AM-97-36 STORM WARNINGS AHEAD: EVOLUTION OF NATIONAL LABOR POLICY IN THE CLINTON ADMINISTRATION’S SECOND TERM

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Is it possible to predict future developments in national labor policy during a second Clinton administration? Perhaps not, but by reviewing the history of the National Labor Relations Act (“Act”), organized labor’s recent actions and rhetoric and the actions of the National Labor Relations Board and the Clinton Administration (and the corresponding reactions of the courts) during the first term, we can predict that the Board and courts will continue to lock horns over fundamental national labor policy issues. We can also predict that organized labor will continue to devote substantial resources to its efforts to elect labor-friendly candidates for Senate and House positions, to pass pro-labor legislation and to increase its membership through aggressive organizing programs. A new National Labor Relations Board (“Board”) and General Counsel of the Board were appointed by President Clinton and confixmed ‘by the Senate during his first term. William B. Gould, IV became Chairman Gould of the five member National Labor Relations Board on March 2, 1994. The other current members of the Board are: Margaret A. Browning, Sarah M. Fox and John E. Higgins, Jr. At present, one Board position remains vacant. Fred Feinstein’s appointment as General Counsel of the Board was confirmed on March 3,1994. Critics claim that the Gould Board is attempting to make radical changes in national labor policy and Board procedures.. An example of the Board’s activist approach can be seen in the dramatic increase in unfair labor practice injunctions (mostly against employers) sought by the Board. In the 1980’s, the Board typically authorized the General Counsel to seek some 35 to 50 Section 10(j) injunctions each year, and typically between 25 and 35 were ultimately sought (most of the others being settled prior to court action). In the fiscal year ending September 30, 1994, however, the comparable numbers were 83 Board authorizations and 62 petitions filed; and in, the following year, 104 Board authorizations and 78 petitions filed.’ Under Chairman Gould’s leadership, the Board has been very active in developing “new law” both through its “adjudicatory” function (deciding unfair labor practice and representation cases) and through exercise of its rule-making authority under the Act. Although the Board was successful in all three of the cases that were decided by the Supreme Court last year, those cases were the product of the Republican-appointed Board that preceded the Gould Board.* In seeking enforcement of its own decisions, the Gould Board has encountered significant difficulty in various circuit courts of appeal. Indeed, on October 17, 1996, Rosemary M. Collyer, who served as General Counsel of the Board during the Reagan Administration, said at the Southwestern Legal Foundation’s 43rd Annual Institute on Labor and Employment Law, that the Gould Board appears to be bent on changing important aspects of Board law and that such actions have resulted in an increase in appellate court decisions striking down Board decisions.3 This paper focuses.on the difficulty that the Clinton Administration and the Gould Board have encountered when seeking approval of their more controversial actions and rulings and offers some predictions about the fate of future such actions and rulings during the second term.