The Politics and Law
of Worker Rights

Multinational Monitor: How serious is the problem of delay is at the National Labor Relations Board (NLRB)?
William Gould: Historically, the Board has always been afflicted with the problem of delay. In the 1980s, it became scandalous and the backlog reached astronomical proportions.

Between 1994 and 1996, we got it down to the lowest level that it has ever been since statistics were kept in the 1970s.

It has begun to move upward since 1996. This was in a way a mirror image of the political impasse that existed in Washington. The Board was increasingly populated by insiders who did not have as a primary objective the resolution of cases which came there. Right-wing ideologues who found a reason to dissent in lengthy opinions slowed the process.

I am not particularly optimistic about the future course of the Board in this regard, although a few months ago the board did, subsequently to the departure of two members, adopt a rule that I have long advocated that would require the issuance of decisions at a relatively certain date.

MM: Doesn’t delay skew to the benefit of employers?
Gould: Certainly. The employer that is adamant in its resistance to unionization has time on its side because workers who are entitled to a remedy may not even be found after a period of time.

When I first became chairman, we used a procedure under section 10(j) of the statute to an unprecedented degree. This authorizes the Board to seek injunctive relief –– that is, to go to federal district court immediately to enjoin dismissals and refusals to bargain, on the theory that the passage of time will erode the effectiveness of any remedy that the Board devises. I think we were quite successful for a period of time in using that procedure.

Senator Lott and the House Republican leadership were angry with our use of this procedure and this was exhibit number one in their attempt to scale back our appropriations and penalize us for behaving in a way which they did not approve. Unfortunately, the number of injunctions sought over these past three years or so has declined appreciably, much to the satisfaction of a number of House Republicans.

MM: How likely is a union supporter in a contested union election to be fired?
Gould: We don’t really know. The Board hasn’t kept records of the number of unfair labor practice cases that are union organizing cases. We know that there’s a high incidence of firings in connection with cases that have been filed with the Board and cases where back pay liability has been found to exist. But we don’t know the precise number of organizing cases where dismissals take place.

MM: Do you think that some of the studies that suggest that on the order of one in 10 union supporters are fired are in the ballpark?
Gould: It’s quite possible. I’ve seen the studies that have suggested this. I don’t know what the answer is. Nobody does.

But we do know that the remedies at the disposal of the Board are extremely limited. As the Pucinski committee said in the 1960s, all too frequently the remedies are a license fee for illegal behavior. So as long as we don’t have effective deterrence and we have restricted use of section 10(j) and the ongoing problem of delay, the costs for illegal conduct are relatively small and this means that the incidence of unlawful dismissals are going to be high.

MM: What is the remedy for unlawful dismissal and what would you like to see it be?
Gould: The remedy is back pay minus interim earnings, or earnings that could have been obtained with reasonable diligence, and reinstatement. In a book I wrote in the early 1990s called Agenda for Reform, I advocated that the Board be authorized to fashion treble damage awards or at a minimum double damage awards where there is egregious misconduct by the employer. But Congress has never come close to enacting those amendments since they were first discussed in the late 1970s.

MM: What’s the current state of law regarding employer threats to close or move a plant in the case of unionization?
Gould: If the statement is designed to threaten employees for unionization, then it is unlawful. That is to say, it is illegal for the employer to say “I’ll close my plant and move it if you vote for the union.”

But employers may engage in an economic prophecy about what the costs of doing business are likely to be in a unionized environment and what the costs have been for other employers in a unionized environment. If an employer says, “employer X had to shut down because of union demands,” or “employer X was hobbled economically because of union strikes,” then that is a lawful statement.

Of course, it becomes very difficult to distinguish what is lawful and unlawful. My own view has long been that the business of attempting to regulate speech and sort out what is a threat and what is an economic prophecy is inherently futile and wastes the Board’s assets.

The Board ought to be able to mandate access on the part of unions so that they can get their message to employees more effectively, through presence on plant property and access to names and addresses of employees at an early stage of the campaign. This is a problem that is particularly important in this age of telecommuting where employees are not always in contact with one another.

I wrote an opinion in 1997 where I said that where employees are separated from one another physically, unions ought to be able to have the names and addresses of employees at an early stage of the campaign. But a majority of the Board has not accepted my view. They rejected this position in a decision that was issued a few months ago.

