short of disastrous.”249 Yet it was impossible for anyone who was committed

Gould Board Decisions and Workers’ Rights    11 9 to achieving the collective bargaining and worker organization purposes of the Act to have a good working relationship with Congress during the time Gould was chair.250 As Gould accurately described the political situation, “Congress sought to obstruct the effective administration of the Act with all the resources available to both Houses, particularly the House of Representatives.”251 As Summers pointed out in his review of Gould’s memoir, Labored Relations, however, “The most that could be done was to avoid stoking the anger. Gould was temperamentally unable or unwilling to do that.”252 Flynn saw it as unnecessarily pushing congressional “hot buttons,” particularly by speaking publicly about legislation that had no chance under the new Republican regime.253 She maintained that, regardless of what prior Board chairs or members had spoken about publicly, “it was clear that in today’s highly charged political climate Gould’s public comments were harming the agency.”254 Greenhouse of the New York Times reported that “some business advocates welcomed Mr. Gould’s outspokenness because it made him a lightning rod and fueled Republicans efforts to hamstring the Board.”255 Gould told Greenhouse at the time that “it was Congress that deserved the ‘F’ for discretion, accusing it of rank interference with the Board’s independence.”256 Gould contends that the best evidence disproving the charge that he and his speeches caused the NLRB’s difficulties with Congress is the ongoing deepening and fundamental congressional hostility to the NLRB and to the “idea of workplace democracy for employees.” In regard to his overall relationship with Congress, Gould could not think of how he would have done things differently. He did acknowledge that before he came to Washington he did not anticipate the extent to which the House Appropriations Committee reflected the “far right of the Republican Party” and would pursue the Board by legislating through appropriations riders.257 Although he still considered the “attacks” on him for excessive travel for public speaking engagements “bogus,” Gould did “wish that [he] had declined maybe a half-dozen or so invitations that [he] received.” His 1998 speech on California’s Proposition 226 was one Gould admitted should not have been made at all and wished he “had back.” That speech touched a nerve even among powerful Democrats in Congress and, although Gould felt “that was much ado about nothing,” he realized that

1 2 0    Chapter 4 the “proof of the pudding is in the reaction and this turned out to be in many respects the most critical, tendentious portion of my chairmanship.” Gould’s experiences in Washington proved to him that there is no “absolute or pristine” concept of the NLRB as an independent administrative agency.258

5

The Battista Board: Individual Not Collective Rights

Reversing the Whirlwind When George W. Bush won the November 2000 U.S. presidential election, he had the extraordinary opportunity in his first year in office to a­ ppoint four Board members and a new general counsel. Outgoing general counsel Leonard Page said he wanted to believe that the new administration would “appoint people who recognize that we do have this law that says workers have these rights and we are going to defend them.”1 Others looked forward to a Bush-appointed Board that “would put a stop to the recent whirlwind of NLRB reversals” that had “expanded workers’ rights and made it easier for them to unionize.”2 After a September 2000 House oversight hearing held by Republican John Boehner, during which the Truesdale Board was criticized for being too willing to overrule precedent,3 Truesdale publicly discussed his thoughts on revising established case doctrine. Truesdale gave several reasons for reversing precedent: “changed circumstances in the workplace

1 2 2    Chapter 5 over time, the need to resolve two or more competing or conflicting lines of decisions, and on remand agreeing with an appeals court that the Board got it wrong the first time.” Near the end of 2000, Truesdale pointed out that, in contrast to the Republican-controlled Dotson Board, which overruled precedent at a “high point” of at least forty cases in 1984–1985, his Board had reversed precedent in only twenty-three cases, and in nine at least one Republican and one Democrat joined. Member Robert Brame added that it was necessary to overrule a decision that was the result of demonstrable error or could not be applied consistently. Member Peter Hurtgen came closest to the core of the issue by recognizing that the NLRA gave the NLRB a policy-making role that provides an additional incentive to revisit precedent.4 Member Wilma Liebman described the problem of deciding when to overrule precedent as a “philosophical” one. She added, “It will be interesting to see how the issue of overruling precedent will be addressed by the Board after it becomes staffed by a majority of President Bush’s appointees.”5 Former general counsel John Irving tempered enthusiasm for any immediate major changes in decisions, remarking that it takes time for cases to reach the Board.6 Change was delayed, however, mainly by the Bush administration’s slow-moving approach to filling the top NLRB positions. It was not until January 22, 2002, for example, that President Bush made two Republican appointments to the Board—and both were recess appointments, even though Brame’s term had ended on August 27, 2000, and Sarah Fox left the Board on December 15, 2000 when her second recess appointment expired. Bush’s appointments of Michael J. Bartlett and William B. Cowen restored a quorum at the Board, which had been reduced to two members—Hurtgen and Liebman—since December 21, 2001 when Dennis Walsh’s recess appointment ended. Bartlett and Cowen had been NLRB employees, Bartlett as an attorney from 1969 to 1971 and Cowen as counsel to former Board member Howard Jenkins and as an attorney in the Cleveland regional office. At the time of his recess appointment, Bartlett was director of labor law policy at the U.S. Chamber of Commerce. Cowen was principal attorney for Institutional Labor Advisors LLC, a management consulting firm that he founded in 1997. Bartlett was also a partner with Verner, Liffert, et al., a lobbying firm representing national and international companies; vice president and labor counsel for Eastern Airlines; and a partner with law

The Battista Board   123 firms representing management: Vetter, Price, et al. and Ogletree, Deakins, et al.7 Both had served only ten months when their recess appointments expired in November 2002. In May 2001, Bush designated Hurtgen as NLRB chairman. Former chairman Truesdale remained on the Board as a member but left in October 2001, long before his term expired (August 2003), in compliance with his stated intention to permit the president to name his own person to the Board.8 It was not until November 14, 2002, two years after Bush was elected president, that the Senate approved a package of three Republicans and two Democrats and brought the Board to its full five members for the first time since August 2000.9 Bush designated Robert J. Battista as chairman for a term expiring in December 2007. (Previous chairman Hurtgen was confirmed as director of the Federal Mediation and Conciliation Service when his recess appointment at the Board ended in August 2002.) Between the time he graduated from the University of Michigan Law School in 1964 and his appointment to the Board, Battista practiced labor and employment law with Butzel Long, a Detroit firm representing companies, multiemployer associations, public employers, and educational associations. Another Republican appointee, Peter Schaumber, a Georgetown University Law Center graduate, began his legal career in government as an assistant U.S. attorney for the District of Columbia and became senior trial attorney in the Office of the Comptroller before entering private law practice in Washington, D.C. He was president of the Republican Lawyers Association and also served as a labor arbitrator. Schaumber’s term expired in August 2005. The third Republican appointee, R. Alexander Acosta, whose term expired in August 2003, graduated from Harvard Law School and served as a law clerk to Samuel Alito, then a judge on the Third Circuit Court of Appeals, before joining the Washington, D.C., office of Kirkland and Ellis, a law firm with a variety of practices catering mainly to corporate clients. The two Democrats, Liebman and Walsh, were both confirmed for second terms—Liebman’s expiring in August 2006 and Walsh’s in December 2004. Walsh had served a one-year term under a recess appointment that expired in December 2001. Outgoing general counsel Page, the first union attorney ever to be NLRB general counsel, described the status of his recess appointment as

1 2 4    Chapter 5 acting general counsel as that of “a lame duck, at-will employee.”10 Page believed that having a general counsel who serves less than a full four-year term was “a disservice to the agency,”11 emphasizing the difficulty of carrying out the job’s responsibilities, “knowing you’re a phone call away from being out of office.”12 Although Page was willing to stay on as acting general counsel until a replacement was confirmed,13 President Bush directed Page to leave office on Friday, April 20, 2001, giving him just twenty-four hours notice. The NLRB went almost a month without a general counsel until Bush named John Higgins acting general counsel on May 16, 2001. Higgins, in his thirty-seven years at the NLRB, had served two recess appointments as a Board member, was deputy general counsel for twelve years and was serving a second time as NLRB solicitor when he was named acting general counsel.14 Representatives of all sides agreed that Page’s removal was shortsighted and that the president’s dismissal of Page without quickly naming an acting general counsel served no one’s interest.15 On May 24, 2001, the president sent to the Senate his nomination of Arthur Rosenfeld, senior labor counsel for the Republicans on the Senate Health, Education, Labor and Pensions Committee, to be NLRB general counsel. Prior to his work with this committee, Rosenfeld had served in various capacities with the Department of Labor from 1986 to 1997. He began his career as a labor attorney with the U.S. Chamber of Commerce in 1979, prior to representing employers with the Washington, D.C., law firm of Hansell & Post. Rosenfeld received a JD from Villanova University School of Law, an MBA from Lehigh University, and a BA from Muhlenberg College. The Senate took only two days to confirm Rosenfeld for a four-year term.16

A Board Divided In this transition period, John Truesdale ended his forty-five-year career with the NLRB by resigning as a Board member as he had promised he would do once his replacement had been selected;17 the NLRB published a notice in the Federal Register indicating that the deputy general counsel was authorized to perform the duties of the general counsel when that position is vacant;18 and the Board delegated to the general counsel full authority on all court litigation matters that would otherwise require Board authorization during any time in which the Board had fewer than three

The Battista Board   125 members.19 When Walsh’s recess appointment expired in December 2001, it left only then-chairman Hurtgen and Member Liebman on the Board.20 It would not be the last time that the Board had only two members. The Battista Board got off to a slow start. In October 2003 Battista claimed that vacancies on the Board left important cases in limbo. Among the most challenging issues facing the Board, Battista listed employer restrictions on employee use of e-mail for union solicitation; the employee status of graduate students; whether the right to representation in the disciplinary process should apply in nonunion settings; whether temporary employees provided by an agency should be included in an established bargaining unit; the legality of union videotaping of employees; what evidence an employer could rely on to show that a union no longer had the support of a majority of workers;21 the test for determining supervisory or employee status; and what Battista called “one of the more contentious issues of our time,” labor-management neutrality agreements during organizing campaigns and use of authorization card checks instead of representation elections to determine union recognition.22 The Wall Street Journal berated the Battista Board for leaving in place, almost five years into the Bush presidency, Clinton-majority precedents that “diminished employer rights and free speech, increased union coercive privileges, entrenched incumbent unions, and sharply undercut the rights of employees who disagree with the union.” The Journal designated as a critical area for the Battista Board’s attention the use of top-down organizing methods such as card check and so-called neutrality agreements that denied employees a secret ballot—the NLRB “gold standard” for determining whether employees want a union.23 Six months before the Journal criticized the Battista Board for its delay in reversing Clinton Board precedents, the AFL-CIO Executive Council condemned what it charged was the Battista Board’s assault on workers’ rights. According to the Executive Council, the Bush majority had “perverted” the Board into becoming a dangerous enemy of workers’ rights and had entered “one of the most shameful chapters in its 69-year history.”24 Chairman Battista dismissed the AFL-CIO’s accusations as the result of the organization’s “zeal to promote its political agenda.”25 The Battista Board was a divided Board. Members Liebman, Walsh, or both, dissented in approximately 34 percent of the majority’s decisions— twice the previously highest rate of dissents in 1984 during the contentious

1 2 6    Chapter 5 chairmanship of Donald Dotson. Even that unprecedented rate of dissenting opinions obscures the fact that Liebman and Walsh dissented in almost every major decision reached by the majority.26 Although the division between dissenters Liebman and Walsh and the majority of Battista, Peter Schaumber, and Ronald Meisburg or Peter Kirsanow was often described as ideological, it was the result, more precisely, of their different understandings of the meaning and purposes of the Act. The first warning signs of the impending battle came during the formal swearing-in ceremony on February 14, 2003, of Republican-appointed chairman Battista and members Schaumber and R. Alexander Acosta and Democrat-appointed Liebman and Walsh. After reciting the oath of office, Battista said that he was a “stalwart believer” in an American system of industrial relations “predicated on the free choice of employees to decide for themselves in secret ballot elections whether or not they wish to organize and bargain collectively.” Rather than reflecting Battista’s emphasis on employee free choice, Liebman asserted that democracy in the workplace was still basic to a democratic society and that collective bargaining was still basic to a fair economy. Most significant, she called the rights guaranteed by the Act “fundamental human rights” that were “as important today as they were when the statute was enacted in 1935.”27 Two years later, on the occasion of the seventieth anniversary of the Wagner Act, and in the midst of increasing criticism of his Board’s decisions, Battista elaborated on his understanding of the intent of the Act. He told the 2005 New York University Conference on Labor that the Board’s continued relevancy depended on its ability to balance “the need for employers to adapt quickly to competition at home and in the global marketplace” with the Act’s protection of employees. According to Battista, the Act achieved that balance through a prudent combination of enduring values and capacity for change rather than radical swings to the left or right. He identified the Act’s “enduring fundamental principles” as “the freedom of each employee to choose to be represented or not; the guarantee of good-faith bargaining if employees choose representation; an electoral mechanism to ensure that employees are appropriately grouped together, and can vote in secret; [and] the protection of employers from disputes in which they were not involved.” Chairman Battista also reaffirmed his contention that the Act is neutral and “does not encourage employees to vote one way or the other” and that

The Battista Board   127 this Board was obliged by law to protect ballot box democracy. He asserted his belief that Congress intended a minimal role for government in the enforcement of the NLRA. At the same time he acknowledged that the statute recognized that “human rights in the workplace” were deserving of governmental protection. Battista did not provide any further thoughts about the Act and workers’ human rights in this speech or any other.28 Prompted in part by the Battista Board’s issuance of sixty-one decisions in September 2007, at the end of Battista’s term as chair—what some called the “September Massacre”—a subcommittee of the Senate and House Labor Committees on December 13, 2007, conducted a joint hearing to consider the implications of those decisions. On December 12, 2007, fifty-eight distinguished law professors from many of the nation’s most prestigious law schools submitted a letter to Congress stating that decisions of the Battista Board had “regularly denied or impaired the very statutory rights it is charged with protecting—the rights of employees to join and form unions and to engage in collective bargaining.” These decisions, the letter concluded, highlighted a need for legislative reform and for a return by the Battista Board to its statutory mandate.29 In addition to testimony about the Board’s decisions in specific cases, the hearing became an unusual public airing of Chairman Battista’s and Member Liebman’s sharply conflicting understandings of the intent of the NLRA.30 Chairman Battista, in both his oral and written statements to the joint oversight subcommittees, expressed his belief that “the fundamental principle of the Act is to provide for employee free choice, allowing employees to decide for themselves whether or not to be represented by a union.”31 He contended that those who claimed that the purpose of the Act was still the encouragement of collective bargaining because that language was retained from the Wagner Act were espousing “an anachronistic view” that ignored the 1947 Taft-Hartley amendments.32 Battista argued that the Taft-Hartley Act of 1947 changed the Wagner Act “substantively and philosophically” so that the “narrower goals of the original Act were tempered significantly by a broader notion of workplace democracy, voluntarism and neutrality.”33 After Taft-Hartley, Battista maintained, the Act was no longer “the property of a single interest group.”34 In support of his position, Battista cited distinguished Harvard professor Archibald Cox, who in a 1947 Harvard Law Review article had concluded that Taft-Hartley’s addition of a list of union unfair practices

1 2 8    Chapter 5 represented a “fundamental change in philosophy, which rejects outright the policy of encouraging collective bargaining.”35 Battista did express disagreement with Professor Cox in one important respect: “Once employees have freely chosen union representation, however, I think that the policy of encouraging the collective bargaining process retains its vitality.”36 Battista accused critics of his Board of failing to see that the NLRB’s mission was to enforce the entire law enacted by Congress, not the wishes of some who want to return to 1935. He acknowledged that in his five years as chair the emphasis had been on free choice for employees.37 Member Liebman told the joint committee that the policy choice of the Battista majority was to elevate free choice but in a way that took special care to ensure that employees were free to reject union representation. She asserted, “For the first time that freedom of choice, which is to say the freedom to reject union representation, prevails in the statutory scheme over promoting collective-bargaining” and that this approach to the Act had colored everything that the Battista Board had done.38 Member Liebman rejected the Battista majority’s assertion that TaftHartley diminished the primacy of collective bargaining as a national policy as “just wrong.” She emphasized that Section 1 of the Wagner Act still remained in place, making it the policy of the nation to promote collective bargaining. Liebman argued that the fact that employees are free to choose to deal with their employers individually and to cede to their employers all control over the workplace does not change the basic purpose of the law, which “was and still is to make it possible for workers to freely choose collective representation and to promote collective bargaining.”39 To support her contention that the Taft-Hartley amendments were not intended to change the underlying purpose of the Wagner Act, Liebman quoted the first paragraph of Section 201 of Taft-Hartley, which created the Federal Mediation and Conciliation Service: That it is the policy of the United States that— a) sound and stable industrial peace and the advancement of the general welfare, health and safety of the Nation and of the best interests of employers and employees can most satisfactorily be secured by the settlement of issues between employers and employees through the process of conference and collective bargaining between employers and representatives of their employees.40

The Battista Board   129 Member Liebman reemphasized her conviction that the Act is not neutral: “It says expressly that the policy of this nation is to promote collective bargaining.” She explained that the NLRB was neutral concerning the treatment of parties that come before it but was not neutral concerning the Act’s policy goal, which is to promote collective bargaining freely chosen.41 In the concluding portion of her written statement to the joint congressional committees, Member Liebman explained more fully her belief that this Act—this “remarkable piece of legislation”—was “at its heart” a human rights law: Whatever its flaws and anachronisms, and whatever the lapses made by the Board in applying it, the National Labor Relations Act is a remarkable piece of legislation. At its heart, the Act is a human rights law. No one in 1935 would have labeled the statute that way, but the label is accurate. The concept of fundamental rights at work is now part of the international legal order. Freedom of association and freedom to engage in collective bargaining are recognized as core principles of a democracy. The National Labor Relations Act is the foundation of our commitment to values now recognized around the world.42

The “September Massacre”: A Record Number of Dissents Turning to the specific decisions of the Battista Board, Liebman found that, whereas any one decision standing alone might not be “cataclysmic,” taken together the multiple decisions had an impact on workers’ rights that had been uniformly negative. Consequently, “fewer workers have fewer rights and weaker remedies” under the Act. The Battista majority’s shift, to what it maintained was the promotion and protection of individual rights, was opposed by Liebman as contrary to the core purpose of the Act because it created obstacles to collective bargaining and union representation and elevated employer interest over workers’ statutory rights. Later she referred to her dissents as a “well-articulated vision of how the statute should work over a broad range of issues.”43 As noted previously, the joint subcommittee oversight hearing was prompted by the volume of the decisions allegedly rushed to completion before the expiration of not only Battista’s term as chairman but also the

1 3 0    Chapter 5 recess appointments of Kirsanow and Walsh—leaving the Board with two members, Liebman and Schaumber. Battista and Liebman agreed, however, that September, the last month of the fiscal year, is always the busiest case-production time as the Board pushes hard to meet its goals. Battista pointed out, for example, that his Board’s September 2007 output was the second lowest in the past five years.44 Many of the most controversial September 2007 decisions, constituted the continuation of a trend that the Battista majority started in 2003. Among the most controversial 2007 decisions was a case in which the Battista majority maintained that it was protecting employee freedom of choice—Dana Corporation and Metaldyne Corporation.45 In this case, the employers (Dana Corporation and Metaldyne Corporation) and the union (UAW) entered into neutrality and authorization card check agreements for separate bargaining units. The employer subsequently recognized the union based on cards signed by a majority of bargaining unit employees in each unit. Under the Board’s recognition bar doctrine, an employer’s voluntary recognition of a union, as in Dana, immediately barred a decertification petition for a reasonable period of time. Within five weeks of the recognition agreement, employees in both bargaining units, as well as the National Right to Work Legal Defense Foundation,46 asked for a change in Board law to permit them to express their views in a decertification election. A Board majority (Liebman and Walsh dissenting), decided that employee free choice would be better protected by “modifying” the recognition bar doctrine. Along the way to that conclusion, the majority emphasized the inferiority of authorization cards, compared with the exercise of employee free choice by the preferred method of a Board election “held under the watchful eye of a neutral Board agent and observers from the parties.” The modification provided that there would be no bar to an election following a grant of voluntary recognition unless the affected bargaining unit employees received notice of the recognition and of their opportunity to file a Board election petition within forty-five days and forty-five days passed without a valid petition being filed.47 Dissenters Liebman and Walsh affirmed that voluntary recognition is a “favored element of national labor policy” that the majority in Dana had relegated to “disfavored status by allowing a minority of employees to hijack the bargaining process just as it is getting started.”48 They saw no

The Battista Board   131 need for a window period that gave an anti-union minority of employees “a second chance to drum up enough support to oust the union.”49 They also deplored the undercutting of voluntary recognition as a legitimate mechanism for implementing employee free choice at a critical time in the history of the Act when unions were turning away from the NLRB election process—“frustrated with its delays and the opportunities it provides for employer coercion.”50 The law professors, who had severely criticized the decisions of the Battista Board, highlighted the “stark contrast” between requiring employers, who voluntarily recognize their employees’ freely chosen representative, to post an NLRB notice telling workers how 30 percent of them could force the union to demonstrate majority support a second time while not requiring any posted notice explaining to workers how to exercise their rights to organize a union for the purpose of engaging in collective bargaining.51 The preference for employee free choice over the stability of an established bargaining relationship preceded Battista when the Board, during Hurtgen’s brief chairmanship, overruled St. Elizabeth Manor52 and held that an incumbent union in a successor employer situation is entitled only to the rebuttable presumption of majority status, which would not serve as a bar to valid decertification, rival union, or employer petitions or other valid challenges to the union’s majority status.53 The Hurtgen majority found St. Elizabeth Manor’s successor bar, immunizing an incumbent union’s majority status from challenge for a reasonable period of time, “an improper incursion on the employees’ freedom to select or reject a bargaining representative.”54 Dissenter Liebman maintained, among other things, that St. Elizabeth Manor had struck the proper balance in a changed economy experiencing a “merger craze” and the “phenomenal growth of corporate takeovers beginning in the 1980s.”55 A Battista majority in Nott Company concluded that the employer had lawfully terminated a forty-year collective bargaining relationship with a union during midcontract. After purchasing the assets of a similar operation, the employer, in the majority’s words, “consolidated” all employees in one location, resulting in an equal number of represented and unrepresented employees. Under those circumstances, the majority said that it would not add this new group of employees to the existing unit without allowing those employees the opportunity to express their preference in a

1 3 2    Chapter 5 secret ballot election. The Battista majority stated explicitly that the im­ plicit statutory policy of stability in bargaining relationships can be trumped by the policy of employee free choice set forth expressly in the Section 7 rights of employees to choose a bargaining representative or to refrain from collective bargaining altogether—a “fundamental precept of the Act.”56 Member Liebman, in addition to questioning why the majority described the events as a “consolidation” rather than an “expansion” of operations, charged that the majority, while “extolling the virtues of employee free choice,” had actually promoted “employer free choice” by permitting the company to withdraw recognition without any evidence of the employees’ wishes.57 According to Liebman, it was absurd to justify this outcome in terms of employee free choice, particularly when application of the Board’s contract bar doctrine would have only delayed but not denied the exercise of employee choice.58 Other decisions of the Battista majority were inconsistent with its claim to be champions of employees’  freedom of choice.59 Some of those decisions, for example, facilitated employer pressure on employees to reject unionization by finding hostile employer statements to be lawful expressions of employer free speech. In Crown Bolt, Inc.,60 for example, the employer’s production manager, prior to a representation election, told an employee that the plant would close if the employees voted for union representation. The Battista majority in this case overruled all existing Board precedent, some dating back fifty years, which held that plant closure threats and similar kinds of coercive statements were presumed to be sufficiently disseminated among employees to justify setting aside an election.61 The majority believed that the burden of proving dissemination of a threat in representation cases was on the objecting union, in part because the majority considered it relatively easy to establish dissemination through the testimony of employees.62 Liebman and Walsh defended the presumption of dissemination because the threat to close a plant is “an extraordinarily powerful message for it implies the end of every employee’s job.”63 They charged that the majority’s claim that proving dissemination was an easy matter “ignores the reality that employees are often reluctant, even afraid, to testify against their employer.”64 The dissenters also pointed out that the majority had not cited any case in which an employer had criticized the long-standing dissemination presumption.65

The Battista Board   133 In Manhattan Crowne Plaza,66 the majority asserted that an employer communication to employees a week before a representation election spelling out what had happened at other unionized hotels and the risk of possible loss of jobs, benefits, and wages was not a threat because the employer “simply described what could happen; it was not predicting what would happen.”67 The Battista majority in TNT Logistics North America, Inc.68 found that a supervisor’s statement that Home Depot, a major customer, would cease doing business with the employer if its employees selected a union was “nothing more than an expression of personal opinion.”69 Liebman observed in TNT Logistics, “Today’s decision continues an unfortunate recent trend of breaking with precedent to give employers greater leeway in making coercive predictions about the effects of unionization” without an “objective factual basis.”70 In her dissent in Guardsmark, LLC,71 a case in which the majority held that the employer’s rule of no fraternizing with co-employees did not violate the Act, Member Liebman found that the rule did not adequately define what was proscribed, which “is necessary to ensure that Section 7 rights are not chilled—particularly because employers have no current obligation to inform employees of their rights under the Act.”72 The issue in The Guard Publishing Company d/b/a Register-Guard73 was whether the employer committed an unfair labor practice by prohibiting the use of its e-mail system for all non-job-related solicitations. The encouragement or discouragement of employee free choice was at the core of the issue. The Battista majority concluded that the employees had no statutory right to use the employer’s e-mail system because an employer has a “basic property right” to regulate or restrict employee use of company property such as bulletin boards, telephones, and televisions.74 In reaching this conclusion, the majority rejected the dissent’s (Liebman and Walsh’s) contention that the case should be analyzed under Republic Aviation,75 by balancing employees’ Section 7 rights and the employer’s need to maintain discipline. In that framework, a broad ban on employee, non-work-related e-mail communications would be presumptively unlawful absent special circumstances. According to the majority, however, Section 7 protects organizational rights, not the particular means by which employees seek to communicate. In other words, the majority said an employer is required to yield its property interests to the extent necessary to ensure that employees will not be deprived entirely of communications

1 3 4    Chapter 5 on their own time at the workplace, but neither Republican Aviation nor anything else requires the most effective means of conducting those communications or that employees have a statutory right to use an employer’s equipment or devices for Section 7 communications. Liebman and Walsh opened their dissent by saying that the majority’s decision confirmed that the Board had “become the Rip Van Winkle of administrative agencies.” Only a Board that “has been asleep for the past 20 years,” they wrote, could fail to recognize that e-mail has revolutionized all personal and business communication or to see the absurdity in treating an e-mail system as a piece of communication equipment no different from bulletin boards and telephones. They argued that national labor policy needed to be responsive to the vast technological changes occurring in society: “The discussion by the watercooler is in the process of being replaced by the discussion via email.”76 The dissenters also maintained that ownership alone did not give the employer an absolute right to exclude Section 7–related e-mails and pointed out that the employer had provided no evidence that allowing employees to e-mail messages regarding Section 7 matters would interfere with “its alleged property interest.” In addition, Liebman and Walsh dissented “in the strongest possible terms” from the majority’s decision to overrule Board precedent concerning the meaning of discriminatory enforcement. The Board had long held that an employer engaged in unlawful discrimination by allowing employees to use an employer’s resources for non-work-related purposes while prohibiting Section 7–related uses. The majority, following the proposition that “discrimination means the unequal treatment of equals,” took the position that nothing in the Act prohibited an employer from drawing a line between solicitation of a personal nature and that involving organizations such as the union. There was no discrimination in this case, according to the majority, because although the employer permitted personal e-mail messages concerning social gatherings, jokes, sports tickets, and baby announcements, there was no evidence that the employer allowed employees to use e-mail to solicit other employees to support any group or organization.77 Liebman and Walsh contended that rather than promoting employee free choice, the Battista majority decision in Register-Guard interfered with employees’ Section 7 rights, particularly their “affirmative right to engage in concerted group action for mutual benefit and protection.”78

The Battista Board   135 A Battista majority achieved the same result, dissenters Liebman and Walsh charged, when in IBM Corporation79 it overruled Epilepsy Foundation80 and returned to an earlier Board ruling81 that an employee, not represented by a union, is not statutorily entitled to have a co-worker present during an investigatory interview. In doing so, the majority acknowledged that it was applying a permissible and not a mandatory construction of the Act82 but that on balance a nonunion worker’s right to a co-worker’s presence “is outweighed by an employer’s right to conduct prompt, efficient, thorough and confidential workplace investigations.”83 Member Schaumber, concurring, maintained that Epilepsy Foundation had “infringed upon recognized and fundamental common law management prerogatives” in nonunion settings, prerogatives including management’s right to deal with its employees on an individual basis. He considered the insistence of a nonunion employee on the presence of a co-worker in an investigatory interview to be unprotected insubordination.84 Liebman and Walsh found the majority’s position in IBM in direct contradiction with the Battista Board’s professed commitment to employee free choice, asserting, “Today, American workers without unions, the overwhelming majority of employees, are stripped of a right integral to workplace democracy.” They reaffirmed that the Act applied to these unorganized workers “whether they know it or not, and whether or not the Board is prepared to give full recognition to that fact.” In their opinion, the majority’s decision stifled concerted activity just as surely as a rule prohibiting employees from discussing working conditions. As modest as this right is, the dissenters added, it brought some measure of due process to nonunion workplaces where at-will employees may be discharged or disciplined for any reason not prohibited by law.85 In another case involving nonunion workers,86 the majority found that the discharge of eighty-three Hispanic and Vietnamese employees for their refusal to vacate their employer’s parking lot after a peaceful twelve-hour work stoppage to protest their conditions and terms of employment did not violate the Act because the factors favoring the employer’s property interests outweighed the factors favoring employees’ rights. The most important factor to the majority was that the twelve-hour stoppage exceeded the duration of work stoppages previously found protected by the Board.87 In her dissent, Liebman accused the majority of depriving immigrant workers of peaceful means of protest that did no real harm to their

1 3 6    Chapter 5 employer’s interests. She also dissented because she feared a continuing erosion of the Section 7 rights of unorganized workers.88 There can be no opportunity to exercise free choice under the Act unless one is covered by the Act. In 2004, a majority composed of Chairman Battista, Liebman, and Walsh, with Schaumber dissenting, in San Manuel Indian Bingo and Casino,89 overruled prior decisions and asserted NLRB jurisdiction over a commercial enterprise that was wholly owned and operated by an Indian tribe on the tribe’s reservation. In 2006, Liebman and Walsh joined with Battista, with Kirsanow dissenting, to assert jurisdiction over First Line Transportation Security, Inc., a private company that provided passenger- and baggage-screening services at the Kansas City International Airport.90 In other cases, however, a majority of Battista, Schaumber, and Meisburg, with Liebman and Walsh dissenting, denied coverage to other workers. Liebman saw a trend to deny coverage of the Act particularly to nontraditional workers such as graduate teaching assistants, disabled workers, newspaper carriers, artists’ models, and contingent employees. In Brown University,91 for example, Battista, Schaumber, and Meisburg reversed the Truesdale Board’s decision in New York University,92 once again finding that graduate student assistants were not statutory employees because their relationship with Brown University was primarily educational whereas collective bargaining is fundamentally an economic process and collective bargaining would infringe on traditional academic freedoms.93 Liebman and Walsh commented that the majority’s position that graduate student collective bargaining was incompatible with the nature of the university would “surely come as a surprise on many campuses—not least at New York University, a first-rate institution where graduate students now work under a collective bargaining agreement reached in the wake of the decision that is overturned here.”94 They pointed out that the Act requires only the existence of an economic relationship, not that it be the only or even the primary relationship between employer and employee. After Brown University, graduate students were outside the Act’s protection.95 Battista, Schaumber, and Meisburg also concluded that disabled workers at Brevard Achievement Center96 were not employees within the meaning of Section 2(3) of the Act because their workshop programs were primarily rehabilitative in nature.97 Liebman and Walsh lamented that

The Battista Board   137 excluding these disabled workers from the coverage of the Act denied them collective bargaining and exposed them to discipline and discharge for engaging in what otherwise would be protected concerted activity. The dissenters also maintained that Section 2(3) unambiguously commands that the term employee include any employee, unless expressly exempted from coverage. The majority’s decision was ill advised, according to Liebman and Walsh, because it denied these disabled workers the freedom to decide for themselves whether to choose collective bargaining—an opportunity regularly available to the nondisabled workers with whom they work.98 They also rejected the majority’s notion that collective bargaining interferes with the rehabilitation process as “outdated,” “paternalistic,” and the “product of stereotyped thinking.”99 Before the end of 2004, Battista, Schaumber, and Meisburg overruled the Board’s 2000 M. B. Sturgis decision,100 in which the Truesdale Board found appropriate a single-employer bargaining unit that included employees solely employed by a user employer and employees jointly employed by the user employer and supplier employer. In Oakland Care Center,101 the Battista majority concluded that solely employed employees and jointly employed employees are employees of different employers and that their inclusion in the same unit created a multiemployer unit—which can be appropriate only with the consent of the employers and unions involved. According to the majority, the Truesdale Board in Sturgis had “severed” the plain meaning of employer unit in Section 9(b) of the Act “from its statutory moorings.” The majority also maintained that Sturgis did not protect employee rights because it led to a single union’s negotiating with two different employers, each of which controlled only a portion of the unit’s terms and conditions of employment—resulting in fragmented bargaining and inherently conflicting interests. Liebman and Walsh in their dissent cited a Business Week report that noted that globalized competition had “shoved many hourly wage occupations into a world-wide, discount-labor store stocked with cheap temps, hungry part-timers, and dollar-a-day labor in India, Mexico and China, all willing to sell their services to the highest bidder.” They cautioned, however, that competitive pressures on American firms “should not be permitted to erode their employees’ rights to union representation” but charged that the majority’s decision “[did] just that” by “exalting business flexibility at the complete expense of employee rights.”102 They stated, “The majority

