National Labor Relations Board

1. National Labor Relations Board • National • 5-member board • Staggered 5 year terms • Presidential nominees • Senate approval • Tradition: mix of Republicans and Democrats, majority reflecting party of the President • General Counsel • 4-year term • Same approval • 35 Regional Offices • Director appointed by NLRB • Staff are permanent

2. Division of Responsibilities between the national and regional offices • 25,000 cases per year • 75% brought by employees, unions • 25% brought by employers • 97% resolved before NLRB national decides • Most of business conducted at the regional level

3. Example of the NLRB Process O’Connell, JLR, (Fall 2001)

4. Union Complaint Firm Responds Settle Take charge to Regional Board Rejects Complaint Finds cause Firm voluntarily settles Firm charged Accepts discipline Firm charged, Appeals Federal Court of Appeals Administrative Law Judge, can appeal to NLRB Loser appeals Finds for Firm Loser accepts Finds for Union

5. After the complaint resolved • Regional compliance officer oversees adherence • If parties in violation, back to federal court • Continued violation—contempt of court • Note: If taken to the final appeals—can take 1-3 years to resolve dispute. Additional delays possible • JP Stevens, ~25 years, $1.3 million in back pay • Milliken & Co. ~25 years, $5 million in back pay • Average back pay fine $2,733/worker (Kleiner, JLR (2001)) • Fines may be cheaper than cost of compliance

6. Other methods to resolve disputes • 10(J) Court injunctions • Upon issuance of a ULP complaint, NLRB can petition for a restraining order from U.S. district court within whose jurisdiction the ULP occurred • NLRB must demonstrate that the ULP will cause irreparable harm to aggrieved party

7. Other methods to resolve disputes • Voluntary settlements • NLRB encourages: adds information on expected outcomes • Will honor voluntary agreements between parties even if terms differ from NLRB expectations, provided • Reasonable • Freely entered • Party is not a repeat violator or noncompliant

8. Political interference with the NLRB • Appointment and Confirmation (mimics process for federal judges) • Contentious since 1979 • Below full complement about half of the time (only 3 needed for decisions) • Recess appointments

9. Political interference with the NLRB • Appropriations and legislation increasing or limiting NLRB actions Contentious since 1996 Use of 10(j) injunctions on complaints from “salts” Use of “single-facility” bargaining rule—bargaining unit can be defined as a single site if it is at least one mile from other sites and has an assigned supervisor

10. Political interference with the NLRB • 10(J) injunctions issued • 1995 109 • 1996 59 • 1997 62 • 1998 53 • 1999 58 • 1998: NLRB withdraws “single-facility” rule

11. Political interference with the NLRB • Congressional Oversight and Investigations (Harassment?) Letter from Representatives Shays and Hoekstra to Chairman Gould, March 4, 1997 In the documentation you provided regarding your travel to San Francisco, there is a copy of your letter to ‘Dusty’ in which you state, “ Many thanks for the seats….Again, congratulations on the contract! I am so pleased for you, for the team and the city.” Please identify ‘Dusty’ by gender, position and relationship to the San Francisco Giants, if any.

12. Political interference with the NLRB • Letter from Gould, April 1, 1997 “Dusty Baker is a male. He is the manager of the San Franciso Giants, and in that connection, his relationship to he Giants is a prominent and important one.”

13. Political interference with the NLRB • Direct interference Efforts to influence decisions on actions affecting constituents This would be considered unethical in Federal court—amicus briefs are ok

14. Political interference with the NLRB • Does party affiliation matter, especially with 5-year terms rather than lifetime? • Many cases are routine • Role of precedent • Study: 80% of cases decided the same regardless of party affiliation • Role of Federal Appeals Court • LeRoy data on ULP vs Economic Strikes • 535 cases between 1938-1999 • Most of the business at the regional level

15. Disposition of cases at the regional level • O’Connell on regional cases • If regions consistently implement national policy, incentive to settle at lower level • If regions have own agenda that never varies, also possible to encourage early settlement • If uncertainty about disposition of case upon appeal, incentive to settle is reduced

16. Is the NLRB Still Relevant? LeRoy, JLR (Fall 2001) • M.B. Sturgis (2000) Temporary employees are eligible for inclusion in bargaining units • Epilepsy Foundation of NE Ohio (2001) right to have a co-worker or representative present in a disciplinary meeting with nonunion employers and employees. • Electromation (1992) firm use of action teams composed of workers and managers ruled as a de facto company union in violation of NLRA. • Many labor disputes now settled outside the NLRB framework—question of whether dispute involves individual vs. collective rights

17. Conclusions • NLRB actions controversial subject to political influence • Some mixed evidence that party in power influences decisions • Most decisions noncontroversial, settled at regional level, settled voluntarily • Consistency encourages settlements—evidence suggests that settlements are common • NLRB helps to encourage collective bargaining by imposing outcomes only rarely • NLRB enforcement, sanctions may be too slow and weak to force recalcitrant firms to comply