MID-LIFE CRISIS: THE NLRB AT FIFTY

...4) Notes and footnotes should also be typed double-spaced, on a separate sheet...

...Nonetheless, subsequent boards, while hardly immune from politics or bias, were generally composed of professionals who rarely triggered strong labor or 213 management opposition...

...Van de Water served only a recess appointment as NLRB chairman in 1981-82, because even Reagan's allies in the Republican Senate could not secure his confirmation—the first such rejection ever of a board nominee...

...Traditionally, the board has resembled a court in that it decides cases as they come before it, refining the law gradually and reactively...

...Although the board says it is acting in the interests of workers—as opposed to unions— one principal assumption of the federal labor laws has been quietly rejected in the process...

...The board and business have tried to write off the Subcommittee's report as partisan sniping, but the evidence in support of its critique is massive...

...As of this writing, Dotson, Hunter, and Dennis comprise the NLRB...

...Heavy board-member turnover since 1979 and Reagan's indifference to filling vacancies have further burdened board processes...

...Even some management attorneys admit the significance of the Reagan shift...

...But individual rights often conflict with both union and employer rights...

...In contrast to all of his predecessors but Eisenhower—whose probusiness board-packing rankled labor and resulted in a series of Supreme Court rebuffs to the new board's doctrines—Reagan has reappointed none of the board members who sat when he took office in 1981, including John Fanning, a highly respected Democratic Eisenhower appointee reappointed by Kennedy, Johnson, Nixon, and Carter—and Howard Jenkins, a black Republican Kennedy appointee reappointed by Johnson, Nixon, and Carter...

...None of this is surprising...

...Perhaps one short-term remedy for labor is to go to the bargaining table, to try to compel employers, by contract, to acknowledge rights and protections that the NLRB no longer recognizes under the act...

...But this board is not so concerned with employer breaches of the law...

...Compelled unions, at the price of losing their bargaining rights, to allow nonmembers to vote on whether the union should affiliate with another union or merge with another local of the same union (Amoco Production Co., 1982...

...the other two seats are vacant, including one unfilled since Jenkins's departure in August 1983...

...The Reagan board contends that it is concerned about the rights of employees rather than the rights of unions or employers...

...The act was termed "Labor's bill of rights," and indeed it was, declaring that American workers had a federally protected right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection...

...Soon after his confirmation, Dotson appointed Hugh L. Reilly, a former National Right to Work Committee lawyer, as NLRB solicitor...

...The White House has remained noncommittal but will show its hand when it finally nominates replacements for Jenkins and Zimmerman...

...But the members of the Reagan board—essentially Dotson and Hunter—have pursued a more aggressive agenda...

...All unfair labor practice cases are initiated by the board's prosecutorial arm after it screens employer or union charges...

...Hunter, a career NLRB lawyer and Senate aide, apparently excepted himself from his rule...

...At times both labor and business have complained that the board was biased for one side or the other, its decisions inconsistent with the act's purposes, its doctrines insensitive to the realities of labor-management struggles...

...That observation is no less true today, but the Reagan board either fails to appreciate this fact or appreciates it too well...

...and its able staff counsel Fred Feinstein, held hearings entitled "Has Labor Law Failed...

...His first: "All future board members should have substantial experience in actual 216 hand-to-hand labor-management relations in the private sector," rather than be "career government bureaucrats" lacking experience representing private parties in labor matters and before the board...

...But now labor and its allies in Congress assert that Ronald Reagan has "packed" the NLRB in management's favor to an unprecedented degree, converting it ideologically into a weapon against the labor movement...

...3) Type your ms double-spaced, with wide margins...

...5) We're usually quick in giving editorial decisions...

...Hunter proposed some specific recommendations...

...under the Reagan board, that figure has plunged to 50 percent...

...This time the pendulum has swung over the deep end...

...Made it easier for employers to discharge strikers for their union activities by removing legal protections from purely verbal conduct, even in the heat of a strike (Clear Pine Mouldings, Inc., 1984...