1 3 8    Chapter 5 never explains how granting employers the power over union representation advances the “fullest freedom” of employees to pursue collective bargaining. Protecting employers who chose to create alternative work arrangements—and who now are essentially encouraged to do so to frustrate union organizing—is not the Act’s overriding concern.”103 Liebman and Walsh also charged that at the same time the majority was speculating without citing any evidence about Sturgis-caused disruptions to the bargaining process, its recent decisions demonstrated a reluctance to recognize and consider changes at the workplace, including changes in the nature of work, to ensure that the implementation of the Act reflected economic realities.104 If the majority’s decision was correct, the dissenters added, the “Act itself could not guarantee an important and growing segment of American workers the right to collective bargaining.” They concluded, however, that the problem “is not in the statute, but the agency that administers it.”105 Paraphrasing Member Liebman, the majority continued to ignore the principle that statutory exclusions need to be interpreted narrowly to avoid denying rights the Act is intended to protect—including the right to choose to have collective representation or not.106 The majority found, for example, newspaper carriers107 and artists’ models108 to be independent contractors, not employees, and college faculty members to be managers, not statutory employees.109 In Oakwood Healthcare, Inc.,110 the Board addressed the issue of who was a supervisor under the terms of Section 2(11) of the Act, which specifically excluded supervisors from coverage. In its approach to determining the meaning of Section 2(11)’s terms “assign,” “responsibility to direct,” and “independent judgment,” the majority (Battista, Schaumber, and Kirsanow) took the position that in all cases of statutory interpretation the starting point must be the language employed in the statute and that legislative intent is best expressed by the ordinary meaning of the words used.111 Using that approach, the majority concluded that, among other things, certain of the employer’s permanent charge nurses were supervisors. In addition to criticizing the majority’s text- and dictionary-bound approach to statutory interpretation,112 Liebman and Walsh contended that the majority’s application of an out-of-date management model from the time Section 2(11) was passed to a modern workplace resulted in a situation in which any worker who instructs another to perform a task, no

The Battista Board   139 matter how minor, would be a statutory supervisor.113 Dissenters Liebman and Walsh considered Oakwood Healthcare, Inc. potentially among the most important in the Board’s history but acknowledged that the long-term consequences would take time to play out. In the short term, however, they said, this decision would come as a “rude shock” to nurses and other workers who had been protected by the Act but now, for coverage purposes, were being treated as members of management with no right to pursue collective bargaining or engage in other concerted activity at the workplace. The Oakwood Healthcare, Inc. decision, Liebman and Walsh emphasized, denied protection of the Act “to yet another group of workers while strengthening the ability of employers to resist unionization of other employees.”114 In another series of decisions, the Battista-led majority made it more difficult to obtain back pay and reinstatement remedies for those whose statutory rights had been violated. In St. George Warehouse,115 which concerned the employer’s back pay liability, the majority shifted the burden of proof concerning the job search conducted by an employee victim of the employer’s unfair labor practice from the employer to the NLRB general counsel, who, the majority said, advocates on the employee’s behalf, to show that the employee took reasonable steps to search for available jobs.116 Dissenters Liebman and Walsh said that this decision placed a “stumbling block” before employee victims of unfair labor practices and frustrated enforcement of the Act.117 They argued that elemental justice and public policy required that the wrongdoer “bear the risk of the uncertainty which his own wrong has created.” They also pointed out that the agency’s general counsel represented the public interest, not private litigants, and that back pay was not a private right but a public right granted to vindicate the policies of the Act.118 In Grosvenor Orlando Associates,119 a majority of Battista and Schaum­ ber, acknowledging that many of the discriminatees “were elderly, with limited skills and education, a long history of employment with the [employer] and, in some instances[,] limited transportation,” found that none of those factors “ justifies a discriminatee’s failure to search for work at all for periods of time beyond the first two weeks.” The majority claimed that to award back pay to discriminatees who delayed their search for interim employment beyond an initial two-week period “would be to encourage idleness.”120 In dissenter Walsh’s opinion, the majority’s substitution of

1 4 0    Chapter 5 mechanical rules created by the majority for established principles would produce inadequate remedies for violations of the law and embolden employers to commit violations.121 Although the Supreme Court in NLRB v. Town & Country Electric, Inc.122 held that the Act’s statutory definition of employee included paid union organizers, or “salts,” the Battista majority developed more restrictive back pay standards for them. The majority asserted in Oil Capitol Sheet Metal123 that because the presumption of continued employment did not apply to union salts, the general counsel (and the union and salt discriminatees) would have the burden of proving the duration of the back pay period.124 Liebman and Walsh explained that without any party asking for a reconsideration of the law in this area, the majority’s fundamental reallocation of evidentiary burdens now required the salt, his or her union, and the general counsel “to prove exactly how long the salt would have worked for the employer had the employer hired him or not fired him”—which means “we likely will never know how the union’s salting campaign would have proceeded had the employer obeyed the law.”125 Liebman and Walsh were convinced that the majority’s decision was grounded in hostility to unions’ increasingly successful use of salting as an organizing tool.126 In Toering Electric Company, the Battista majority went further to define an employee under Section 2(3) as someone “generally interested in seeking to establish an employment relationship with the employer” and not someone using the Board’s processes to inflict “substantial economic injury on targeted nonunion employers”—as the majority said is often the objective of union salting campaigns. Such conduct, the majority asserted, collides with an employer’s right to insist on employee loyalty as well as a cooperative employer-employee relationship. The majority imposed on the general counsel the burden of proving the genuineness of an applicant’s job interest.127 The majority decision to shift the focus in hiring-discrimination cases from employer motive to employee intent, dissenters Liebman and Walsh maintained, was contrary to the Section 7 core of the Act, which guarantees workers the right to organize and engage in concerted activities for their mutual aid and protection. They observed that the majority was unwilling to acknowledge that the Act broke with common law labor relations by protecting a wide range of employee concerted activity even though that

The Battista Board   141 concerted activity might be in sharp conflict with the economic interests of individual employers or of employers as a class128 and that this unwillingness created “a legalized form of hiring discrimination.”129

Concluding Observations The Battista Board epitomized the power of the values of decision mak­ ers in discerning and applying the intent and nature of the Act. In remarks at an American Bar Association (ABA) conference in March 2006, Member Liebman emphasized the importance of maintaining the “values embedded in the Act” and reaffirmed her strongly held views that freedom of association and collective bargaining were “critical to our democracy.” At the same time, she said that decision making was complicated in part by Board members’ different “level of comfort with group rights as opposed to individual rights.” She also pointed to the influence of a perception of group action as “revolutionary class warfare,” on decision making, members’ willingness to apply the Act flexibly or strictly, and members’ political-philosophical beliefs about government regulation of the employment relationship.130 Member Walsh told that same ABA conference that severe ideological differences made it “hard to reach consensus on anything.” As an illustration, he pointed out that for years the Board had been unable to decide even whether to consider the petition asking the Board to adopt a rule requiring employers to post workplace notices describing workers’ rights under the Act.131 Fifteen months later, shortly before the “September Massacre,” Member Liebman told New York University’s annual labor law conference that the public’s original “New Deal optimism” about the Act and been replaced by “a raw deal cynicism.”132 Reflecting on his nearly five years as chairman, however, Battista, on November 13, 2007, told the ABA’s Labor and Employment Law Section that his Board had “done a very credible job of meeting the goals” set when he became chairman, despite operating with fewer than five members for fifteen months of his term. He also said that “despite some vigorous dissents,” the members had been “fairly collegial.”133 Battista’s notion of collegiality, according to Walsh, was people saying hello to each other in the hallway and not yelling and arguing all the

1 4 2    Chapter 5 time. Walsh recalled that there was no real collegiality if collegiality meant working together in order to get a case decided in a reasonable way and “there was not ever any give.” Walsh believed that collegiality “would have been working through that Oakwood Healthcare supervisory status issue with some give-and-take and it didn’t happen.”134 In Member Liebman’s opinion, Chairman Battista felt that he had been given a “bad hand” because he could not control certain members of the majority, particularly Schaumber. Although Liebman did not consider Battista “an intellectual or a legal theorist,” she did emphasize his many years of experience representing management. Despite Battista’s experience, Liebman, who recalled that Schaumber came to the Board “with zero labor background,” also recalled that Schaumber did not give Battista “an hour’s deference” and did not alter his own views, which “created a lot of difficulties.” According to Liebman, the key to Schaumber’s view of the Act was his concurring opinion in the IBM case, “that in a nonunion workplace management has total autonomy” and “does not have to give workers any rights.”135 Although Battista began scheduling full Board agenda meetings to discuss pending cases, Liebman recalled that after a while “the Republicans would have their private sessions where they would fight out what their approach was going to be, to which Dennis [Walsh] and I were not invited.” In her experience serving on the Gould, Truesdale, and Battista Boards, Liebman stressed as a “big factor” in how the Board works “the difference that one person can make in terms of the overall dynamic— “the Truesdale Board could not have been more different than the Gould Board or the Battista Board.”136 In addition to Liebman’s references to rights in the Act as human rights, a workers’-rights-as-human-rights theme appeared more frequently in critiques of the Battista Board. A July 2006 report prepared by the Democratic staff of the House Committee on Education and the Workforce identified Battista Board decisions that violated “workers’ basic human rights” undermining “workers’ fundamental rights of association” and decisions where employers were given free rein to discourage unionization, in which “property rights trump human rights.” As a consequence, the report concluded, “their [workers’] basic human rights have been trampled.”137 In addition, AFL-CIO rallies called for linking human rights and organizing rights138 and coordinating efforts under the rallying cry “Workers’

The Battista Board   143 rights are human rights.”139 In this context, the AFL-CIO general counsel asked the Board to issue a rule (pursuant to Professor Charles Morris’s 1993 petition) “mandating” the posting of workplace notices setting forth the full range of workers’ rights protected by the Act.140 In February 2007, the AFL-CIO filed a complaint with the Committee on Freedom of Association of the International Labor Organization (ILO), charging that the Battista Board’s decision in Brown University141 denying graduate teaching and research assistants protections of the Act was a violation not only of statutory rights under the NLRA but also of international law, namely ILO Conventions nos. 87 and 98 as well as the obligations affirmed in the ILO’s Declaration of Fundamental Principles and Rights at Work. The AFL-CIO requested that the ILO’s Committee on Freedom of Association instruct the United States to take immediate measures to restore the right of freedom of association and collective bargaining to these graduate teaching and research assistants.142 In October 2007, the AFL-CIO filed another complaint with the ILO’s Committee on Freedom of Association protesting what it called “the sustained assault on workers’ rights in the United States by the National Labor Relations Board (NLRB) over the last several years” and charging that the United States no longer protects workers in the exercise of their freedom of association. In its discussion of specific cases, the AFL-CIO indicated that it was not relying on any single case to demonstrate the extent to which the NLRB had “eviscerated workers’ fundamental rights” during the Bush administration, but the AFL-CIO did characterize the “September Massacre” as “an onslaught against workers’ rights under the Act.”143 Two events that occurred inside the NLRB during Battista’s chairmanship—one unintended and unnoticed, the other intended and noticed— raised important questions about the nature of workers’ rights and their protection. In Concrete Form Walls, Inc.,144 Battista, Liebman, and Schaumber agreed that the employer had violated the Act by discharging several Hispanic employees because they voted in an NLRB-conducted representation election. Liebman and Battista agreed that, although a remedial bargaining order was considered an extraordinary remedy and the traditional remedy of ordering another election was the preferred route, the employer’s “craven attempt to keep approximately 85 per cent of its workforce from the polls” had “so poisoned the well” and “struck at

1 4 4    Chapter 5 the very heart of employees’ Section 7 rights” that a remedial bargaining order should be issued.145 Battista and Liebman recognized that the Board had declined to issue remedial bargaining orders in a number of recent cases that involved egreg­ ious violations of the Act but justified their remedy on the grounds that Concrete Form Walls had committed several hallmark violations of the Act, including “a full frontal assault on the right to vote at all.”146 Member Schaumber, in opposing the majority’s remedy, made some profound, if unintended, observations about the nature of workers’ rights. After reciting cases similar to Concrete Form Walls, Inc. where the Board had refused to issue bargaining orders, Schaumber concluded that, although discharging employees for voting in an NLRB election is a violation of a core Section 7 right, there was nothing that adequately distinguished Concrete Form Walls, Inc. from the other cases in which bargaining orders had not been issued. Schaumber then pointed out that a “core” Section 7 right “is abrogated in every case in which employees are discriminatorily discharged prior to a Board election.”147 Although he was arguing against the issuance of an extraordinary remedy in this case, Schaumber had made the point that all violations of workers’ statutory rights under the Act strike at the very core of those rights, whether considered statutory, constitutional, or human rights. In that sense, what matters is not the egregiousness or the pervasiveness or the outrageousness of the violator’s conduct but the fact that a worker’s fundamental rights have been violated. The necessary remedy, therefore, is not determined by the egregiousness of the violator’s actions but by the fact that workers’ rights have been denied and disrespected. As NLRB general counsel in the later part of Battista’s term, Meisburg was concerned with ensuring that employees had freedom of choice when they were bargaining for their first collective bargaining agreement and were “highly susceptible to unfair labor practices intended to undermine support for their bargaining representative.” He cited data showing that employers had refused to bargain in 28 percent of newly certified bargaining units. In 2006 Meisburg asked NLRB regional offices to focus attention on “special remedies” for violations in those situations such as “seeking a new full certification year; notice reading and participation; and union access to bulletin boards.”148 In May 2007, Meisburg informed the regional offices that, based on experience following his previous memorandum, additional remedial

The Battista Board   145 measures were needed to protect employee free choice in initial bargaining cases. He expressed concern that the Board had applied what he called “additional remedies” only occasionally and only as extraordinary relief. Instead, Meisburg said that the general counsel and the regional offices should seek those remedies “and argue their necessity based on the impact of the violations on the new collective bargaining relationship,” that is, “the impact of the violations on employees’ Section 7 rights and the collective bargaining relationship.”149 Among the additional remedies, Meisburg urged the regions to consider routinely “in all appropriate cases” were requiring bargaining on a prescribed or compressed schedule, periodic reports on bargaining status, a minimum six-month extension of the certification year, and reimbursement of bargaining costs.

6

The Liebman Board: The NLRA, at Its Heart a Human Rights Law

A Two-Member Board Chairman Robert J. Battista’s term ended in December 2007, as did the recess appointments of Dennis Walsh and Peter Kirsanow. Anticipating correctly that the Board would be down to two members at the start of 2008, the Board at the end of December temporarily delegated authority to General Counsel Ronald Meisburg on all court litigation matters that otherwise would require Board authorization, including Section 10(j) injunction proceedings. The Board also temporarily delegated its decision-making authority to a panel of three members, one of whose recess appointment was about to expire, so that the two remaining members would constitute a quorum and could issue decisions and orders in unfair labor practice and representation cases.1 The Board would have only two members (Peter Schaumber and Wilma Liebman) for the next twenty-seven months, until April 2010. In March 2008, President George W. Bush designated Schaumber chairman

The Liebman Board   147 of the NLRB.2 Bush’s efforts to renominate Battista for another term were unsuccessful.3 Senate Democrats, in the majority at the time, took no action on Bush’s nominations to fill the vacancies and did not recess during the president’s last year in office, to prevent Bush from making recess appointments of any kind.4 Despite what Schaumber described as their “fundamental disagreements . . . over how to interpret the NLRA,”5 Schaumber and Liebman managed to issue approximately six hundred decisions during the twenty-seven-month period. They achieved that level of productivity by agreeing to limit their decision making to cases amenable to the application of current Board precedent and settled law.6 That meant, however, that pending new and major controversial cases did not get decided. Although Liebman considered the work of the two-member Board an accomplishment,7 she also saw that the NLRB had been a “neutered agency for a long-long period of time.”8 After winning the 2008 election, President Barack Obama on January 20, 2009, designated Wilma Liebman, who had been a Board member for more than eleven years, Chairman of the NLRB.9 In her acceptance statement, Liebman said that she was honored, looked forward to a full complement of Board members, thanked Schaumber for his “outstanding service as Chairman,” and made clear her views of the Act: “The Board’s work matters, just as it did when the National Labor Relations Act was passed in 1935. Democracy in the workplace is still basic to a democratic society, and collective bargaining is still basic to a fair economy. The statute we administer is the foundation of America’s commitment to human rights recognized around the world.”10 A few months later, Obama announced his intention to nominate union attorneys Mark Pearce and Craig Becker to fill two of the three vacancies on the Board.11 Pearce was a founding partner of the Buffalo, New York, law firm of Creighton, Pearce, Johnsen & Giroux, where he practiced union-side labor and employment law. Prior to that Pearce had been an attorney in the NLRB’s Buffalo regional office. At the time of his nomination, Becker was associate general counsel to both the Service Employees International Union and the AFL-CIO. Between 1989 and 1994 he was a professor at the University of California–Los Angeles School of Law and also taught at the University of Chicago and Georgetown Law Schools. As had former chairman William Gould, Becker published widely, and as with Gould, his writings would be used against him.

1 4 8    Chapter 6 On July 9, 2009, Obama nominated Brian Hayes to fill a “Republican seat” on the Board.12 When nominated, Hayes was Republican labor policy director for the Senate Committee on Health, Education, Labor and Pensions (HELP). He had nearly thirty years’ experience representing management clients in labor and employment matters. Hayes began his legal career as a clerk for the NLRB’s chief administrative law judge. On August 7, 2009 the Senate began a four-week recess without taking any action on the president’s nominations to the Board.13 It would be another eight months before the nominees would become Board members. On October 21, 2009, the HELP Committee by voice vote approved the nominations of Pearce and Hayes and approved Becker’s nomination by a vote of 15–8. Senator John McCain, who had been rebuffed in his attempt to have the committee hold a hearing on Becker, then placed a hold on Becker’s nomination and the nomination was sent back to the White House in December 2009.14 The HELP Committee held a hearing on Becker’s nomination on February 2, 2010—the first hearing on a nominee to the NLRB since the hearing on Gould’s nomination in 1993. As then, hostile members of the committee questioned Becker about statements he made in his law review articles, particularly his assertion that “employers should be stripped of any legally cognizable interest in their employees’ election of representatives.” Becker replied, as did Gould, that this was an academic work “intended to be provocative and to ask fundamental questions” that only Congress could answer.15 Although the HELP Committee narrowly approved Becker’s nomination in February 2010 by a strict party-line 13–10 vote,16 the Senate defeated by 52–33 a cloture motion to end Senate debate on the issue. Despite the written support of sixty-six distinguished labor law professors, who told the Senate majority and minority leaders that Becker would “prove to be one of the most respected Board members in the history of the NLRB,”17 opponents of his nomination objected that he was the first nominee who came directly from working with a union, that he would try to implement the proposed Employee Free Choice Act—particularly the card check—through Board decisions, that his writings advocated the most radical theories of labor law, and that his views were hostile to the rights of “ job creators” (employers) in union organizing drives.18 As a two-week Senate recess neared, forty-one Republican senators signed a letter urging President Obama not to give Becker a recess

The Liebman Board   149 appointment;19 132 House Democrats signed a letter urging the president to give Becker a recess appointment, emphasizing that seven of the nine appointments to the Board by former president George W. Bush were recess appointments.20 On March 27, 2010, President Obama, over the denunciations of Republicans and business groups, announced the recess appointments of Becker and Pearce.21 Becker and Pearce were sworn in as members on April 5 and April 7, 2010, respectively, and Hayes joined the Board on June 29, 2010, after his confirmation by the Senate.22 Because Becker was not confirmed by the Senate, his recess appointment was in effect until the Senate adjourned its 2011 session. (Pearce was confirmed for a term that ran until August 27, 2013, and Hayes for a term that ended on December 16, 2012.) On the general counsel side, Meisburg left office effective June 16, 2010, two months before his term expired, and joined the management law firm of Proskauer Rose as a partner in the labor and employment law department. When he announced his resignation, Meisburg said that serving as a Board member and for four and a half years as General Counsel had “been the honor of a lifetime”23 and the “best job I’ve ever had.”24 Meisburg’s initiative in pushing for special remedies for unfair labor practice violations in first-contract bargaining situations was hampered greatly during the twenty-seven months when the Board had only two members.25 President Obama named Lafe Solomon acting general counsel, effective June 21, 2010. Solomon began with the NLRB as a field examiner in 1972, worked as an attorney in the agency’s Office of Appeals and the Appellate Court Branch, and served on the staffs of ten Board members: Donald Zimmerman, Donald Dotson, Robert Hunter, John Higgins, James Stephens, Mary Cracraft, John Raudabaugh, William Gould, Sarah Fox, and Wilma Liebman. Prior to Hayes being sworn in, the new four-member Board met for the first time in the first week of April 2010. The Board had a Democratic majority for the first time since December 2001. Chairman Liebman said that the Board had an opportunity to apply the Act “in a way that reinvigorates collective bargaining” and brings “the statute to life” through a dynamic interpretation that considered real-world impacts and needs. She said that the static approach used in the Bush years removed “more and more employees from the protections of the law, especially vulnerable contingent workers.” Liebman disavowed having any agenda of cases to

1 5 0    Chapter 6 be reversed and said that it would be unrealistic to expect “fundamental, wholesale or radical change.”26 Approximately two months later, on June 17, 2010, a divided (5–4) Supreme Court decided that the two-member Board did not have the authority to issue decisions in unfair labor practice and representation cases because two members did not constitute a lawful quorum.27 Although the appeals courts split 5–1 in favor of upholding the two-member Board’s authority, a majority of the Supreme Court found that the Act requires that the three-member group to which the Board delegated its authority must maintain a membership of at least three in order to continue exercising the delegated authority.28 Liebman recalled that the Supreme Court’s decision was “very frustrating” in part because approximately 120 two-member decided cases pending in the courts “all came back to the Board.”29 Each case remanded to the Board was considered by a three-member panel consisting of Lieb­ man and Schaumber, who issued the original rulings, and a randomly assigned third member—Becker, Pearce, or Hayes.30 Although the process was very time consuming and left less time for other important matters, if the six hundred cases decided by the two-member Board “just sat” for twenty-seven months, they could have dominated the Board’s work for two or three years.31

“Bringing the Statute to Life” In a number of cases after Liebman became Chairman, the Liebman Board majority not only granted requests to reconsider prior decisions but also gave all interested parties the opportunity to file briefs concerning the issues involved, including specific questions the Board asked them to address, often seeking empirical data. Chairman Liebman justified the solicitation of briefs as an effort to get the views of the labor-management community and learn what real-world experience under Board doctrine had been in order to make well-informed decisions.32 Republican members Schaumber (whose term expired on August 27, 2010) and Hayes disparaged the review-granting, “unprecedented” brief soliciting as auguring “an activist agenda” designed to reverse several of the Battista Board’s most important decisions.33 They viewed this “stunning initiative” by their colleagues

The Liebman Board   151 as broadscale rule making without the “inconvenience” of complying with the requirements set forth in the Administrative Procedures Act,34 and as a futile attempt to solicit empirical information that would produce only “subjective or partisan justification for changing the law.”35 One of the most significant decisions of the Liebman Board, overruling the Battista Board’s 2007 Dana Corp. decision,36 was issued during Liebman’s final week on the Board in August 2011. In that case, Lamons Gasket Company,37 after granting review to consider the experiences of employers, employees, unions, and the Board under Dana, as well as the record and the invited briefs of the parties and amici, the Liebman majority concluded that “the approach taken in Dana was flawed, factually, legally, and as a matter of policy.” In Lamons, the Liebman Board returned to what it called settled Board law that an employer’s voluntary recognition of a union, based on uncoerced employee majority support for representation (such as signed authorization cards), barred the processing of an election petition for a reasonable period of time—to allow the union time to seek to negotiate a collective bargaining agreement with the employer. (The Battista Board, expressing concern about the unreliability of the manifestations of employee support, particularly signed cards, had mandated in Dana that employees must be notified by official NLRB Notice of their newly created right to petition for an election within a forty-five-day “window” after being notified that their employer had voluntarily recognized the union.) The Liebman majority used NLRB case statistics showing that employees decertified a voluntarily recognized union under Dana procedures in only 1.2 percent (seventeen elections) of the cases in which Dana Notices were requested (1,333 requests) as support for its finding that the proof of majority support that underlay voluntary recognition in the four years since Dana “was a highly reliable measure of employee sentiment.”38 The majority also used the Lamons case to define a reasonable period of bargaining during which the election bar would apply to be no less than six months after the first bargaining session and no more than one year.39 Dissenter Hayes derided the reversal of Dana as “a purely ideological policy choice,” “bereft of substantial evidence” (the Board’s request for empirical evidence “yielded a crusade”), revealing a bias “disfavoring the statutory right of employees to refrain from supporting collective bargaining,” and engaging in “policymaking that so inflates the Wagner Act

1 5 2    Chapter 6 paradigm of a unionized workforce as to make the Taft-Hartley Act an afterthought.”40 In a related case decided the same day as Lamons Gasket, the Liebman majority in UGL-UNICCO Service Company41 reversed MV Transportation42 and restored the doctrine (with some modifications) of the Truesdale Board’s St. Elizabeth Manor, Inc.,43 holding that where a successor employer has recognized an incumbent union, that union is entitled to a reasonable period of bargaining during which it has an irrefutable presumption of majority status. As in Lamons, the Board defined that period as no less than six months but no more than one year. The modifications were intended to mitigate the potential negative impact on employees who might want to change or reject representation or whose challenges might be precluded for an unduly long period of time by the duration of a negotiated collective bargaining agreement. (MV Transportation provided a successor bargaining unit with only a rebuttable presumption of continued employee support, which could be overcome at any time, permitting an employer to withdraw recognition of the union unilaterally, a rival union to file a representation petition, and employees to file a decertification petition.) Hayes in his dissent accused the majority of serving “the ideological goal of insulating union representation from challenge whenever possible” by making policy choices on a record devoid of the requested empirical and experiential evidence, with “apparent horror” that an incumbent union’s majority status “should be subject to an immediate test by the ballot box.”44 Hayes also accused the Liebman majority of having an overall plan to encourage unionization by finding bargaining units as small as possible to be appropriate, thereby making it virtually impossible for employers to oppose a union’s organizing efforts.45 The Liebman majority, however, emphasized that it had a statutory obligation to make bargaining unit determinations that ensured employees the “fullest freedom” in exercising their right of self-organization and collective bargaining. Guided by those purposes, the Liebman majority overruled as “obsolete” the case that had been applied to bargaining unit determinations in nursing homes and other non-acute-care facilities.46 The majority decided that because a proposed unit need only be an appropriate unit and not necessarily the most appropriate unit, it was returning to the Board’s traditional

The Liebman Board   153 community-of-interest approach. It placed on any party contending that a unit containing employees sharing such a community of interest is inappropriate because it did not contain other employees, the burden of demonstrating that the excluded employees share an overwhelming community of interest with the included employees.47 In one of their earliest decisions, another Dana case,48 the Liebman majority (Liebman and Pearce with Hayes dissenting) facilitated neutrality agreements, card checks, and voluntary recognition. Liebman and Pearce (Becker recused himself because he coauthored a 2006 brief for the AFL-CIO in this case) found that it was not an unfair labor practice for the company and the union to agree that the company would recognize the union as bargaining agent for a unit of its employees if the union proved in a card check verified, by a neutral third party, that it had the support of a majority of the workers. In addition to setting forth rules for both parties to follow in any organizing campaign, the union and the employer in Dana agreed on “certain principles that would inform future bargaining on particular topics, if and when the [union] was recognized.”49 The general counsel had issued an unfair labor practice complaint alleging that this agreement rendered unlawful assistance to the union in violation of Section 8(a)(2) of the Act and the Board invited briefs from amici curiae. Liebman and Pearce rejected the general counsel’s claim that a prior Board decision50 had created a per se rule that negotiation of terms and conditions of employment with the union was unlawful if it occurred before the union had attained majority support. In addition to distinctions between the circumstances in Majestic Weaving and Dana, Liebman and Pearce maintained that adoption of the general counsel’s position would prohibit card check–neutrality agreements “long upheld by the Board and the courts” if they addressed any substantive issues for future bargaining should a union achieve recognition. They added, “The Board should hesitate before creating new obstacles to voluntary recognition.”51 Stating his objections, dissenting Member Hayes said that the majority’s decision encouraged “top-down” organizing by which unions organize employers first and employees last, thereby subordinating the statutory rights of employees to the commercial self-interest of unions and employers in voluntary recognition situations.52 He emphasized that negotiating terms and conditions of employment with the union before a majority of unit employees have designated that union as their bargaining

1 5 4    Chapter 6 representative provides the union with “a deceptive cloak of authority” that it can use to elicit additional employee support, “thereby interfering with employee free choice.”53

Remedies to Restore Workers’ Rights During Liebman’s chairmanship, Acting General Counsel Solomon launched a number of systematic initiatives to make the agency’s remedies more effective, particularly in regard to employer unlawful interference with union organizing. In September 2010, Solomon instructed regional offices to submit to him for possible Section 10(j) injunction relief all discriminatory discharges during union organizing campaigns—so-called nip-in-the-bud cases—“because they have a severe impact on employees’ Section 7 rights.”54 In December 2010, Solomon alerted the regional offices to the fact that, although NLRB decisions had recognized that hallmark violations such as firing employees and threatening plant closings make workers fearful of losing their livelihoods if they exercise their statutory rights, “the serious effect of other, non-hallmark violations cannot be overlooked.”55 Solomon was referring to an employer’s “sudden solicitude towards employees’ needs” during an organizing campaign, interrogations, surveillance, and employer conduct that unlawfully limited employees’ opportunities to discuss unionization. Because the damaging impact of these unfair labor practices on workers’ rights during organizing is so severe, Solomon wanted to ensure that the impact of ancillary unfair labor practices was removed as well. That would be done by tailoring remedies to eliminate the coercive and inhibitive effects of unlawful conduct and to restore an atmosphere in which employees are free to exercise their statutory rights. Emphasizing that the Board had broad discretionary authority to fashion remedies that would best achieve the purposes of the Act, Solomon authorized the regions, in addition to submitting cases for consideration of Section 10(j) relief, to include in their complaints remedies such as requiring a responsible management official to read aloud to assembled employees the Board’s Notice concerning the employer’s violations of the Act and the employer’s avoidance of such unlawful conduct in the future, allowing union access to the employer’s bulletin boards, and providing the union

The Liebman Board   155 with the names and addresses of employees. If a region determined that bulletin board access and employee names and addresses were insufficient to permit a fair election, Solomon told the regions to submit an explanation of why additional remedies were warranted, including granting the union access to nonwork areas during employees’ nonwork time; giving a union notice of, and equal time and facilities for the union to respond to any address made by the company regarding the issue of representation; and affording the union the right to deliver a speech to employees at an appropriate time prior to any Board election. Solomon asserted that he was committed to securing these remedies in fulfillment of his obligation to protect workers’ rights under the Act.56 In May 2010, one month after the new Liebman Board was constituted, the Board invited all interested parties to file briefs in remedy-issue cases—one concerning whether the Board should routinely order compound interest on back pay and other monetary awards in back pay cases and the other focused on whether Board-ordered remedial notices should be posted electronically. For fifty years the Board had ordered interest to be paid on back pay awards under the Act but, without addressing the merits of the issue, had declined general counsel urgings to order compound rather than simple interest. In Jackson Hospital Corporation d/b/a Kentucky River Medical Center,57 a unanimous Board agreed that interest on back pay and other monetary relief would be compounded on a daily basis. The Board also agreed that the primary intent of a back pay order is to make employees whole for losses suffered as a consequence of an unfair labor practice in a way that vindicated the public policy of the statute. Those losses could include, therefore, not only lost income but also exhaustion of savings, incurrence of debt, and “even deprivation of the necessities of life.” An effective make-whole remedy, the Board concluded, also had to consider that compound interest was the norm in private and public lending practices.58 On the same day that Jackson Hospital was decided, a divided Board concluded that because wall-mounted bulletin boards had “gone the way of the telephone message pad and the inter-office envelope,” the continuing efficacy of the Board’s physical posting of remedial notices was in jeopardy. Given the increasing prevalence of electronic communications at and away from the workplace, the Liebman majority decided that respondents

1 5 6    Chapter 6 in Board cases would be required to distribute remedial notices electronically when that was a customary means of communicating with employees or members.59 Dissenting member Hayes charged that the majority’s decision had transformed “what [had] heretofore been an extraordinary remedy into a routine remedy.”60 In other remedy-enhancing actions, Acting General Counsel Solomon informed regional office employees that he was asking the Board to overturn Grosvenor Resort61 and St. George Warehouse,62 two Battista Board back pay decisions. In Grosvenor, the Battista Board had imposed new job search requirements on discriminatees by establishing a two-week deadline to initiate a search for new work without reduction of back pay, and in St. George Warehouse, the Battista Board shifted to the general counsel the burden of producing evidence of discriminatees’ reasonably diligent search for work. Solomon said that those decisions placed an unwarranted heightened burden on discriminated-against employees inconsistent with well-established damage-mitigation-doctrine principles, burden-of-proof principles, and judicial authority. Solomon instructed the regions to identify cases that could be proper vehicles for seeking Board reconsideration of those decisions.63 Liebman and Pearce expressed their view of the essential importance of the back pay remedy in a case64 in which they concluded “most reluctantly” that the Supreme Court’s decision in Hoffman Plastics Compounds65 foreclosed back pay awards for undocumented workers regardless of the circumstances of their hire.66 Nonetheless, Liebman and Pearce maintained that the NLRB’s first duty was to enforce the rights that the statute confers, that no violation was greater than discharging employees (as the employer in this case did) because they exercised their right under the Act to engage in collective action to protest the terms and conditions of their employment, and that enforcement of that right in the face of such a flagrant violation required credible remedies. Liebman and Pearce considered the imposition of a back pay liability on the employer necessary but insufficient.67 They asserted that protecting collective action was the “bedrock policy” on which the Act rested. They also asserted that denying an effective remedy under the Act to undocumented workers meant that all workers suffered a diminution of their rights to engage in collective action, pursue collective bargaining, and engage in other actions for their mutual aid and protection.68

The Liebman Board   157 Among the most significant and, therefore, most divisive actions of the Liebman Board were two rule-making endeavors. One rule, for the first time in the Act’s history, would have required most private sector employers to post a notice at a conspicuous location at workplaces informing workers of their rights under the Act. The second rule-making proceeding began on June 21, 2011, with a Notice of Proposed Rule Making that would have changed several of the NLRB’s representation rules.

