As the country lurches from the Biden administration — perhaps the most pro-labor White House in American history — to the ferociously anti-labor Trump administration, one agency stands in the way of the transition.
It’s the National Labor Relations Board, created in 1935 as a quintessential New Deal regulatory agency. Unfortunately for workers, today, 90 years since its creation, the board is facing an existential threat from Big Business and from a Supreme Court that seems inclined to diminish its authority, . Its ability to fight back, however, is burdened partisan politics and its own history.
That’s the view of William B. Gould IV, who served as the board’s chairman during the Clinton administration. He views the NLRB’s future with “the greatest pessimism,” he says.
When the Democrats are in, they rule for the unions. When we are in, we do what is right.
Sen. Orrin Hatch (R-Utah) to William B. Gould IV during the latter’s 1973 confirmation battle for NLRB Chair
Having left the board in 1998, Gould, 89, has kept a weather eye on the agency from his perch as a professor at Stanford Law School, which he first joined in 1972 and where he currently holds an emeritus chair.
“I view what’s happening today as part of a continuum,” Gould told me this week. “Since the early 1980s, Congress has attempted to politicize the board to relitigate the assumptions about labor-management relations that got the National Labor Relations Act enacted in 1935. That drum has just gotten louder and louder.”
The key assumption in 1935 was that, in the words of the act’s preamble, “the denial by some employers of the right of employees to organize and the refusal by some employers to accept the procedure of collective bargaining” had led to “strikes and other forms of industrial strife or unrest,” which in turn obstructed commerce.
Accordingly, the act’s very purpose was to protect the workers’ collective bargaining rights — their right to unionize and through a union to negotiate wages and working conditions.
But the act left it up to the board to decide for itself what constitutes an “unfair labor practice” obstructing unionization rights, which the law prohibits.
The term of its members was set at five years; although members are appointed by the president and confirmed by the Senate, by law no more than three of its five members can come from the same party. One member’s term expires every year, giving every incoming president the ability to shape the board to meet his or her own partisan preferences.
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At this moment, only two of the board’s seats are filled (by one Republican and one Democrat). That’s because Trump fired two members, including Democrat Gwynne Wilcox, leaving it without a three-member quorum. Two GOP nominees are still awaiting Senate confirmation.
Over the last 45 years, Gould observes, the board’s treatment of collective bargaining rights has swung widely between Republican hostility and Democratic sympathy.
Gould’s view of the NLRB’s past, present and future is explored in his forthcoming memoir, titled “Those Who Travail and are Heavy Laden: Memoir of a Labor Lawyer.” (The title comes from the gospel of Matthew, via the Anglican Book of Common Prayer.)
Gould was a pioneer all his professional life. The great-grandson of an escaped slave, Gould was the first Black chairman of the NLRB and the first Black law professor at Stanford. (His great-grandfather’s life drawn from his forebear’s written diary — itself a rarity among former slaves—is the subject of one of Gould’s 11 previous books.)
In his book, Gould acknowledges making use of his light skin to “pass” as white — at a public pool in his childhood hometown of Long Branch, N.J., he relates, “the pool attendant said to me: ‘White or colored?’ I said, ‘White,’ and I was admitted. … After social exclusion in both high school and university, and as the sole Black American student at Cornell Law School, I was often silent about my own racial origins.”
As a lawyer and law professor, however, Gould’s scholarship about institutionalized racism in employment relations became a byword. He wrote extensively about racial discrimination by employers and unions. In 1973, while at Stanford, he was part of a legal team that won a $4-million federal court judgment for Black employees of Detroit Edison who had been the victims of systematic job discrimination.
Along the way, he promoted labor rights and standards around the world, especially in apartheid-era South Africa, where he gave a series of speeches and met with leaders of Black unions. He arbitrated salary disputes in baseball, of which he is a lifelong fan. (His manuscript has almost as many photos of him with baseball greats — Cal Ripken, Dusty Baker — as with political and professional contacts (Nelson Mandela, Bill Clinton).