MM: Does your view reflect a sense that it’s not possible to regulate employer’s speech effectively, or that in fact the law should not regulate employer’s speech, even if it could?
Gould: More the former than the latter. I don’t think it’s possible to make that determination, particularly in Washington where you’re looking at pieces of paper. As writers said more than 40 years ago, the very same words said by an employer at a trucking company in Detroit where the drivers may have had contact with the Teamsters and are relatively confident –– when used by a mill owner or meat packing company in the Southeast may mean something entirely different to employees. I don’t think it’s easy or even possible for the Board to sort out what’s prophecy and what’s threat, even where the exact same words are used.

MM: Do you think generally that employers should have a right to speak and be a part of the election process?
Gould: Yes. My view is that the more speech the better. The problem with the statute is that unions don’t have the right to speak. Unions, by virtue of a 1992 Supreme Court decision, are excluded from the workplace in most instances. And by virtue of this decision of the Board a couple of months ago, unions are not able to get names and addresses of employees at an early stage of the campaign even when they’re physically separated. That’s the fundamental problem and that’s the way that unions can address inaccuracies, misrepresentations and falsehoods.

MM: How has the rise in contract and contingency work affected the unionization process?
Gould: It’s made it much more difficult. The number one problem in labor law today is the nature of the employment relationship and the use of contingent workers, frequently through third parties like manpower agencies, which has made organizing more difficult.
First, this is because these employees are more vulnerable. They’re the first to be sacrificed. They’re sometimes second-class citizens who don’t enjoy the rights to fringe benefits that regular employees have. The fact that they can work alongside employees and receive inferior benefits can erode the ability of regular employees to bargain effectively.

I have long advocated NLRB approaches which would make it easier for unions to organize temporaries and regulars together. It took six years for the Board to issue a ruling in this area and I’m delighted that finally last fall the Board held that temporaries can participate in NLRB elections alongside of regulars without the need for employer consent. The employers’ consent requirement was something that the Bush Board required in the early 1990s, which had the effect of completely thwarting the unionization of temporary employees.

MM: Do you think the recognition process as it now exists in the United States is too bound up with the idea of elections?
Gould: I think that frequently elections are not the best way to test employee sentiment, particularly where the process is delayed and employers are engaged in self-help retaliatory conduct.

If you could have very quick elections as the Canadians do, then I think the process is fine.

But there’s a basic difference between the Canadian and U.S. laws. All the controversies that we get into regarding about who will vote and how broad the unit will be in Canada can be resolved after the vote takes place. Frequently, it is not necessary to resolve the dispute, because the margin of victory or defeat for the union is such that the number of employees who are in dispute doesn’t make any difference in the outcome. So I think the Canadian approach of voting now and litigating later is an approach that should be adopted in U.S. labor law.

Though I attempted to move the Board somewhat toward this objective by providing for more elections conducted while challenges to eligibility were pending, as a general matter we cannot vote first and litigate later, and I think that slows the process and makes the election process all too frequently a second best method of determining employee sentiment.

MM: What would an alternative be?
Gould: The manifestation of employee sentiment through petitions or authorization cards. Until the Taft-Hartley amendments of 1947, the Board could certify on this basis. My view is that the statute should be amended to allow for certification on that basis where there is interference or delay.

MM: Under the statute, what are the possibilities for unions or union-like organizations that don’t win majority support in a workplace?
Gould: There’s no specific role for unions that don’t win a majority under the statute.

I expressed the view in Agenda for Reform that where a substantial number of employees express their desire to be represented by unions –– perhaps on the order of 20 or 30 percent of the relevant workforce –– that the employers should be compelled to negotiate on some items with such unions on a members-only basis.

Generally under our law, the union speaks as the exclusive bargaining agent for all employees in the appropriate unit, whether they be members or not. I thought it would be appropriate, particularly for unions which narrowly lost an election, to provide for some form of representation for the people who want to be represented by them, at least on a limited set of issues.

MM: Out of the unions that are recognized, how many of the new unions win first contracts?
Gould: The Federal Mediation and Conciliation Service has done some studies on this. The numbers are alarmingly small. The studies that I recall from when I was chairman show that less than 50 percent of unions were able to obtain contracts.

Again, here’s an area where I think we have something to learn from the Canadians, who provide for first contract arbitration where the parties are unable to resolve their differences.