Proposed Rule Making: Representation Election Case Rules The proposed representation election case rules sought to streamline the process by eliminating unnecessary delays and wasteful litigation in order to reduce the time between election petitions and actual balloting in a secret-ballot election. Among the most controversial changes were the requirement that NLRB regional directors schedule pre-election hearings within seven days of the date on which the election petition was filed; the deferral of voter eligibility and inclusion questions “affecting no more than 20 percent of the eligible voters” to post-election review if not rendered moot; the elimination of the rule prohibiting a regional director from scheduling an election in less than twenty-five days after a direction of election; the limited grounds for review of a regional director’s decision to direct an election; and the requirement that an employer provide a union and the NLRB in electronic form a list of eligible employee voters, their addresses, phone numbers, and e-mail addresses within two days of a direction of election or agreement to have an election—rather than within the seven days previously permitted by the Board.69 The Board conducted two days of public hearings on the proposed representation election rule changes during which it heard from sixty-two witnesses representing labor unions, employers, trade associations, and academia as well as interested nonprofit organizations. The Board also received over sixty-two thousand written comments as a result of its solicitation of public comments on the proposal.70 Opposition was vocal and vigorous and immediate weeks before the scheduled hearing. Member Hayes found that the problem his colleagues (Liebman, Pearce, and Becker) sought to address was not that the representation process took too long but that “unions are not winning more

1 5 8    Chapter 6 elections.” Hayes claimed that the principal reason for the proposed “radical manipulation” of the election process was “to effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining.”71 Senator Mike Enzi, the ranking Republican of the Senate Health, Education, Labor and Pensions Committee, called the proposed changes a “gift to labor” from a “runaway agency” trying “to ram elections through before important questions are asked and answered.” Republican John Kline, chair of the House Education and the Workforce Committee, said that the changes would undermine the ability of employers to express their position on union organizing and urged the Board to “scrap this reckless proposal and abandon its job-destroying agenda.” The Chamber of Commerce, among other employer groups, characterized the proposed rules as “a blatant attempt to give unions the upper hand by limiting the ability of employers to exercise their free speech rights.”72 The theme of employer speech deprivation was emphasized during the hearing in July. Supporters of the rule changes cited studies indicating that a shortened election period did not mean an insufficient period for campaigning or “ambush” employers with “snap” elections, because “the most serious anti-union intimidation is in full swing before the election petition is filed” and many employers begin campaigning against unionization when employees are hired.73 Republicans in the House and Senate were aggressive opponents of the proposed rule changes in great part because of concern that the NLRB would attempt to resurrect through rule making various provisions of the “dead in the water” Employee Free Choice Act (EFCA)—particularly the card check election provisions. (EFCA would have amended the Act to require the Board to certify a union as bargaining representative if a majority of employees signed union authorization cards, provided for binding arbitration if the parties were unable to agree on a first contract, and triple back pay for employees unlawfully discharged because of their union activities during an organizing campaign. The House passed EFCA in 2007 but fell nine votes short of ending a Senate debate led by Republican Orrin Hatch.) Nothing in EFCA appeared in the proposed rule changes which, contrary to EFCA’s substitution of card check certification for secret-ballot elections, were intended to make the secret-ballot election process more efficient and effective.74

The Liebman Board   159 Although there was little chance for any legislative changes in the Act in 2011 given that the Republicans had firm control over the House, while the Democrats held a narrow majority in the Senate, a flurry of Republican-sponsored bills were submitted to require secret-ballot elections in union representation elections; to prevent the NLRB from conducting a representation election in less than forty calendar days after receipt of an election petition; and to protect employers’ free speech and defend worker’s free choice—the Workforce Democracy and Fairness Act (HR 3094), which passed the House by a largely party-line vote of 235–188 and established a thirty-five-day minimal interval before the Board could conduct a representation election.75 The opportunity for public comment on the proposed representation election rule changes ended on September 6, 2011, and the Board published its final rule on December 22, 2011, approximately four months after Chairman Liebman’s term expired and President Obama had designated Member Pearce to replace Liebman as chair. The final rules were to go into effect on April 30, 2012. The most important difference between the original proposals in July 2011 and the final rules in December 2011 was that the final rules did not establish new time frames for conducting hearings or elections.76 Before the Board’s issuance of its final rule, the Chamber of Commerce and the Coalition for a Democratic Workplace had filed a lawsuit in the U.S. District Court for the District of Columbia seeking to enjoin the NLRB from enforcing the rule. The complaint (citing New Process Steel),77 alleged that the Board had exceeded its statutory authority and abused its discretion by issuing a final rule with the agreement of only two members—Pearce and Becker. It also alleged that the rule violated both Section 8(c) of the Act, which protects employer’s freedom of speech, and the Constitution’s First Amendment right of free speech.78 On May 14, 2012, District Court Judge James Boasberg ruled that the Board had adopted the final representation rule without the statutorily required quorum because Member Hayes did not vote on adoption or rejection of the final version of the rule, which was circulated for a vote on December 16, 2011—nor was Hayes asked by e-mail or telephone to record a final vote before the final rule was approved by Chairman Pearce and Member Becker. The court rejected the Board’s contention that Hayes should be counted toward the quorum because he was “present” for the

1 6 0    Chapter 6 December 16 vote because, as the Supreme Court said in New Process Steel, “a member may not be counted toward a quorum simply because he holds office.” The court also rejected the Board’s objection to permitting one member to exercise a “minority veto” over the Board’s rule-making authority on the basis that Hayes failed to vote on the final rule not out of an intent to abstain or to block the rule’s promulgation but “because he did not realize that his further participation was required.”79 Prior to the Board’s vote on the final rule proposed in December 2011, the internal dispute over the rule-change matter became public. When the NLRB’s solicitor, in response to an inquiry from the Republican chair of the House Committee on Education and the Workforce, said that it was “unknown” when the Board would vote on the final rule, Hayes wrote his own letter to the chair on November 18 charging that Pearce and Becker were rushing to ensure final action before Becker’s recess appointment ended when Congress adjourned in December and left the Board without a quorum. He also claimed that the majority had excluded him from full participation and denied him adequate time to dissent.80 On November 21, Chairman Pearce responded in a letter to Hayes with copies to House and Senate committee leaders denying Hayes’s allegations and accusing him not only of refusing to assist in the rule-making process but also of deliberately delaying the process “until the Board is either disabled from acting or its composition changes.” Pearce also charged that Hayes had threatened to resign from the Board to block the rule change by denying a quorum.81 Hayes acknowledged that he had considered resigning from the Board and had conversations with a management law firm about possible employment, but said he decided to remain on the Board to resist a “fundamentally flawed rule and process.”82 When Chairman Pearce and Member Becker approved the final rule without Member Hayes, they took the position that they had the authority to take that action with the support of a third Board member and that by selecting April 30, 2012, as the effective date for the changes in representation election procedures, they were giving Hayes a “reasonable period of time to express his views in a timely, formal, and public manner.”83 Although the District Court for the District of Columbia did not agree and struck down the election rule changes for lacking a quorum, the court emphasized that its ruling “need not necessarily spell the end of the final rule for all time” and that “it may well be that, had a quorum

The Liebman Board   161 participated in its promulgation, the final rule would have been found perfectly lawful.”84 On May 15, 2012, in response to the district court decision, the Board suspended implementation of the representation election rule changes and General Counsel Solomon advised regional directors “to revert to their previous practices for election petitions.”85 On May 22, 2012, the AFL-CIO announced that Becker, whose recess appointment expired on January 3, 2012, would become co–general counsel of the federation.86 It was not until February 6, 2014, that the NLRB issued another Notice of Proposed Rule Making with changes in its representation case rules identical to the amendments originally submitted in June 2011 under Chairman Liebman.87 This action was taken by a new Board composed of Chairman Pearce joined by Kent Hirozawa and Nancy Schiffer and opposed by Phillip Miscimarra and Harry Johnson—the first Board since 2004 that was a full five-member Board with all members confirmed. After hearings on April 10–11 to allow for public comments, the Board on December 15, 2014, adopted its final rule amending its representation case procedures, to take effect on April 14, 2015.88 The final rules did not set a standard for a specific number of days from the filing of a petition for an election to the election date because, as then–general counsel Richard Griffin told the regional directors, “There is no experience processing cases under the final rule.”89 The new rules did provide that the election would be set for the earliest date practicable but not earlier than ten days after the date by which the voter list must be filed and served on the parties. The employer was required to provide the voter list to the regional director and the parties “within two business days after issuance of the direction of election.” The voter list was defined as “an alphabetized list of the full names, work locations, shifts, job classifications and contact information (including home addresses, available personal email addresses, and available home and personal cell telephone numbers) of all eligible voters.” The rules also provided that the regional director would set a preelection hearing eight days after serving on the parties the petition for an election and a Notice of Representation Hearing.90 Chairman Liebman initiated representation case procedure rule making because the rules then in effect caused unnecessary delays, encouraged wasteful litigation, and reflected old-fashioned communication technologies. She knew that any attempt “to reduce the typical time between the

1 6 2    Chapter 6 filing of an election petition (which triggers the Board’s procedures) and the actual election” would be controversial. Liebman considered that controversy “unfortunate” but “not a good reason for the Board to abandon its responsibility” to ensure that employees are free to exercise their right to choose or reject representation at work in “a quick, fair, and accurate way.”91 Republicans in Congress were still trying to block the representation rule change in 2015.92 Employer organizations were expected to challenge any final rule change, although the procedural argument over whether the Board had a properly constituted quorum no longer existed because all members of the Board in 2015 had been confirmed by the Senate. One prominent management consulting group advised employers to “refocus” on creating positive labor relations with the obvious benefits of improving employee satisfaction, increasing productivity and efficiency, and reducing turnover but also with the “side benefit” of helping to limit employees’ thoughts about union representation. Employers were reminded that such proactive measures were used to counter the NLRB’s 2011 proposed representation election rule changes but that in the almost three years since, many employers had shelved their proactive efforts for other pressing business demands.93

Proposed Rule Making: Notification of Employee Rights It had been almost twenty years since Professor Charles Morris had asked the Board to issue a rule requiring every employer subject to the Act to post a notice informing employees of their statutory rights. It was at the top of the list of things that Chairman Liebman wanted to accomplish.94 On December 22, 2010, the Board (Liebman, Pearce, and Becker with Hayes dissenting) issued a Notice of Proposed Rulemaking (NPRM): “Governing Notification of Employee Rights under the National Labor Relations Act.”95 Among other things, the NPRM emphasized that the “NLRA is almost unique among federal labor laws in not including an express statutory provision requiring employers routinely to post notices at their workplaces informing employees of their statutory rights”96 whereas such postings were required by the Fair Labor Standards Act,97 Title VII of the Civil Rights Act of 1964,98 the Age Discrimination in Employment Act,99

The Liebman Board   163 the Occupational Safety and Health Act,100 the Americans with Disabilities Act,101 the Family Medical Leave Act,102 the Railway Labor Act,103 and other federal statutes. The Board now proposed to require that all NLRA-covered employees “be informed of their NLRA rights, as they are of other rights at the workplace.”104 The posting itself, which the Board would make available at no cost to employers, was to be “at least 11 inches by 17 inches in size” and to be “posted in conspicuous places, including all places where notices to employees are customarily posted.” The Board would also provide posters with the Notice of Rights translated into languages other than English. The proposed Notice began with a general statement of employee rights, identification of the NLRB, and how to contact the agency: The National Labor Relations Act (NLRA) guarantees the right of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity. Employees covered by the NLRA are protected from certain types of employer and union misconduct. This Notice gives you general information about your rights, and about the obligations of employers and unions under the NLRA. Contact the National Labor Relations Board (NLRB), the federal agency that investigates and resolves complaints under the NLRA, using the contact information supplied below if you have any questions about specific rights that may apply in your particular workplace.105

In regard to specific rights, the proposed Notice told employees that they had the right to “organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment”; “to bargain collectively through representatives of employees’ own choosing for a contract with your employer;” “to discuss your terms and conditions of employment or union organizing with your co-workers or a union”; to “take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency and seeking help from a union”; and to “strike and picket, depending on the purpose or means of the strike or the picketing.” The Notice also advised employees that they had the right to “choose not to do any of these activities, including joining or remaining a member of a union.”

1 6 4    Chapter 6 The proposed Notice also provided a list of specific employer actions that were illegal under the NLRA such as prohibiting employees “from soliciting for a union during non-worktime” or “from distributing union literature during non-worktime”; questioning an employee “about your union support or activities in a manner that discourages you from engaging in that activity”; taking adverse action (“fire, demote, or transfer you, or reduce your hours or change your shift”) “because you join or support a union, or because you engage in concerted activity for material aid and protection, or because you choose not to engage in any such activity”; threatening “to close your workplace if workers choose a union to represent them” or promising or granting “promotions, pay raises, or other benefits to discourage or encourage union support”; and spying or violating “peaceful union activities or gatherings.” In addition, the proposed Notice informed employees that certain union actions were also illegal under the NLRA, such as threatening “that you will lose your job unless you support the union”; refusing “to process a grievance because you have criticized union officials or because you are not a member of the union”; causing or attempting to cause “an employer to discriminate against you because of your union-related activity”; or taking “other adverse action against you based on whether you have joined or support the union.” That part of the proposed Notice ended with the statement that “if you and your co-workers select a union to act as your collective bargaining representative, your employer and the union are required to bargain in good faith in a genuine effort to reach a written, binding agreement settling your terms and conditions of employment.” Employees were also told that “the union is required to fairly represent you in bargaining and in enforcing the agreement.” The proposed Notice told employees that “illegal conduct will not be permitted” and “if you believe your rights or the rights of others have been violated, you should contact the NLRB promptly to protect your rights, generally within six months of the unlawful activity.” The Board relied on Section 6 of the NLRA for its authority to issue the Notice rule that stated, “The Board shall have authority from time to time to make, amend, and rescind, in the manner prescribed by the Administrative Procedure Act, such rules and regulations as may be necessary to carry out the provisions of the Act.” The Board considered but

The Liebman Board   165 rejected the option of relying on voluntary compliance and, instead, proposed that failure to post the required employee Notice be an unfair labor practice interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 that also might warrant tolling the six-month statute of limitations for filing unfair labor practices, and where “knowing noncompliance” may be considered evidence of unlawful motive in cases where unlawful motive is an issue in an alleged violation. In sum, the Liebman Board believed that “for employees to exercise their NLRA rights . . . they must know that those rights exist.”106 Member Hayes’s objections were included in the proposed Notice. Hayes had not participated in the Notice Rule-Making Process because the Board majority decided to grant the rule-making petitions before his confirmation as a Board member. Hayes for a number of reasons believed that the Board did not have the statutory authority to promulgate or enforce the Notice rule.107 In the period set for comments on the Board’s December 22, 2010, NPRM, the Board received 7,034 comments from employers, employees, unions, employer organizations, worker assistance organizations, and other concerned organizations and individuals. The majority of comments opposed the rule or certain aspects of it.108 After consideration of the comments, the Board issued a final rule on August 30, 2011 (Chairman Liebman’s term ended on August 27, 2011), with a few changes in the proposed rule announced on December 22, 2010. The most significant change in the Board’s estimation was deletion of the requirement that employers distribute the Notice via e-mail, voice mail, or related electronic communications.109 In its final rule the Board majority reiterated that it was fundamental to employees’ exercise of their rights that they “know both their basic rights and where they can go to seek help in understanding those rights” and that the workplace was the most appropriate place to communicate with employees about their basic statutory rights.110 Despite a large number of comments contending that the Board had not demonstrated the need for the Notice posting, the Board concluded that “many employees are unaware of their NLRA rights and therefore cannot effectively exercise those rights.” To the extent that the general level of employees’ knowledge of their rights was uncertain, the Board maintained that the “potential benefit of a notice posting requirement outweighs the modest cost to employers.”111

1 6 6    Chapter 6 The Board received numerous comments opposing the rule claiming that increasing employees’ knowledge of their rights under the Act would lead to increased unionization and have adverse effects on employers—to which the Board responded, “Fear that employees may exercise their statutory rights is not a valid reason for not informing them of their rights.”112 Other opposing comments such as “If they don’t like the way I treat them, then go get another job. This is what capitalism is about”; if an employee wants union representation, “they should take their ass to a union company and apply for a union job”; and “We are not anti-union but feel as Americans, we must protect our right not to be signatory to a third party in our business” reinforced the Board’s belief that posting the notice would not only inform employees of their rights but would also “have the beneficial side effect of informing employers of the Act’s requirements.”113 The content of the proposed Notice generated more comments than any other single topic in the proposed rule. Employers and employer groups argued that the content of the Notice was “not balanced” and promoted unionization rather than freedom of association. The Board was also criticized by employers for a lack of prominence given to employees’ right to refrain from organization and collective bargaining by omitting it from the introduction to the December 2010 proposed rule while “burying” the reference that was made by placing it below the other rights to engage in union and other concerted activity.114 The Board agreed to change the introduction to the Notice in the final rule to include both the rights to engage in union and other concerted activity and the right to refrain from doing so.115 Opposition comments also complained that the proposed Notice excluded rights associated with an anti-union position such as the right to seek decertification of a bargaining representative, the right to abstain from union membership in right-to-work states, and rights associated with Beck,116 specifically rights of employees represented by unions under collective bargaining agreements containing union security agreements. Other comments maintained that the number of examples in the proposed Notice of employer misconduct was “disproportionate compared to the examples of union misconduct.” The Board found those comments unpersuasive.117 The NLRA contains no mention of an employer’s obligation to post a notice of its employees’ rights or the consequences for an employer of failing to do so. In issuing the final rule, the Board majority continued to rely on Section 6 of the NLRA as its statutory authority to enact the rule. The

The Liebman Board   167 Board majority cited Supreme Court decisions, including the court’s decision upholding the Board’s rule-making in health care units,118 reaffirming the principle that a general grant of rule-making authority fully suffices to confer legislative (or binding) rule-making authority on an agency and to have courts defer to that rule-making authority.119 In response to comments claiming that the Board had not demonstrated that the Notice Rule was necessary, the Board said enforcement of the Act and the achievement of its purposes depended on the existence of workers who are not only aware of their rights but also know where they may seek to vindicate them, but that the NLRA currently had no provisions for making that knowledge available to them.120 Many comments argued that the absence of such a provision in the NLRA (in contrast to other labor and employment statutes) negated the Board’s authority to issue the Notice Rule. The Board majority was unpersuaded by that argument, pointing out that the legislative history of the NLRA demonstrated that Congress had not even considered inserting such a requirement into the Act. Absent any evidence of congressional intent in regard to notice posting in the NLRA, the Board maintained that the matter was left to agency discretion.121 A “handful of commentators” said that the Notice-Posting Rule violated the First Amendment to the Constitution or Section 8(c) of the Act (the employer “free speech” provision) or both because it was “forced speech” favoring unionization. The Board majority took the position that the proposed rule did not involve employer speech: The government, not the employer, would produce and supply the posters informing employees of their rights under the Act; the government had sole responsibility for the content of the posters; and the posters state explicitly that it is an official Government Notice and nothing in the poster is attributed to the employer. The Board pointed out, moreover, that employers had no obligation beyond putting up the poster and retained the right to challenge the wisdom of the requirement short of refusing to post the Notice. The Board quoted the District of Columbia Court of Appeals observation that “an employer’s right to silence is sharply constrained in the labor context, and leaves it subject to a variety of burdens to post notices of rights and risks.”122 The Board added that an employer is legally free to express its opinion regarding unionization as long as it does so in a noncoercive manner.123

1 6 8    Chapter 6 Opponents of the Board majority’s decision to treat employer noncompliance as an unfair labor practice maintained that only Congress has the authority to create a new unfair labor practice; that even if the Board had that authority, it had not identified what Section 7 rights would be interfered with by a failure to post; and that interfering with, restraining, or coercing employees within the meaning of Section 8(a)(1) required action, not a failure to act, so failure to post could not be a violation.124 The Board replied that it was incorrect to say that without congressional approval, it lacked authority to find that failure to post the Notice violated Section 8(a)(1). The Board cited numerous actions about which Section 8 is silent, but that the Board, since its creation, had determined to be violations of Section 8(a)(1). Although most violations of the NLRA involve actions, the Board also cited instances in which it had found a failure to act to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights. The identification of a specific Section 7 right being violated was unnecessary, the Board majority claimed, because all Section 7 rights were implicated by an employer’s failure to post the required Notice and the posting was necessary to ensure the effective exercise of Section 7 rights.125 The Board also defended its tolling of Section 10(b)’s barring of complaints based on any alleged unfair labor practice occurring more than six months before the filing of a charge. The Board took the position that it would be unfair to deprive an employee of the protection of the Act because an employer failed to comply with its legal responsibilities.126 After considering comments concerning its proposal that failure to post would be evidence of unlawful motive, the Board revised the language of the proposed final rule to clarify that the proposal would apply when an employer’s failure to post the Notice was both knowing and willful.127 The proposed final rule notification in the Federal Register included Member Hayes’s vigorous dissent. Hayes charged that the majority’s Notice Rule Making was arbitrary and capricious because it was not based on substantial evidence. To Hayes, the fact that Congress did not include a Notice-Posting Requirement in the Wagner Act in 1935 strongly implied, if not compelled, the conclusion that Congress did not intend the Board to have regulatory authority to require such a Notice. He also argued that the “new unfair labor practice created by the rule” had “no reasonable relation to any unfair labor practice in the NLRA’s pre-existing enforcement scheme developed over seven decades.”128

The Liebman Board   169 Member Hayes also asserted that neither the NPRM nor the comments in response to the Notice came “anywhere close to providing a substantial factual basis supporting the belief that most employees are unaware of their NLRA rights.” He concluded with the observation that no one could seriously believe that the majority’s proposed rule was a policy choice, primarily intended to inform employees of their rights under the NLRA. The majority’s real motivation, Hayes alleged, was “to reverse the steady downward trend in union density among private sector employees in the non-agricultural workforce.” Hayes ended by saying that he was “confident that a reviewing court will soon rescue the Board from itself and restore the law to where it was before the sorcerer’s apprentice sent it askew.”129 Reviewing courts justified Member Hayes’s confidence. In September 2011, the National Association of Manufacturers (NAM) filed a lawsuit with the U.S. District Court for the District of Columbia claiming, among other things, that the NLRB had exceeded its statutory authority because “nothing in the federal labor law permits the Board to require notice postings by employers that are not involved in representation cases or unfair labor practice proceedings.”130 Shortly thereafter, the U.S. Chamber of Commerce filed its own lawsuit in the U.S. District Court for South Carolina charging the Board with acting arbitrarily and asking the court to enjoin implementation of the final rule that the chamber said could cost U.S. employers more than five billion dollars in training time and legal fees.131 Republican chair of the House Education and the Workforce Committee John Kline and thirty-five other House Republicans filed identical amicus briefs with both district courts in support of the NAM and Chamber Commerce lawsuits. Their brief maintained that the legislative history of the Wagner Act demonstrated that Congress had considered and rejected the inclusion of a Notice requirement in the statute.132 On March 2, 2012, D.C. District Court judge Amy Berman Jackson ruled that the NLRA did grant the Board broad rule-making authority to implement the provisions of the Act and that the Board had not exceeded its authority in the Notice-Posting Rule. The court emphasized that the stated purpose of the Notice Rule was directly related to the policy of the NLRA, what the court called “an unequivocal declaration of national policy” to encourage collective bargaining and protect workers’ exercise of their “full freedom of association, self-organization, and designation of representatives

1 7 0    Chapter 6 of their own choosing for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.”133 The court also found no evidence that Congress intended to preclude the Board from promulgating a rule requiring employees to post a notice informing employees of their rights under the Act: “Neither the text of the statute nor any binding precedent supports [the NAM’s] narrow reading of a broad express grant of rulemaking authority.”134 The court also concluded that the Board’s contention that employees were unaware of their NLRA rights was not arbitrary or capricious given the Board’s thorough consideration of the comments it received and the NAM’s inability to present contrary evidence.135 The D.C. District Court also ruled, however, that the Board had exceeded its authority under the NLRA when it deemed any employer failure to post the required notice to be an unfair labor practice.136 The court made it a point to emphasize that it was not making an “absolute statement” that employer inaction could never constitute interference in violation of the Act but simply that the Board could not make a blanket advance determination that a failure to post would always constitute an unfair labor practice. The ruling did mean that the Board had to make a specific finding based on the facts and circumstances in a specific case before it could conclude that the failure to post interfered with employees’ exercise of statutory rights.137 Similarly, the court held invalid the tolling of the statute of limitations for noncompliance because it was imposed as the rule rather than on a case-by-case basis.138 The NAM president and CEO Joy Tummons called the court’s decision “fundamentally flawed” and House Education and the Workforce Committee chairman Kline complained that the decision “still allows the Board to spread its skewed view of employee rights to workplaces across the country.”139 Five weeks later, on April 13, 2012, the U.S. District Court for South Carolina differed with the D.C. District Court and ruled that the Board had no authority to promulgate the Notice-Posting Rule.140 The court said that the Notice Rule was not necessary to carry out the provisions of the Act as required by Section 6 because the statute places the Board in a reactive role in relation to employers. According to the district court, the Board’s functions are triggered only by an outside party and are limited to resolving unfair labor practice complaints and conducting representation

The Liebman Board   171 elections. The court found the Notice-Posting Rule inconsistent with the NLRB’s reactive role under the Act because it dictated employer conduct before the filing of any representation election petition or unfair labor practice charge.141 In addition, the court’s reading of legislative history led it to the conclusion that Congress did not intend to impose a Notice-Posting Requirement on employers or authorize the Board to do so.142 After the D.C. Circuit denied a request to enjoin enforcement of the Notice Rule, the NAM, the Coalition for a Democratic Workforce, the National Right to Work Legal Defense and Education Foundation, and the National Federation of Independent Business appealed the D.C. Circuit Court’s decision to the U.S. Court of Appeals for the District of Columbia on March 8, 2012.143 Once again, House Education and the Workforce Committee chairman Kline and thirty other House Republicans filed an amicus brief with the court of appeals. Professor Morris, who initiated the 1993 petition for Notice-Posting Rule making along with the AFL-CIO and other labor groups submitted briefs in support of the Board.144 On April 17, 2012, the District of Columbia Court of Appeals enjoined the Board from enforcing the Notice-Posting Rule pending the court’s resolution of the issues.145 Opponents of the Notice Rule had included in their wide-ranging arguments the claim that the rule violated the First Amendment of the Constitution because it compelled employers to speak against their will. It had not been, however, a contention central to challengers’ position. The district court in South Carolina did not address the First Amendment claim and the D.C. District Court found that it had no merit. The D.C. District Court held that the Notice requirements did not compel employers to say anything. It considered the proposed poster of employee rights to be a message from the government and, therefore, government speech not subject to scrutiny under the Free Speech Clause. The court said that the source of the poster’s content was clear; it had a NLRB logo at the top; it had text stating, “This is an Official Government Notice”; and it directed employees to contact the NLRB with questions about their rights.146 The D.C. District Court “refuse[d] to overturn the notice posting rule on First Amendment grounds.”147 Although the D.C. Circuit Court of Appeals acknowledged that the parties before it had emphasized the question of whether Section 6 of the Act gave the Board authority to promulgate the posting rule, the court

1 7 2    Chapter 6 chose to focus on a different provision of the Act—Section 8(c), which it decided controlled much of the case.148 In fact, the D.C. Circuit Court of Appeals “elevated employers’ right ‘not to speak’ above all else.”149 According to the court, Section 8(c) protects the right of employers (and unions) not to speak.150 A compelled-speech violation occurs, the court of appeals said, when “the complaining speaker’s own message was affected by the speech it was forced to accommodate”—and, as the court noted, employers saw the poster “as one-sided, as favoring unionization.”151 The court concluded that the right not to be compelled to communicate government speech encompassed the right not to disseminate the NLRB posting.152 The D.C. Circuit Court of Appeals qualified its dicta in an earlier case—“An employer’s right to silence is sharply constrained in the labor context, and leaves it subject to a variety of burdens to post notices of rights and risks”153—by saying that it was making a different point in that case, “that apart from the Section 8(c) bar against unfair labor practice charges the National Labor Relations Act did not give employers an unconditional right to silence.”154 One commentator discussing the possibility that what really “matters is who is making the First Amendment claim, or which judges are hearing it,” pointed out that the D.C. Circuit’s assertion that employers’ right to silence is sharply constrained in the labor context involved a notice to employees” “that they did not have to join a union or pay certain union dues,” whereas the Notice-Posting Rule the court struck down informed workers of their rights to organize and bargain collectively.155 On June 14, 2013, the Fourth Circuit Court of Appeals upheld the South Carolina District Court’s ruling that Section 6 of the Act empowered the Board to carry out only its reactive roles in addressing unfair labor practice charges and conducting representation elections. According to the Fourth Circuit, the absence of any provision charging the Board with informing employees of their NLRA rights meant that there was no indication that Congress intended to grant the Board that authority. The court concluded that the Notice-Posting Rule was not necessary for the Board to adjudicate unfair labor practices and to conduct representation elections.156 On January 6, 2014, the NLRB announced its decision not to seek Supreme Court review of the two circuit court of appeals decisions invalidating its Notice-Posting Rule. The Board’s announcement stated that the

The Liebman Board   173 agency remained “committed to ensuring that workers, businesses and labor organizations are informed of their rights and obligations under the National Labor Relations Act.” The Board advised that the disputed workplace poster was available on the NLRB website and that it could be viewed, displayed, and disseminated voluntarily.157 In one of his amicus briefs Professor Morris, the Notice Rule’s original proponent, wrote: It is a sad commentary on the current state of a key feature of American Democracy that powerful elements of the anti-union management community and their political allies here seek to reverse a fundamental aspect of freedom of speech, which is that speech should be encouraged rather than suppressed. As expressed in the Universal Declaration of Human Rights [Article 19], freedom of opinion and expression includes the freedom to “receive” information as well as to impart it. Plaintiffs seek to limit the receipt of speech by denying employees their right to receive information that is vital to their well-being.158

Concluding Observations Chairman Liebman’s assessment of her Board after April 2010 when it acquired full membership—at least briefly—until she left the Board in August 2011 was that it took “modest but meaningful” steps “to keep the law vital” and its procedures efficient. In addition to the noncontroversial cases returned to the Board after the Supreme Court’s dissent in New Process Steel,159 her Board focused on cases (some “languishing for years”) that raised new or difficult or controversial issues that could not be decided by the two-member Board.160 Liebman pointed out that there was even controversy over her Board’s attempts to encourage public participation in its decision making in key cases by seeking briefing from interested parties. She emphasized, however, that despite dire warnings and predictions from business associations and certain law firms, the Liebman Board “did not embark on a quest to overrule dozens of Bush-era precedents.”161 Shortly after Chairman Lieberman left the Board in August 2011, she wrote an article that, in part, was an attempt to explain why the NLRB had for so long been a “lightening rod for political fights” that generated “overheated rhetoric and fierce reaction”162 and ongoing attempts

1 7 4    Chapter 6 to “distract, discredit, defund and defang the NLRB.”163 She said that it had become increasingly apparent that it came down to beliefs about fundamental questions of social, political and moral values that inform (or should inform) our laws, our policies and our debates about them.” Liebman characterized the deep fault lines on labor policy in the United States as “a war over government and the role of government, especially its role in regulating business and the market.”164 In another law review article published after she left the Board, Chairman Liebman reaffirmed her belief that the Act was “at its heart a human rights law.”165 Liebman asked not to be reappointed and said that she was ready to move on.166

Concluding Comments

More than one hundred years ago in 1915, the Commission on Industrial Relations, created by Congress to investigate industrial conditions, industrial relations, and the causes of industrial unrest, submitted its final report.1 In that report, the Commission stated that no testimony had “left a deeper impression” than workers’ convictions that they “are denied justice in the enactment, adjudication, and administration of law, that the very instruments of democracy are often used to oppress them and to place obstacles in the way of their movement towards economic, industrial, and political freedom and justice.”2 The Commission emphasized the charges by workers that “almost insurmountable obstacles” had been placed in the way of their using “combined action through voluntary organization,” which workers insisted was a fundamental right necessary for their freedom—a right to organize “inherent in the general rights guaranteed every citizen of a democracy.” Workers talked of social justice and industrial democracy while confronted with what the Commission called employers’ bitter opposition

1 7 6    Concluding Comments to any form of effective labor organization while at the same time exercising control over workers’ means of livelihood—a condition of inequality “enormously increased” by the development and growth of corporations.3 The Commission recommended, among other things, incorporating “among the rights guaranteed by the Constitution” the right of individuals to form associations for the advancement of their individual and collective interests. The Commission also recommended the enactment of laws protecting workers’ rights to organize and to engage in collective activity as well as prohibiting the discharge of any person because of union membership.4 Twenty years later and over eighty years ago, Congress enacted the National Labor Relations Act.5 As did the workers who testified before the 1915 Industrial Commission, Senator Robert Wagner believed that the right to organize and bargain collectively was “at the bottom of social justice for the worker” and was essential for a free and democratic society. Wagner opposed the tyranny of both free market laissez-faire, in which “men become the servile pawns of their masters in the factories,” and the authoritarian “super government.”6 The Findings and Policy section of the Act declared it to be the policy of the United States to “encour[age] the practice and procedure of collective bargaining” and to protect “the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.”7 The Wagner Act, therefore, was not neutral; it committed the federal government to promote and protect the most democratic procedure in United States labor history for the participation of workers in the determination of their wages, hours, and working conditions. The Act promised a protected opportunity for workers through power sharing, to participate in making the decisions that affected their workplace lives.8 The Wagner Act, in explicit statutory language, promised a democratic system of workplace governance based on the promotion and protection of workers’ rights to organize, bargain collectively, and engage in other concerted activity. The exercise of these rights was intended to result in collective bargaining agreements setting forth the rights and duties of employees and employers as well as the wages, hours, and working conditions of workers at their workplaces.

