Friday, August 29, 2008
Bill Gould (Stanford emeritus and former Chair of NLRB) has just had published in Slate a proposal for labor law reform. As is no surprise, Gould's proposals are ambitious and never to be confused with orthodox thinking in the area. He notes the problems with "bad appointments" to the Board and long election delays, then proposes bipartisan (at least possible bipartisan) measures that might improve the NLRA--even under a stalemated political line-up, such as a President Obama and more than 40 Republican senators:
Secret ballots to resolve union representation rights are the way to go, and Obama should meet the Republicans halfway by saying so—and then add this all-important coda: Elections should continue only if the law ensures that voting is conducted expeditiously—for instance, within one or two weeks of the filing of a union's petition seeking recognition. This is the case in Canada, whereas in the United States, the resolution of union drives currently takes months and sometimes years. Quick elections are the key to meaningful reform because delay is the principal way in which labor law stacks the deck against employees. It allows employers to engage in one-sided anti-union campaigns of intimidation and coercion, with little possibility for remedy. . . . [U]ntil most of business moves toward [voluntarily expedited elections], Congress must make them address complaints quickly by imposing time limits for the NLRB is to issue a decision about whether to hold a union election or reinstate unlawfully dismissed workers. The agency's action on election disputes should be final and unappealable so that workers and management can get on with collective bargaining promptly. That there are no such mandates currently constitutes the heart of what ails American labor law.
Other reforms are also needed. For instance, the law should provide that unions have the right to communicate and address employees on company property. Today, only employers may do so. The NLRB must also be given the authority to punish companies through fines that double or triple the amount of back pay owed to workers who are illegally dismissed or demoted. The law could also spur collective bargaining with a provision for arbitration if labor and management are unable to agree on their own.
Then there is the composition of the NLRB. A Democratic president, if we next have one, should make appointments that are freer from partisan pressure from either side than they have been during the past decades. At the moment, board members are frequently reluctant to act promptly, and thus avert the crisis for union recognition caused by delay, because of the fear that their vote will be unpopular and diminish their chances of being reappointed. This has been true in both Democratic and Republican administrations. The next president should address this weakness by recruiting nominees from all parts of the country, not just the Washington-insider circle that has come to dominate federal administrative agencies. Also, appointees should be limited to one eight-year term. In this way the very best people will come to Washington, willing, like Cincinnatus, to return to their homes when their appointment ends.
Gould's thoughts on elections, and his implicit criticism of EFCA, fits with my own view of that bill as a second-best solution to a real problem. I also like the notion that there are many reforms that--particularly as a package--may be acceptable to all parties and go far in improving the NLRA's ability to satisfy its goals. But I'm not holding my breath that it'll actually happen.