William Gould

Many Republicans and business executives denounce William B. Gould IV as a biased “pro-union” chairman of the National Labor Relations Board. At the same time, some union leaders view him as far too lenient with employers to be a chairman named by a Democratic president who was elected with crucial union support. Controversy fills the board as well: There is considerable acrimony among the politically divided group.

Gould, 62, has many admirers, particularly those who respect the former law professor’s enormous knowledge of labor law, but Gould does not want a second four-year term. At the end of this month, he plans to return to the relative quiet of his post as professor at Stanford Law school.

It took eight months of furious wrangling in Senate hearings for Gould to win his first Senate confirmation in 1994. And now, despite conservatives’ contention that he is too sympathetic toward unions, the AFL-CIO has taken no public position on him, and has not pressed him to seek reappointment to the five-member board.

The agency he heads runs elections to determine whether a majority of workers in a plant want to be represented by a union in collective bargaining with management. The NLRB runs about 3,000 elections a year. It also investigates about 33,500 complaints from unions and management about alleged violations of the National Labor Relations Act that was created in 1935. The agency is supposed to be neutral in disputes between unions and management and rule on alleged unfair labor practices by either side. There are 52 regional offices and 1,900 employees involved in doing this.

Gould, who is the first African American to chair the NRLB, maintains he is neutral, and simply wants the system of collective bargaining to work effectively and provide justice to both sides. He is soft-spoken, self-confident and insists he would fight for Senate confirmation again if he had wanted the job. But he says he is happy to return to the position he held for more than 20 years at Stanford, unless something better turns up.

He and his wife, Hilda, have three grown sons. He was interviewed by phone from his Washington office.

T Question: Unions are in deep trouble these days. Membership continues to decline, there are fewer strikes and often the ones they call seem to be losers. What is happening to organized labor?

Answer: Without interruption, unions have been moving backward for more than a decade in terms of membership and the employees they represent. Even what seemed to be relatively successful strikes have contained several problems for the unions. What the unions claimed as a victory at United Parcel has been almost completely forgotten and overshadowed by a bitter fight within the Teamsters. At General Motors, it took a full 54 days of members wages during the strike by the United Auto Workers just to hold its own to preserve a measure of job security and domestic corporate investments.

Q: Can unions win any strikes now?

A: Rarely. Remember, last year there were fewer strikes by 1,000 or more workers since records were first kept in 1947. And the numbers are not at all likely to increase this year.

One reason is that strikes can be a disaster for unions because, if workers do strike, they can be permanently replaced, and as the actual number of union members continues to decline, that decline exacerbates the problem because there are more nonunion employers for a struck union company to use to sub-contract union jobs.

Q: There seem to be no membership gains to reflect the increased money unions are spending on organizing. True?

A: Unions have vastly increased their organizing efforts and the number of NLRB elections that unions are winning has increased. But, in fact, the number of members continues to decline. They lost a net of 159,000 members in 1997, and the same is expected this year due to a host of factors--such as job losses in traditionally unionized manufacturing and workers’ fears of losing the jobs they have if they join unions. There may be a resurgence of unions some day, but there are no realistic signs of that on the horizon yet.

Q: You have charged that anti-union members of Congress have under-funded the NLRB and that there have been attempts by Republicans to interfere with board actions. Unions complain about the long time it takes to hold union representation elections and get rulings. Management and some unions complain about board rulings. There is acrimony in the board itself. Is it time to abolish the agency?

A: No. It’s a system that’s endured for 63 years, longer than any labor law system in any other industrially advanced country. It is better, for instance, than handing labor-management disputes to courts of general jurisdiction, because the board possesses more expertise than they do and it allows workers and businesses to come before the board appearing in their own right without a lawyer. Generally, it is more expeditious than the regular judicial system. We have made many gains in expediting our cases, but we must become even more efficient.

In the area of union recognition demands, the NLRB serves as a substitute for industrial strife when workers seek a union.

Q: You make it sound almost idealized. Is it?

A: Certainly not. Many things have gone wrong with the system in recent years--in large part because of the increased polarization between labor and management, which is attributable to the fact that unions represent far fewer workers now than in past years and some employers want to further reduce union ranks by fighting them longer and harder than ever. That polarization has emboldened this Congress to retaliate against the NLRB itself. That has created an environment in which board members are sometimes intimidated by fear of losing funding for the agency if they offend some members of Congress by writing a “wrong” decision.