Concluding Comments   177 Although the Wagner Act’s statement of purpose was carried over verbatim into the Taft-Hartley Act in 1947, the system of workplace democracy envisioned by Wagner and his law has not been achieved. In fact, in 1984 during the Reagan Board’s administration of the Act, a House Labor Committee concluded not only that the Act had failed to achieve its purpose but also that the law itself was being used “as a weapon to obstruct collective bargaining” and to create only the illusion of protecting workers against discrimination.9 In a report issued in 2000, Human Rights Watch found that “freedom of association is a right under severe, often buckling pressure when workers in the United States try to exercise it” and that, while “workers’ freedom of association is under sustained attack in the United States,” the “government is often failing its responsibility under international human rights standards to deter such attacks and protect workers’ rights.”10 Human Rights Watch affirmed freedom of association as the “bedrock workers’ right under international law on which all other labor rights rest” and “seamlessly” the right to organize, the right to bargain collectively, and the right to strike as interconnected with the basic right of freedom of association.11 The Human Rights Watch report called for a new perspective that would initiate and guide change: An international human rights perspective provides new ways of understanding U.S. labor law and practice and of advocating changes to bring them in line with international standards. . . . So long as worker organizing, collective bargaining, and the right to strike are seen only as economic disputes involving the exercise of power in pursuit of higher wages for employees or higher profits for employers, change is unlikely. Reformulating these issues as human rights concerns can begin a process of change.12

Independent of the Human Rights Watch report, Cornell University’s Institute for Workplace Studies held a conference in 2000, “Human Rights in the American Workplace: Assessing U.S. Labor Law and Policy.”13 Participants agreed that many workers’ rights, including freedom of association, were human rights but acknowledged the reality that workers did not understand that their rights were human rights or that those workplace human rights were recognized internationally; that international labor law was not well known in the United States and rarely made use of in judicial or administrative agency decisions; and that, until recently,

1 7 8    Concluding Comments even the international human rights movement, organizations and human rights scholars, had given little attention to worker rights as human rights rather concentrating on such issues as torture, death squads, and detention without trial.14 To the extent that the provisions of the NLRA itself could be held responsible for the current state of workers’ rights, particularly their organizational and collective bargaining rights, U.S. labor law scholars did not hesitate to write obituaries. One oft-cited (it seems by every labor law article on the subject) critic said in 2002 that the Act had become “ossified.”15 Too often, faced with the unlikelihood of success, even the Act’s supporters resorted to a rhetoric of futility, a hopeless calamitous analysis, a “sky-is-falling discourse.”16 Obituary writing is at best premature and at worst not helpful. The widely held view that even by the 1990s the Act had become outmoded, irrelevant, and ineffectual was summed up by a statement at a symposium marking the seventy-fifth anniversary of the NLRA and the NLRB: “It is perhaps harsh and impolitic at the NLRA’s 75th birthday to declare that in 2010 the law no longer fits American economic reality and has become an anachronism irrelevant for most workers and firms. But that is the case.”17 Rather to the contrary, the theme as expressed at a 2015 Cornell University Worker Institute conference on advancing worker rights was that despite its imperfections and needed repair, the NLRA had helped millions of workers at the nation’s workplaces, that workers were never in greater need of the Act’s protection and assistance, that labor was still organizing under the NLRA through elections or card check, and that if we threw out the NLRA—this revolutionary idea of workers’ rights to engage in collective activity—we would never get it again.18 In Broken Promise, I concluded that the statute and NLRB case law had come to legitimize employer opposition to workers’ organization, collective bargaining, and workplace democracy. Granting that there were other responsible culprits—Congress, the Supreme Court, presidential administrations and appointments, employer resistance, and even organized labor—I judged national labor policy a failure because “the current national labor policy favors and protects the powerful at the expense of the powerless.”19 My assessment was influenced largely by the Board and Supreme Court decisions during the preceding twenty-five years covered by Broken Promise during which Republicans, including President Reagan, controlled

Concluding Comments   179 appointments to the Board for approximately twenty of those years. If my assessment in 1995 and those of subsequent commentators equated the failure of policy to be interpreted and applied as originally intended with the conclusion that the Act was dead, that assessment was wrong. Despite the unrelenting pounding of hostile forces over all the years of its existence, the core of the Act—the promotion and protection of workers’ right to collective action at the workplace—remains a solid foundation not only for the realization of workers’ statutory rights but also as the basis for a broader understanding of workers’ freedom of association as a human right. Although various Boards have been criticized for reversing or seriously modifying precedent, thus “flip-flopping” national labor policy, the Boards following the Taft-Hartley Act—the McCulloch, Gould, Truesdale, and Liebman Boards—demonstrated that the Act without legislative amendment can still be interpreted and applied in ways that promote and protect worker self-organization, collective bargaining, and concerted activity as expressed in 1935 in the Wagner Act policy statement in Section 1 of the statute. As noted, Human Rights Watch considers the freedom of association the “bedrock workers’ right under international law on which all other labor rights rest.”20 Whatever the criticism of the Act, no alternative legislative approach would be even remotely adequate if it did not contain the NLRA’s core purpose of encouraging workers to exercise their rights to organize and to bargain collectively as well as its prohibitions against violation of those rights. None of that, however, means that the Act does not need amending at least to remedy some consequences of the broken promises to workers as well as to promote and protect workers’ rights more effectively and more broadly. Many proposals for change have been around for years and have been thoroughly discussed, among them: Increasing the effectiveness of NLRB remedies, ending the permanent replacement of economic strikers, improving union access to employees during representation election campaigns, lifting prohibitions on secondary activity, minimizing employer involvement in representation campaigns by the use of authorization card certifications, ending the distinction between mandatory and permissive subjects of bargaining by permitting bargaining over all issues that directly or indirectly affect people’s working lives, guaranteeing employees who vote for a union (at least when their chosen representative

1 8 0    Concluding Comments fails to obtain a first contract) binding arbitration of the disputed issues, allowing for minority-union or members-only representation, expanding the coverage of the Act to extend participation to as many workers as possible, and cracking down on the anti-union consulting industry. It has been over eighty years since the NLRA became law and almost seventy years since it was amended by the Taft-Hartley Act, with the enormous consequences those amendments have had for workers’ rights. In addition, a new economy has developed with substantial globalization, and with those changes have come new conceptions of work, new jobs, new technologies, and new workplaces. Many of the “old rules” of the NLRA do need to be rethought therefore, but the “old” Wagner Act values still have to be honored. Consequently, rethinking demands not only a new creative vision but also an honest recognition that any scheme for giving certain rights priority over other rights is—as is all law, including the NLRA—a moral choice. Decisions to retain, change, or abandon the NLRA are, at their core, choices of values. Consequently, a new, broader, and more creative vision is needed because more is required than merely fine-tuning for marginal adjustments. The workers’ rights set forth in the Act have been drastically limited and sometimes eliminated by being subordinated to pre–Wagner Act market economics–imbued common law doctrines of employer property rights. These property rights are given priority over workers’ rights to engage in concerted activity protected by the statute. Likewise, priority has been given to employer unilateral control of the enterprise, and the concept of the employment relationship as a superior-subordinate/ employer-sovereign relationship rather than one of mutual rights and obligations with employees having a stake in the enterprise. The Supreme Court in First National Maintenance Corporation v. NLRB,21 for example, used all the key common law doctrines, explicitly rejecting the idea that the employees’ union representative should “become an equal partner in the running of the business enterprise”22 and emphasizing the employer’s need for unencumbered decision making because “management must be free from the constraints of the bargaining process to the extent essential for running a profitable business.”23 What becomes more apparent is that despite the NLRA and a range of protective employment laws, the staying power of these common law values, particularly employer dominance and employee subservience,

Concluding Comments   181 is evidenced in a powerful way by the continued application of the employment-at-will doctrine—what law professor Clyde Summers called “the divine right of employers.”24 In general, this common law rule gives employers the legal right to discharge employees for a good reason, a bad reason, or no reason at all, and without warning. It follows that the influence of the employment-at-will doctrine expands as worker organization and collective bargaining contracts. Since the Taft-Hartley amendments, these common law doctrines have operated in conjunction with employers’ statutory rights to resist unionization such as the right to exercise their economic power through speech to influence their employees’ decision whether or not to exercise their freedom of association at the workplace. The real-world consequence is that too often workers risk their livelihoods if they try to exercise their statutory and human right to organize and bargain collectively. Consequently, organizers and their supporters are compelled to seek ways to motivate workers to take those risks. The key question is, of course, why any worker should have to risk his or her livelihood in order to exercise his or her freedom of association. Any reformation of the Act, focused on the realization of workers’ rights, must eliminate those risks. This is in essence “a struggle over whether and to what extent democratic values have a role to play in a world of market ordering.”25 The Act is intended to promote and protect workers’ rights. People who work do care about their wages, hours, and working conditions, but as those who study union organizing have found, workers want dignity, justice, and fairness addressed at their workplaces “rather than solely bread and butter issues.”26 The Act promised workers encouragement, support, and protection in their efforts to achieve that workplace dignity, justice, and fairness. It is necessary to determine why that promise has been kept only episodically and partially. (The mountain of published literature on that subject will not be rehashed here.) There are so many reasons and they vary widely in nature. Summers raised an important one when he pointed out that labor law “looks to life in the workplace.”27 In interpreting and applying the NLRA, judges, Board members, administrative law judges, and lawyers become filters through which the real-life workplace experiences get “winnowed into neat legal questions.”28 An immediate consequence for workers’ rights is that intellectual abstraction can move these powerful decision makers and advocates away from the people at work so that their risk-taking

1 8 2    Concluding Comments protests and actions become case files. Labor law scholar Julius Getman rightly asks, “How can legal argument lead to justice when it is so rarely informed about and is increasingly removed from, the lives of people affected by it?”29 Among other examples, Getman cites the Supreme Court decision in Mackay Radio30 that employees who exercise their right to strike may be permanently replaced—a rule asserted by the court with no serious discussion about the need for such a rule, its costs, or its impact on workers who strike. Getman’s point is that these consequences do not come to the attention of lawyers, judges, or academics, despite the fact that permanent replacement of striking workers has wrecked lives and destroyed families and entire communities. Striking workers are largely invisible.31 Getman concurs with Summers and others who believe that courts have resisted and distorted the basic purpose of the NLRA.32 Getman attributes that obfuscation to the belief that “class, rank, and education gave certain people the ability and the right to make rules to control the conduct of people whose situation they did not understand and whose experiences they did not share.”33 Law professor George Schatzki also agrees that this judicial ignorance has contributed to outcomes contrary to the intent of the Act but contends that, although the causes for judges’ actions are varied and complicated, there is a “heavy thumb on the scales” because “judges don’t like labor unions.” Judges in general, and Supreme Court judges in particular, Schatzki maintains, are elitists, individualists, meritocrats, and fierce competitors who by legal training and experience are “put off” by collectivism and concerted economic actions to achieve collective goals.34 As he concluded, “Members of the Supreme Court are among the least likely people in our society to understand and integrate the values of the labor movement.”35 There is the additional related obstacle that legal scholarship and practice in the United States is built on and preoccupied with precedent that does not lend itself to the kind of thinking that reshapes or redirects the law. Also not helpful is legal scholarship that merely restates existing decisions interpreting the Act. Summers lamented law review articles of a hundred pages or more “with bloated discussions, and multiplication of footnotes”36 that end too often with a few paragraphs that are at best more summaries than innovative and creative analyses. It also does not

Concluding Comments   183 help that labor law as an academic and scholarly subject is becoming of secondary importance in law schools—if not being eliminated.37 The influence of precedent and the subjective values of decision makers and their disconnect from the real world of work and the interaction of the two should be a serious concern in any reform effort. People’s workplace rights and livelihoods are at stake. For a long time in my classes and elsewhere, I have proposed that before anyone is permitted to practice or teach labor law, or be a judge or member of an administrative agency deciding labor issues, he or she must spend at least one year working in a hot, dirty, dangerous job. These future controllers of workers’ rights consider this idea so far-fetched that they have no doubt that I must be joking. This problem is not limited to advocates who argue cases before the NLRB or to judges who review the Board’s decisions—particularly as Board members are almost always lawyers. In addition, one of the main reasons for using the administrative process rather than the courts is the need for expertise not possessed by judges or legislators. In an action that struck at the core reason for the administrative process as well as the workers’ rights purpose of the Act, Congress, in the 1947 Taft-Hartley amendments and since, has forbidden the NLRB from conducting any sustained expert study of the labor relations dimensions of the workplace problems that confront the Board.38 As a result, the Board has to rely on unverified behavioral assumptions, untested suppositions, and abstract legal principles to make law on a case-by-case basis. The Board is also prevented from conducting its own studies of how its administration of the Act is working in practice, for example, to determine the effects of its decisions and to determine if its remedies are producing the desired effects. An empirical research and analysis unit at the NLRB would provide a needed bridge to the real world of work and labor relations and would help to legitimate the NLRB’s status as an expert administrative agency.39 There are other ways within the discretion of the Board to connect the Act and workplaces so that the Board, in the promotion and protection of workers’ rights, is informed by workplace realities. The rights set forth in the Act, for example, can be realized only to the extent that the Board possesses and exercises real power to enforce those rights. In the words of former NLRB general counsel Leonard Page, effective remedies are “the means by which rights conferred by the Act are protected.”40 The original and unchanged intention of the Act was not only to promote

1 8 4    Concluding Comments and protect workers’ rights to organize and bargain collectively but also to give the Board the power to enforce those rights with remedies that deterred employers from violating those rights and vindicated employees when their rights were violated. As the Supreme Court stated in 1941 in Phelps Dodge v. NLRB,41 the NLRB “is the agency of Congress for translating into concreteness the purposes of safeguarding and encouraging the right of self-organization.”42 The court affirmed that the Board does not “exist for the adjudication of private rights but ‘acts in a public capacity to give effect to the declared public policy of the Act.’ ”43 During the legislative process leading to passage of the NLRA, the House Labor Committee, pointing to the lack of enforcement powers of the pre–Wagner Act boards, cited the “growing bitterness on the part of workers who feel, with much justification, that they have been given fair words but betrayed by the Government in the execution of its promises.”44 During the Senate debates on Wagner’s bill, Wagner made it clear that his bill was intended to have Congress exercise “the full limit” of its constitutional power to prevent unfair labor practices.45 The result was a broad statutory mandate that empowered the Board, whenever it found that an unfair labor practice had been committed, not only to order the violator to cease and desist but also “to take such affirmative action as will effectuate the policies of this Act.”46 Although NLRB remedies are routinely criticized as being weak and the Board is faulted for its reluctance to pursue remedial initiatives,47 the Board has shown that it can be creative in fashioning remedies responsive to new challenges to compliance with the Act. In the 1990s, for example, the Board crafted additional remedies for employer unlawful interference with employee organizing, including posting notices of the employer violations of employees’ rights in all appropriate languages and nontraditional locations, such as in sending notices by e-mail and electronic bulletin boards and to employees’ homes. The Board also directed other remedies that included granting access to unions to nonwork areas during nonwork time to meet with employees, giving unions notice of and equal time to respond to employer captive audience speeches concerning representation, and affording unions the right to deliver a thirty-minute speech to employees on working time prior to an NLRB election. Other new remedies included front pay when an employer’s violation was such that it detrimentally affected a discriminatee’s ability to return to work and compensatory

Concluding Comments   185 damages that made a discriminatee fully whole, not only for lost wages but also for other losses attributable to loss of income resulting from employers’ violations, including loss of cars or houses or damage to credit ratings.48 Even during the Bush years when the Board rejected many of these remedies and tightened the rules concerning eligibility for back pay, then–general counsel Meisburg initiated new, more aggressive remedies intended to protect workers’ rights. Most notable were remedies in first-contract bargaining situations where Meisburg asked regional offices to consider Section 10(j) injunctive relief and special remedies such as compressed bargaining schedules, periodic bargaining status reports, a six-month extension in the union’s certification year, and reimbursement of bargaining costs. The point is that the NLRB has wide-ranging discretion to reevaluate, revise, and create the remedies it needs to apply to all matter of developments at the workplace in order to protect the rights of workers, unions, and employees. The NLRB’s discretionary range of creative new thinking is not limited to remedial actions and procedural matters. NLRB discretion extends to substantive doctrinal issues as well. Employer captive audience speeches, for example, are considered to be not only a powerful anti-organizational campaign tactic but also one repeatedly used by employers. Prior to Taft-Hartley, the Board held that requiring employees to listen to anti-union speeches on an employer’s property during work time—a captive audience—was in itself a violation of the Act regardless of the content of an employer’s speech. Forcing employees to listen, in the opinion of the pre-Taft-Hartley Boards, interfered with their right not to receive information concerning unions; it was the Board’s obligation to protect “employees against the use of the employer’s power which is inherent in his ability to control their actions during working hours.”49 Although the Board abandoned this doctrine in the face of the addition of employer free speech rights to the Act in 1947 (Section 8(c)), it revived employee protection from captive audience speeches in a series of decisions beginning in 1951 that were based on the reading of Section 7 as guaranteeing employees the right to hear both sides of the story under circumstances that reasonably approximate equality.50 Eventually, the Board made explicit its conviction that in captive audience cases,

1 8 6    Concluding Comments equal opportunity required union access to an employer’s premises for a reply speech.51 This equal-opportunity rule was in place only until 1953 when the Eisenhower Board decided in Livingston Shirt Corp.52 that an employer who made a captive audience speech did not commit an unfair labor practice by denying the union’s request for an opportunity to reply. The majority found nothing in the statute or legislative history that would restrict an employer “in the use of his own premises for the purpose of airing his views” or would impose “an affirmative obligation to donate his premises and working time to the union for the purpose of propagandizing the employees.”53 Livingston Shirt is still the controlling rule. During the 1960s, however, the Kennedy-Johnson Board held oral argument in anticipation of rule making on the questions of whether a representation election could be fair and free when a union is denied access to an employer’s premises during worktime to reply to an employer’s captive audience speech and whether a union was entitled to procure the names and addresses of employees eligible to vote in a representation election. Instead of issuing a rule, however, the Board, in 1966, in Excelsior Underwear, required employers, within a specific period of time, to give NLRB regional directors the names and addresses of all eligible employee voters, which the regional directors would give to the union party to the election. The Board deferred any reconsideration of the Livingston Shirt captive audience rule until there was sufficient experience with the “increased opportunity for employees’ access to communications which would flow from Excelsior but with which we have, as yet, no experience.”54 The problem is, fifty years later, the Board is still deferring a decision on the reconsideration of the Livingston Shirt doctrine, more than ample time to acquire and assess experience under the Excelsior names and addresses requirement.55 Yet, as recently as 1998, the Board has declined to revisit and reconsider its captive audience meeting doctrine.56 This is too important a matter for workers’ rights to justify continued neglect. One question is whether compelling employees to listen in a captive audience setting is a matter of free speech or a form of highly effective employer coercive conduct.57 As Summers and Harry Wellington commented almost fifty years ago, “Congressional debates on Section 8(c) focused on Board decisions as to what an employer could say and not on where he could say it.”58 Constitutional scholar Charles Black wrote over sixty

Concluding Comments   187 years ago that “coerced and unreplying attention to the words of another is known immemorially as an individual badge of servility.”59 The captive audience issue presents the Board with a perfect opportunity to exercise creative, innovative, and visionary thinking. It also challenges the Board to broaden its conception of workers’ rights by considering the perspectives of other legal systems around the world. Compulsory attendance for an employer’s anti-union message is not only unlawful in many countries such as Germany, New Zealand, and Brazil but is also considered an affront to human dignity.60 That challenges the Board to include in its decision making a new perspective, namely, that many workers’ rights are human rights. The concept of human rights has been around for a long time but it was not until the 1990s in this country that labor rights and human rights advocacy began to converge. Many of the values of the NLRA are human rights values, none more so than its statement of purpose that made it the policy of the United States to encourage collective bargaining and to protect workers in their exercise of “full freedom of association, self-organization and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.”61 An inward assessment of U.S. labor law using internationally accepted human rights principles as standards for judgment—much as Human Rights Watch did fifteen years ago62—would constitute new and visionary thinking about the Act. It would create new perspectives on old issues and introduce new standards of judgment that would challenge much orthodoxy and many accepted rules in U.S. labor law and labor relations. The ILO’s Committee on Freedom of Association (CFA), established in the 1950s to examine complaints alleging violations of Conventions nos. 87 and 98, for example, has found important Supreme Court and NLRB decisions to be contrary to the principles set forth in those two conventions. Those decisions include the U.S. Supreme Court’s barring of nonemployee union organizers from employers’ property to communicate with unorganized employees,63 the problem of delay in the U.S. labor law system,64 the provisions of the NLRA mandating the NLRB to seek an injunction against certain union unfair labor practices but not any employer unfair labor practices,65 the Supreme Court’s ruling permitting the permanent replacement of economic strikers,66 the Supreme Court decision

1 8 8    Concluding Comments denying undocumented workers the NLRB’s back pay remedy for violations of the Act,67 the NLRB’s definition of supervisory staff that went beyond freedom of association principles,68 and NLRB decisions denying teaching and research assistants the right to bargain collectively.69 The potential relevance and importance of ILO Conventions nos. 87 and 98 is manifested by the intensity and duration of U.S. employer opposition to their ratification by the U.S. government. In a 2005 law review article, Edward Potter, who had been the U.S. employer delegate to the ILO since 1997, confirmed that the implications of ratification set forth in his 1984 book, Freedom of Association: The Right to Organize and Collective Bargaining, “remain valid” and that “unqualified ratification of one or both of these conventions [nos. 87 and 98] would redirect U.S. labor policy significantly.”70 His anti-ratification view perpetuates the situation in which U.S. freedom of association and related actions are confined within the national legal framework, whereas free enterprise is not. The objective has been to ensure that the NLRA in particular remains not in compliance with international labor and human rights standards, while at the same time exporting to other countries free market values of deregulation of labor markets and aggressive anti-union measures.71 Freedom of association and other worker rights set forth in the NLRA and international human rights documents need to be made known to those who are most affected in the real world of work. As this book has demonstrated, however, that always involves a clash of the rights and interests as well as the conflicting values of employers, workers, and political administrations. Consequently, predicting how the application of human rights standards would determine the outcome of specific labor law issues would be speculative at best. The clash of differing rights and values in the NLRB’s decision making over the years (as well as the ILO CFA’s decisions concerning U.S. labor law) do provide revealing examples of the consequences of applying different standards and values to real-world issues of labor law. Even if decision makers use only human rights standards—say, as set forth the in the Universal Declaration of Human Rights—there would be clashes of rights. Human rights include both civil and economic rights. Employer speech rights and property rights and worker freedom of association rights have clashed and will continue to clash. Which rights will be given priority in such clashes will depend on the subjective choices made by decision

Concluding Comments   189 makers, choices that, as Justice Cardozo put it, depend “upon their [the decision makers’] economic and social philosophy.”72 The related clash between the human rights of individuals and the human rights of individuals in groups participating in collective action raises the same unpredictable choices of priorities. This is made even more unpredictable because of the ongoing dispute over the purpose of the NLRA—to promote and protect collective action, or to protect individual rights. Change in this situation will be difficult to achieve, not only because of the power of those who benefit from the status quo, but also because people in the United States are generally unaware of international human rights standards, and particularly the ILO’s work in applying those standards to workplaces.73 Even U.S. labor lawyers have little familiarity with ILO conventions, or human rights law, and workers have even less knowledge of their workplace human rights than they have of their NLRA rights; too often, U.S. courts “are embarrassingly parochial when it comes to applying international law.”74 In relatively recent years, the Supreme Court has broken out of its self-imposed legal isolation in a few cases, for example, Roper v. Simmons,75 citing human rights documents in striking down the juvenile death penalty, and Lawrence v. Texas,76 citing international case precedent in its decision concerning the constitutionality of antisodomy laws. Judicial and congressional hostility to considering other nations’ affirmation of fundamental rights in our own interpretation and application of the U.S. Constitution and statutes is still intense. William Gould said that had his Board “dared cite a decision or opinion by the ILO, it would have risked denial of appropriations and perhaps worse.”77 None of that should result in a sense of futility but rather should be seen as an exciting challenge to achieve real globalization of our understanding of workers’ rights. Reframing anti–freedom of association conduct as human rights violations would make the matters at stake more politically compelling and of more concern to the general public. Reframing the issues in a way that conceives of many workers’ rights issues as concerning human as well as statutory rights would constitute a creative new perspective that, among other things, would challenge the commonly held view among practitioners and academics that workers’ organizing and collective bargaining are merely tests of economic power by adversarial interest groups exercising commercial rights, not human rights.

1 9 0    Concluding Comments For example, French professor of law Alain Supiot has emphasized the groundbreaking nature of the Universal Declaration of Human Rights in that “it made human dignity into the founding principle of any legal system.” Consequently, whereas freedom and equality have to be weighed against each other, “human dignity is a principle on which no compromise is possible without bringing the whole legal order into jeopardy.”78 U.S. historian and political scientist James MacGregor Burns anticipated that human rights conception of workers’ rights when he wrote in 1941 that the NLRB was “administering a right of labor which ultimately may rival our traditional constitutional liberties as a basic American right.”79 Senator Wagner made it clear that when the exercise of worker rights and freedom conflicted with industrial peace he wanted worker freedom to be paramount. Wagner defended workers’ freedom to strike as an inalienable right to protest and stated that his Act was designed to reduce the number of strikes by eliminating the main wrongs and injustices that cause strikes.80 Accordingly, Section 13 became part of the Wagner Act: “Nothing in this [Act] . . . shall be construed so as either to interfere with or impede or diminish in any way the right to strike81—in order “to ensure that the courts did not interpret the Wagner Act as a mandate to suppress strikes.”82 Faced with dismal prospects for constitutionality, however, the Act’s proponents decided that their best strategy was to appeal to the constitutional power of Congress to regulate interstate commerce. This strategy was pursued not because they somehow and suddenly believed that the commerce-protecting, strike-reducing purpose of the Act was more important than the workers’ rights core purpose but because it was the strategy most likely to prevail before the Supreme Court.83 Aside from the question of whether a Wagner Act constitutional strategy that relied on the Thirteenth Amendment or some other provision of the Constitution would have succeeded, the fact is that reliance on the Commerce Clause did persuade the Supreme Court, although by the narrowest 5–4 vote. The Commerce Clause approach was not the perfect tool, however, because it invoked Congress’s “power over things to bring about results in the lives of men.”84 That made workers’ rights vulnerable to an interpretation that would make their exercise subordinate to their effects on the flow of commerce.85 At the same time, however, it could be used to open the door to the application of other parts of the Constitution.

Concluding Comments   191 Even the severest critic of the Commerce Clause constitutional strategy acknowledged that the Supreme Court’s opinions in the Wagner Act cases left open the possibility that workers’ rights could predominate.86 The Supreme Court in Jones and Laughlin, for example, declared workers’ freedom to organize and to select representatives “for collective bargaining or other mutual protection without restraint or coercion by their employers” to be “a fundamental right.”87 Subsequently, in several picketing cases, the Supreme Court did develop a First Amendment doctrine in which picketing was considered a constitutionally protected right of speech rather than coercive conduct.88 It was then and remains now a matter of decision makers’ choice, their choices being influenced by their values and political ideologies. The propertyand business-protecting choices that the Supreme Court has made in interpreting and applying the Commerce Clause in NLRA cases are no less irreversible than were the court’s decisions in race, gender, and privacy cases. When one proposes new theoretical approaches to old problems, however, there is the inevitable negative response from hearers imbued with the conviction that trying to bring about change is futile, impractical, or, for many other reasons, not worth bothering with. This is particularly evident when one is confronted with Felix Frankfurter’s assumption—now so ingrained as to have become “fact”—that labor law involves not constitutional or otherwise-based workers’ rights but rather the balancing of the struggle between self-interest groups for scarce resources.89 Still, all that confirms not futility but rather that the time to reconsider the Constitution as a source of workers’ rights is long overdue. Calls are being made for the Supreme Court to use international human rights decisions and conventions in interpreting the Constitution.90 Constitutional scholar Black set forth an intellectually challenging and potentially transformative idea when he proposed that three “imperishable commitments” other than the Commerce Clause—the Declaration of Independence, the Ninth Amendment, and the citizenship and privileges and immunities clauses of Section 1 of the Fourteenth Amendment—constituted a sound foundation “for a general and fully national American law of human rights.”91 Black begins with the Declaration of Independence, which “indelibly identifies the rights to life, liberty, and the pursuit of happiness as the inalienable endowment of humankind and tells us that the quintessential

1 9 2    Concluding Comments purpose of government is to ‘secure these rights.’ ” He regards the Declaration of Independence “as a commitment of the new nation to a general system of human rights,” and the cultivation of human rights as the “invaluable part of the business of our nation”—in contrast to Calvin Coolidge’s “the business of America is business.” Even if the Declaration of Independence does not have the force of law (Black maintains that it does), Black stresses its importance as a “basis for law,” as a “nourisher of law.”92 For Black, the Declaration of Independence is the best source for giving application to the Ninth Amendment, which is law, to its provision that “the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”93 In Black’s words, the Ninth Amendment “declares as a matter of law—of constitutional law overriding other law—that some other rights are ‘retained by the people’ and that these shall be treated as on an equal footing with rights enumerated.”94 Because rights not enumerated are not enumerated, they need to be determined. Black points out, however, that the need for such determination is not peculiar to the Ninth Amendment but that it is in the nature of law itself. He refers to the method of the common law, “arguing from the established to the not yet established.” According to Black, the issue is not whether this method of determining unenumerated rights would be a “bizarre innovation” but rather “whether any quest for decent law, with its parts rationally related, can possibly do without it.”95 Black’s reasoning applies as well to the Fourteenth Amendment, which he emphasizes “expresses an open-ended series of rights, set up and recognized in this clause as inherent in national citizenship” designed, he argues, to secure “a national regime of human rights.”96 (The fact is, of course, that Supreme Court justices and NLRB members have found and validated a host of substantive rights not set forth or enumerated in the text of the Constitution and the NLRA.) Black acknowledged what he called the “scandalous truth” that the first two of his approaches to a general regime of U.S. human rights law “have been allowed to sleep almost without stirring for two centuries,” while the third, the Fourteenth Amendment, “was forcibly drugged into coma” in the Slaughterhouse Cases, which Black characterizes “as one of the most outrageous actions of the Supreme Court.”97 That, of course, is the result of deliberate choices, the same choices that produced a “law”

Concluding Comments   193 of property rights but has not produced a “law” of workers’ rights or developed a system of workers’ rights based in the Constitution and human rights. Black concludes by acknowledging that he is “talking into the political wind” but adds, “Winds change.”98 He points out that, although there is “little venerable authority” supporting his proposed uses of the Declaration of Independence and Ninth Amendment, “there is no daunting authority against their use”:99 “There is nothing in the history of these great utterances in our charter of human rights or in our dealing with hugely consequential precedents, to make us hesitant to move toward the righting of this hugely consequential mistake—the failure to use these precious utterances ‘in their spirit and in their entirety.’ ”100 Black deplores what he calls the myth that lawyers must think small, which is the opposite of the “thinking large” that is needed from all involved if “we are to have a true system, a productive system of human rights.”101 Black wants his readers to remember that, when lawyers respond with polite smiles, the “great majority of ‘sound’ lawyers,” not too many years ago, thought that “segregation of blacks by law, from cradle to grave, and the ‘white primary’ were perfectly legal.”102 After eighty years the core workers’ rights principles set forth originally in the Wagner Act remain battered but still “solid pillars.”103 Rather than lamentations about the supposed death of the NLRA, there should be expressions of wonder and optimism that this workers’ rights law is still a protector and promoter of workers’ rights after eight decades of almost continual hostility from so many quarters—and so many Supreme Court and NLRB interpretations giving priority to common law principles, including management and property rights, efficiency, productivity, and control and direction of the workforce. It is revealing that starting with the Taft-Hartley Act debate, opponents of the Act have centered their efforts on trying to eliminate the Wagner Act’s core statement of purpose that declares it “to be the policy of the United States” to encourage collective bargaining, workers’ full freedom of association, and collective action for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection. All those efforts have failed and that original statement of congressional purpose remains unaltered.104 Rooting out from the Act this statement of purpose, however, would have been unnecessary if the

1 9 4    Concluding Comments Taft-Hartley amendments had already changed the purpose of the Act, as Republican-appointed Board members and others have claimed.105 The values underlying the Wagner Act’s statement of purpose are values most consistent with human rights values. That enduring purpose and those values still contain enormous potential for the promotion and protection of workers’ rights—a potential that has been realized in varying degrees over the life of the Act. Whether or not that potential will be realized in the future depends on many things—some addressed in this book. In the main, however, it will depend on whether decision makers will use that Wagner Act statement of purpose and its underlying values in giving meaning and life to the words of the statute, and whether some Congress someday will recommit itself to the purpose of the Act by amending it to eliminate impediments to the realization of workers’ rights. It will also depend on the abandonment of the search for a labor policy rooted in the center that balances the interests of labor, management, and the public and continues the shift away from the original intent of the NLRA to be a workers’ rights statute. Labor law reform has in great part focused on transforming labor-management relations from an adversarial model into a cooperative mutual gains, high-performance, productivity-enhancing model with various forms of employee participation. That model, it is urged, would enable U.S. firms to compete successfully in a global economy. It has become at least doubtful whether unionization and collective bargaining are consistent with the high-performance model.106 That explains the creation of the Dunlop Commission in 1994 and its mandate to explore methods and institutions that would enhance workplace production through labor-management cooperation, would promote cooperative behavior and reduce conflict, and would identify means of workplace self-determination that would eliminate the need for recourse to courts and regulatory agencies—such as the NLRB.107 The Dunlop Commission issued its final report and recommendations in early January 1995. As a member of the Commission put it, the Commission’s recommendations were “starting points for building over time, a fundamentally new labor and employment policy needed to make America competitive at high standards of living.”108 It would also be a fundamentally different labor policy, far from a focus on workers’ rights. Employers, who agreed to use employee participation to improve productivity and quality, would “gain the flexibility to do so free of the