Most employees choose collective bargaining in the hope they’ll get a contract. If they don’t get a contract, they’re going to lose interest in the process.

I think it’s particularly important, given the resistance that many unions face in the electoral process, that the law give a boost to the bargaining process when it’s in its embryonic stage. It should provide for third-party impartial arbitration of conditions of employment that the parties are unable to address through a collective bargaining agreement, and in effect provide them with their first contract.

MM: Do you think that the low strike level in the United States suggests that the right to strike is not currently adequately protected?
Gould: Yes. I would say that both unions and employers are better off if they can resolve their disputes without resorting to a strike. Strikes should always be the matter of last resort, and I think that most unions agree with this view. It’s a very serious matter for employees to lose income when they walk out. They can’t and don’t do it lightly.

But when in their view it becomes impossible to resolve differences on some other basis, I think the law is stacked against the unions and employees, in the sense that the employers can permanently replace the strikers. We’ve seen a higher incidence of the use of that right in the last 20 years or so.

I think it makes a mockery of the law to say as we do that the law protects the right to strike, and yet simultaneously say that for all practical purposes you can lose your job as a result of the strike. Who amongst us is able to give up their job in order to assert a right?
This right exists in connection with the employment relationship and it’s the height of hypocrisy for the law to deny employees their jobs under these circumstances.

MM: From your perspective now, off the Board and in academe, do you have any thoughts on the level of investment that the Clinton administration made in trying to change the permanent replacement doctrine?
Gould: Once the 104th Congress came in, there was no sense in providing any political investment in changing the law in this regard. This was not a matter that the 104th Congress led by Representative Gingrich and Senators Dole and Lott would consider for one single second. It was our great misfortune to be in Washington during the time of a right-wing Republican takeover from 1995 onward.
President Clinton had to make his primary investment in the arena of providing for adequate labor law enforcement in terms of the laws that were on the books, and he did that. Also, the White House had to fend off legislation put forward by the Republican Congress which was designed to emasculate existing legislation.

MM: What about in the first two years of the administration? Robert Reich says the administration didn’t go all out on this issue as it did, say, on NAFTA, and if it had, it might have been able to win a change on this.
Gould: I’m not so sure that’s right. Remember that just a year before Clinton became president, this legislation was debated in the Congress and the votes could not be found to break the filibuster. In my book, I discuss the attempt by Senator Metzenbaum, D-Ohio, and Senator Packwood, R-Oregon, to devise a compromise to break this issue loose. It could not be voted on in the Senate. So I doubt that the votes could have been found to break the filibuster in 1993 and 1994.

MM: Do you support the government contractor responsibility rule so that the federal government does not award contracts to companies with a record of law-breaking?
Gould: This is something that I long advocated. Just as employers that do business with the government should be obliged to have affirmative action programs and be required not to discriminate for a variety of reasons, they should also be obliged to be good citizens when it comes to adhering to labor legislation as well as environmental legislation. Those who break the law should not be beneficiaries when it comes to taxpayer largesse.

MM: What sort of conduct should disqualify a company?
Gould: I think the standard has to be one that is framed in terms of egregious behavior, recidivist behavior. The mere fact that an employer is found to have violated a statute should not automatically disqualify the employer from having a contract. I think what should be looked at is the nature of the offense –– large number of employees dismissed in the context of union organizing drives, surveillance activity engaged in a systematic basis, recidivist behavior, repeat offenders –– these are the kinds of things that government should look at to determine whether or not a company should have a contract.

MM: Is it the case that that the Bush administration has not yet appointed an NLRB chair?
Gould: That’s right.

MM: What changes are likely to come from the Bush Board?
Gould: Look at what the Bush administration is doing on a variety of labor issues –– on government contracts, union preference agreements in the construction industry, the so-called Beck issue, the posting requirements –– the Bush administration wants to post its view of the Beck rules, establishing the extent to which employees are required to pay dues when they don’t agree with the union’s political position under a union security agreement, but they don’t want to post notices about employers’ obligation to comply with labor law generally. You look at all these things, and you come away with a view that the appointments to the Board are not going to be good, but will likely be appointees who will reverse some of the gains that we attained under my chairmanship and that were attained in the two years after my chairmanship. They are going to be appointees who are not going to be concerned with moving the process in an expedited manner. So I’m not particularly confident about what’s to come.