Q: Can the NLRB be made less politicized?

A: I’ve advocated that board members be given longer terms of office, say eight years, and be barred from reappointment, so that they would be more likely to express their views honestly and promptly without worrying about getting reappointed and reconfirmed.

Q: You have said the regular courts should be avoided since the NLRB has more expertise on labor disputes. Yet hasn’t the board often gone to the courts to enforce its decision?

A: Yes, but I would like to see an amendment to the law, which would give greater enforcement power to the board without turning it into a full-fledged court. One way of accomplishing that would be to oblige parties to go to court within 20 days or 30 days after a ruling to prove we have made decisions which are without merit. If they fail, then the board should have the power to enforce its orders immediately.

Q: Are other changes needed in the federal labor laws?

A: Yes, a whole host of them. I outlined many in my book “Agenda for Reform.” One is for Congress to enact legislation to impose at least double damages in cases where employers or unions are found to engage in intentional, serious illegal acts. The board should be given the authority to fashion punitive damages where the conduct is egregious and repeated.

Q: You talked about the diminished representation of workers by unions that now represent only 15% of the work force compared to about 35% in 1950s. Isn’t that partly the fault of the labor law the NLRB administers?

A: Yes, in a number of respects. For one, the statute is flawed in that it allows employers to delay board decisions by lengthy legal maneuvers and the board cannot impose effective remedies to curb such delaying maneuvers. There are other factors involved in the unions’ decline, such as the globalization of the economy, since our workers are more directly vulnerable to competition from relatively low-wage countries.

Q: You advocated allowing workers to vote by mail in union representation elections. Do you still think it is a good idea?

A: Yes. We have more than doubled our use of mail ballots since I came to Washington more than four years ago. And the concerns of some employers about invasion of privacy and unions instructing voters how to vote by mail have not materialized. With mail ballots we reach workers who are scattered because they work at different sites or are temporary, part-time or casual employees who may not show up when the voting is held. Also, it is less expensive to conduct a mail-ballot election.

The resistance to mail ballots is prompted by some employers who believe it diminishes the effective use of their technique of calling workers together just before the election and explaining why the employer opposes unionization.

Q: Don’t you think that the way you’re talking now would convince some people you are more pro-union than neutral?

A: The problem with striving for neutrality and impartiality under our statute is that the preamble to our National Labor Relations Act states the law is supposed to promote collective bargaining.

Q: Which requires a union?

A: Well, it requires some form of representation. Generally, the workers under our system have the opportunity to exercise their free choice in determining whether a union will represent them or not. We’re not imposing collective bargaining upon employees. We’re simply supposed to encourage a system whereby workers have the fullest and fairest opportunity to opt into the collective bargaining process if they want to. Some people don’t regard that as impartial. I do.

Q: But you seem to side with unions in disputes with companies more than management. Aren’t you supposed to be neutral in these disputes?

A: Certainly. I scrupulously maintain a position of neutrality. Some cases make that easier than others. When a group of workers want to get rid of their union, some labor lawyers say that is illegal for employers to help that happen. I maintain it is not illegal for employers to encourage that, if they do it within the law.

Q: You have said one of your goals was to promote a balance between labor and management. Have you achieved even part of that goal?

A: My votes and the majority positions of the board reflect an attempt to respect the interests of both labor and management and individual employees. And in that respect I think that balance has been improved during my term of office. We cannot change the balance between labor and management in society generally. If unions are going to represent more employees, the only thing we can do is to promote an environment where they can recruit members without fear of unlawful misconduct by management.

Q: By firing pro-union workers?

A: Yes. In the final analysis, though, this statute, with all of its flaws, is pretty good. The balance between labor and management can only be changed by unions convincing more workers to join them. That will determine the labor-management balance. We can’t affect that.

Q: Wasn’t the law itself designed to give some equality between workers and management?

A: That’s right.

Q: That long-range goal seems far from being reached, true?

A: I think that during the 63-year history of the law, unions have never been as far down as they are today.*

*

“I want to encourage much greater cooperation and far less adversarial relations between labor and management or the good of the entire country.”

*

Even what seemed to be relatively successful strikes have contained problems for the unions.”