Concluding Comments   195 legal uncertainty that has been hovering over some of these practices.” Such employers could also use alternative dispute procedures to reduce the “burdens of government regulations.”109 Employees would also “gain what labor law promised but has not delivered for many years,” the “effective right to choose whether to be represented by a union at the workplace” as well as “greater choice over the forms of participation” best for their needs. Employees could use workplace dispute settlement procedures to resolve disputes “over rights guaranteed them in employment laws.”110 Unions “can expand the broad-based labor-management partnerships” under way in many industries. In addition, unions will have a “fair chance to organize workers who want collective-bargaining” but “must face the fact that many non-union employees want to participate in cooperative efforts with employers without the protection a union offers.”111 When it came to identifying specific changes to be made, however, the Commission report was modest and conservative because, ultimately, it sought in the all-interests-are-negotiable-and-subject-to-compromise pluralistic approach a “balanced change” that employers, labor, and government could all accept.112 As one member of the Commission explained, Chairman Dunlop believed that whatever changes were needed could be made with only “marginal adjustments and fixes to the prevailing law” and could be brought about by mediating “quietly behind the scenes with business and labor leaders to find the consensus or middle ground proposal that all parties could accept.”113 Most commentators addressed the Commission’s recommendations as matters of conflicting interests between competing interest groups. The entire Dunlop Commission episode—from the charge to the Commission to its final report—confirmed the movement away from the workers’ rights theme of the Wagner Act to, in the 1990s, workers as “human assets,” “human capital,” and an employer’s “most critical resource” in the achievement of mutual gains through cooperative human resources strategies114 and unions as “promoting and adding value to labor-management partnerships.”115 Among the Commission’s fifteen key recommendations was a proposal that Section 8(a)(2) be “clarified” so that nonunion employee participation programs would not be unlawful even if they discussed employee compensation and terms and conditions of work where those discussions were “incidental” to the purpose of those programs.116 Commission member

1 9 6    Concluding Comments Douglas Fraser, former president of the United Automobile Workers of America, dissented, calling “undemocratic” any employer-dominated representation regardless of the subjects considered: “Because I am deeply committed to the principle of workplace democracy, I cannot join in any statement that proclaims that you can have fully effective worker management cooperation programs without having a truly equal partnership based upon workers having an independent voice.”117 That lone dissent to one recommendation in the report indicated that the dispute over what set of values and objectives would underlie our national labor policy would continue. Ultimately, it is more likely that workers’ rights set forth in the NLRA and otherwise will be protected and promoted when workers are in motion in the streets—evidenced by the passage of the Wagner Act in 1935. The desire of working people to join together to fight for their rights has been irrepressible over time no matter how oppressive the situation.118

Notes

Introduction 1. James A. Gross, “Worker Rights as Human Rights: Wagner Act Values and Moral Choices,” University of Pennsylvania Journal of Labor and Employment Law 4 (2002): 479–492. 2. Human Rights Watch, Unfair Advantage: Workers’ Freedom of Association in the United States under International Human Rights Standards (New York: Human Rights Watch, 2000). 3.  James A. Gross, “Value Judgments in Arbitration: Their Impact on the Parties’ Arguments and on the Arbitrators’ Decisions,” in Arbitration 1997: The Next Fifty Years, Proceedings of the Fiftieth Annual Meeting, National Academy of Arbitrators, ed. Joyce M. Najita (Washington, D.C.: Bureau of National Affairs [BNA], 1998), 213. 4.  Ibid., 224. 5.  Ibid., 227. 6.  James A. Gross, A Shameful Business: The Case for Human Rights in the American Workplace (Ithaca, NY: Cornell University Press, 2010), 4, 22. 1. From Wagner to Taft-Hartley 1.  See William E. Forbath, “The New Deal Constitution in Exile,” Duke Law Journal 51 (2001): 165–222; James Gray Pope, “The Thirteenth Amendment versus the Commerce Clause: Labor and the Shaping of American Constitutional Law,” Columbia Law Review 102

1 9 8     Notes to Pages 12–18 (2002): 1–122; Mark Barenberg, “The Political Economy of the Wagner Act: Power, Symbol, and Workplace Cooperation,” Harvard Law Review 106 (1993): 1379–1496. 2. James A. Gross, The Making of the National Labor Relations Board: A Study in Economics, Politics, and the Law, 1933–1937 (Albany: State University of New York Press, 1974), 15. 3.  Ibid., 11. 4.  National Archives Record Group 25, Records of the National Labor Relations Board I (hereinafter cited as NA, RG 25), “Excerpts from Advice Given to One of the Regional Boards by Dr. Leiserson,” January 20, 1934, 3, Regional Board records, Region 1, Boston, quoted in Gross, The Making of the National Labor Relations Board, 29. 5.  Decisions of the National Labor Board (Washington, D.C.: GPO, 1943) (hereinafter referred to as Decisions of the NLRB); United Airlines Inc. and David L. Behcke et al., 81; S. Dresner & Son and United Leather Workers International Union, 26; The Harriman Hosiery Mills and United Textile Workers of America, 68; Edward G. Budd Manufacturing Company and United Automobile Workers Federal Labor Union No. 18763, 58; The Motor Truck Association of Western Massachusetts and International Brotherhood of Teamsters, Local Union No. 404, 62; all cited in Gross, The Making of the National Labor Relations Board, 52–53. 6. Gross, The Making of the National Labor Relations Board, 66. 7.  Detailed discussion found in ibid., 64–72. 8.  Decisions of the NLRB, Houde Engineering Company and United Automobile Workers Federal Labor Union No. 18839, 87, cited in Gross, The Making of the National Labor Relations Board, 91. 9.  Philip Levy, oral history interview, March 15, 1969, Kheel Labor-Management Documentation Center, ILR School, Cornell University, Ithaca, NY, quoted in Gross, The Making of the National Labor Relations Board, 131–132. 10.  Pope, “The Thirteenth Amendment versus the Commerce Clause,” 49. 11. James A. Gross, The Reshaping of the National Labor Relations Board: National Labor Policy in Transition, 1937–1947 (Albany, NY: State University of New York Press, 1981), 1. 12.  William E. Forbath, “Caste, Class, and Equal Citizenship,” Michigan Law Review 98, no. 1 (1999): 61. 13.  Risa Goluboff, “Deaths Greatly Exaggerated,” Law and History Review 24 (2006): 201–208. 14.  Jones & Laughlin, 301 U.S. 1 (1937). 15.  Ibid., 9. 16.  Ibid., 3. 17.  Forbath, “Caste, Class, and Equal Citizenship,” 7. 18.  Forbath, “The New Deal Constitution in Exile,” 166–168. 19.  Pope, “The Thirteenth Amendment versus the Commerce Clause,” 76. 20.  State of the Union Message to Congress, January 11, 1944, http://www.presidency. ucsb.edu/ws/?pid=16518. 21.  International Covenant on Civil and Political Rights, United Nations Human Rights Office of the High Commissioner. 22. International Covenant on Economic, Social, and Cultural Rights, United Nations Human Rights Office of the High Commissioner. 23.  James A. Gross, “Worker Rights as Human Rights: Wagner Act Values and Moral Choices,” University of Pennsylvania Journal of Labor and Employment Law 4 (2002): 479–492. 24. James A. Gross, Broken Promise: The Subversion of U.S. Labor Relations Policy, 1947–1994 (Philadelphia: Temple University Press, 1995), 14.

Notes to Pages 18–25    199 25.  A full discussion of the following events appears in Gross, The Reshaping of the National Labor Relations Board, 16–17. Leo Huberman, “The Attack on the NLRB,” The New Republic, January 19, 1958, 300; Paul Y. Anderson, “Hooking Henry Ford,” The Nation, July 16, 1938, 62. 26.  Ibid., 24–27. 27.  Ibid., 51. 28.  Ibid., 23. 29.  Ibid., 23, 89. 30.  Forbath, “The New Deal Constitution in Exile,” 206. 31.  William E. Forbath, “The Long Life of Liberal America: Law and State-Building in the U.S. and England,” Law and History Review 24 (2006): 11. 32.  Forbath, “The New Deal Constitution in Exile,” 205; Forbath, “Caste, Class, and Equal Citizenship,” 69–70. 33.  Forbath, “The New Deal Constitution in Exile,” 203. 34.  Ibid., 204; Forbath, “Caste, Class, and Equal Citizenship,” 10. 35.  Ibid., 74. 36. J. Warren Madden, oral history interview, October 28, 1968, 163–164, Kheel Labor-Management Documentation Center, ILR School, Cornell University, Ithaca, NY, quoted in Gross, The Reshaping of the National Labor Relations Board, 56. 37.  U.S. Congress, Subcommittee of the Senate Committee on the Judiciary, Hearings on S. Res. 207, “A Resolution Providing for an Investigation of the National Labor Relations Board,” 75th Cong., 3d sess. (Washington, D.C.: G.P.O., 1938), 68, quoted in Gross, The Reshaping of the National Labor Relations Board, 54. 38.  Madden, oral history interview, 298, quoted in Gross, The Reshaping of the National Labor Relations Board, 23. 39. Gross, The Reshaping of the National Labor Relations Board, 103. 40.  Shipowners Association of the Pacific Coast, 13 NLRB 526 at 531–532 (1939). 41. Gross, The Reshaping of the National Labor Relations Board, 162–163, 171. 42.  NLRB Files, “Report of the National Labor Relations Board to the Senate Committee on Education and Labor under H.R. 9195,” August, 1940, 19–20, quoted in Gross, The Reshaping of the National Labor Relations Board, 198. 43. Gross, The Reshaping of the National Labor Relations Board, 199. 44.  I. F. Stone, “Mr. Madden and Morale,” The Nation, October 26, 1940, 383–384, quoted in Gross, The Reshaping of the National Labor Relations Board, 226. 45.  Harry Millis and Emily Clark Brown, From the Wagner Act to Taft-Hartley (Chicago: University of Chicago Press, 1940), 236. 46. Ibid. 47.  Ibid., 52, 236. 48.  James Gray Pope, “Labor’s Constitution of Freedom,” Yale Law Journal 106 (1987): 941–1031. 49.  Melvyn Dubovsky, “Review [Untitled]” Law and History Review 4 (1986): 470–473. 50.  Pope, “Labor’s Constitution of Freedom,” 960. 51.  William Leiserson, letter to J. R. Commons, March 27, 1940, quoted in Gross, The Reshaping of the National Labor Relations Board, 217. 52.  Pope, “The Thirteenth Amendment versus the Commerce Clause,” 104. 53.  Ibid., 26–27. 54.  Paul Herzog, oral history interview, January 6, 1972, 60–62, Kheel Labor-Management Documentation Center, ILR School, Cornell University, Ithaca, NY. 55.  Memorandum from George Taylor to Clark Clifford, June 14, 1947, quoted in Gross, Broken Promise, 10. 56.  Millis and Brown, From the Wagner Act to Taft-Hartley, 665.

2 0 0     Notes to Pages 25–34 57.  Memorandum from Paul Herzog to Harry Truman, June 11, 1947. Quote in Gross, Broken Promise, 11. 58.  Labor-Management Relations Act, 1947, 29 U.S.C. 401–531. 59. A. H. Raskin, “Elysium Lost: The Wagner Act at Fifty,” Stanford Law Review 38 (1986): 945–955. 60.  Charles J. Morris, “How the National Labor Relations Act Was Stolen and How It Can Be Recovered: Taft-Hartley Revisionism and the National Labor Relations Board’s Appointment Process,” Berkeley Journal of Employment and Labor Law 33 (2012): 1–71. 61. Gross, Broken Promise, 272–273. 62.  Cynthia L. Estlund, “The Ossification of American Labor Law,” Columbia Law Review 102 (2002): 1527–1612. 63.  Charles Black, A New Birth of Freedom: Human Rights, Named and Unnamed (New Haven, CT: Yale University Press, 1997), xiii. 64.  Pope, “The Thirteenth Amendment versus the Commerce Clause,” 68, 79. 65.  Ibid., 19. 66.  Ibid., 30. 67.  Ibid., 30, 45. 68.  Forbath, “The New Deal Constitution in Exile,” 172. 69.  Jones & Laughlin, 301 U.S. 1 (1937). 70.  Pope, “The Thirteenth Amendment versus the Commerce Clause,” 98, 113. 71.  Ibid., 121–122. 72.  Cynthia Farina, “Getting from Here to There,” Duke Law Journal 3 (1991): 689–670. 2. Conflicting Statutory Purposes 1. James A. Gross, Broken Promise: The Subversion of U.S. Labor Relations Policy, 1947–1994 (Philadelphia: Temple University Press, 1995), 25, 41. 2.  A full discussion of the following events can be found in ibid., 47. 3.  Guy Farmer, “The NLRB: A Standard of Criticism,” Georgetown Law Journal 43 (1955): 343. 4.  Guy Farmer, “The National Labor Relations Board,” West Virginia Law Review 56 (1954): 82, 83–84. 5.  Transcript of the NLRB Fiftieth Anniversary Conference, October 22–23, 1984, 16, on file, Kheel Labor-Management Documentation Center, ILR, Cornell University, Ithaca, NY. 6.  Ibid., 28. 7.  Edward L. Kimball, “The Eisenhower Board: Taft-Hartley under a Republican Administration,” Utah Law Review (4) (1955): 404. 8.  Breeding Transfer Co., 110 NLRB 493 (1954), Abe Murdock dissent, 502. 9.  Livingston Shirt, 107 NLRB 400 (1953). 10. Gross, Broken Promise, 106. 11.  Ibid., 411. 12.  Frank McCulloch, “Developing Issues in Collective Bargaining,” speech, NLRB Press Release (R-809), October 19, 1961, 3–4. 13.  Frank McCulloch, oral history interview, September 5, 1989, 34, 139, Kheel LaborManagement Documentation Center, ILR, Cornell University, Ithaca, NY. 14.  Frank O’Connell, oral history interview, May 23, 1987, 169, Kheel Labor-Management Documentation Center, ILR, Cornell University, Ithaca, NY. 15.  Frank McCulloch, “The How and Why of Recent NLRB Decisions,” address before the American Management Association, February 15, 1962, reprinted in Daily Labor Report, February 15, 1962, D-9. 16.  Excelsior Underwear, 56 NLRB 1236 (1966).

Notes to Pages 35–45    201 17.  Frank McCulloch, oral history interview, 86–87. 18.  Fibreboard Paper Products Corporation, 138 NLRB 550 (1962). 19. Brief for the National Labor Relations Board, Fibreboard Paper Products Corp. Petitioner v. NLRB, in the Supreme Court of the United States, October term, 1964, p. 63. McCullough papers on file, Kheel Documentation Center, ILR School, Cornell University. 20.  Oral History Interview with Stephan Gordon, August 1, 1988. On file, Kheel Documentation Center, ILR School, Cornell University. 21.  Fibreboard Paper Products Corporation, 379 U.S. 203 (1964). 22.  Ibid., 223, 225–226. 23. Ibid. 24.  Darlington Mills, 380 U.S. 263 (1965). 25. Gross, Broken Promise, 200–218, 234–236. 26.  Edward Miller, oral history interview, September 8, 1989, 38, Kheel Labor-Management Documentation Center, ILR, Cornell University, Ithaca, NY. 27.  General Motors, 191 NLRB 951 (1971). 28.  Ibid., 952. 29.  Ibid., 953. 30.  Shopping Kart Food Market, 228 NLRB 1311 (1977). 31.  Guy Farmer, Theodore Isserman, and Frederic Anderson, Labor Law Reform Study (New York: The Business Roundtable, 1975), 1–2. 32. Joan Flynn, “A Quiet Revolution at the Labor Board: The Transformation of the NLRB, 1935–2000,” Ohio State Law Journal 61 (2000): 1384. 33. House Subcommittee on Labor-Management Relations of the Committee on Education and Labor and House Manpower and Housing Subcommittee of the Committee on Government Operations, “Joint Hearings: Oversight on the NLRB,” 98th Cong., 1st Sess. (1984), 45–47. 34.  “Dotson’s Exit: A Lot More Than Politics,” Business Week, November 9, 1987, 114; Gross, Broken Promise, 269–270. 35.  First National Maintenance Corporation, 452 U.S. 666 (1981). 36.  Ibid., 678–679. 37.  Ibid., 689–690. 38.  Milwaukee Spring, 268 NLRB 601 (1984). 39.  Otis Elevator, 269 NLRB 891 (1984). 40.  Meyers Industries, 268 NLRB 493 (1984). 41.  Sears, Roebuck & Co., 274 NLRB 230 (1985). 42.  Vanessa Waldorf, “Reagan’s NLRB: An Incomplete Revolution,” Georgetown Journal of Poverty Law and Policy 15 (2008): 310. 43. “Testimony on NLRB for House Government Operations Committee on Employment and Housing,” Daily Labor Report, July 18, 1986, A-9. 44. “NLRB Chairman Criticizes Proposal for Super Agency to Handle Labor Issues,” Daily Labor Report, May 30, 1986, A-5. 45.  “Senate Labor Subcommittee Holds Hearing on Organizing Rights under Taft-Hartley Act,” Daily Labor Report, February 1, 1988, A-11. 46. Kenneth Noble, “NLRB Thunder against Thunder,” New York Times, June 8, 1985, D6. 47. Ibid. 48.  “NLRB Chairman and General Counsel Quizzed at House Oversight Hearing,” Daily Labor Report, July 18, 1986, A-9. 49. Harry Bernstein, “NLRB Shedding ultra-Conservative Slant,” Los Angeles Times, June 18, 1986. 50.  Waldorf, “Reagan’s NLRB,” 310.

2 0 2     Notes to Pages 45–49 51. “Counsel Collyer Suggests Attorneys Should Lower the Heat in Dealings with Board,” Daily Labor Report, March 30. 1089, C1. 52.  “Right to Work Foundation Goes to Court to Obtain Agency Fee Documents from NLRB,” Daily Labor Report, September 3, 1987, A-4. 53. “Supreme Court Agrees to Review Legality of Agency Fee Agreements” Arrangements,” Daily Labor Report, June 2, 1987, A-4. 54. Ibid. 55.  Memorandum from Harold Datz to Bernard Gottfried, Regional Director, Region 7, “Saturn Corp.,” June 2, 1986, 2. Author’s files. 56.  Ibid., 5. 57.  Ibid., 8.; “NLRB General Counsel Orders Dismissal of Charges regarding UAW-GM Saturn Pact,” Daily Labor Report, June 4, 1986, A-4. 58.  “Right to Work Group Blasts NLRB Counsel’s Action Upholding GM-UAW Saturn Agreement,” Daily Labor Report, June 5, 1986, A5; Waldorf, “Reagan’s NLRB,” 302. 59. “Court Blocks Right to Work Challenge to NLRB’s Dismissal of Saturn Charge,” Daily Labor Report, February 2, 1988, A-7. 60. “Right to Work Committee Attempts to Block Impending Nomination of Pamela Talkin to NLRB,” Daily Labor Report, February 28, 1992, A-13. 61. “White House Will Not Renominate Cracraft for Second Term on NLRB,” Daily Labor Report, November 21, 1991, A-10; “Parliamentary Road Block Stalls Confirmation of Mary Cracraft,” Daily Labor Report, August 13, 1991, A-8. 62.  “Bush Administration Expected to Name Dean Berkeley to Seat on NLRB,” Daily Labor Report, April 28, 1999, 8–9; “Bush Administration Gathers Prospects for Post of Labor Board General Counsel,” Daily Labor Report, March 18, 1989, A-1. 63.  “Devaney, Oviatt Tapped for Recess Seats at NLRB,” Daily Labor Report, December 18, 1989, 1; “NLRB Nominations Placed in Limbo due to Questions about Donald Rogers,” Daily Labor Report, December 20, 1989, 8–11. 64. “Stephens Discusses NLRB Appointments at New York University Labor Conference,” Daily Labor Report, June 8, 1990, A-7. 65.  “NLRB General Counsel Hunter Outlines Goals for Agency,” Daily Labor Report, March 9, 1990, A-7. 66.  “Remarks of John S. Irving on Future Role of NLRB in the Evolution of National Labor Policy,” Daily Labor Report, July 24, 1992, D-1. 67.  Harry Bernstein, “Now It’s Conservatives, Not Unions, Bashing the NLRB,” Los Angeles Times, August 22, 1989. 68.  Jean Country, 291 NLRB 11 (1988). 69.  Joan Flynn, “The Costs and Benefits of ‘Hiding the Ball’: NLRB Policymaking and the Failure of Judicial Review,” Boston University Law Review 75 (1995): 387, 397. 70.  Lechmere, Inc. v. NLRB, 112 S. CT. 841 (1992). 71.  Ibid., 849. 72.  Flynn, “The Costs and Benefits of ‘Hiding the Ball,’ ” 443. 73.  First National Maintenance, 452 U.S. 666 (1981). 74.  Dubuque Packing Co., 287 NLRB 499 (1987). 75.  Dubuque Packing Co., 880 F.2d 1422, 1435–1436 (D.C. Cir. 1989). 76.  Dubuque Packing Co., 303 NLRB 386 (1991). 77.  First National Maintenance, 452 U.S. 666 (1981). 78.  Fibreboard Paper Products Corporation, 379 U.S. 203 (1964). 79.  Dubuque Packing Co., 303 NLRB 386 (1991), 391. 80.  Office of the General Counsel, Memorandum GC 91–9, August 9, 1991, 5–7; “Guideline Memorandum concerning Dubuque Packing Co.,” 303 NLRB No. 66. Reference facts available on NLRB website, https://www.nlrb.gov.

Notes to Pages 49–55    203 81. “Union and Management Practitioners Assess Impact of NLRB’s Dubuque Packing,” Daily Labor Report, June 19, 1991, A-6. 82.  Pierce Corp., 288 NLRB 97 (1988). 83.  Midland National Life Insurance Co., 263 NLRB 127 (1982). 84.  Herbert F Darling, Inc., 287 NLRB 1356 (1988). 85.  E. I. DuPont deNemours, 289 NLRB 627 (1988). 86.  Electromation Inc., 309 NLRB 990 (1992). 87.  “Union Spokesmen Ask NLRB to Endorse Traditional Test on Participation Committees,” Daily Labor Report, September 6, 1991, A-5; “NLRB Set to Examine Employer Domination of Joint Labor-Management Committees, Daily Labor Report, August 19, 1991, A-1.” 88.  “Value of Employer Involvement Programs to Competitiveness Detailed at Forum, Daily Labor Report, May 14, 1992, A-13.” 89.  Electromation, Inc., 309 NLRB 990 (1992); “NLRB Holds Electromation Unlawfully Dominated Joint Labor-Management Participation Committees,” Daily Labor Report, December 18, 1992, AA-1, comment. 90.  “Labor and Management Assess Impact of NLRB Ruling on Employee Participation Plans,” Daily Labor Report, December 21, 1992, A-14. 91.  “NLRB Holds Electromation Unlawfully Dominated Joint Labor-Management Participation Committees,” Daily Labor Report, December 18, 1992, AA-1. 92.  Pastoral Letter on Catholic Social Teaching and the U.S. Economy (Washington, DC: National Conference of Catholic Bishops, 1966), 150. 93.  George Higgins with William Bole, Organized Labor and the Church (Paulist Press: New York, 1993), 174. 94.  James McGregor Burns, “A New House for the Labor Board,” Journal of Politics 3, no. 4 (1941): 508. 95.  Stanley Ingber, “Marketplace of Ideas: A Legitimizing Myth,” Duke Law Journal 1 (1984): 15. 96.  See Patrick Macklem, “Property, Status, and Workplace Organizing,” University of Toronto Law Journal 40, no. 1 (1990): 74–108. 97.  See Notes “Subjects of Bargaining under the NLRA and the Limits of Liberal Political Imagination,” Harvard Law Review 97, no. 2 (1983): 478–479. 98.  Donna Sockell and John Delaney, “Union Organizing and the Reagan NLRB,” Contemporary Policy Issues 5 (1987): 33–56. 99. Charles Morris, “How the NLRA was Stolen and How It Can Be Recovered: Taft-Hartley Revisionism and NLRB’s Appointment Power,” Berkeley Journal of Employment and Labor Law 33, no. 1 (2012): 1–2. 100. Gross, Broken Promise, 275–276. 101. Matthew W. Finkin, “Foreward,” Chicago-Kent Law Review 69, no. 49 (1993): (53–54). 102.  Clifford Oviatt, “The Bush NLRB in Perspective: Does the Playing Field Need Leveling?” Hofstra Labor Law Journal 11, no. 47 (1993): 93–94. 103.  Ibid., 48. 104.  Beck, 487 U.S. 735 (1988); Peter De Chiara, “The Right to Know: An Argument for Informing Employees of Their Rights under the NLRA,” Harvard Journal on Legislation 32, no. 431 (1995): 14. 105.  Case No. 1523, Complaint against the Government of the United States presented by the UFCW, the AFL-CIO and the International Federation of Commercial Clerical, Professional and Technological Employees (“FIET”), Report No. 284 (1992). See ILO website under Freedom of Association Committee, http://www.ilo.org/global/lang--en/index.htm. 106.  Case No. 1543, Complaint against the Government of the United States presented by the AFL-CIO, Report No. 278 (June 1991).

2 0 4     Notes to Pages 55–63 107.  Edward Potter, Freedom of Association, the Right to Organize and Collective Bargaining: The Impact on US Law and Practice of Ratification of ILO Conventions No. 87 & No. 95 (Washington, DC: Labor Policy Association, 1984), 5–6, 48. 108.  Ibid., IV. 109.  Ibid., 43. 3. The Gould Board 1.  “Union Activists Call for Labor Law Reforms,” Daily Labor Report, February 17, 1993, A-15. 2.  “Kirkland Calls for Excluding Employers from Election Process,” Daily Labor Report, June 18, 1993, D8. 3. “Speech by Professor Emeritus Charles J. Morris at California State Bar’s Spring Labor and Employment Law Seminar on May 21, 1993, and May 28, 1993,” Daily Labor Report, May 28, 1993, D27, 5–6. 4.  NLRB v. Mackay Radio & Telegraph Co., 304 US 333 (1936), 345–346. 5.  James Pope, “How American Workers Lost the Right to Strike, and Other Tales,” Michigan Law Review 103, no. 3 (2004): 527. 6.  Ibid., 528. 7.  William Turner, “Restoring Balance to Collective Bargaining: Prohibiting Discrimination against Economic Strikers,” West Virginia Law Review 96, no. 685 (1994): 698, 701. 8.  “Major Shifts in U.S. Labor Policy Forecast under Clinton Administration,” Daily Labor Report, March 12, 1993, A-17, 1–2; “Management Attorney Forecasts Leftward Tilt at Labor Board If Clinton Wins Presidency,” Daily Labor Report, July 24, 1992, A-2, 1. 9. U.S. Commission on the Future of Worker-Management Relations, The Dunlop Commission on the Future of Worker-Management Relations—Final Report, Catherwood Library Electronic Archive, Cornell University. 10.  Frank Swoboda, “Workers’ Rights Advocate Chosen for NLRB,” Washington Post, June 29, 1993. 11. “White House Names Professor Gould of Stanford University to Labor Board,” Daily Labor Report, June 29, 1993, D-8. 12.  William Gould, Agenda for Reform: The Future of Employment Relationships and the Law (Cambridge, Mass: MIT Press, 1993). 13.  Ibid., IX. 14.  Ibid., 259–261. 15.  Ibid., 2–3, 175, 9. 16.  Clyde Summers, “Book Review,” Georgetown Law Journal 83, no. 109 (1994): 125. 17. Gould, Agenda for Reform, 3, 21, 22, 25. 18.  Ibid., 54, 151, 193, 185, 189, 4. 19.  ILO Committee on Freedom of Association (CFA), Case No. 1540, Report No. 277, March 1991, involving Great Britain and National Union of Seamen. See ILO website under Freedom of Association Committee, http://www.ilo.org/global/lang--en/index.htm. 20.  “Case no. 1543, Complaint against the Government of the United States Presented by the AFL-CIO 74 (Series B),” ILO Bulletin no. 2 (1991): 15. 21. Gould, Agenda for Reform, 193. 22.  Summers, “Book Review,” 119. 23. Gould, Agenda for Reform, 110, 183. 24.  Ibid., 147, 173, 172–173. 25.  Ibid., 177, 157, 162–165. 26.  Ibid., 156.

Notes to Pages 63–67    205 27.  Summers, “Book Review,” 120. 28. Gould, Agenda for Reform, 156–157. 29.  Ibid., 171–172, 174–175, 177–178. 30.  Ibid., 164, 165–166, 160–162. 31.  “Speech by Professor Emeritus Charles J. Morris,” D27; Joan Flynn, “A Quiet Revolution at the Labor Board: The Transformation of the NLRB, 1935–2000,” Ohio State Law Journal 61, no. 4 (2000): 1430–1431n264. 32.  “White House Expected to Name Professor Gould of Stanford University as Labor Board Chairman,” Daily Labor Report, June 28, 1993, D-16, 1. 33.  William Gould, Labored Relations: Law, Politics, and the NLRB (Cambridge, Mass.: MIT Press, 2001). 34. Gould, Labored Relations, 18, 22; “Rhetoric Heats Up as Senate Committee Awaits Vote on Gould as NLRB Chairman,” Daily Labor Report, October 15, 1993, D-6, 1. 35.  Michael Gottesman and Michael Seidel, “A Tale of Two Discourses: William Gould’s Journey from the Academy to the World of Politics,” review of Agenda for Reform: The Future of Employment Relationships and the Law, by William Gould, Stanford Law Review 47 (1995), 750. 36.  Nomination: Hearing of the Committee on Labor and Human Resources, U.S. Senate, 103d Congress, 1st Sess., on William B. Gould, IV of California, to be a member of the National Labor Relations Board, October 1, 1993, 17, 18, 35. 37.  Ibid., 18, 31. 38. Gould, Labored Relations, 32. 39. “Senate Labor Committee Approves Gould’s Nomination as NLRB Chairman,” Daily Labor Report, October 21, 1993, D4. 40.  Flynn, “A Quiet Revolution at the Labor Board,” 1435–1436. 41.  “White House Seeks to Avert Senate Showdown: Circulates Names for NLRB Republican Seat,” Daily Labor Report, November 26, 1993, D9. 42.  “Gould Nomination Reaches Senate Roadblock: Labor Board Set to Lose Quorum of Three Members,” Daily Labor Report, November 23, 1993, D14. 43.  “Recess Appointment of Truesdale Brings NLRB to Voting Strength,” Daily Labor Report, January 26, 1994, D4. 44.  “Nominee Gould Accuses Critics of ‘Scurrilous Lies,’ ” Daily Labor Report, January 28, 1994, D2. 45. Gould, Labored Relations, 45. 46.  “Senate Confirms Gould Nomination to NLRB; Feinstein, Cohen, and Browning also Approved,” Daily Labor Report, March 3, 1994, D3. 47.  “Statement of NLRB Chairman William B. Gould, March 2, 1994,” Daily Labor Report, March 4, 1994, D32. 48.  “Business Groups Adopt Wait-and-See Attitude on Gould Chairmanship of NLRB,” Daily Labor Report, March 4, 1994, D14. 49. Gould, Labored Relations, 57; “Remarks of NLRB Chairman William B. Gould before the Metropolitan Detroit AFL-CIO May 6, 1994,” Daily Labor Report, May 9, 1994, D31. 50. Gould, Labored Relations, 40, quoting G. Calvin Mackenzie, Starting Over: The Presidential Appointment Process in 1997, White Paper, Twentieth Century Fund/Century Foundation, Washington, D.C., 1998. 51.  William B. Gould IV, “The 1994–95 Baseball Strike and National Labor Relations Board: To the Precipice and Back Again,” West Virginia Law Review 110 (2008): 983–984. 52. Gould, Labored Relations, 55.