...Now the NLRB appears to be reviving this tactic...

...Simply stated, in doubtful or close cases, the Reagan board almost always tips the scale against unions and employees...

...Meanwhile, in 1983 and 1984, the board identified several dozen so-called lead cases and "principal issues" then before it through which it has begun to introduce significant changes in board law...

...Because it is so hostile and unpredictable they are leery of presenting cases that the board may use as vehicles to upset well-established precedent...

...Francis Hospital, 1984...

...Consistently approved larger rather than smaller workplace units as appropriate for union organization, thereby rendering it much more difficult for employees in a single store, or a single part of a plant or company, or a single job classification to gain NLRB certification of their unions (Ohio Valley Supermarkets...

...Never has a union official or someone from the union bar been appointed to the board, but there have been several appointees from management...

...6) Please bear with us—we have accumulated quite a backlog of material, and you may have to wait for a few issues before you see your article in print...

...An AFL–CIO survey comparing board decisions during three random six-month periods, 1975-76 (three Nixon and two Ford appointees or reappointees), 1979-80 (four of the same members and one Carter appointee) and 1983 –84 (one Carter and three Reagan appointees, one vacancy), discovered that the two earlier boards upheld unfair labor practice charges against employers 86 percent and 85 percent of the time, respectively...

...When the Supreme Court upheld the constitutionality of the Wagner Act in 1937, amidst an employer offensive to obstruct the new statute, it acknowledged that "a single employee [is] helpless in dealing with an employer," and that unions were therefore "essential to give laborers opportunity to deal on an equality with their employer...

...A complete labor boycott indeed is remote, although there is much soul-searching by unions before going to the board...

...Reagan's appointees could control the board until December 1992...

...Where the earlier boards upheld such charges against unions 72 percent and 77 percent of the time, the Reagan board did so 85 percent of the time...

...Soon thereafter, the National Association of Manufacturers did issue a statement praising Dotson as "a highly competent board chairman, who observes the highest professional standards," and urged President Reagan to "issue a strong statement" to that effect...

...Held that unions cannot restrict a member's right to resign from membership (Machinists Lodge 1 41 4, 1984...

...Held that an employer could transfer work from a union to a nonunion facility without bargaining with the union, unless the collectivebargaining agreement specifically prevents it (Milwaukee Spring Division, 1984...

...Since Eisenhower's first appointee in 1953, however, the board has been mostly Republican—all 16 Republicans were appointed since then, joined by only 7 Democrats and 1 independent...

...Raymond J. Donovan, Reagan's embattled secretary of labor, is fond of saying that his department exists for "labor, not organized labor"—while his enforcement policies have consistently undercut both organized and unorganized labor and benefited employers, victimizing individual workers in workplace safety, and in equal-employment opportunity and fair labor standards enforcement...

...The Reagan board's defenders claim that the new line merely corrects the "extremes" and "imbalances" of earlier years...

...Last October, Reagan made the controversial recess appointment of Rosemary Collyer to the critical, independent position of NLRB general counsel, normally serving a four-year term following Senate confirmation...

...In his 1980 Heritage Foundation manifesto, Hunter recommended repeal of "those NLRA provisions which establish collective rights as paramount to individual rights," including a cornerstone of the act: the union's right to be the exclusive collective-bargaining representative of a particular unit of employees...

...Reagan's first appointee, Republican Robert Hunter in 1981, was chief aide to Utah Senator Orrin Hatch, chairman of the Senate Labor and Human Resources Committee, and helped orchestrate the, mammoth employer opposition that narrowly defeated the moderate laborproposed reforms to the National Labor Relations Act in 1978...

...A favorite Dotson theme is that labor-management cooperation is the best solution to union-employer conflict, and that differences should be worked out in collective bargaining rather than brought before the board...

...Barney Frank (D–Mass...

...THE EDITORS...

