Wednesday, November 5, 2008

Gould Recommendations for an Obama NLRB

Gould_bill Building a bit on Paul's post-election post, here's some further ideas from Bill Gould (Stanford, emeritus and former NLRB chairman).  I posted on an earlier, prescient piece by Gould on his recommendation for an Obama Board, so I won't repeat those or my comments to them.  However, in a recent speech to the State Bar of California Labor and Employment Law Section's Annual Meeting (I don't have a way to link to the text, but would be happy to send a copy if you email me), he's elaborated on some further ideas, which include the following:

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

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

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

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

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

These are just excerpts of his recommendations, so they don't really do his arguments justice.  Gould also encourages experimentation with efforts to protect employee rights through processes involving employers, citing to the experience of a multinational British company that he acted as a monitor for.

As will not come as a surprise to many readers, I like reforms that at least recognize the interests of both sides.  I don't have rose-colored glasses about getting real consensus on many of these issues, but I think an Obama Board (and Democratic Congress) could create reforms that work better and have less backlash by at least taking employers' interests into account.  One need only look at the reaction to the September Massacre to see what the opposite tactic would do.

As for the specific proposals, Gould is thinking outside of the box as usual.  I'm not sure the extent to which "conditional agreements" would actually work (and the possibility for sweetheart deals must be dealt with), but I like the idea of giving employees more information.  Gould also identifies a major, yet underappreciated, effect of EFCA--the arbitration clause.  Like much of EFCA, I'm of a mixed mind on this one.  Negotiating a first contract is both enormously important and difficult.  However, the arbitration process isn't always pretty (see US Postal Service).  But, I'm not sure what a better choice would be (please post any ideas).

The push for more rulemaking isn't a new one (most recently, Roberto Corrada just gave a paper on this at the Third Annual Colloquium), but it's idea whose time is long overdue.  I fully agree that representational issues are the logical place to start.  The Board is best with those issues and the issues involved are well-suited to rulemaking.  And, as Gould notes, rulemaking provides an opportunity for longer-lasting policies--both because both sides have input as well as the relative "stickiness" of formal rules.

Hat Tip:  Dennis Walsh

-JH

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