2 0 6     Notes to Pages 67–74 53.  Ibid., 27, 43, 10–11. 54.  Ibid., 50. 55.  National Labor Relations Act, 29 U.S.C. § 151–169 (Section 1 [§151]). 56.  Ibid., 149. 57.  Edward Potter and Judith Youngman, Keeping America Competitive: Employment Policy for the Twenty-First Century (Lakewood, Colo.: Glenbridge, 1994). 58.  Ibid., 13, IX, 2, 3–4, 104, 142, 391. 59.  Ibid., 411, 50, 57, 87, 12, 136, 163, 136, 163, 369. 60.  Ibid., 153, 245–247. 61.  Ibid., 245–246, 130, 143, 18, 413, 219, 240. 62.  Ibid., 19, 239, 261, 94–98. 63.  Ibid., 35–36, 94. 64.  Ibid., 249, 249–251, 252–255, 256–258, 259–261, 413. 65.  “Gould Outlines His Agenda for Change as NLRB Chairman,” Daily Labor Report, March 21, 1994, D4; “Address of NLRB Chairman Gould Washington State Labor Council Constitutional Convention, Spokane, Aug. 22,” Daily Labor Report, August 25, 1994, D21. 66.  “Gould Outlines His Agenda for Change as NLRB Chairman,” Daily Labor Report, March 21, 1994, D4; “New NLRB General Counsel Feinstein Pledges to Make NLRB Fair, Predictable, Swift,” Daily Labor Report, March 10, 1994, A11. 67.  For membership, see “Membership of NLRB Advisory Panel,” Daily Labor Report, April 12, 1994, D17. 68. “Union Panel Endorses Mail Balloting, Urges Greater Speed at NLRB Hearings,” Daily Labor Report, June 28, 1994, D13. 69.  “Employers Urge NLRB Not to Interfere with Current Practices That Work Well,” Daily Labor Report, June 30, 1994, D19. 70. “Statement of Management Attorney Panel on NLRB Election Proposals,” Daily Labor Report, August 2, 1994, D23. 71.  “NLRB Staffers Sharply Divided on Wisdom of Using Mail Ballots,” Daily Labor Report, August 1, 1994, D5. 72.  “Address of NLRB Chairman Gould to Washington State Labor Council Constitutional Convention,” Daily Labor Report, August 25, 1994, D21. 73.  “Vote on Use of Mail Ballots Postponed Indefinitely by NLRB,” Daily Labor Report, August 5, 1994, D3. 74. Gould, Labored Relations, 75. 75.  Ibid., 75. 76.  Ibid., 84–85, 227. 77.  San Diego Gas and Electric, 325 NLRB 1143 (1998). 78.  Ibid., 1145. 79.  Ibid., 1146. 80.  “Remarks of NLRB Chairman Gould, Pennsylvania State University,” Daily Labor Report, June 27, 1996, D35. 81.  “NLRB Officials Outline Goals for Speeding Up Agency Actions,” Daily Labor Report, October 21, 1994, A11; “Time Targets for Representation Cases among Outcomes of ‘Reinvented’ Labor Board,” Daily Labor Report, November 11, 1994, A11. 82. “NLRB Ponders New Rules for Agency Hearings,” Daily Labor Report, July 28, 1994, D2; “NLRB Proposes New Rules Governing Powers of Administrative Law Judges,” Daily Labor Report, September 8, 1994, D4. 83.  “Labor Board States One-Year Experiment on Settlement Judges and Bench Rulings,” Daily Labor Report, December 22, 1994, AA1.

Notes to Pages 74–77    207 84.  “Federal Register Notice on NLRB Administrative Law Judges,” Daily Labor Report, December 1, 1995, D28. 85. “NLRB: Board Set to Implement Final Rules on Settlement Judges, Bench Decisions,” Daily Labor Report, February 23, 1996, D11. 86. Gould, Labored Relations, 78. 87.  Ibid., 80. 88.  “NLRB Chairman Gould Advocates Early Settlement of Disputes,” Daily Labor Report, June 6, 1994, D8. 89. Gould, Labored Relations, 79. 90.  Ibid., 79. 91.  Ibid., 65. 92.  Office of General Counsel, Memorandum GC 94–13, “General Counsel Six-Month Report,” October 24, 1994, 21, 27–28. Available at NLRB website under General Counsel, https://www.nlrb.gov. 93. “Report of the NLRB General Counsel,” Daily Labor Report, November 28, 1994, D17. 94. “NLRB Counsel Feinstein Sees Growth in Injunctive Relief for ULP Cases,” Daily Labor Report, June 28, 1994, D9; “NLRB General Counsel Discloses New Manual on 10(J) Injunctions,” Daily Labor Report, August 8, 1994, D11; “Time Targets for Representation Cases among Outcomes of Reinvented Labor Board,” Daily Labor Report, November 7, 1994, D17; “Report of the NLRB General Counsel,” D17; “NLRB Becoming More Customer-Friendly, Feinstein Tells Labor Law Conference,” Daily Labor Report, September 13, 1994, D8. 95. Gould, Labored Relations, 66. 96.  “Report by NLRB General Counsel Feinstein on Utilization of Section 10(J) Injunction Proceedings, March 3, 1994, to March 2, 1998,” Daily Labor Report, News Archive, July 28, 1998. 97. Gould, Labored Relations, 67–68. 98.  Ibid., 253. 99.  William Gould, “The Employee Free Choice Act of 2009: Labor Law Reform, and What Can Be Done about the Broken System of Labor-Management Relations Law in the United States,” University of San Francisco Law Review 43, no. 291 (2008): 333–334. 100. Gould, Labored Relations, 172–173. 101.  “NLRB Notice of Proposed Role-Making on Single Location Bargaining Units for Retail, Manufacturing, and Trucking Industries,” Daily Labor Report, June 2, 1994, D29; “NLRB Proposed Rule on Single Location Bargaining Units,” Daily Labor Report, September 28, 1995, D25. 102.  “NLRB Proposed Rule on Single Location Bargaining Units,” Daily Labor Report, September 28, 1995, D25. 103.  “NLRB: Ex-member Stephens Blasts NLRB Foray into Rule-Making on Single Unit Facilities,” Daily Labor Report, October 15, 1995, D6; “Statement of James M. Stephens on NLRB Proposed Single Facility Rule,” Daily Labor Report, October 15, 1995, D27. 104.  “NLRB: Board Proposal Favoring Single Facility Bargaining Triggers Business Opposition,” Daily Labor Report, January 29, 1996, D5. 105.  Glenn Burkins, “NLRB Proposal to Ease Service Workers into Unions Angers GOP, Small Business,” Wall Street Journal, March 6, 1996, B2. 106. “Union Elections: Number of Union Elections Decreased Significantly in 1995,” Daily Labor Report, June 24, 1996, D22. 107.  “Comment Time for Single-Site Rule Extended,” Daily Labor Report, March 14, 1996, D25.

2 0 8     Notes to Pages 77–81 108.  Glenn Burkins, “GOP Is Taking Aim at NLRB’s Power to Monitor Union Votes at Small Firms,” Wall Street Journal, March 21, 1996. 109.  David R. Sands, “House Panel Votes to Cut NLRB Power over Firms,” Washington Times, June 14, 1996, B9. 110. “Over Chairman’s Dissent, Board Withdraws Proposed Rule on Single Location Bargaining,” Daily Labor Report, News Archive, February 23, 1998, AA1. 111. Gould, Labored Relations, 204; “Remarks of NLRB Chairman Gould,” D35. 112. Gould, Labored Relations, 71. 113.  Ibid., 173. 114.  Ibid., 174–175. 115. “Union Attorneys Pose Questions on Indexing Labor Board Yardsticks,” Daily Labor Report, June 19, 1996, D3; “Management Attorneys Question Wisdom of House Rider on NLRB Jurisdiction,” Daily Labor Report, June 21, 1996, D2; Gould, Labored Relations, 204, 297. 116. Gould, Labored Relations, 73, 262. 117.  “GOP Expected to Champion Employer Objectives in New Leadership Role,” Daily Labor Report, January 30, 1995, D27; “Republican Congress Changes Debate over National Labor Policy,” Daily Labor Report, January 30, 1995, D26. 118. Gould, Labored Relations, 157. 119.  Ibid., 157. 120.  “Republican Congress Changes Debate over National Labor Policy,” D26. 121.  Joan Flynn, “Expertness for What? The Gould Years at the NLRB and the Irrepressible Myth of the ‘Independent’ Agency,” Administrative Law Review 52, no. 2 (2000): 495. 122.  “Gould and Feinstein Defend Agency against Republican Budget Cut Proposals,” Daily Labor Report, July 13, 1995, D3. 123. Ibid. 124.  “Letter to NLRB Chairman Gould on the Replacement of Strikers, Committee on Economic and Educational Opportunities U.S. House of Representatives,” Daily Labor Report, April 10, 1995, D33. 125.  “Chairman Gould Defends Public Comments Supporting Ban on Striker Replacement,” Daily Labor Report, April 20, 1995, D7; “Letter by NLRB Chairman Gould to Republican Members of House Economic and Educational Opportunities Committee April 19, 1995,” Daily Labor Report, April 20, 1995, D1. 126.  Lechmere, 112 S. Ct. 841 (1992). 127.  NLRB v. Truitt, 76 S. CT. 753 (1956). 128.  “Remarks of NLRB Chairman Gould to New York University’s National Conference on Labor,” Daily Labor Report, June 1, 1995, D29. 129. Ibid.; “Remarks by NLRB Chairman Gould to Pacific Coast Labor Law Conference,” Daily Labor Report, June 12, 1995, D29. 130.  “NLRB, FMCS Heads Hit for Endorsing Workplace Fairness Bill in Senate,” Daily Labor Report, June 17, 1994, D13. 131.  “Remarks of John S. Irving to Chicago Meeting of Association of Labor Relations Agencies,” Daily Labor Report, July 24, 1995, D21. 132.  “NLRB Budget Cut Likely to Be Reduced by Senate Appropriators, Speaker Predicts,” Daily Labor Report, August 9, 1995, D20; “Reich Predicts Senate Will Remove Labor-Related Riders from Spending Bill,” Daily Labor Report, August 7, 1995, D19. 133.  “Remarks of NLRB General Counsel Frederick L. Feinstein before ABA Section of Labor and Employment Law, August 8, 1995,” Daily Labor Report, August 9, 1995, D25. 134.  “Bill Would Harm NLRB, Gould Says,” Daily Labor Report, September 5, 1995,  D20.

Notes to Pages 82–86    209 135.  “Senate Appropriations Restores House Cuts in NLRB and OSHA Budgets,” Daily Labor Report, September 14, 1995, D3. 136.  “Ban on Striker Replacement Order Attached to Labor, HHS Spending Bill,” Daily Labor Report, September 18, 1995, D3. 137.  “Current Attack on NLRB Is Most Severe since 1930s, Chairman William Gould Says,” Daily Labor Report, October 6, 1995, D5; “Address by NLRB Chairman William Gould, October 5, 1995: “The Perils of the National Labor Relations Board: An Enduring Legacy,” Daily Labor Report, October 10, 1995, D25. 138. “Attempts to Slash NLRB Budget Will Not Coerce Agency, Gould Says,” Daily Labor Report, October 20, 1995, D11. 139. “Board Defends Clinton Administration’s $181 Million Request for Fiscal Year, 1996,” Daily Labor Report, March 15, 1996, D25. 140.  “National Labor Relations Board Summary of Strategic Plan,” Daily Labor Report, March 25, 1996, D30. 141. “Labor Board Slated for 3% Cut; Rider Bars Single-Facility Rulemaking,” Daily Labor Report, April 29, 1996, D6. 142.  “House Approves Fiscal 1997 Spending Bill; NLRB Targeted with New Illegal Alien Rider,” Daily Labor Report, July 15, 1996, D3. 143.  “Senate Panel Approves TEAM Act; Democrats Warned of Floor Fight, Filibuster,” Daily Labor Report, March 6, 1997, AA1. 144. Gould, Labored Relations, 192–193. 145. “Gould, without directly acknowledging that he made the ‘employee-domination act’ statement, said he has commented publicly on labor law matters ‘in the greatest tradition of heads of administrative agencies.’ ” “NLRB Chairman Gould Defends Agency in Senate Labor Oversight Hearing,” Daily Labor Report, September 18, 1996, D4. 146.  “House Republicans Seek ‘Assurances’ NLRB not using Withdrawn Rule in Cases,” Daily Labor Report, February 26, 1998, A10. 147. “Gould Criticizes House Republicans for Attempting to Influence NLRB Decisions,” Daily Labor Report, March 11, 1998, A6. 148.  “NLRB Chairman William B. Gould’s March 19, 1998, Letter to House Republicans,” Daily Labor Report, News Archive, March 20, 1998. 149. Gould, Labored Relations, 387. 150.  Ibid., 269. 151.  “Appropriators Slam NLRB for Complaining about Failure to Receive Budget Increase,” Daily Labor Report, October 31, 1997, AA1. 152. Gould, Labored Relations, 269–270. 153.  Ibid., 269–270. 154.  Steven Greenhouse, “Labor Board Chief Takes Assertive Stance,” New York Times, June 2, 1996, 2. 155. Steven Greenhouse, “Parting Shots by Labor Board Chief,” New York Times, July 23, 1998, 22. 156. Gould, Labored Relations, 303. 157.  Ibid., 220–221. 158.  Ibid., 52, 120, 89, 236, 278. 159.  Ibid., 70–71, 126, 175, 293–294, 126. 160.  Ibid., 19; Truesdale began his career with the NLRB as a field examiner in 1948; became associate executive secretary in 1963, deputy executive secretary in 1968, and executive secretary in 1972; served his first term as Board member from October 1977 to August 1980; returned to the executive secretary position when not renominated; held a recess appointment for thirty-eight days as Board member during Gould’s stalled nomination process; and, after

2 1 0     Notes to Pages 86–93 once again returning to the position of executive secretary, replaced Dennis Devaney on the Board on a recess appointment from December 1994 to January 3, 1996. 161.  Ibid., 55–56. 162. “NLRB Needs More Time to Consider 10(J) Action against Baseball Owners,” Daily Labor Report, March 24, 1995, D15. 163. Gould, Labored Relations, 115–116. 164.  “Agency’s Efforts to Resolve Baseball Strike Start Feuding at Labor Board,” Daily Labor Report, March 29, 1995, D23. 165. Ibid. 166. Gould, Labored Relations, 117. 167.  Ibid., 130. 168.  Ibid., 112–113, 113, 89. 169.  Ibid., 235–236, 233, 291, 291, 135, 253, 258, 215. 170.  Ibid., 256, 254, 291–292, 264. 4. Gould Board Decisions and Workers’ Rights 1.  Joan Flynn, “Expertness for What? The Gould Years at the NLRB and the Irrepressible Myth of the ‘Independent’ Agency,’ ” Administrative Law Review 52, no. 2 (2000): 486. 2.  Lechmere, 502 U.S. 527 (1992). 3.  Beck, 487 U.S. 735 (1988). 4.  Union Square Theater Management, Inc., 326 NLRB 70 and 72 (1998), citing St. Francis Medical Center-West, 323 NLRB 1046 at 1047 (1997). 5. See Providence Hospital, 320 NLRB 717 (1996); Nymed, Inc., d/b/a Ten Broeck Commons, 320 NLRB 806 (1996). 6.  Legal Aid Society, 324 NLRB 135 (1997). 7.  Speedrack Products Group Limited, 325 NLRB 609 (1998). 8.  Casa Italiana Language School, 326 NLRB 40 (1998). 9.  Delaware Racing Association d/b/a Delaware Park, 325 NLRB 156 (1997). 10.  Ibid., 157. 11.  Roadway Package System, 326 NLRB 842 (1998). 12.  Dial-A-Mattress Operating Corporation, 326 NLRB 884 (1998). 13.  Ibid., 894. 14.  Excelsior Underwear, 156 NLRB 1236 (1966). 15.  NLRB v. Wyman-Gordon Co., 394 U.S. 759 at 767 (1999). 16.  Fountainview Care Center, 323 NLRB 990 at 991 (1997). 17.  Ibid., 991. 18.  Bardon Enterprises, Inc., 326 NLRB 469 (1998). 19.  San Diego Gas and Electric, 325 NLRB 1143 (1998). 20.  London’s Farm Dairy, Inc., 33 NLRB 1057 (1997). 21.  Ibid., 1059–1060. 22.  Comet Electric, Inc., 314 NLRB 1215 (1994). 23.  Ibid., 1216. 24.  Bro-Tech Corp., 315 NLRB 1014 (1994). 25.  Ibid., 1014–1015. 26.  Young Men’s Christian Assn., 286 NLRB 1052 (1987). 27.  Broward County Health Corporation d/b/a Sunrise Rehabilitation Hospital, 320 NLRB 212 (1995). 28.  Ibid., 212. See also Good Shepherd Home, Inc., 321 NLRB 426 (1996). 29.  Novotel New York, 321 NLRB 624 (1996).

Notes to Pages 93–99    211 30.  Ibid., 631. 31.  Ibid., 630; Thomas v. Collins, 323 U.S. 516 (1945); Central Hardware Co. v. NLRB, 407 U.S. 539 (1972). 32.  Novotel New York, 631. 33.  NAACP v. Button, 371 U.S. 415 (1963). 34.  Ibid., 434. 35.  Novotel New York, 633. 36.  Ibid., 634, 636. 37.  Nabors Alaska Drilling, Inc., 325 NLRB 574 (1998). 38.  Ibid., 574. 39.  NLRB v. Gissel Packing Co., 395 US 575 (1969). 40.  United Dairy Farmers Cooperative Assn., 257 NLRB 772 (1981). 41.  Conair Corp., 261 NLRB 1189 (1982). 42.  Gourmet Foods, 270 NLRB 578 (1984). 43.  Nabors Alaska Drilling, Inc., 577. 44.  Fieldcrest Cannon, 318 NLRB 470 (1995). 45.  Ibid., 473. 46.  Fieldcrest Cannon, Inc. v. NLRB, 97 F3d 65 (1996). 47.  Fieldcrest Cannon, 318 NLRB 470 (1995), 473–474. 48.  Myth Inc. d/b/a Pikes Pain Program, 326 NLRB 136 (1998). 49.  Meyers Industries, 268 NLRB 493 (1984); Meyers Industries, 281 NLRB 882 (1986), aff’d. sub nom. Prill v. NLRB, 835 F2d 1481 (D.C. Cir, 1987), cert denied, 487 U.S. 1205 (1988). 50.  Alleluia Cushion, 221 NLRB 999 (1975). 51.  Myth Inc., 140. 52. Ibid. 53.  Ibid., 141. 54.  Ibid., 136. 55.  International Paper Company, 319 NLRB 1253 (1995). 56.  McClatchy Newspapers, Inc., 321 NLRB 1386 (1996). 57.  A.P.R.A. Fuel Oil Buyers Group, Inc., 320 NLRB 408 (1995). 58.  International Paper. 59.  NLRB v. Great Dane Trailers, 388 U.S. 26 (1967). 60.  NLRB v. Erie Resistor, 373 U.S. 221 (1963). 61.  International Paper, 1266–1267. 62.  Ibid., 1270. 63.  Ibid., 1273. 64.  Mackay Radio & Telegraph Co., 304 U.S. 333 (1939). 65.  Ibid., 1274. 66.  International Paper, at 1275 and 373 U.S. 221 at 232. 67.  McClatchy Newspapers, Inc., 321 NLRB 1386, 1389–1390 (1996). 68.  Ibid., 1390–1391; emphasis in original. 69.  Sure Tan, Inc. v. NLRB, 467 US 83 (1984). 70.  A.P.R.A. Fuel Oil Buyers Group, Inc., 408 at 414. 71.  Daniel Yager, NLRB: Agency in Crisis (Washington, D.C.: Labor Policy Association, 1996), 3, 5. 72.  Flynn, “Expertness for What?” 488–489n94. 73.  Ibid., 489. 74.  Farm Fresh, Inc. t/a Nicks, 326 NLRB 997 at 1003 (1998).

2 1 2     Notes to Pages 99–104 75.  Leslie Homes, Inc., 316 NLRB 123 (1995). 76.  Ibid., 127. 77.  Ibid., 120. 78.  Galleria Joint Venture, 317 NLRB 1147 (1995). 79.  Farm Fresh, Inc. t/a Nicks, 326 NLRB 997 (1998). 80.  Ibid., 998. 81.  Montgomery Ward & Co., 288 NLRB 126 (1988). 82.  Farm Fresh, Inc. t/a Nicks, 1003. 83.  Ibid., 1008. 84.  Ibid., 1006. 85.  Communication Workers v. Beck, 487 U.S. 735 (1988). 86.  California Saw and Knife Works, 320 NLRB 224 (1995). 87.  Ibid., 233. 88.  Q-1 Motor Express, Inc., 323 NLRB 767 (1997). 89.  Dubuque Packing Co., 303 NLRB 386 (1991). 90.  Q-1 Motor Express, Inc., 770–771. 91.  Ibid., 771–772. 92.  Ibid., 771. 93.  Detroit Newspaper Agency d/b/a Detroit Newspapers, 326 NLRB 700 (1998). 94.  Service Electric, 281 NLRB 633 (1986). 95.  Detroit Newspaper Agency, 718–719. 96.  NLRB v. American National Insurance Co., 343 U.S. 395 (1952); NLRB v. Insurance Agents’ Union, 361 U.S. 477 (1960); and American Ship Building Co. v. NLRB, 380 U.S. 300 (1965); quotation is from White Cap, Inc., 325 NLRB 1166 at 1170–1171 (1998). 97.  White Cap, 1166 at 1170. 98.  Ibid., 1172. 99.  Telescope Casual Furniture, Inc., 326 NLRB 588 (1998). 100.  Ibid., 589. 101.  NLRB v. Insurance Agents’ Union, 361 U.S. 477 at 489 (1960). 102.  McClatchy Newspapers, Inc., 321 NLRB 1386 (1996) enfd. 131 F3d 1026 (D.C. Cir. 1997). 103.  Telescope Casual Furniture, 591. 104.  Ibid., 592. 105.  Ibid., 592–593. 106.  Quamco, 325 NLRB 222 (1997). 107.  Ibid., 225. 108.  Ibid., 225, citing Roth v. United States, 354 U.S. 476 (1957). 109.  Beverly Enterprises-Hawaii, Inc. d/b/a Hale Nani Rehabilitation and Nursing Center, 326 NLRB 335 (1998). 110.  Ibid., 338–339. 111. Citing Guardian Industries Corp. v. NLRB, 49 F3d 317 at 318 (7th Cir. 1995). 112.  Livingston Shirt, 107 NLRB 404 06 (1953). 113.  Ibid., 357. 114.  Beverly Enterprises, 361. 115.  Ibid., 362, citing NLRB v. Magnavox Co., 415 U.S. (1974), 322 at 325. 116.  Beverly Enterprises, 340. 117.  Ibid., 352. 118.  Ibid., 353. 119.  Ibid., 364, 368.

Notes to Pages 104–108    213 120.  Shepherd Tissue, Inc., 326 NLRB 369 (1998). 121.  Ibid., 369. 122.  Sewell Mfg. Co., 138 NLRB 66 (1962). 123.  Shepherd Tissue, 369–371. 124.  Ibid., 371. 125.  Monson Trucking, Inc., 324 NLRB 933 (1997); Group Health, Inc., 325 NLRB 342 (1998). 126.  Monson Trucking, Inc., 939. 127.  Ibid., 939. 128.  Ibid., 940. 129.  Group Health, Inc., 346–347. 130.  Ibid., 347. 131.  Oil Chemical and Atomic Workers International Union, Local 1–591, 325 NLRB 324 (1998). 132.  Denver Building Trades Council v. NLRB, 341 U.S. 675 (1951). 133.  Keeler Brass Automotive Group, 317 NLRB 1110 (1995). 134.  Ibid., 1117. 135.  “NLRB Chairman Gould Submits Resignation to Take Effect before Term Ends in August,” Daily Labor Report, July 8, 1998, A11. 136.  William B. Gould, “Four-and-One-Half Year Report,” NLRB, 1998, 1, 7–8. Available on the NLRB website, https://www.nlrb.gov. 137.  Ibid., 1. 138.  “Tensions between NLRB and Congress Predicted to Continue for Next Chairman,” Daily Labor Report, October 6, 1998, A6. 139.  “Clinton Names Truesdale NLRB Chairman to Succeed Gould in Recess Appointment,” Daily Labor Report, December 7, 1998, A9; “Clinton Intends to Nominate Truesdale to Fill Seat Left Open by Gould’s Departure,” Daily Labor Report, October 15, 1998, A5. 140. “NLRB Begins 1999 with Agency Veteran Truesdale as New Chairman,” Daily Labor Report, January 11, 1999, S5. 141.  Interview with John Truesdale by John Higgins, June 1, 2005, 57, manuscript on file, Kheel Documentation Center, ILR School, Cornell University. 142.  Ibid., 61. 143.  Ibid., 58. 144.  Ibid., 61. 145.  “Truesdale Says Cleaning Up Case Backlog First Priority in Fourth Term on Agency,” Daily Labor Report, August 3, 1999, AA2. 146.  Interview with John Truesdale, 78. 147. “Truesdale Receives Warm Welcome from House Subcommittee Appropriators,” Daily Labor Report, March 26, 1999, 8–13. 148.  “Clinton Nominates UAW Attorney as General Counsel of NLRB,” Daily Labor Report, February 12, 1999, AA1. 149. “Clinton Names Page General Counsel to Succeed Feinstein in Recess Appointment,” Daily Labor Report, November 30, 1999, 8–2. 150.  “Truesdale, Page Sworn into Office as Chairman, General Counsel of NLRB,” Daily Labor Report, December 6, 1999, A11. 151.  Author’s notes of interview with Wilma Liebman, January 10, 2011, 19. 152.  Boston Medical Center Corporation, 330 NLRB 152 (1999). 153.  Cedars Sinai Medical Center, 223 NLRB 251 (1976); St. Clare’s Hospital and Health Center, 229 NLRB 1000 (1977).

2 1 4     Notes to Pages 109–112 154.  Boston Medical Center, 160, 164. 155.  Ibid., 169–170, 175, 181, 179, 182. 156.  Boston Medical Center. 157.  New York University, 332 NLRB 1205 (2000). 158.  Ibid., 1205. 159.  Ibid., 1208. 160.  Ibid., 1209; emphasis in original. 161.  M.B. Sturgis, Inc., 332 NLRB 1143 (2000). 162.  Ibid., 1298. 163.  Yochi J. Dreazen, “Regulators Probe U.S. Reliance on Temporary Workers—Expected Lifting of Restrictions on Organizing Temps Would Be a Coup for Unions,” Wall Street Journal, August 7, 2000, A2. 164.  Greenhoot, Inc., 205 NLRB 250 (1973). 165.  Lee Hospital, 300 NLRB 947 (1990). 166.  M. B. Sturgis, 1298. 167.  Dreazen, “Regulators Probe U.S. Reliance on Temporary Workers.” 168.  M. B. Sturgis, 1298. 169.  Dreazen, “Regulators Probe U.S. Reliance on Temporary Workers.” 170.  M. B. Sturgis, 1298. 171.  Ibid., 1308. 172.  Ibid., 1308. 173.  Ibid., 1309, 1315, 1323. 174.  “Contingent Workers: Will NLRB’s Recent Sturgis Ruling Help or Hurt Organizing Bargaining?,” Daily Labor Report, September 6, 2000, AA1. 175.  “Attorneys Discuss Recent NLRB Ruling on Contingent Workers at ABA Meeting,” Daily Labor Report, February 23, 2001, C1. 176.  Tiffany Fonseca, “Collective Bargaining under the Model of M. B. Sturgis, Inc.: Increasing Legal Protections for the Growing Contingent Workforce,” University of Pennsylvania Journal of Labor and Employment Law 5, no. 167 (2002): 168–169. 177.  M. B. Sturgis, 1308. 178.  Randell Warehouse of Arizona, 328 NLRB 1034 (1999). 179.  Pepsi-Cola Bottling Co., 289 NLRB 736 (1988). 180.  Randall Warehouse of Arizona, 1036. 181.  Ibid., 1037. 182.  Ibid., 1037. 183.  Ibid., 1049. 184.  Ibid., 1049. 185.  St. Elizabeth Manor, Inc., 329 NLRB 341 (1999). 186.  Southern Moldings, Inc., 219 NLRB 119 (1975). 187.  St. Elizabeth Manor, 344. 188.  Ibid., 346. 189.  Ibid., 344. 190.  Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781 at 790 (1996). 191.  Ibid., 790. 192.  Springs Industries, Inc., 332 NLRB 40 (2000). 193.  Ibid., 40–41. 194.  Kokomo Tube Co., 280 NLRB 357 (1986). 195.  Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000).

Notes to Pages 113–116    215 196.  Levitz Furniture Company of the Pacific, Inc., 333 NLRB 717 (2001). 197.  NLRB v. J. Weingarten, 420 U.S. 251 (1975). 198.  Materials Research Corp., 262 NLRB 1010 (1982). 199.  Sears Roebuck & Co., 274 NLRB 230 (1985). 200.  Ibid., 230n5. 201.  E. I. DuPont Co., 289 NLRB 627 (1988). 202.  Ibid., 628. 203.  Epilepsy Foundation, 678. 204.  Ibid., 677–678. 205.  Ibid., 683, 684, 694, 691, 693. 206.  “Attorneys Disagree about Wisdom of NLRB Extending Weingarten Rights,” Daily Labor Report, August 7, 2000, C1; “Extension of Weingarten Rights Debated at ABA Meeting on Development of Act,” Daily Labor Report, February 21, 2001, C1. 207. “Business Seeks Reversal of NLRB Ruling Extending Weingarten to Nonunion Workers,” Daily Labor Report, May 16, 2001, 8–4. 208.  Epilepsy Foundation of Northeast Ohio v. NLRB, 268F.3d 1095 (D.C. Cir. 2001). 209.  Epilepsy Foundation of Northeast Ohio v. NLRB, U.S., No 01-1292, cert. den. June 10, 2002. 210.  “Extension of Weingarten Rights Debated,” C1. 211.  Carlton J. Snow, “Collective Agreements and Individual Contracts of Employment in Labor Law,” American Journal of Comparative Law 319, no. 50 (2002): 341. 212.  “Attorneys Disagree,” C-1. 213.  Levitz Furniture, 333 NLRB 717 (2001). 214.  Celanese Corp., 95 NLRB 664 (1951). 215.  Levitz Furniture, 723 and 725. 216.  Ibid., 720. 217.  Ibid., 725. 218.  Ibid., 731; emphasis in original. 219.  Leonard Page, “New Directions for the National Labor Relations Board,” Michigan State DCL Law Review (Winter 2001): 1066–1067. 220. Leonard Page, “NRA Remedies: Where Are They Going?” Daily Labor Report, April 11, 2001, A10. 221. Ibid. 222. Office of the General Counsel, Memorandum GC 01–03, Leonard Page, Acting General Counsel, to All Regional Directors, Officers-in-Charge, and Resident Officers, “Report on Utilization of Section 10(J) Injunction Proceedings, March 3, 1998 through January 15, 2001,” February 8, 2001. Available on NLRB website under General Counsel’s Memoranda, https://www.nlrb.gov. 223.  William B. Gould, “Forum: At 70 Should the National Labor Relations Act Be Retired? The NLRB at Age 70; Some Reflections on the Clinton Board and the Bush II Aftermath,” Berkeley Journal of Employment and Labor Law 26 (2005): 311, 315. 224.  William Gould IV, oral history interview, August 18, 2014, 17, Kheel LaborManagement Documentation Center, ILR School, Cornell University, Ithaca, NY. 225.  Ibid., 23. 226.  Daniel V. Yager, NLRB: Agency in Crisis (Washington, D.C.: Labor Policy Association, 1996). 227.  Flynn, “Expertness for What?,” 484–486.

2 1 6     Notes to Pages 116–122 228.  Ibid., 490. See also Michael J. Goldberg, “Labored Relations: Law, Politics, and the NLRB; A Memoir,” book review, Stanford Law Review 55 (December 2002), 1045–1066. 229.  Gould, “Four-and-One-Half Year Report,” 1–5. 230.  NLRB General Counsel Fred Feinstein Issues Final Report on Organization and Case Handling Developments and Reoccurring Legal Themes during his Tenure since March 1994, Office of General Counsel (R-2350), November 8, 1999, 6. Available on NLRB website under General Counsel, https://www.nlrb.gov. 231.  “Outgoing General Counsel Discusses ‘Challenging, Terrific’ Experience in Office,” Daily Labor Report, November 19, 1994, C1. 232.  NLRB, Office of the General Counsel, “NLRB General Counsel Feinstein Issues Final Report on Organizational and Casehandling Developments and Recurring Legal Themes during His Tenure since March 4,” R-2350, November 19, 1999. Available on NLRB website under General Counsel, https://www.nlrb.gov. 233.  Clyde Summers, “Labor Relations: Law, Politics, and the NLRB: A Memoir,” Industrial and Labor Relations Review 54, no. 4 (2001): 903. 234.  Author’s notes of interview with Wilma Liebman, January 10, 1012. 235.  Author’s notes of interview with Fred Feinstein, January 9, 2011. 236. Ibid. 237.  Flynn, “Expertness for What?,” 517. 238.  Author’s notes of interview with John Higgins, January 11, 2011. 239.  Summers, “Labor Relations,” 903. 240.  Gould, oral history interview, 4–5, 5, 9, 7. 241.  Ibid., 25. 242. Steven Greenhouse, “Parting Shots by Labor Board Chief,” New York Times, July 23, 1998, 22. 243.  Gould, oral history interview, 43, 89–90. 244.  Ibid., 62. 245.  Ibid., 83–84. 246.  Ibid., 56–57. 247.  Ibid., 62. 248.  Flynn, “Expertness for What?,” 543–544. 249.  Ibid., 483. 250.  Summers, “Labor Relations,” 903. 251.  Gould, “Forum,” 312. 252.  Summers, “Labor Relations,” 903. 253.  Flynn, “Expertness for What?,” 495. 254.  Ibid., 505n159. 255.  Greenhouse, “Parting Shots,” 22. 256.  Ibid., 22. 257.  Gould, oral history interview, 19, 20, 21, 15. 258.  Ibid., 14. 5. The Battista Board 1. Leonard Page, “New Directions for the Next National Labor Relations Board,” Michigan State University—Detroit College of Law (Winter 2001): 1067. 2.  Pamela M. Prah, “NLRB: Low Coming,” Kiplinger Business Forecasts, November 21, 2000. 3.  “Chairman Truesdale Plans to Keep Working until Senate Confirms New President’s Choice,” Daily Labor Report, November 11, 2000, AA1.