...Oversight hearings in 1983 and 1984 by a House subcommittee chaired by Rep...

...The following is a sampling of NLRB rulings that revise or reverse well-established board law, in each case to the detriment of workers and unions...

...Yet Dotson has also stated that "collective bargaining frequently means labor monopoly, the destruction of individual freedom, and the destruction of the marketplace as the mechanism for determining the value of labor...

...AFL–CIO President Lane Kirkland recently suggested that the act be scrapped entirely, and that labor and management return to economic warfare, unprotected and unrestrained by federal law...

...William L. Clay (D–Mo...

...The Teamsters union—a Reagan political ally— last summer urged Dotson's removal from the chairmanship...

...Had this occurred, Dotson would still remain a regular board member for his five-year term unless, the act says, he were "removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office...

...For each lead case or principal issue, decisions in 5 to 40 pending cases were held up until the board could announce its new doctrine...

...But when the individual right clashes with the employer right—as in a claim of the individual right to be free from employer interrogation 215 about union sympathies—the employer usually wins...

...Collyer, a 1977 lawschool graduate, practiced a smattering of management-side labor law with a large Denver general-practice firm before being plucked from obscurity in 1981 to chair the Federal Mine Safety and Health Review Commission, where she rendered generally promanagement decisions...

...Surely, there is no abstractly "correct" figure, but the numbers demonstrate how the balance has shifted...

...The NLRB became more bipartisan after 1947, when the Taft-Hartley Act increased its membership from three to five and, more important, made major revisions in the Wagner Act: establishing, for the first time, the concept of union unfair labor practices, prohibiting secondary boycotts, authorizing state "right-towork" laws (which prohibit the union shop), undermining the Wagner Act's pro-organizing, probargaining objectives...

...Overall, however, the NLRB has long been viewed as one of the more professional of the regulatory agencies, such as the Securities and Exchange Commission and the Federal Trade Commission, serving important public ends with infrequent sharp philosophical turns and staffed by an enduring and competent professional corps...

...And please remember that we can't return articles unless they're accompanied by a stamped, self-addressed envelope...

...The board's general counsel directs over 1,100 field attorneys and examiners, who oversee union representation elections and investigate and prosecute unfair labor practices throughout the country...

...Hence if the board consistently held so-called individual rights paramount, one might conclude that unions and employers were faring equally poorly...

...If there's a delay, it's because a few editors are reading your article...

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...Ruled that an employer need not bargain over its decision to close an organized plant and relocate the work to a nonunion plant if the decision does not "turn" on labor costs (Otis Elevator Co., 1984...

...Their terms are staggered, so a seat comes up every year, and members may be reappointed indefinitely...

...Reagan's second appointee, in 1981, Republican John Van de Water, was a longtime California "management consultant" whose stock-in-trade was advising employers how to defeat union-organizing drives...

...But if labor chooses to celebrate this landmark anniversary, it will do so with anger toward the act's principal custodian, the National Labor Relations Board...

...there is, for instance, one firm's admission that the board's new ban on union restrictions of a member's right to resign marks "a significant shift toward the employer in the balance of economic power during a strike...

...Made it easier for an employer to question employees about their union sympathies during organizing campaigns (Rossmore House, 1984...

...Declared that a union has no right to information about an employer's nonunion plant, even though it suspects that the employer is shifting bargaining unit work to the plant (Bohemia, Inc., 1984...

...As we're not an academic journal, we prefer that they, wherever possible, be dropped altogether or worked into the text...

...For where individual rights clash with union rights—as in the claimed individual right to resign from a union during a strike versus the collective right to protect union solidarity—the individual usually wins...

...Indeed, presidents have consulted both labor and management about prospective appointments in order to prevent confirmation battles...

...Though Collyer was essentially unknown, labor opposed her appointment because of her inexperience as a lawyer and in labor-management matters—unprecedented for this influential post—and because of her promanagement bias...

...Why is the act's golden anniversary so bittersweet...

