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Quiet Revolution at the Labor Board: the Transformation of the NLRB 1935-2000, A

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Quiet Revolution at the Labor Board: the Transformation of the NLRB 1935-2000, A A Quiet Revolution at the Labor Board: The Transformation of the NLRB, 1935-2000 JOAN FLYNN* As the twentieth century comes to a close, the NationalLabor Relations Board has come 180 degreesfrom its origins in the New Deal era The Congress that created the Board in 1935 envisioned a body made up wholly of "impartial Government members, " and consistent with this spirit, early Board appointees were drawn from government or other neutral backgrounds. President Eisenhower, however, the first Republican Presidentsince the passage of the Labor Act, quickly broke with this traditionand appointed individualsfrom the management side to the Board Although such partisan appointments were originallya source of controversy, over the last half-century they have gradually become not only accepted, but the norm. Indeed, the two most recent Boards have consistedof two management and two union lawyersflanking a neutralas chair and swing vote-the very tripartite model of the agency that had been explicitly considered and decisively rejected by the Congress that brought the Board into being. In this article,Professor Flynn traces the evolution in NLRB appointment norms andpractices from 1935 to today, assesses the impact of the increased prevalence ofpartisanBoard members on NLRB decision-making and attempts to explain why the partisanappointees ofthe lastffleen years have, accordingto the empiricaldata; been so much more one-sided in theirvoting than were their predecessorsfrom similarbackgrounds. She concludes thatthis marked increase in partisanvoting which has been particularlypronounced during the Clinton years, is a product of a shif toward greater senatorial control over the appointmentsprocess at the expense ofthe President.She further concludes that this shift in the norms governing the NLRB appointments process, which is reflected most starkly in the rise of "'packaged"appointments, is part of a more general shift in presidential appointment norms. Thus, this article places contemporaryNLRB appointmentpractices not only in sharpjuxtaposition to the practices that held sway in the Act's early years, but in the context of larger trends in the politicalprocess. * Assistant Professor of Law, Cleveland-Marshall College of Law, Cleveland State University; formerly, Staff Counsel, Member Charles I. Cohen, National Labor Relations Board, Washington, D.C. (1994-96), Field Attorney, National Labor Relations Board, Chicago, Illinois (1989-91). B.A., Grinnell College, 1982; J.D., New York University, 1987. I am extremely grateful to Kevin Luken for tracking down the vast majority of the source materials involved in the writing of this article and for his great enthusiasm for the overall project, and to Roger Bundy for stepping in at the eleventh hour and finishing off the job. Special thanks are also owed to Mark Gooch, formerly the Government Information Specialist at the Cleveland- Marshall Law Library, for his invaluable assistance-and persistence-in locating materials for this article. Finally, my thanks to Alan Weinstein and Deborah Geier for reviewing an earlier draft of this article, and to the Cleveland-Marshall Fund for providing the financial support for this project. 1362 OHIO STATE LAWJOUR[.AL [Vol. 61:1361 You cannot make a man an impartialjudge in his own case. ...[T]he presidentof the American FederationofLabor... could not possibly sit there in an impartial manner.... [I]fyou want/] to create an impartial tribunal, it will 1 not be composed of[the representativesof] employers and employees. James Emery, General Counsel, National Association of Manufacturers-Hearings on proposed Labor Disputes Act, 1934 I say, gentlemen that... when you clothe the board with any such powers as these the individuals composing it should be selected to represent one interest 2 and one interest alone, andthat is thepublic interest. Nathan L. Miller, General Counsel, United States Steel Corporation-Hearings on proposed Labor Disputes Act, 1934 Let us recognize reality.Labor low is a dichotomous world Labor lawyers represent either management or labor, and they tend to share the sentiments of their clients on labor-management issues.... If the Board is to be filled with individuals who have expertise in the labor laws, there is no avoiding the necessity to drawfrom pools ofindividuals who have views on the law which can generally be classified[as]pro-laboror pro-management. The current system ignores this reality[;]... it pretends to seek candidates who are "acceptableto all sides. "... A healthier approachmay be to acknowledge that Boardmembers can only be drawn from the two camps and let each camp suggest its own candidate ... [W7ith a Democrat in the White House, the labor camp will get threepicks and,with [a] Republican [president], managementgets three.3 Daniel Yager, Labor Policy Association-Oversight Hearings on National Labor Relations Board, 1996 1 A Bill to Equalize the BargainingPower of Employers and Employees, To Encourage the Amicable Settlement of Disputes Between Employers and Employees, To Create a National Labor Board,andfor Other Purposes: Hearingson S.2926 Before the Senate Comm. on Educ. and Labor, 73rd Cong. 340, 383 (1934) [hereinafter Hearings on S. 2926], reprinted in 1 NLRB, LEGISLATiVE HISTORY OF THE NATIONAL LABOR RELATIONS ACT OF 1935, at 374,417 (commemorative reprint 1985) [hereinafter 1 LEG. HIST. OF THE NLRA] (testimony of James Emery, General Counsel, National Association of Manufacturers). 