Notes to Pages 122–126    217 4. “Members Discuss Decision-Making, Use on Went to Overrule Precedent,” Daily Labor Report, July 12, 2000, C2. 5.  “Board Members, Labor Attorneys Discussed Current State, Future of NLRB at Symposium,” Daily Labor Report, May 4, 2001, B1. 6.  “New Bush Administration Means Republican Appointments for Top NLRB Posts,” Daily Labor Report, January 25, 2001, S16. 7. “Bush Makes Two Recess Appointments Establishing Republican Majority on Board,” Daily Labor Report, January 23, 2002, AA13. 8.  “Bush Names Higgins Acting Counsel; Designates Hurtgen His NLRB Chairman,” Daily Labor Report, May 17, 2001, A1. 9.  “Senate Approves Package of NLRB Nominees; Brings Board to Full Five-Member Strength,” Daily Labor Report, November 18, 2002, AA1. 10. Leonard Page, “New Directions for the Next National Labor Relations Board,” Michigan State University—Detroit College of Law (2001): 1063 at 1064. 11.  “New Bush Administration,” C1. 12.  “NLRB Deserves Confirmed General Counsels, Page Tells ABA Labor, Employment Attorneys,” Daily Labor Report, February 22, 2001, C1. 13.  “New Bush Administration,” S16. 14.  “Bush Names Higgins Acting Counsel,” A1. 15.  “Agency Experiencing Delays in Areas after Three Weeks without General Counsel,” Daily Labor Report, May 14, 2001, A1. 16.  “Senate Quickly Confirms Rosenfeld to Serve Four-Year Term as General Counsel,” Daily Labor Report, May 30, 2001, A4. 17.  “Truesdale Steps Down as Member; Bare Quorum of Three Members Left,” Daily Labor Report, October 3, 2001, A1. 18.  “Deputy General Counsel May Fill in for General Counsel when Post Vacant,” Daily Labor Report, December 6, 2001, A2. 19. “Board Delegates Certain Authority to General Counsel in Absence of Quorum,” Daily Labor Report, December 21, 2001, AA1. 20.  “Hurtgen Liebman Described Changes in Effect while Board Lacks Quorum,” Daily Labor Report, December 24, 2001, 8–1. 21.  “Board Members Assess Impact of Open List on Pending Labor Issues,” Daily Labor Report, October 30, 2003, A3. 22.  “Battista Tells Labor Law Conference Neutrality Ruling Not Likely before Spring,” Daily Labor Report, November 9, 2004, C1; “Many Significant Cases Await Action as NLRB Regains Full Strength,” Daily Labor Report, January 29, 2004, S19. 23.  Mark Mix, “Why Not Liberate the American Worker?” Wall Street Journal, December 31, 2005, A9. 24.  “AFL-CIO Executive Council Blasts Decisions of Current NLRB, Chairman Defends Agency,” Daily Labor Report, August 13, 2004, A11. 25. Ibid. 26.  Statement by Wilma Liebman, Joint Hearing before the Subcommittee on Health, Education, Labor and Pensions of the Committee on Education and Labor, U.S. House of Representatives, and the Employment and Workplace Safety Subcommittee of the Committee on Health, Education, Labor and Pensions, U.S. Senate, “The National Labor Relations Board: Recent Decisions and their Impact on Workers’ Rights,” 110th Congress, 1st Session, December 13, 2007 (Washington, D.C : U.S. Government Printing Office, 2008), 24n3, https:// www.gpo.gov/fdsys/pkg/CHRG-110jhrg39488/html/CHRG-110jhrg39488.htm. (Hereinafter: Joint Hearing).

2 1 8     Notes to Pages 127–133 27.  “Chairman Battista Discusses Goals at Formal Swearing-In of Five Members,” Daily Labor Report, February 18, 2003, A5. 28. Labor Law Memo, First in Employment Law, Remarks of Robert Battista, Chairman, NLRB, “NLRB at 70: Its Past and Its Future,” Fifty-Eighth NYU Annual Conference on Labor, New York, May 20, 2005, 2, 6–7, 8, 9, 11. 29.  Joint Hearing, 39–42. 30.  Sholnn Freeman, “Labor Board under Attack,” Washington Post, December 14, 2007. 31.  Joint Hearing, 15. 32.  Ibid., 18. 33.  Ibid., 18. 34.  Ibid., 18. 35.  Ibid., 18; Archibald Cox, “Aspects of the Labor Management Relations Act, 1947,” Harvard Law Review 61 (1947): 24. 36.  Joint Hearing, 18–19, 48. 37.  Ibid., 19, 48. 38.  Ibid., 29, 49, 23, 29, 49. 39.  Ibid., 37–38. 40.  Ibid.; 29 USC Sec. 171–174. 41.  Ibid., 29 USC Sec. 171. 42.  Ibid., 29. 43.  Author’s notes from interview with Wilma Liebman, January 10, 2012; Wilma Liebman, “Revival of American Labor Law,” Journal of Law and Policy 34 (2010): 300. 44.  Joint Hearing, Battista, 15; Author’s notes from interview with Wilma Liebman, January 10, 2012. 45.  Dana Corporation and Metaldyne Corporation, 351 NLRB 434 (2007). 46. “Multiple Cases on Supervisor Definition, ‘Salting,’ Top Board’s Agenda Battista Says,” Daily Labor Report, September 6, 2005, C1. 47.  Dana Corporation, 441, 438–440, 439–440, 441. 48.  Ibid., 450. 49.  Ibid., 449. 50.  Ibid., 444–445. 51.  Joint Hearing, 39–40. 52.  St. Elizabeth Manor, 329 NLRB 341 (1999). 53.  MV Transportation, 337 NLRB 770 (2002). 54.  Ibid., 772. 55.  Ibid., 776–777, 781. 56.  Nott Company, 345 NLRB 396 (2005), 400, 401–402. 57.  Ibid., 402–403, 408; emphasis in the original. 58.  Ibid., 408, 403. 59.  Joint Hearing, 54. 60.  Crown Bolt, Inc., 343 NLRB 776 (2004). 61. See Springs Industries, 332 NLRB 40 (2002); General Stencils, 195 NLRB 1109 (1972); Standard Knitting Mills, 172 NLRB 1122 (1968); Plum Creek Logging Co., 113 NLRB 800 (1955). 62.  Crown Bolt, Inc., 777–778. 63.  Ibid., 780. 64.  Ibid., 781. 65.  Ibid., 782. 66.  Manhattan Crowne Plaza, 341 NLRB 619 (2004). 67.  Ibid., 620; emphasis in original.

Notes to Pages 133–139    219 68.  TNT Logistics North America, Inc., 345 NLRB 290 (2005). 69.  Ibid., 291. 70.  Ibid., 294, 293. 71.  Guardsmark, LLC, 344 NLRB 809 (2005). 72.  Ibid., 813. 73.  The Guard Publishing Company d/b/a Register-Guard, 351 NLRB 1110 (2007). 74.  Ibid., 1114. 75.  Republic Aviation, 324 U.S. 793 (1945), 1115. 76.  The Guard Publishing Company, 1121, 1125. 77.  Ibid., 1126, 1121, 1117, 1117–1118, 1119. 78.  Ibid., 1129; emphasis in the original. 79.  IBM Corporation, 341 NLRB 1288 (2004). 80.  Epilepsy Foundation, 331 NLRB 676 (2000). 81.  E. I. DuPont & Co., 289 NLRB 627 (1988). 82.  IBM Corporation, 1289. 83.  Ibid., 1294. 84.  Ibid., 1295, 1298, 1299. 85.  Ibid., 1305, 1306, 1308, 1310. 86.  Quietflex Manufacturing Co., 344 NLRB 1055 (2005). 87.  Ibid., 1058. 88.  Ibid., 1061. 89.  San Manuel Indian Bingo and Casino, 341 NLRB 1055 (2004). 90.  First Line Transportation Security, Inc., 347 NLRB 447 (2006). 91.  Brown University, 342 NLRB 483 (2004). 92.  New York University, 332 NLRB 1205 (2000). 93.  Brown University, 480–490. 94.  Ibid., 497, 500. 95. Ibid. 96.  Brevard Achievement Center, Inc., 342 NLRB 982 (2004). 97.  Ibid., 983, 987. 98.  Ibid., 994. 99.  Ibid., 989, 995. 100.  M. B. Sturgis, 331 NLRB 1298 (2000). 101.  Oakland Care Center, 343 NLRB 659 (2004). 102.  Ibid., 661, 663, 664, 669. 103.  Ibid., 664; emphasis in the original. 104.  Ibid., 667–668. 105.  Ibid., 669–670. 106.  Le-Moyne-Owen College, 345 NLRB 1123 (2005), 1128. 107.  St. Joseph News-Press, 345 NLRB 474 (2005). 108.  Pennsylvania Academy of the Fine Arts, 343 NLRB 846 (2004). 109.  Le-Moyne-Owen College. 110.  Oakwood Healthcare, Inc., 348 NLRB 686 (2006). 111.  Ibid., 688. 112.  For the majority’s reliance on Webster’s Third New International Dictionary (1981), see Oakwood Healthcare, Inc., 689, 692. 113.  Oakwood Healthcare, Inc., 707. 114.  Ibid., 709. 115.  St. George Warehouse, 351 NLRB 961 (2007). 116.  Ibid., 961, 964.

2 2 0     Notes to Pages 139–144 117.  Ibid., 967. 118.  Ibid., 969. 119.  Grosvenor Orlando Associates, 350 NLRB 1197 (2007). 120.  Ibid., 1199. 121.  Ibid., 1207. 122.  NLRB v. Town & Country Electric, Inc., 516 US 85 (1995). 123.  Oil Capitol Sheet Metal, 349 NLRB 1348 (2007). 124.  Ibid., 1352, 1355. 125.  Ibid., 1358, 1360. 126.  Ibid., 1362. 127.  Toering Electric Company, 351 NLRB 225 (2007), 228, 250., 231. 128.  Ibid., 241. 129.  Ibid., 245. 130.  “Five Board Members Discuss Agency’s Decision-Making Process at Conference,” Daily Labor Report, March 3, 2006, B2. 131. Ibid. 132.  “NLRB in Decline, Distrusted, Board Member, Union Leader, Say,” Daily Labor Report, June 4, 2007, C1. 133.  “Battista Says NLRB Did ‘Very Credible’ Job of Meeting Goals during His Five-Year Term,” Daily Labor Report, November 13, 2007, C2. 134. Dennis Walsh, oral history interview, November 15, 2011, 23–24, Kheel LaborManagement Documentation Center, ILR School, Cornell University, Ithaca, N.Y. 135.  Author’s notes from interview with Wilma Liebman, January 10, 2012. 136. Ibid. 137. U.S. House of Representatives, Report by Congressman George Miller, “Workers’ Rights under Attack by Bush Administration: President Bush’s National Labor Relations Board,” July 13, 2006, 3, 16. 138.  “AFL-CIO Approves Actions for December 10 to Link Human Rights and Organizing Rights,” Daily Labor Report, August 8, 2003, C1. 139.  “Unions Coordinate Rallies in Multiple Cities to Promote Stronger Organizing Protections,” Daily Labor Report, December 11, 2003, 8–7. 140. “AFL-CIO General Counsel Urges NLRB to Require Notices Describing NLRA Rights,” Daily Labor Report, October 3, 2003, A10. 141.  Brown University, 342 NLRB 483 (2004). 142. Case No. 2547, Complaint Submitted by the United Automobile Aerospace and Agricultural Implement Workers of America International Union (UAW) and the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) to the ILO Committee on Freedom of Association Against the United States Government: For denial of the fundamental rights of association collective bargaining under Convention Nos. 87 and 98 to graduate teaching assistants at New York University and other private universities, February 27, 2007. 143.  Case No. 2608, Complaint to the ILO CFA Submitted by the AFL-CIO concerning the United States Government’s Violations of Freedom of Association and Collective Bargaining by Failing to Enforce the National Labor Relations Act, October 26, 2007. 144.  Concrete Form Walls, Inc., 346 NLRB 831 (2006). 145.  Ibid., 837–839. 146.  Ibid., 839. 147.  Ibid., 841.

Notes to Pages 145–149    221 148. Memorandum GC 06–05: To Regional Directors, etc. From: Ronald Meisburg, General Counsel, “First Contract Bargaining Cases,” April 19, 2006. 149. Memorandum GC 07–08, “Additional Remedies in First Contract Bargaining Cases,” to all Regional offices, from Ronald Meisburg, General Counsel, May 29, 2007. 6. The Liebman Board 1.  “Board Temporarily Delegating Authority in Anticipation of Having Only Two Members,” Daily Labor Report, December 31, 2007, AA1. 2.  “Bush Designates Schaumber Chairman as Board Continues with Three Vacancies,” Daily Labor Report, March 19, 2008, AA11. 3. Jessye Holland, “Former NLRB Chairman Withdraws Nomination,” USA Today, May 5, 2008. 4.  “ ‘We’re Poised for Charges in Labor Law,’ Chairman Liebman Says at ABA Conference,” Daily Labor Report, November 12, 2009, C3. 5.  “Schaumber, Liebman Discuss Dynamics of Two-Member Board; ‘Bush Board’ Legacy,” Daily Labor Report, September 18, 2008, C1. 6. Author’s notes of interview with Wilma Liebman; “Schaumber, Liebman Discuss Dynamics,” C1. 7.  Author’s notes of interview with Wilma Liebman. 8.  Wilma Liebman, “Labour Law, Economic Justice, and Political Rhetoric: Reflections on the Wagner Act,” Queen’s Law Journal 38 (2013): 352. 9. “Obama Designates Liebman as Chairman, Rewarding Her 11 Years of Service on Board,” Daily Labor Report, January 23, 2009, 8–8. 10.  NLRB R-2679, “Wilma Liebman Designated NLRB Chairman,” January 22, 2009, ww.nlrb.gov. 11.  “Obama Nominates Union Attorneys to Two of Three Vacancies on NLRB,” Daily Labor Report, News Archive, April 28, 2009. 12.  “President Announces Intent to Nominate Republican Senate Staffer for Board Vacancy,” Daily Labor Report, July 10, 2009, A16. 13. “Action Taken on NLRB Nominees as Senate Begins Four-Week Recess,” Daily Labor Report, News Archive, August 10, 2009. 14.  “Chamber Seeks a Senate Hearing on Becker as 66 Law Professors Express Support,” Daily Labor Report, January 25, 2010, A1. 15.  “HELP Committee Questions Becker over Past Statements in Articles,” Daily Labor Report, February 3, 2010, 8–15. 16.  “HELP Committee Narrowly Approves Becker,” Daily Labor Report, February 5, 2010, AA1. 17.  “Chamber Seeks a Senate Hearing on Becker,” A1. 18.  “Senate Defeats Motion to End Debate on Becker’s Nomination to Serve on NLRB,” Daily Labor Report, February 11, 2010, AA1. 19. “All 41 Republican Senators Sign Letter Urging Obama Not to Recess Appoint Becker,” Daily Labor Report, March 26, 2010, AA9. 20.  “Group of 132 House Democrats Asks Obama to Recess Appoint Becker, Pearce to NLRB,” Daily Labor Report, March 29, 2010, AA11. 21.  “Obama Recess Appointments Becker, Pearce to Serve on NLRB, Four Nominees for EEOC,” Daily Labor Report, March 30, 2010, AA1. 22. “Becker, Pearce Sworn In as Members, Creating a 3–1 Democratic Majority on NLRB,” Daily Labor Report, April 8, 2010, AA1; “Senate Confirms Pearce, Hayes to Serve Terms as NLRB Members,” Daily Labor Report, June 23, 2010, A2.

2 2 2     Notes to Pages 149–156 23.  NLRB, Office of the General Counsel, “General Counsel Ronald Meisburg to Depart NLRB June 20,” press release, June 3, 2010. 24.  “Departing General Counsel Meisburg Reflects on His Tenure with the Board,” Daily Labor Report, June 24, 2010, C1. 25.  “Meisburg Plans to Step Down June 20, Join Proskauer’s Labor, Employment Practice,” Daily Labor Report, June 2, 2010, AA10. 26. “Radical Policy Changes Not Expected at Reconstituted Board, Liebman Says,” Daily Labor Report, April 13, 2010, E1. 27.  New Process Steel v. NLRB, 130 S. Ct. 2635 (2010). 28.  “Supreme Court Rules Two Members on NLRB Lacked Authority to Issue Rulings,” Daily Labor Report, June 18, 2010, AA1. 29.  Author’s notes of interview with Wilma Liebman. 30.  “Board Seeking Removal of about 96 Cases Challenging Validity of 2-Member Rulings,” Daily Labor Report, July 2, 2010, AA1. 31.  Author’s notes of interview with Wilma Liebman. 32. For example, see: Specialty Healthcare and Rehabilitation Center of Mobile, 356 NLRB 289 (2010) and Liebman’s concurring opinion in Lamons Gasket Company 355 NLRB 763 (2010). 33.  UGL-UNICCO Service Company, 355 NLRB 748, 750–752 (2010). 34.  Specialty Healthcare and Rehabilitation Center of Mobile, 356 NLRB 289 (2010). 292–294. 35. Ibid., Lamons Gasket Company, 355 NLRB 763 (2010). 36.  Dana Corporation, 351 NLRB 434 (2007). 37.  Lamons Gasket Company, 357 NLRB 739 (2011). 38.  Ibid., 742. 39.  Ibid., 748. 40.  Ibid., 749–754. 41.  UGL-UNICCO Service Company, 357 NLRB 801 (2011). 42.  MV Transportation, 337 NLRB 770 (2002). 43.  St. Elizabeth Manor, Inc., 329 NLRB 341 (1999). 44.  UGL-UNICCO Service Company, 357 NLRB 801 at 810, 812, and 813 (2011). 45.  Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB 934, 952 (2011). 46.  Park Manor Care Center, 305 NLRB 872 (1991). 47.  Specialty Health Care, 357 NLRB 934, 947 (2011). 48.  Dana Corporation, 356 NLRB 256 (2010). 49.  Ibid., 257. 50.  Majestic Weaving Co., 147 NLRB 859 (1964). 51.  Dana Corporation, 262–264. 52.  Ibid., 267. 53.  Ibid., 266. 54. Memorandum GC 10-07, “Effective Section 10(J) Remedies for Unlawful Discharges,” September 10, 2010. 55.  Memorandum GC 11-01, “Effective Remedies in Organizing Contains,” December 20, 2010. 56.  Ibid., 3–12. 57.  Jackson Hospital Corporation d/b/a Kentucky River Medical Center, 356 NLRB 6 (2010). 58.  Ibid., 8. 59.  J & R Flooring, Inc. d/b/a Picini Flooring, 356 NLRB (2010), 11, 12–13. 60.  Ibid., 16.

Notes to Pages 156–161    223 61.  Grosvenor Resort, 350 NLRB 1197 (2007). 62.  St. George Warehouse, 351 NLRB 961 (2007). 63. Memorandum GC 11-07, “Guideline Memorandum Regarding Back Pay Mitigation,” March 11, 2011. 64.  Mezonos Maven Bakery Inc., 357 NLRB 376 (2011). 65.  Hoffman Plastics Compounds, 535 U.S. 137 (2002). 66.  Mezonos Maven Bakery, 379–380. 67.  Ibid., 380. 68.  Ibid., 381. 69. “NLRB Proposes Election Case Rule Changes That Immediately Draw Praise and Protests,” Daily Labor Report, June 21, 2011, AA1. 70.  Liebman, “Labour Law,” 349. 71.  “NLRB Proposes Election Case Rule Changes,” AA1. 72. Ibid. 73.  “Two Studies Conclude NLRB Elections Should Be Held in Shorter Periods of Time,” Daily Labor Report, July 1, 2011, A8; “NLRB Completes Meeting on Rule Revisions: Speakers Challenge, Defend Board Action,” Daily Labor Report, July 19, 2011, A1; “NLRB Rulemaking Draws Flood of Comments as Board Considers Election Process Changes,” Daily Labor Report, August 24, 2011, AA1. 74.  Liebman, “Labour Law,” 350. 75.  “House Approves Bill Setting Time Frames for Elections, Bargaining Unit Standards,” Daily Labor Report, November 30, 2011, A3. 76.  Memorandum GC 12-04, “Guidance Memorandum on Representation Case Procedure Change,” April 26, 2012; “NLRB Majority Issues Election Case Rule, Producing Controversy and a Court Challenge,” Daily Labor Report, December 21, 2011, AA1. 77.  New Process Steel, 130 S.CT. 2635 (2010). 78.  “Business Groups Sue to Block Rule Concerning Representation Election Process,” Daily Labor Report, December 21, 2011, AA3; “Business Groups, NLRB Presents Arguments in Court Challenge to Election Rule Revisions,” Daily Labor Report, February 6, 2012, A1. 79.  Chamber of Commerce of the United States of America v. National Labor Relations Board, U.S. District Court of the District of Columbia, Civic Action Case 1: 11-02262 (JEB), Document 40, May 14, 2012, 2, 7, and 14. 80.  “NLRB Chairman Denies Election Rule Rush Contends Hayes Seeks ‘Interminable Process,’ ” Daily Labor Report, November 22, 2011, A1. 81.  “NLRB Chairman Denies Election Rule Rush,” Daily Labor Report, November 22, 2011, A1; “NLRB Delegates Some Management Authority in Contingency Planning for Loss of Quorum,” Daily Labor Report, November 28, 2011, A1. 82. “NLRB Inspector General Reports on Hayes; Miller Seeks Justice Department Investigation,” Daily Labor Report, January 27, 2012, A1; “NLRB Moves on Some Election Rule Changes; Hayes Attends Meeting but Opposes Action,” Daily Labor Report November 30, 2011, A1. 83. “NLRB Majority Issues Election Case Rule, Producing Controversy and a Court Challenge,” Daily Labor Report, December 21, 2011, AA1. 84.  Chamber of Commerce of the United States of America v. NLRB, Case 1:11-CV02262-JEB, document 40, May 14, 2012, 18. 85.  NLRB Office of Public Affairs, [email protected], May 15, 2012. 86.  “AFL-CIO Names Former NLRB Member Craig Becker to Co-General Counsel Position,” Daily Labor Report, May 22, 2012, A2. 87. “NLRB Reissues Case Rule Proposals; Divided Board will Schedule Hearing in April,” Daily Labor Report, February 5, 2014, AA1.

2 2 4     Notes to Pages 161–168 88.  “NLRB Schedules April 10–11 Meetings to Hear from Public on Rule Changes,” Daily Labor Report, February 25, 2014, A7; NLRB, Office of Public Affairs, “NLRB Issues Final Rule to Modernize Representation-Case Procedures,” December 12, 2014. 89.  Memorandum GC 15-06, “Guidance Memorandum on Representation Case Procedure Changes Effective April 14, 2015,” April 6, 2015, 8–9. 90.  Ibid., 5, 26, 28. 91.  Steven Greenhouse, “NLRB Rules Would Streamline Unionizing,” New York Times, May 21, 2011; NLRB “Statement by Chairman Wilma B. Liebman on Representation-Case Procedure Rulemaking,” www.nlrb.gov. 92.  “President Obama Smacks Down Republican Attempt to Block New NLRB Rule Making It Easier for Workers to Unionize,” Electablog, April 1, 2015. 93.  Alan Model, “United States: Non-Union Employers Beware: The NLRB Re-Issues its Proposed Rulemaking to Foster Unionization,” Littler: Employment & Labor Law Solutions Worldwide, Monday, February 12, 2014. 94.  Author’s notes of interview with Wilma Liebman. 95.  NPRM, 29 CFR Part 104, RIN 3142-AA07, December 16, 2010. 96.  Ibid., 6. 97.  Fair Labor Standards Act, 29 U.S.C. 211. 98.  Civil Rights Act of 1964, 42 U.S.C. 2000 e-10(a). 99.  Age Discrimination in Employment Act, 29 U.S.C. 627. 100.  Occupational Safety and Health Act, 29 U.S.C. 651, 657(c). 101.  Americans with Disabilities Act, 42 U.S.C. 12101, 12115. 102.  Family Medical Leave Act, 29 U.S.C. 2601, 2619(a). 103.  Railway Labor Act, 38 U.S.C. 4334. 104.  NPRM, 8. 105.  Ibid., 36. 106.  The preceding quotes are from ibid., 37–38, 38–39, 39–40, 40, 9–10, 16–20, 5. 107. Ibid., 21–22; “NLRB Proposed Rule Requires Notice Posting by all Employers under Board’s Jurisdiction,” Daily Labor Report, December 21, 2010, AA1. 108.  NLRB, “Notification of Employee Rights under the National Labor Relations Act,” Federal Register, vol. 76, no. 168, August 30, 2011, 29 CFR part 104 at 54007. (Hereinafter: Federal Register.) 109.  Ibid., 54007. 110.  Ibid., 54007. 111.  Ibid., 54014–54015. 112.  Ibid., 54016. 113.  Ibid., 54017. 114.  Ibid., 54019, 54021. 115.  Ibid., 54020. 116.  Communications Workers v. Beck, 487 U.S. 735 (1988). 117.  Federal Register, 54019–54024. 118.  American Hospital Association v. NLRB, 499 U.S. 606 (1991); Mayo Foundation for Medical Education and Research v. United States, 131 S. C.T. 704 (2011). 119.  Federal Register, 54008–54009. 120.  Ibid., 54010–54011. 121.  Ibid., 54013. 122.  Federal Register, 54012, quoting UAW—Labor Employment & Training Corp. v. Chao, 325, F. 3d 360 (D.C. Circuit 2003). 123.  Ibid., 54012, 54022. 124.  Ibid., 54032.

Notes to Pages 168–172    225 125.  Ibid., 54032. 126.  Ibid., 54033–54034. 127.  Ibid., 54034–54036. 128.  Ibid., 54037–54039. 129.  Federal Register, 54041–54042; “NLRB Final Rule Will Require Notice Posting; Action Reflects Some Changes from Proposal,” Daily Labor Report, August 25, 2011, AA1; “NLRB Notice Proposal Draws Heavy Comment Including Debate about Need, Legal Authority,” Daily Labor Report, February 24, 2011, AA1. 130.  “Manufacturers Sue to Block NLRB Rule on Employee Rights Notice, Board Sanctions,” Daily Labor Report, September 12, 2011, A1. 131.  “Chamber Brief Challenges NLRB Notice Rule, Argue Posting Regulations Could Cost Billions,” Daily Labor Report, November 14, 2011, A9. 132.  “GOP Legislators Oppose NLRB Notice Rule; Amicus Briefs Cite Early Legislative History,” Daily Labor Report, November 16, 2011, A2. 133.  National Association of Manufacturers v. NLRB, 846 F. Supp. 2nd 34 at 38, and 45 (2012). 134.  Ibid., 49. 135.  Ibid., 51. 136.  Ibid., 55. 137.  Ibid., 54. 138.  Ibid., 58. 139. “Court Backs NLRB Adoption of Notice Rule but Blocks Board Enforcement of Sanctions,” Daily Labor Report, March 2, 2012, AA1. 140.  Chamber of Commerce of U.S. v. NLRB, 856 F. Supp. 778 at 789 (2012). 141.  Ibid., 790–792. 142.  Ibid., 793; See also “District Court Rejects NLRB Regulation, Funding No Authority for Notice Requirement,” Daily Labor Report, April 13, 2012, AA1. 143.  “NLRB Notice Rule Not Stayed as Appeal Proceeds,” Daily Labor Report, March 8, 2012, A13. 144.  “GOP Legislators Weigh In with Amicus Brief Disputing NLRB Power to Adopt Notice Rule,” Daily Labor Report, June 1, 2012, AA1; “Board Defends Notice-Posting Regulation; Amicus Brief Cites Supporting LMRA History,” Daily Labor Report, July 16, 2012, A2. 145.  “Circuit Court Prohibits NLRB from Enforcing Rights Notice Posting Rule Pending Appeal,” Bloomberg BNA, April 23, 2012. 146.  National Association of Manufacturers v. NLRB (2012), 58–59. 147.  Ibid. 59–60. 148.  National Association of Manufacturers v. NLRB, 717 F.3d 947 (D.C. Cir.) (2013), 954. 149.  Amanda L. Ireland, “Notification of Employee Rights under the National Labor Relations Act: A Turning Point for the National Labor Relations Board,” Nevada Law Journal 13 (2013): 954. 150.  National Association of Manufacturers (2013), 956, 959, 963. 151.  Ibid., 958. 152.  Ibid., 950. 153.  UAW-Labor Employment & Training Corp v. Chao, 325 F. 3d 360 at 363 (D.C. Circuit, 2003). 154.  National Association of Manufacturers (2013), at 959; emphasis added. 155.  Leslie Kendrick, “First Amendment Expansionist,” William and Mary Law Review 56 (2015): 1210.

2 2 6     Notes to Pages 173–178 156.  Chamber of Commerce of the United States v. NLRB, No. 12-1757, June 14, 2013, 5, 21, 27; “Fourth Circuit Also Nixes NLRB Notice Rule, Finding Regulation Not Authorized by Statute,” Daily Labor Report, June 14, 2013, AA1. 157. NLRB, “The NLRB’s Posting Rule,” Office of Public Affairs, January 6, 2014; “NLRB Opts Not to Seek High Court Review of Decisions Invalidating Notice-Posting Rule,” Daily Labor Report, June 6, 2014, A1. 158.  Chamber of Commerce of the United States of America v. NLRB, Brief of Charles J. Morris, U.S. District Court, District of South Carolina, Civil Action No. 2: 11-CV-02516-DCN, December 16, 2011. 159.  New Process Steel, 130 S. Ct. 2635 (2010). 160. Liebman referred to Specialty Healthcare, 357 NLRB 934; Lamons Gasket, 357 NLRB 739 (2011); and Dana Corporation, 356 NLRB 256 (2010); among others. 161.  Liebman, “Labour Law,” 347–348. 162.  Ibid., 327, 340. 163.  Ibid., 343. 164.  Ibid., 353–354. 165. Wilma Liebman, “Foreword: Labor Law during Hard Times; Challenges on the 75th Anniversary of the National Labor Relations Act,” Hofstra Labor and Employment Law Journal 28 (2010): 7. 166.  Steven Greenhouse, “Labor Board’s Exiting Leader Responds to Critics,” New York Times, August 31, 2011. Concluding Comments 1.  Final Report of the Commission on Industrial Relations, Washington, D.C. (Barnard & Miller Print, Chicago, 1915). 2.  Ibid., 38. 3.  Ibid., 81, 83, 86. 4.  Ibid., 90. 5.  National Labor Relations Act, 29 U.S.C. §§ 151–169 (1935). 6.  James A. Gross, “Conflicting Statutory Purposes: Another Look at Fifty Years of NLRB Law Making,” Industrial and Labor Relations Review 39 (1985): 11. 7.  National Labor Relations Act. 8.  James A. Gross, “Worker Rights as Human Rights: Wagner Act Values and Moral Choices,” University of Pennsylvania Journal of Labor and Employment Law 4 (Spring 2002): 480–481. 9.  House Committee on Education and Labor, The Failure of Labor Law: A Betrayal of American Workers, 98th Congress, 2d. Sess., 1 at 24 (1984). 10. Human Rights Watch, Unfair Advantage: Workers’ Freedom of Association in the United States under International Human Rights Standards (New York: Human Rights Watch, 2000). 11.  Ibid., 13–14. 12.  Ibid., 13, 17. 13.  Some papers from that conference appear in James A. Gross, ed., Workers’ Rights as Human Rights (Ithaca, NY: ILR Press of Cornell University Press, 2003). 14.  Minutes of the conference “Human Rights in the American Workplace” on file with the author. 15.  Cynthia Estlund, “The Ossification of American Labor Law,” Columbia Law Review 102 (2002): 1527.