As Clinton’s nominee for the NLRB chairmanship in 1973, Gould got an inside view of what had become the new politics of Senate confirmations. Traditionally, as Stanford political scientist Terry Moe has written, deference to a president’s choices had been the rule, barring “a ‘smoking gun’ of some sort — a serious character flaw, criminal conduct … or obvious inability to carry on the duties of the job.” A nominee’s ideology was not treated as legitimate grounds for rejection.
By the time of his nomination, confirmation had turned into an all-out ideological war. NLRB appointments were subjected to ideological litmus tests; the opposition to Gould’s appointment came chiefly from the fiercely anti-union National Right to Work Committee.
The GOP assiduously examined Gould’s extensive writings, which included proposals for reform of the increasingly creaky NLRB, for suspect pro-union thinking in what he labels “a deliberate disinformation campaign.”
There were fabricated rumors of gambling debts and of affiliations with Communists, but the core of opposition was anti-union sentiment in the GOP. “When the Democrats are in, they rule for the unions,” the late Sen. Orrin Hatch (R-Utah) told Gould during a pre-confirmation private meeting. “When we are in, we do what is right.” It would take nearly nine months for his nomination to be confirmed.
As NLRB chair, Gould tried to put teeth in the board’s oversight of unionization elections by exploiting its statutory authority to seek court injunctions against unfair labor practices, rather than leaving the matters to the board’s administrative procedures, through which complaints could take months or even years to resolve. His board would seek and obtain more injunctions than any board up to that time.
“If workers were dismissed in organizing drives, we were able to go directly into federal court, we could get workers reinstated, or oblige an employer to bargain with a union in good faith while the administrative process was being exhausted,” he says. “Nowhere is the maxim that ‘justice delayed is justice denied’ more accurate than in labor.”
That brings us to the condition of the NLRB under Trump. As my colleague Suhauna Hussain has reported, advances in unionization rights advanced under President Biden are being systematically rolled back. William B. Cowen, the board’s current general counsel — a presidential appointee who is the chief investigator and prosecutor of unfair labor practices — has rescinded about a dozen guidance memos issued by his Biden-appointed predecessor, Jennifer Abruzzo, whom Trump fired.
These include memos aimed at expanding employee rights of college athletes and sharply narrowing the legality of noncompete and nondisparagement clauses in employee contracts and severance agreements. Cowen also signaled his opposition to seeking court injunctions. These and other actions will hamper the ability of workers to fight unfair labor practices and obtain redress.
The NLRB has also dropped several cases launched by the Biden board. The board has indicated that it will withdraw a case charging that Apple Chief Executive Tim Cook broke the law in 2021, when he threatened to track down employees who had leaked details of an all-staff internal meeting and indicated that they would be fired. Apple also had been accused of breaking the law by imposing confidentiality rules, firing a union activist, and spying on workers or making them think they were under surveillance. The board had alleged that the company had been “interfering with, restraining and coercing employees in the exercise of their rights.”
The NLRB’s independence is under attack on two fronts. One is a lawsuit filed by Elon Musk-owned SpaceX, which contends that the limitations in the 1935 act on firing board members or NLRB administrative law judges make the act unconstitutional. The SpaceX claims were upheld in August by the conservative 5th Circuit U.S. Court of Appeals; the case is certain to come before the Supreme Court.
That court, however, severely undermined the board’s independence in May when it allowed Trump’s firing of Wilcox to take effect while her lawsuit for reinstatement makes its way through lower federal courts. The NLRA allows board members to be removed only for “neglect of duty or malfeasance in office,” neither of which Trump cited in removing Wilcox.
The court’s conservative majority asserted that Wilcox must remain on the sidelines for now because “the Government faces greater risk of harm from … allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty.”
The decision drew a stinging dissent from Justice Elena Kagan, backed by Justices Sonia Sotomayor and Ketanji Brown Jackson, asserting that the majority’s action allowed Trump “really, to take the law into his own hands.”
Gould views the threat to the NLRB and employee rights as part of a trend that has placed employers in the driving seat of labor law. “The opponents of basic objectives of the act have been emboldened,” he told me. “The trend began 40 years ago, and I see what Trump is doing as its culmination.”
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This story originally appeared in Los Angeles Times.