...Indeed, from the start, controversy has marked the Wagner Act and the NLRB...

...But the fact is that these earlier boards, under Carter and before, had a Republican cast—and Hunter and Dotson are far from mainstream businessside appointments...

...In an interview with the Bureau of National Affairs shortly before his term ended last December, board member Zimmerman bluntly declared that "there is no longer a sense of collegiality or any substantive discussion among members about complex cases...

...Hunter has been true to his word...

...revealed a sharp drop in board decisional output, a threefold increase in just seven years in the number of pending unfair labor-practice cases, and an average 627-day lag from an unfair labor practice charge to a board decision...

...This "reevaluation" process has contributed to and, in former board member Don A. Zimmerman's view, is the "principal reason" for the worst backlog of cases in the NLRB's history...

...From the late 19th century until the Norris-LaGuardia Act put an end to the practice in 1932, the hated "labor injunction" was the employers' most effective tool in suppressing worker organizing, picketing, and strikes...

...Reagan's triumvirate on the NLRB (with earlier assistance from Van de Water) has succeeded in imposing significant legal and administrative changes...

...Precluded the issuance of a bargaining order to an employer as a remedy for outrageous unfair labor practices if the union has not yet obtained majority support, even if the employer misconduct at issue prevented the union from attaining that support (Gourmet Foods, Inc., 1984...

...But it may be that eight more years under a Reagan board will help spark a renewed militance in the labor movement that will, in the end, render the Reagan board itself irrelevant...

...Hunter also authored the sections on the NLRB and the Department of Labor for the right-wing Heritage Foundation's 1980 blueprint, Mandate for Leadership: Policy Management for a Conservative Administration...

...The labor leadership and the labor bar have begun to advocate alternatives to the board...

...These well-publicized problems have drawn organizations with keen interests in the board into unusual public efforts to intervene...

...the present board found for employers in 75 percent of the cases...

...This partial list does not reflect the more subtle incremental shifts made in day-to-day decisions...

...The NLRB — Narrowed the fundamental concept of workers' "concerted activity"—that is, legally protected activity—by deciding that it does not 214 cover an individual employee protesting unsafe working conditions (Meyers Industries, Inc., 1984...

...Reilly's appointment sparked an uproar in labor circles and among many in Congress...

...Since most unfair labor practice complaints are brought against employers, litigation delays inevitably operate in their favor...

...Members Zimmerman and Dennis publicly dissented (though formally "abstained") from Dotson's reorganization, and even one of the Reagan board's most zealous promoters, John S. Irving, former NLRB general counsel (a Ford appointee), called this "a solution for a problem which did not exist and unnecessarily caused ill will inside and outside the agency...

...Both recommendations would make it easier for private individuals and businesses to embroil unions in endless litigation, and for local, state, and federal authorities to prosecute them...

...Hunter also recommended that the courts curtail the primacy of federal law over state civil and criminal laws and "eliminate the judicial antitrust exemption for union anticompetitive monopoly power...

...In at least 17 instances, the Reagan board has asked federal circuit courts of appeal reviewing board decisions rendered prior to Reagan's appointments to return the cases to the new board for reconsideration—a highly unusual request...

...Reagan's most recent appointee, also in 1983, was Democrat Patricia Diaz Dennis, a relatively inexperienced labor attorney for the Pacific Lighting Corporation and the American Broadcasting Company...

...Board member Dennis calls it a "return to normalcy...

...in Dotson, Dennis and Van de Water, Reagan has indeed chosen people experienced in labor relations in the private sector—but all in the career service of management...

...Dotson then promptly transferred authority over the board's appellate court lawyers from the general counsel to Reilly, upsetting a system in place since 1955...

...Until Ronald Reagan...

...under the current board, that figure has plummeted to 55 percent...

...John Fanning, a former board chairman, recently criticized the new board for having an actual agenda of "reviewing"—which is to say, revoking—long-standing doctrines...

...But this is not the case...