Notes to Pages 178–183    227 16. Lance Compa, “Not Dead Yet: Preserving Labor Law Strengths while Exploring New Labor Strategies,” UC Irvine Law Review 4 (2014): 618–619. 17.  Richard B. Freeman, “What Can We Learn from the NLRA to Create Labor Law for the Twenty-First Century?” in Wilma B. Liebman, ed., ABA Journal of Labor and Employment Law 26, no. 2 (2011): 330. 18.  Summary of remarks, April 2015, Minutes of the Worker Institute Conference, on file with the Worker Institute at Cornell University, Ithaca, N.Y. 19. James A. Gross, Broken Promise: The Subversion of U.S. Labor Relations Policy, 1947–1994 (Philadelphia: Temple University Press, 1995), 285. 20.  Human Rights Watch, Unfair Advantage, 13. 21.  First National Maintenance Corporation v. NLRB, 452 U.S. 666 (1981). 22.  Ibid., 676. 23.  Ibid., 678–679. 24.  Clyde W. Summers, “Employment at Will in the United States: The Divine Right of Employers,” University of Pennsylvania Journal of Labor and Employment Law 3 (2000): 65–86. 25.  Richard Michael Fischl, “ ‘A Domain into which the King’s Writ Does Not Seek to Run’: Workplace Justice in the Shadow of Employment-at-Will,” in, Labour Law in an Era of Globalization: Transformative Practices and Possibilities, ed. Joanne Conaghan, Richard Michael Fishl, and Karl Klare (New York: Oxford University Press, 2002), 275. 26. Kate Bronfenbrenner, “The Role of Union Strategists in NLRB Certification Elections,” Industrial and Labor Relations Review 50, no. 195 (1997): 209. 27.  Clyde Summers, “American Labor Law Scholarship: Some Comments,” Comparative Law and Policy Journal 23 (Spring 2002): 804. 28.  Drawing on Risa L. Goluboff, The Lost Promise of Civil Rights (Cambridge, Mass.: Harvard University Press, 2007), 238. 29.  Julius Getman, “A Labor Lawyer’s View of Legal Argument,” Chicago-Kent Law Review 74 (1999), 409. 30.  Mackay Radio, 304 U.S. 333 (1938). 31.  Getman, “A Labor Lawyer’s View of Legal Argument,” 410. 32.  Ibid., 411; Clyde Summers, “Questioning the Unquestioned in Collective Bargaining Law,” Catholic Law Review 47 (1998): 794. 33. Getman, “A Labor Lawyer’s View of Legal Argument,” 411; Julius Getman, “Of Labor Law and Birdsong,” Connecticut Law Review 30 (1998): 1348–1349. 34.  George Schatzki, “It’s Simple: Judges Don’t Like Labor Unions,” Connecticut Law Review 30 (1998): 1365. 35.  Ibid., 1369. 36.  Clyde Summers, “American Labor Law Scholarship: Some Comments,” Comparative Labor Law and Policy Journal 23 (Spring 2002): 804. 37.  Ibid., 808–809. 38.  Section 4A of the NLRA (29 U.S.C. § 154(A)) reads in part, “Nothing in this Act should be construed to authorize the Board to appoint individuals for the purpose of conciliation or mediation or for economic analysis.” 39.  For a full discussion of the issue and the origins of Section 4(A) see James Gross, “Economics, Politics, and the Law: The NLRB’s Division of Economic Research, 1935–1940,” Cornell Law Review 55 (1970): 321–347; James Gross, The Restructuring of the NLRB: The National Labor Relations Board in Transition: 1937–1947 (Albany: State University of New York Press, 1981), 264–267; Catherine Fisk and Deborah Malamud, “The NLRB in

2 2 8     Notes to Pages 183–187 Administrative Law Exile: Problems with Its Structure and Function and Suggestions for Reform,” Duke Law Journal 58 (2009): 2013–2085. 40.  Leonard Page, “NLRB Remedies: Where Are They Going?” Austin Owen Symposium and Lecture, University of Richmond School of Law, Richmond, April 10, 2000. 41.  Phelps Dodge v. NLRB, 313 U.S. 177 (1941). 42.  Ibid., 193. 43.  Ibid., 193, affirming its previous ruling in National Licorice Co., 309 U.S. 350 (1940). 44.  HR Rep. No. 74-972, reprinted in NLRB Legislative History of the National Labor Relations Act, 1935, 5–6, cited in Michael Wiener, “Can the NLRB Deter Unfair Labor Practices? Reassessing the Punitive-Remedial Distinction in Labor Enforcement,” UCLA Law Review 52 (2005): 1622. 45.  79 Cong. Rec. 7565 at 7572 (1935); cited in Wiener, “Can the NLRB Deter Unfair Labor Practices?,” 1619. 46.  29 U.S.C. § 160(c) (2000). 47.  See, for example, Nancy Schiffer, “Rights without Remedies: The Failure of the National Labor Relations Act,” Paper presented at ABA Section of Labor and Employment Law, Second Annual CLE Conference, Denver, CO, September 10–13, 2008, 5. 48.  Ibid., 9–11. 49.  Clark Brothers, 70 NLRB 802 (1946). 50. Gross, Broken Promise, 105. 51.  Ibid., 105; Roger Hartley, “Freedom Not to Listen: A Constitutional Analysis; Compulsory Indoctrination through Workplace Captive Audience Meetings,” Berkeley Journal of Employment and Labor Law 31 (2014): 121; Metropolitan Auto Parts, 102 NLRB 1643 (1953); Bonwit Teller, 96 NLRB 608 (1951). 52.  Livingston Shirt Corp., 107 NLRB 400 (1953). 53.  Ibid., 406–407. 54.  Excelsior Underwear, 156 NLRB 1236 at 1240–1241 (1966). 55.  See Rulemaking Petition Before NLRB, Charles Morris, “Proposed Rulemaking Regarding Captive-Audience Speeches That Provides Grounds for Setting Aside Section 9 Representation Elections,” 2014. 56. William Gould, “Independent Adjudicating, Political Process, and the State of Labor-Management Relations: The Role of the NLRB,” Industrial and Labor Law Journal 82 (2007): 461, citing Beverly Enterprises-Hawaii, 484. 57.  Paul Secunda, “The Contemporary ‘Fist inside the Velvet Glove:’ Employer Captive Audience Meeting under the NLRA,” Florida International Law Review 5 (2010): 386–387. 58.  Cases and Materials on Labor Law (St. Paul, MN: Foundation Press, 1968), 265. 59.  Charles Black, “He Cannot Choose but Hear: The Plight of the Captive Auditor,” Columbia Law Review 53 (1953): 966. 60.  Matthew Finkin, “Captive Audience, Human Dignity, and Federalism: Rumination on an Oregon Law,” Employment Rights and Employment Policy Journal 15 (2011): 355; Editors, “The Captive Audience,” Comparative Labor Law and Policy Journal 29 (2008): 69. 61.  29 U.S.C. Sec. 151. 62.  Human Rights Watch, Unfair Advantage. 63.  Case No. 1523, Complaint against the Government of the United States presented by the United Food and Commercial Workers International Union, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) and the International Federation of Commercial, Clerical, Professional and Technical Employees, Report No. 284 (1992). 64.  Case No. 1467, Complaint against the Government of the United States presented by the United Mine Workers of America, the AFL-CIO, and the Miners’ International Federation, Report No. 262 (1989). 65.  Case No. 1523, Report No. 284.

Notes to Pages 188–192    229 66.  Case No. 1543, Complaint against the Government of the United States presented by the AFL-CIO, 74 (Series B) ILO Bulletin No. 2 (1991). 67.  Case No. 2227, Complaint against the Government of the United States presented by the AFL-CIO and the Confederation of Mexican Workers, Report No. 332 (2003). 68.  Case No. 2524, Compliant against the Government of the United States presented by the AFL-CIO, Report No. 349 (2008). 69.  Case No. 2547, Complaint against the Government of the United States presented by the AFL-CIO, Report No. 350 (2008). 70.  Ed Potter, “The Growing Significance of International Labor Standards on the Global Economy,” Suffolk Transnational Law Rev. 28 (Summer 2005): 258. 71.  Harry Arthurs, “Extraterritoriality by Other Means: How Labor Law Sneaks across Borders, Conquers Minds, and Controls Workplaces Abroad,” Stanford Law and Policy Review 21 (2010): 538, 541. 72.  Benjamin Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921), 171. 73. Lance Compa, “Solidarity and Human Rights: A Response to Youngdahl,” New Labor Forum 18 (2009): 45. 74.  Steve Charnovitz, “The U.S. International Labor Relations Act,” in “The NLRA at 75: It’s Legacy and Its Future,” ed. Wilma Liebman, ABA Journal of Labor and Employment Law 26 (2011), 324. 75.  Roper v. Simmons, 125 S. CT. 1183 (2005). 76.  Lawrence v. Texas, 539 U.S. 558 (2003). 77.  William B. Gould, “Fundamental Rights at Work and the Law of Nations: An American Lawyer’s Perspective,” Hofstra Labor and Employment Law Journal 23 (2005): 10. 78. Alain Supiot, The Spirit of Philadelphia: Social Justice vs. the Total Market (London: Verso, 2012), 12; emphasis in the original. See also James A. Gross, “The Human Rights Movement at U.S. Workplaces: Challenges and Changes,” Industrial and Labor Relations Review 63 (2012): 3–16. 79.  James MacGregor Burns, “A New House for the Labor Board,” Journal of Politics 3 (1941): 508. 80.  James Gray Pope, “The Thirteenth Amendment versus the Commerce Clause: Labor and the Shaping of the Post-New Deal Constitutional Order,” Columbia Law Review 102 (2002): 49–50. 81.  29 U.S.C. § 163 (1994). 82.  Pope, “The Thirteenth Amendment versus the Commerce Clause,” 50. 83. Pope, “The Thirteenth Amendment versus the Commerce Clause; Pope, “How American Workers Lost the Right to Strike and Other Tales,” Michigan Law Review 103(2005): 539. 84.  Charles Black, Structure and Relationship in Constitutional Law (Woodbridge, Conn.: Ox Bow Press, 1969), 58. 85.  Ibid., 57. 86.  Pope, “The Thirteenth Amendment versus the Commerce Clause,” 98. 87.  Jones & Laughlin, 301 U.S. 1 at 33 (1937). 88.  Ken Kersch, “How Conduct Became Speech and Speech Became Conduct: A Political Development Case Study in Labor Law and the Freedom of Speech,” University of Pennsylvania Journal of Constitutional Law 8 (2006): 225, 222–223; Pope, “The Thirteenth Amendment versus the Commerce Clause,” 102; See Thornhill v. Alabama, 310 U.S. 88 (1940). 89.  Pope, “The Thirteenth Amendment versus the Commerce Clause,” 104. 90. Vincent Sameer, “Justifying the Use of International Human Rights Principles in American Constitutional Law,” Columbia Human Rights Law Review 37 (2007): 1–2.

2 3 0     Notes to Pages 192–196 91.  Charles Black, A New Birth of Freedom: Human Right Names and Unnamed (New Haven: Yale University Press, 1997), XIX. 92.  Ibid., 131, 6–7, 6, 8. 93.  Ibid., 21, 10. 94.  Ibid., 13; emphasis in original. 95.  Ibid., 13, 15, 18, 20–21. 96.  Ibid., 53–54. 97.  Ibid., 87; The Slaughterhouse Cases, 83 U.S. 36 (1871). 98. Black, A New Birth of Freedom, 138. 99.  Ibid., 152. 100.  Ibid., 158. 101.  Ibid., 36. 102.  Ibid., 40. 103. Lance Compa, “Not Dead Yet: Preserving Labor Law Strengths while Exploring New Labor Law Strategies,” University of California Irvine Law Review 4 (2014): 612. 104. Gross, Broken Promise, 1–4, 200–218, 272–273. 105. For a thorough discussion of this issue, see Charles Morris, “How the National Labor Relations Act Was Stolen and How It Can be Recovered: Taft-Hartley Revisionism and the National Labor Relations Board Appointment Process,” Berkeley Journal of Employment and Labor Law 33 (2012): 1. 106.  John Logan, “ ‘All Deals Are Off’: Dunlop Commission and Employers Opposition to Labor Law Reform,” in The Right and Labor in America, ed. Nelson Lichtenstein and Elizabeth Tandy Shermer (Philadelphia: University of Pennsylvania Press, 2012), 278. 107.  The Dunlop Commission on the Future of Worker-Management Relations—Final Report, December 1, 1994 (Ithaca, N.Y.: Cornell University ILR School Digital Commons@ ILR), 3. 108. Thomas Kochan, “Using the Dunlop Report to Full Advantage: A Strategy for Achieving Mutual Gains,” Massachusetts Institute of Technology, Cambridge, Mass., January 1995, 1. 109.  Ibid., 1. 110.  Ibid., 1. 111.  Ibid., 1. 112.  “Labor Law Reform: Dunlop Panel Urges Clarification of Section 8(a)(2) Expedited Elections,” Daily Labor Report, January 10, 1995, D3. 113. Thomas Kochan, “Updating American Labor Law: Taking Advantage of a Window of Opportunity,” Comparative Labor Law and Policy Journal 28, no. 101 (2007): 105. 114. Thomas Kochan, “Restructuring America’s Social Contract in Employment: The Rule of Policy, Institutions, and Practices,” Chicago-Kent Law Review 7,5 no. 137 (1999): 148–149; Logan, “ ‘All Deals Are Off,’ ” 277. 115. Thomas Kochan, “Jump-Starting a New Debate: How to Update Employment and Labor Policies for the 21st Century Workforce and Economy,” DLR News Archive, June 17, 1999. 116.  Dunlop Commission, 25. 117.  Ibid., 34. 118.  Danny Massey, “The Labor Question,” panel, Cornell Worker Institute Conference, New York, April 17–18, 2015.

Index

Acosta, R. Alexander, 123 advisory panels, 71 – 73 AFL, 21, 22 AFL-CIO, 21, 40, 54 – 56, 114, 125, 142 – 143, 161,  171 Alleluia Cushion case, 96 Appropriations Subcommittee, 77, 78 – 79, 81 – 85, 88, 108,  119 A.P.R.A. Fuel Oil case, 98 arbitration requirement, 63, 70, 80 association, right of in human rights declarations, 5 – 6, 27, 62, 177 in NIRA, 12 in Wagner Act, 3, 4, 9, 10, 14, 15, 16 See also unionization, right of Babson, Marshall, 45, 72 back pay liabilities, 139 – 140, 155, 156, 188

“balance” narratives, 8, 24, 28, 51, 52, 54, 106, 126, 191 bargaining unit size, 152 – 153 Bartlett, Michael J., 122 Battista, Robert J. analysis of his board, 141 – 142 interpretations of Act, 126 – 129 Battista Board (G.W. Bush), 121 – 145, 151, 156 appointments and vacancies, 121 – 126 divisions among, 126 – 141, 144 – 145 values and, 141 – 143 Becker, Craig, 147, 148 – 149, 153, 157 – 158, 159, 160, 161, 162 Bernstein, Harry, 47 Beverly Enterprises case, 103 Black, Charles, 186 – 187, 191 – 193 Boasberg, James, 159 – 160 Bobbit, Philip, 27

2 3 2    Intex Boehner, John, 121 Bonilla, Henry, 79 Brame, J. Robert on Gould Board, 73, 88, 103 – 104 on Truesdale Board, 106, 107, 109, 111 – 112, 113,  122 Bro-Tech case, 93 Broward County Health case, 93 Browning, Margaret, 65, 66, 72, 74, 75, 76, 88, 99 Brown University case, 136 Burns, James MacGregor, 51, 190 Bush, George H.W., 46 – 47, 54 Stephens Board, 47 – 50, 113 Bush, George W., 121 – 124, 146 – 147 Battista Board, 121 – 145, 151, 156 Two-Member Board, 146 – 147 Business Roundtable, 40 captive audience speech, 32 – 33, 35, 63, 73, 93, 184, 185 – 187 Carter (Fanning) Board, 40 – 41 Celanese case, 114 – 115 Chamber of Commerce, 159, 169 Clinton administration labor issues during, 57 – 60 NLRB nominations, 60, 64 – 68, 107, 108 Truesdale Board, 107 – 115 See also Gould Board Cohen, Charles, 66, 67, 72 – 73, 74, 76, 99 collective bargaining, right to erosion of by NLRB, 2 – 3, 23, 25, 26, 37, 40, 41, 42, 52, 127 – 129, 136 – 137 in human rights declarations, 5 – 6, 27, 177 Liebman on, 128 – 129 Potter on, 68, 69, 70 protection of: by NIRA, 12; by NLRB, 2 – 3, 23, 25, 26, 33, 152; in Wagner Act, 1, 4, 6 – 7, 9, 10, 14 – 15, 16, 26, 33, 128 – 129, 156, 176 See also managerial decisions; unionization

Collyer, Rosemary, 44, 45 – 46 Comet Electric case, 92 – 93 Commerce Clause, 27 – 28, 190 – 191 common law, 13, 14, 15 – 16, 180 – 181,  192 Communication Workers v. Beck, 100 Conair case, 95 concerted activity, 43 – 44, 96 – 97, 140 – 141,  180 Concrete Form Walls case, 143 – 144 congressional committees, 22, 26, 30, 34, 37 – 38, 53, 78, 127. See also Appropriations Subcommittee congressional hearings, 7, 32, 38 Congressional opposition. See Republicans in Congress Constitution, 191, 192 contract, freedom of, 16 cooperation, 46, 50, 62, 106, 194 Cornell University, 177 – 178 Coxson, Harold, 66, 81, 98 Cracraft, Mary, 46 – 47 Crown Bolt case, 132 Dana and Metaldyne cases, 130 – 131, 151, 153 DC District Court, 48, 113 – 114, 159 – 160 Declaration of Independence, 191 – 192,  193 Democrat-appointed boards, 30 – 31, 33 – 38, 40 – 41, 52 – 53, 107 – 115, 121 – 122, 137, 179. See also Gould Board; Liebman Board Democrats, alliances with Republicans, 20, 37 – 38,  70 Denver Building Trades Council case, 106 Detroit Newspaper case, 101 Devaney, Dennis, 74 Dickey, Jay, 79 disabled workers, 136 – 137 discriminatory enforcement, 134 Dotson Board (Reagan), 41 – 47, 95, 96, 113, 122, 177

Intex   233 Dubuque case, 48, 49, 101 Dunlop Commission, 59 – 60

Ervin, Sam, 37 – 38 Excelsior Underwear case, 92, 186

Economic Bill of Rights, 16 – 17 economic power. See “free speech”; power economic rights, 4, 7, 16 E. I. DuPont deNemours case, 49, 113 Eisenhower (Farmer) Board, 31 – 33, 186 elections authorization cards vs., 19, 32, 63, 70, 80, 95, 125, 130 – 131, 153 postal ballots, 71 – 73, 92 secret ballots, 22, 70, 126, 159 timing of, 157 – 162 voluntary recognition and, 151 – 154 See also “free speech”; unionization, right of Electromation case, 49 – 50 e-mail use, 125, 133 – 134, 165 employee, definition of, 109, 140 Employee Free Choice Act (EFCA), 158 employee rights awareness and, 54, 188, 189 employer posting of, 36, 54, 58, 96, 114, 131, 141, 143, 162 – 173, 184 employer resistance to Carter Board, 40 to Gould Board, 64 to ILO Conventions, 40, 55 – 56 to Kennedy-Johnson Board, 34, 35, 36 – 38 to Liebman Board, 159, 166 – 173 to NLB, 12 – 13, 14 to notifying employees of rights, 166 – 173 to Roosevelt Board, 14 to Truesdale Board, 111, 113 – 114,  115 to workers’ rights generally, 7, 53, 178 See also “free speech” rights employment-at-will doctrine, 181 Enzi, Mike, 158 Epilepsy Foundation case, 113 – 114, 135 Erie Resistor case, 97

Fanning Board (Carter), 40 – 41 Fansteel case, 19 Farmer Board (Eisenhower), 31 – 33, 186 Farm Fresh case, 100 federal government contractors, 80 Feinstein, Fred, 65, 66, 71, 74 – 75, 79, 81, 88, 97, 116 – 117 Fibreboard Paper Products case, 35, 36, 39, 48, 52 Fieldcrest Cannon case, 95 – 96 First National Maintenance case, 43, 48, 52, 180 Flynn, Joan, 116, 117, 118, 119 Ford Motor Company case, 20 Fountainview Care Center case, 92 Fourteenth Amendment, 28, 192 Fox, Sarah, 72, 73, 75, 103, 107, 108, 122 Frankfurter, Felix, 24, 191 Fraser, Douglas, 196 “free speech” rights (of employers) captive audience speech, 32 – 33, 35, 63, 73, 93, 184, 185 – 187 Gould on, 63, 102 – 105 notification of rights and, 167 – 173 Potter on, 55, 70 promotion of by NLRB, 23, 33, 34 – 25, 39, 49, 51, 102 – 105, 132 – 133, 158 – 159,  181 protection against by NLRB, 18 – 19, 32, 34 – 35 for unions, to counterbalance, 32, 45, 51, 96, 133 – 134, 155, 184, 186 Galleria Joint Venture case, 99 general counsel, 44 – 47, 48 – 49 General Motors cases, 39, 46 Gould, William analysis of his board, 73, 75, 78 – 80, 86, 115 – 120 on Congress, 107 goals and concerns of, 60 – 64, 71 on ILO, 189 nomination process, 60, 64 – 68

2 3 4    Intex Gould Board (Clinton), 57 – 107, 115 – 120 pro-employer decisions, 90, 98 – 107 pro-workers decisions, 90 – 98, 101 Republican resistance to, 68 – 89 Gourmet Foods case, 95 graduate assistants, 109, 136, 143, 188 Greenhoot case, 110, 111 Greenhouse, Steven, 85, 118, 119 Griffin, Richard, 161 Grosvenor Orlando case, 139 – 140, 156 Group Health case, 105 Guard Publishing case, 133 – 134 Guardsmark case, 133 Gunderson, Steven, 81 Hartley bill, 25 – 26 Hatch, Orrin, 58, 64 Hayes, Brian, 148, 149, 150 – 153, 157 – 158, 159 – 160, 162, 165, 168 – 169 HELP Committee, 148 Herzog Board (Truman), 24 – 25, 30 – 32 Hiatt, Jonathan, 83 Higgins, John, 47, 72, 92, 117, 124 Hirozawa, Kent, 161 Hoffman Plastics case, 156 Houde Engineering case, 14 House Appropriations Subcommittee, 77, 78 – 79, 81 – 85, 88, 108,  119 human rights awareness and, 188, 189 – 190 definition, 26 U.S. law and, 28, 191 – 193 values and, 188 – 189 Wagner Act and, 3, 6, 11, 27, 126, 127, 129, 174, 194 as workers rights, 3 – 6, 142 – 143, 177 – 178,  187 Human Rights Watch, 177, 179 Hunter, Jerry, 47 Hurtgen, Peter on Battista Board, 123 on Gould Board, 73, 88, 99 – 100, 102, 103

on Truesdale Board, 107, 109, 111, 112, 113, 114 – 115, 122 Hurtgen Board (G.W. Bush), 123, 131 IBM case, 135 ICCPR, 5, 7, 17 ICESCR, 5, 7, 17 ideology, 41 – 42, 47, 68, 141 – 142. See also values ILO (International Labour Organization), 5 – 6, 7, 54 – 56, 61 – 62, 143, 187 – 188,  189 independent contractors, 91 – 92 injunctions, 64, 74 – 75, 83, 185, 187 International Bill of Human Rights, 5, 17 International Paper case, 97 interns and residents, 108 – 109 investigatory interviews, 112 – 114, 135 Irving, John, 47, 49, 81, 122 Istook, Ernest, 79 Jackson, Amy Berman, 169 – 170 Jackson, Jesse, 79 Jackson Hospital case, 155 – 156 Jean Country case, 47 – 48 Johnson, Harry, 161 Jones & Laughlin case, 16, 191 J. Weingarten case, 112 – 113 Kassebaum, Nancy, 64, 67, 81, 83 Keeler Brass case, 106 Keeping America Competitive (Potter), 68 – 71 Kennedy-Johnson (McCulloch) Board, 33 – 38, 51, 92, 186 Keyserling, Leon, 14 Kirkland, Lane, 57 Kirsanow, Peter, 126, 130, 136, 138, 146 Kline, John, 169, 170, 171 Labor Policy Association, 64, 98, 116 Lamons case, 151 Lechmere case, 48, 54, 80, 92, 99 – 100 Lee Hospital case, 110 – 111 legislative riders, 77, 81 – 83

Intex   235 Leiserson, William, 22, 24 Leslie Homes case, 99 Levitz Furniture case, 114 Levy, Philip, 14 Liebman, Wilma analyzes her board, 161 – 162, 173 – 174 on Battista Board, 123, 125 – 126, 128 – 142 on Gould Board, 72, 73, 75, 88, 89, 100, 102, 103, 117 interpretation of Act, 147, 149 – 150 on Truesdale Board, 107, 108 on Two-Member Board, 146 – 147 Liebman Board, 147 – 174 cases, 150 – 157 nominations, 147 – 150 proposed rule making, 157 – 173 Livingston Shirt case, 32 – 33, 35, 103 – 104,  186 London’s Farm Dairy case, 92 Mackay Radio & Telegraph case, 58, 61, 97 Madden, J. Warren, 18, 21, 23 Major League Baseball, 86 – 87 managerial decisions, bargaining on erosion of, 39, 42, 48 – 49, 52, 180 Gould on, 63, 100 – 102 protection of, 18, 32, 35 – 36 Manhattan Crowne Plaza case, 133 M. B. Sturgis case, 109 – 111, 137 McCain, John, 148 McClatchy Newspapers case, 97 – 98 McCulloch Board (Kennedy-Johnson), 33 – 38, 51, 92, 186 mediation, 12, 13, 22, 62 Meisburg, Ronald, 126, 136 – 137, 144 – 145, 146, 149, 185 merit pay proposals, 97 – 98 Meyers Industries case, 43 Midland case, 49 Mikva, Abner, 87 – 88 Miller, Dan, 79, 98 Miller, Edward, 38

Miller/Murphy Boards (Nixon), 38 – 40 Millis, Harry, 23 – 24, 25 Milwaukee Spring case, 43 Miscimarra, Phillip, 161 Monson Trucking case, 105 Montgomery Ward case, 100 Morris, Charles, 26, 50, 52 – 53, 58, 162, 171, 173 multiemployer units, 110 – 111, 137 – 138 Murdock, Abe, 33 Murphy, Betty, 40 Myth Inc. Case, 96 NAACP v. Button, 94 Nabors Alaska Drilling case, 94 – 95 National Association of Manufacturers (NAM), 37, 64, 169, 170 New Deal, 7, 12, 15, 16, 28 New York University case, 109, 136 Ninth Amendment, 192, 193 NIRA (National Industrial Recovery Act), 12 Nixon (Miller/Murphy) Boards, 38 – 40 NLB (pre-Wagner), 11 – 14 NLRA (National Labor Relations Act). See Wagner Act NLRB (National Labor Relations Board) budget cuts to, 77, 79, 81, 82 – 83 Democrat-appointed boards, 30 – 31, 33 – 38, 40 – 41, 52 – 53, 107 – 115, 121 – 122, 137, 179 (See also Gould Board; Liebman Board) historical overview of, 1 – 3 ILO on, 187 – 188 jurisdiction of, 20 – 21, 77, 83, 91, 108 – 111, 136 – 139,  149 “old” (pre-Wagner), 11, 13 – 15 potential power of, 183 – 185 precedent reversing by, 61, 64, 96, 100 – 101, 108, 110 – 115, 121 – 122, 135, 151 – 152,  156 Republican-appointed boards, 31 – 33, 38 – 40, 41 – 50, 52 – 53, 121 – 145, 178 – 179 rule making by, 74 – 78, 157 – 173

2 3 6    Intex NLRB (continued) special interests and appointments to, 31, 38, 41, 116, 122 – 123, 124, 142, 147 – 148 See also individual boards notification of employee rights, 36, 54, 58, 96, 114, 131, 141, 143, 162 – 173,  184 Nott case, 131 – 132 Novotel New York case, 93 – 94 NRWC (National Right to Work Committee), 45 – 47 Oakland Care Center case, 137 – 138 Oakwood Healthcare case, 138 – 139, 142 Obama, Barack, 147, 148, 149 Obama boards Liebman Board, 147 – 174 Pearce Board, 159, 160 – 161 Obey, David, 84 – 85 Oil Capitol Sheet Metal case, 140 Oil Chemical and Atomic Workers case, 106 organization. See association; unionization Otis Elevator case, 43 Oviatt, Clifford, 54 Page, Leonard, 108, 115, 121, 123 – 124,  183 Pearce, Mark on Liebman Board, 147, 148, 149, 153, 156, 157, 162 Pearce Board, 159, 160 – 161 Pelosi, Nancy, 85 Phelps Dodge case, 184 Pierce case, 49 Potter, Edward, 55 – 56, 68 – 71,  188 power, 29, 177 captive audience speech right, 32 – 33, 35, 63, 73, 93, 184, 185 – 187 employer “free speech” right, 18 – 19, 33, 34 – 35, 51, 181 Taft-Hartley Act and, 29 unions and, 50 Wagner Act and, 9, 16, 18 precedent as barrier to change, 182 – 183 reversing of, 61, 64, 96, 100 – 101,

108, 110 – 115, 121 – 122, 135, 151 – 152,  156 Proposition 226, 84 – 85, 119 – 120 Pucinski, Roman, 34 race and representation campaigning,  105 racism, 20 – 21,  67 Raskin, Abe, 26 Reagan, Ronald, 41, 178 – 179 Reagan (Dotson) Board, 41 – 47, 95, 96, 113, 122, 177 Register-Guard case, 134 – 135 Reich, Robert, 59 relocation and bargaining, 39, 48 – 49,  101 remedial bargaining orders, 143 – 145 remedial notices, 155 – 156, 184 Republican-appointed boards, 31 – 33, 38 – 40, 41 – 50, 52 – 53, 121 – 145, 178 – 179 Republicans in Congress, resistance of after Wagner Act passed, 20 – 21 to Democrat-appointed boards, 40 – 41, 71 – 89, 117, 119, 158 – 159, 169 – 171 to Democrat appointments, 64 – 67, 148 – 149 to NLRB, 107, 119, 169, 170, 171 to notifying employees of rights, 169, 170, 171 on representation elections, 158 – 159, 160, 162 Republic Steel case, 19 rights constitutional/statutory, 27 – 28, 191 – 193 shift from, to interests, 8 – 10, 18 – 25, 38, 194 – 196 shift to, under Wagner Act, 11 – 18 See also human rights Roosevelt, Franklin D., 12, 16 – 17, 22, 23 Roosevelt Boards, 18 – 25, 28 Rosenfeld, Arthur, 124 rule making, 64, 74 – 78, 157 – 173 San Diego Gas and Electric case, 73 Saturn Corporation/General Motors, 46

Intex   237 Schaumber, Peter on Battista Board, 123, 126, 130, 135, 136 – 137, 138, 139, 142, 144 on Liebman Board, 150 – 151 on Two-Member Board, 146 – 147 Schiffer, Nancy, 114, 161 self-employed contractors, 91 – 92 September Massacre, 127, 129 – 141 Service Electric case, 101 Sewell case, 105 single bargaining unit locations, 75 – 78, 82, 83 – 84, 110 – 111,  137 small business exemptions, 77, 83 Smith Committee, 22 – 23 social justice, 4, 14 – 15, 18, 34,175 – 176 Solomon, Lafe, 149, 154 – 155, 156,161 Spector, Arlen, 81 – 82 Springs Industries Case, 112 St. Elizabeth Manor case, 112, 131 – 132,  152 Stephens, James, 65, 72 – 73, 74, 76, 99 Stephens Board (G.H.W. Bush), 47 – 50,  113 Stewart, Potter, 36, 39 Stewart, William, 87, 118 St. George Warehouse case, 139, 156 strikes permanent replacement after, 55, 58 – 59, 97, 101, 187 reinstatement after: Congressional opposition to, 82; Gould on, 70 – 71, 80; under NLB, 13; under NLRB, 19 – 20, 135 – 136; Supreme Court on, 58, 61 – 62 strike prevention, 11, 12, 13 successor employers, 112, 131 – 132 Summers, Clyde, 18, 63, 117, 119, 181, 182 – 183,  186 supervisors, 91, 138 – 139, 188 Supiot, Alain, 190 Supreme Court elitism and, 182 – 183 Gould on, 61, 62 human rights and, 187 – 188, 189 ILO on, 187 – 188 on NLRB authority, 150, 184 on union dues, 100 Sure Tan case, 98

Taft-Hartley Act reinterpretation of purpose of, 2 – 3, 8, 32 – 33, 38, 51 – 54, 127 – 129, 176 – 177 rollback of rights as purpose of, 25 – 27, 28 – 29, 70, 127 – 128 teaching/graduate assistants, 109, 136, 143, 188 Telescope Casual Furniture case, 102 temporary workers, 109 – 111, 137 – 138,  149 Thurmond, Strom, 67 TNT Logistics case, 133 Toering Electric case, 140 Truesdale, John on Battista Board, 123, 124 on Gould Board, 65, 72, 75, 76, 86, 87, 88, 99 Truesdale Board (Clinton), 107 – 115, 121 – 122,  137 Truman (Herzog) Board, 24 – 25, 30 – 32 Tummons, Joy, 170 UFCW, 54 UGL-UNICCO case, 152 undocumented immigrants, 83, 98, 156, 188 unionization, right of access to employees (for unions): employee contact details, 35, 92, 96, 154 – 155, 161, 186; on employer property, 40, 47 – 48, 62 – 63, 99 – 100, 103 – 104, 154, 184, 187 erosion of: by employer persistence, 115; under guise of free choice, 37, 38, 112, 126, 127 – 129, 131 – 135, 153 – 154, 157 – 162; under guise of free speech, 70, 162 – 173, 186 – 187; by NLRB, 33, 39, 42, 99, 127 – 141; under Taft-Hartley, 7, 25, 26, 29, 33 protection of: under NLB, 13, 18 – 19; by NLRB, 14, 19, 35, 92 – 93, 94 – 96, 97, 109 – 111, 152, 154 – 155; in Wagner Act, 15, 18, 176 withdrawal of recognition, 112,  114

2 3 8    Intex unionization, right of (continued) See also association, right of; “free speech” rights unions black workers and, 21 dues and, 100, 105 legal services of, 93 – 94 necessity of, 50 voluntary recognition of, 130 – 131 See also unionization, right of United Automobile Workers (UAW), 103, 130 Universal Declaration of Human Rights (UDHR), 4, 5, 17, 173, 188, 190 values anti-regulation, 78 economic, 15, 49, 51, 68 – 71, 194 elitism and, 182 – 183 employer rights, 16, 43, 48, 51, 52, 180 – 182 of human rights declarations, 5 – 6 property rights, prioritization of, 15, 48, 51, 52, 135 – 136, 180 role of, 8 – 9, 64 – 65, 141 – 145, 174, 180, 188 – 189,  191 Supreme Court decisions and, 7 – 8, 15 – 16, 36, 42 – 44, 47 – 48, 51 – 52, 53, 58, 180, 182 – 183 of Wagner act, 4 – 5, 9 – 10 voluntary recognition, 130 – 131, 151 – 154

Wagner, Robert on affirmative action to enforce NLRA, 184 appointed to NLB, 12 approval of first NLRB, 20 on goal of Act, 6, 11, 14 – 15, 176 on strikes, 190 Wagner Act (National Labor Relations Act, NLRA) Commerce Clause, reliance on, 27 – 28, 190 – 191 continued importance of, 178 – 179, 193 – 194 counterrevolution against, 7 – 10, 20, 22 – 27, 28 – 29, 177, 193 – 194 human rights principles and, 3, 6, 11, 27, 126, 127, 129, 174, 194 original intention of, 1, 4 – 5, 10, 11 – 18, 27 – 28, 128 – 129,  176 shifting interpretation of, from rights to interests, 8 – 10, 18 – 25, 38, 194 – 196 state, role of and, 6 – 7, 15 – 18, 27 Wall Street Journal, 76, 77, 125 Walsh, Dennis, 122, 123, 125 – 126, 130, 132, 134 – 135, 136 – 141,  146 Weingarten rights, 112 – 114 Wellington, Harry, 186 workplace democracy, 69, 119 Yager, Daniel, 98