[Congressional Record Volume 152, Number 132 (Tuesday, December 5, 2006)]
[Extensions of Remarks]
[Pages E2089-E2090]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     TRIBUTE TO WILLIAM B. GOULD IV

                                 ______
                                 

                           HON. ANNA G. ESHOO

                             of california

                    in the house of representatives

                       Tuesday, December 5, 2006

  Ms. ESHOO. Mr. Speaker, I rise to place into the Congressional Record 
the words of William B. Gould IV, former Chairman of the National Labor 
Relations Board and professor emeritus at Stanford University Law 
School. He recently wrote an article advocating changes to the National 
Labor Relations Act which merits inclusion in our Nation's Record. The 
following article was published in the San Francisco Chronicle on 
November 21, 2006, and was titled Why Labor Law Is Not Working.

       America's labor law system and much of the workplace 
     environment surrounding it are dysfunctional. But proposals 
     about reforming the National Labor Relations Act, initially 
     enacted as a ``Bill of Rights'' for workers to join unions 
     and bargain collectively, have been bandied about without 
     action for at least four decades. Most Americans who care 
     about good labor-management relations have seen this movie 
     before. Yet the Sept. 30 decision by the National Labor 
     Relations Board that excludes many hospital charge nurses 
     from labor law coverage as supervisors and its potential for 
     doing the same to other professionals as well as skilled 
     workers, is part of a new dimension to the story's plot.
       For more than a half century, each new president's 
     appointees have made the pendulum shift. But the changes, as 
     most recently illustrated by the charge nurse decisions, take 
     it up more than a notch; prominent management labor law firms 
     are quickly providing Web postings about how to change the 
     duties of employees so that they qualify for statutory 
     exclusion. Well before this decision, the appointees of 
     President Bush busily reinterpreted the law so as to deny 
     many workers the opportunity for representation at the 
     workplace.
       For example, graduate teaching assistants at private 
     universities, who function as both students and employees, 
     were written out of the law two years ago. Prohibitions 
     against fraternization amongst employees during non-working 
     hours, a major avenue for self-organization, were viewed as 
     lawful. The same applied to employer and NLRB denial of union 
     protests in shopping malls. The collective-bargaining 
     process was impaired by virtue of NLRB rulings that 
     employers did not have an obligation to open their books 
     to unions, contrary to Supreme Court mandate when the 
     employer claims an inability to pay.
       True, the law is a secondary factor in the precipitous 
     decline in union membership to less than 13 percent of the 
     workforce and to 7.8 percent in the private sector. Other 
     factors--globalization, deregulation in transportation, 
     vulnerable contingent and part-time employees, including 
     illegal immigrants--are more significant as an explanation 
     for labor's near-demise than the law's many weaknesses.
       However, for the past 35 years, the inability of the law to 
     provide an expeditious resolution to worker and employer 
     complaints--

[[Page E2090]]

     and thus assurance that justice will not be denied through 
     its delay as well as inadequate remedies, have made reform 
     necessary long before the Bush-appointed NLRB began to work 
     its mischief. The newly elected Democratic-led Congress 
     should address labor-law reform.
       Notwithstanding the subordinate role the law plays in the 
     workplace malaise, respect for the law and its function are 
     an important element in the democratic process.
       This time around, however, the discussion must take into 
     account a need for more sweeping changes which affect the 
     agency itself. More formidable than one-sided statutory 
     interpretations is a lack of production of cases. Ironically, 
     as the number of cases filed with the NLRB has dropped, in 
     part because unions lost confidence in its rulings, the 
     resolution of those cases remaining declined. The reason for 
     NLRB lethargy is not only Bush's hostility to collective 
     bargaining, but also the appointment process: the past decade 
     and a half has witnessed the emergence of partisan appointees 
     and a greater reliance on Washington insiders from Capitol 
     Hill, who, having no place to return, cling to office while 
     they fail to decide cases which, they fear, will interfere 
     with their reappointment process.
       The consequence of this is a politicization of decision-
     making, an ever-deeper NLRB ideological divide and the 
     unwillingness of Congress to approve any presidential 
     nominees without ``batching'' the appointments, i.e. 
     providing for at least two appointments at a time, one with 
     the blessing of labor, the other with the blessing of 
     business. This means no more appointments like those made in 
     labor law's early and halcyon days of the 1940s and '50s, 
     when genuine impartial neutrals were appointed by Presidents 
     Roosevelt and Truman.
       One answer to the production problem and its denial of the 
     prompt relief to which both workers and employers are 
     entitled is longer terms and a prohibition against 
     reappointment. The number of board members should be reduced 
     to three members rather than five. This year, the board is at 
     full strength, and its production is worse than ever. It is 
     obvious that politically anxious prevarication is exacerbated 
     when there are a greater number of cooks standing around the 
     cold soup. The denial of collective bargaining to the 
     overwhelming majority of the American workforce is one of our 
     democracy's great failings. While changing our labor law and 
     those who administer it will not remedy all that ails us, it 
     would be a step forward.

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