...Since 1947 the NLRB has been composed of five members, each appointed for five years by the president and confirmed by the Senate...

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...Labor is in for a long winter...

...As assistant-secretary of labor for labor-management relations earlier in Reagan's first term, Dotson ordered a sharp increase in government audits and investigations of unions while all but ending the Department's enforcement of reporting and disclosure requirements for employers and their "unionbusting" labor-relations consultants...

...Howard College...

...infighting, distrust, and even paranoia affect what used to be cooperative relations among board members and staffs...

...Surely, unions must be wary of overstating the Reagan board's derelictions...

...The board's opinions have reflected a moderate range...

...With the advent of Dotson, Hunter, and Dennis, the atmosphere at the board has soured...

...Since then, they have all been government officials, lawyers, or both...

...Conceivably, one of Reagan's appointees will be a mainstream, and perhaps even prounion, choice in order to placate the Teamsters and mute Capitol Hill critics while still assuring 217 that solidly antilabor majorities will decide every case...

...That is the need to put a legal thumb on the scale to even out the inherently lopsided balance of power between management and worker...

...Hunter also urged the board to make aggressive use of its "extraordinary power" of seeking injunctions against unions to stop unfair labor practices, complaining that the board was ineffectual against union violations and violence...

...The Subcommittee singled out the board for particular discredit, faulting its backlogs, politicization, and debasement of the act...

...Until the mid1950s, NLRB members mostly came from the ranks of lawyers and economists with an occasional politician and businessman...

...If so, in this period of overall union disadvantage in collective bargaining, labor's "must" list will increase—to include, for example, protections from "runaway shop" schemes now blessed by the board—and thus employers will be giving up what they never had in exchange for union concessions...

...The Subcommittee concluded that it had, because of its ineffectiveness in stemming a generation-long increase in management opposition to unionization, often carried out by unlawful means...

...By an unwritten rule, no more than three of the five members can be Democrats or Republicans...

...Predecessor boards routinely granted 90 percent of the board's enforcement branch's requests for injunctions against unfair labor practices by management...

...Look at our last few issues to see if your idea fits in...

...In representation cases—those arising from union elections, where the issues concern election conduct and the proper composition of bargaining units—previous boards upheld the employer position 36 percent and 44 percent of the time (employers raise representation issues more often than unions, usually as a delaying tactic...

...Regrettably, there is truth to these claims...

...Small wonder that the Reagan board examines cases from an antiunion angle: it's all in the cause of reducing the "labor monopoly," which interferes with the natural order of the free market...

...Last year the House Subcommittee on LaborManagement Relations, under the leadership of Rep...

...Virtually every request for an injunction against a union has been granted by the Reagan board...

...In January 1985, Reagan again submitted her name for regular confirmation...

...Third came Republican Donald Dotson, in 1983, the current chairman and an NLRB lawyer for five years, who later worked as a labor attorney for Westinghouse, Western Electric, and the Wheeling-Pittsburgh Steel Corporation...

...Of 38 appointees in 50 years, 20 have been Democrats, 16 Republicans, and 2 independents...

...Another management firm, in a report on the antiunion prospects for employers during the second Reagan term, observed that now is the "ideal time" for employers to "assess whether union representation of employees is really working or whether employees would actually prefer no union representation"—a thinly veiled invitation to employers to seek union decertification...

...Check all your figures, dates, names, etc.—they're the author's responsibility...

...They want to change the law, and they have sought out the right cases through which to do so...

...Woolworth Co., 1984...

...Nor does it indicate the roadblocks now placed at the representation election stage when, driven by the current antiunion tide flowing from Washington, NLRB regional-office decisions have become more adverse to union and worker interests...

...q To Our Contributors: A few suggestions: (1) Be sure to keep a copy of your ms—the mails aren't always reliable...

...now 30 years have passed since the only close Senate confirmation vote...

...But Dotson denies that Reilly is antiunion, and he speaks favorably of the Right to Work Committee's agenda...