2 Hearings on S.2926, supra note 1, at 883, 889, reprintedin 1 LEG. HIST. OF THE NLRA, supra note 1, at 921, 927 (testimony of Nathan L. Miller, General Counsel, United States Steel Corporation). 3Examining the Activities and Progressof the NationalLabor Relations Board: Oversight HearingBefore the Comm. on Labor andHuman Resources, 104th Cong. 91 (1996), reprinted in THmNLRB: AN AGENCY INCRISIS, STATEMENT OF THE LABOR POICY ASSOCIATION BEFORE THE SENATE LABOR AND HumtAN RsouRcEs CoaffrrrE, OVERSIGHT HEARING ON THE NATIONAL LABOR RELATIONS BOARD 50 (1996) [hereinafter AGENCY INCRISIS]. 2000] QUIETREVOLUTIONAT THE LABOR BOARD 1363 INTRODUCTION When the National Labor Relations Board (NLRB or Board) was founded in 1935, Congress envisioned the Board as a "strictly nonpartisan" body 4 The forerunner of the NLRB, the National Labor Board (NLB),5 had been set up on a tripartite basis, with an equal number of industry and labor representatives flanking a chair who represented the public interest.6 Senator Wagner's original bill had retained this tripartite structure, providing for a board composed of two members "designated as representatives of employers, two as representatives of employees, and three as representatives of the general public."7 Once it was determined, however, that the new agency-unlike the NLB8 and the board originally envisioned by Senator Wagner9 -would be an adjudicatory rather than a mediation or arbitral body, "a consensus [emerged] that only the public should be represented."' 0 The final legislation thus deleted any reference to partisan 4 See STAFF OF SENATE COMM. ON EDUC. AND LABOR, 74TH CONG., COMPARISON OF S. 2926 (739 CONGRESS) AND S. 1958 (74TH CONGRESS) § 3 (Comm. Print 1935), reprinted in 1 LEG. HIST. OFTHENLRA, supra note 1, at 1319, 1320. 5 This board was created by executive order in 1933. JAMES A. GROSS, THE MAKING OF THE NATIONAL LABOR RELATIONS BOARD: A STUDY IN ECONOMICS, POLITICS, AND THE LAW 15 & n.31 (1974) [hereinafter GROSS, MAKINGOFTHENLRB]; IRVING BERNSTEIN, TURBULENT YEARS: A HISTORY OF THE AMERiCAN WORKER 1933-41, at 173 (1970). In mid-1934, a subsequent executive order transferred its functions to a newly created body called the National Labor Relations Board. GROSS, MAKING OF TE NLRB, supra, at 72. This "old National Labor Relations Board" or pre-Wagner Act Board, which was authorized to conduct investigations, hold hearings, and make findings of fact, but had no decision-maling authority, see id, was of course supplanted by the new board created by the National Labor Relations Act, discussed infranotes 10-12 and accompanying text. 6 GROSS, MAKING OF THE NLRB, supra note 5, at 16, 25. The chair was Senator Wagner. Id at 16. 7 See S. 2926, 73d Cong. § 201 (1934), reprinted in 1 LEG. HIST. OF THE NLRA, supra note 1, at 4; see also H.R. 8423, 73d Cong. § 201, at 7-8 (1934), reprintedin 1 LEG. HIST. OF THENLRA, supra note 1, at 1131-32 (indicating that original House bill also provided for four partisan members and three representatives of the public interest). 8 See GROSS, MAKING OF THENLRB, supra note 5, at 20 (noting that NLB's objective was to prevent or settle strikes that might interfere with the economic recovery effort). 9 When introducing his original bill, Senator Wagner stated: The... Board, under [this] legislation, is not designed to act chiefly as a policeman or ajudge. Its chief function will be to mediate and conciliate industrial disputes, and to offer its services as an arbitrator whenever the parties so desire. 78 CONG. REC. 3443 (1934), reprintedin 1 LEG. HIST. OF THENLRA, supra note 1, at 17. 10 A Bill to Promote Equality of BargainingPower Between Employers and Employees, To Diminish the Causes of Labor Disputes, To Create a NationalLabor Boar andfor Other Purposes:Hearings on S. 1958 Before the Senate Comm. on Educ. and Labor, 74th Cong. 291 (1935) [hereinafter Hearings on S. 1958], reprintedin 2 NLRB, LEGISLATIVE HISTORY OF THE NATIONAL LABOR RELATIONS AcT OF 1935 at 1617, 1677 (commemorative reprint 1985) 1364 OHIOSTATE LAWJOUR[.AL [Vol. 61:1361 representation,' 1 and it was fully understood that the new NLRB was to be staffed 12 solely by "three impartial Government members." Consistent with this spirit, in the early years of the National Labor Relations Act (NLRA or Act),13 the notion of appointing someone from the management or union side to the Labor Board was considered completely verboten; it was 14 generally agreed that such a person could not possibly be fair to both sides, much less be perceived as such, and most Board members were drawn from [hereinafter 2 LEG.
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