Labored Relations: Law, Politics, and the NLRB, A Memoir.

• Author: Goldberg, Michael J.
• Position: Book Review

LABORED RELATIONS: LAW, POLITICS, AND THE NLRB--A MEMOIR. By William B. Gould IV. ** Cambridge: MIT Press. 2000. 449 pp.

INTRODUCTION

"Inside baseball" is a phrase with two meanings, one literal and the other metaphorical. In this examination of Professor William B. Gould IV's tumultuous tour of duty as Chairman of the National Labor Relations Board, both meanings apply.

Professor Gould's recent account of his tenure at the Board, Labored Relations: Law, Politics, and the NLRB--a Memoir, is a rich source of metaphorical "inside baseball" about the agency he chaired. Gould pulls no punches in exposing the inner workings of the NLRB from August of 1993, when President Clinton nominated him for the post, until his term ended five years later. He offers candid, often critical, assessments of his colleagues' performances at the Board. And as a lightning rod for the bitter, high stakes ideological battles fought over federal labor policy, Gould's service at the NLRB has in turn been the target of heated barbs from some Board insiders, (1) although his years at the Board have also been the subject of more balanced appraisals from other agency insiders and close observers. (2) Gould's account of the NLRB and its relations with Congress and the Executive Branch offers students of administrative law dramatic lessons in the divergence of practice from theory when it comes to "independent" federal agencies. It also provides Gould's spin on the intrigue and conflict surrounding him as he attempted to navigate Washington's rocky political shoals. (3)

Some of that intrigue and conflict arose, quite literally, inside baseball--or more specifically, inside Major League Baseball. That is the subject of Part I of this Review, which finds in Professor Gould's discussion of the baseball strike of 1994-1995 some trends and themes that run throughout his memoir. Part II examines the NLRB as an administrative agency and compares the degree of independence Professor Gould expected his agency to enjoy when he became its Chair with the reality he discovered after he arrived in Washington. The final Part of this Review responds to some of Chairman Gould's critics and places that criticism in the context of the political and ideological battles that raged during the 1990s over the direction of federal labor policy.

1. INSIDE BASEBALL

   Bill Gould is one of an old-fashioned breed of red-blooded American baseball fans who can barely contain themselves waiting for Opening Day each spring. (4) It is therefore a bit ironic that he was at the center of two baseball related disputes during his tenure as Board Chairman. The first involved one of the highest profile cases in NLRB history, leading to the injunction that brought an end to the 1994-1995 strike in Major League Baseball. (5) The second involved politically motivated personal attacks upon Gould for his attendance at too many baseball games with the "wrong" people, such as the general counsel of the Major League Baseball Players Association, or for "neglecting [his] duties by attending baseball games on government-financed trips." (6) Gould's love of the game put him in a position that for some observers created at least the appearance of impropriety because he had arbitrated baseball salary disputes before his appointment to the Board (7) and, as the chairman of that agency, would inevitably be drawn into any strikes or lockouts that might arise in professional baseball during his term.

   The threatened investigations of Gould's travel budget and attendance at baseball games never amounted to anything more than irritating and insulting distractions. (8) They were reminiscent of the baseless and unsubstantiated rumors floated by Gould's opponents while his nomination as Board Chairman was pending in the Senate, that Gould had a gambling problem and accepted bribes in arbitration cases to pay off his gambling debts. (9) Charges like this illustrate the hardball nature of Washington politics, especially in closely fought Senate confirmation battles. (10)

   Of greater interest is Professor Gould's account of the NLRB's role in resolving the baseball strike that began on August 12, 1994, and resulted in the cancellation of the remainder of the 1994 season, including the World Series. That account illustrates three characteristics of Gould's memoir. First, it is a serious work of scholarship. In his discussion of the baseball strike, Professor Gould provides an excellent, scholarly treatment of the history of collective bargaining in professional sports and the legal issues confronting the Board and the parties in the particular labor dispute in question. (11)

   Second, the book sheds valuable light on the relationship between the Executive Branch and the so-called independent agencies, revealing that behind-the-scenes communications between the White House and the NLRB occur more frequently than might be expected. For example, several weeks before the strike began, Gould was asked by the Secretary of Labor to suggest a mediator who could be named by the White House to assist in the bargaining between the owners and the union representing the players. (12) The following spring, when the Board was considering seeking an injunction against the owners' alleged unfair labor practices, the mediator eventually selected, former Secretary of Labor William J. Usery, called Gould to ask that the Board delay its decision because he thought (mistakenly) that the players and owners were close to an agreement. (13) Before the Board agreed to do so, Gould called White House Counsel Abner Mikva to discuss the mediator's status. (14) A few days later, after Gould and Board member John Truesdale got into a shouting match over Gould's discussion of the injunction case with a New York Times reporter, Gould had lunch with Mikva at the White House and "asked for him to see if Truesdale could be taken to the `woodshed.'" (15) Gould later acknowledged that he "erred in making the request and Mikva was correct in rejecting it," (16) but these and other contacts between Gould and members of the executive branch--for example, Secretary of Labor Robert Reich's suggestion during the budget crisis of 1995-1996 that the Board delay issuing certain controversial decisions until Congress passed a budget(17)--highlight the fact that "the line between appropriate and inappropriate contact or discussion was inherently vague." Gould's view is that these contacts are on the appropriate side of the line so long as they are "unrelated to the actual substantive merits of particular cases." (18)

   The third characteristic of Professor Gould's memoir illustrated by his account of the baseball strike is the author's discussion of his interpersonal relationships with other Board personnel and his determination to settle some old scores. As one journalist has explained, "Gould did not lack for ego, and like many proud and accomplished men he was also demanding, at times prickly and thin-skinned." (19) After describing a disagreement he had with NLRB general counsel Fred Feinstein, Gould wrote in his diary:

   This incident reminds me of the fact that all the principal players [inside the Board] here are not friends in any sense of the word. Feinstein has been calculating ... from the very beginning. This is to be contrasted with the relationship between [Chairman Frank] McCulloch and [Arnold] Ordman [general counsel under President Kennedy] that existed when I was on the legal staff here in the sixties. They had a good relationship and consulted with one another. Feinstein rarely consulted me, if at all, and only does so when he has already talked to many others and has a plan to promote his office. Regrettably, [Board Member Margaret] Browning is aligned to him and so is Truesdale. [Members] Stephens and Cohen, of course, are completely tied into the Republicans on Capitol Hill and thus cannot be trusted at all. I continue to hear rumors from a number of sources that [Senators] Kassebaum and Hatch are planning an investigation of me and are looking at my travel records. (20) The dispute with Feinstein alluded to in the foregoing passage related to the respective roles of the general counsel and the Board in injunction cases, particularly high profile ones like the injunction against the baseball owners. Both Gould and Feinstein took office sharing the view that justice delayed often meant justice denied when it came to applying the NLRB's already weak remedial powers. (21) If the NLRB were to be effective in enforcing the federal labor policies embodied in the National Labor Relations Act (NLRA), therefore, both believed that the NLRB must exercise its "infrequently used discretionary power" to seek preliminary injunctions pending the Board's final resolution of certain types of unfair labor practice cases much more often and more aggressively than it had used that power in the past. (22) Indeed, Gould described the NLRB's more frequent use of these injunctions, pursuant to section 10(j) of the Act, (23) as "the most important reform of all" during his tenure in office. (24)

   Under the statutory scheme, however, 10(j) injunctions could be sought in federal district court by the NLRB's general counsel only after the Board itself approved the general counsel's request for authorization to do so. This division of responsibility between the Board and the general counsel resulted from the 1947 Taft-Hartley amendments to the Act, (25) which made the general counsel independent from the Board and thus produced, in Gould's view,

   a two-headed monster that posed serious administrative problems.... Feinstein and I were frequently at odds, and he had the advantage of not sharing his authority with anyone else. Quite frequently, he undercut my efforts by going to [Margaret] Browning, and later [Members Sarah] Fox and [Wilma] Liebman, to gain support against positions I had taken. (26) In the case of the baseball injunction, Feinstein and Gould...