On Fri, 6 Oct 1995, Eric Nilsson wrote: * * * > Robert Flanagan in _Labor Relations and the Litigation Explosion_ > pointed out the same thing: the long delay in punishment for > labor law violators meant there was, in essence, almost no > punishment. And, this was true BEFORE the coming of the > Reagan administration. There is a growing labor literature > on this point. > > One key reason for this is the nature of postwar labor law in the > US. Most important violations of labor law by unions/workers are > "per se" illegal: they are illegal without question and the punishment > or injunction against labor is almost immediately granted. > > However, for a variety of reasons, most violations of labor law > by employers is NOT per se illegal: hearings, fact gathering, > and a judgement by NLRB (for federal law violations) must > occur before the management behavior is found to be illegal. It's not often that being a former NLRB attorney on a list of ecnomists raises any issues that I can speak to, but I want to make a few emendations here and also to raise some questions for serious consideration. By this I mean that they be given some thought and not just reacted to. I ask this because they will be outside the mainstream critique which you refer to. It is not the case that Union violations are "per se" illegal. The NLRB does not pursue any violations at all unless there has been an investigation. This includes CA (charges against an employer), CB, CC, CD, CP charges (against unions -- there are none directly against workers). What can be different in the charges cc-cp is that there is an expedited process for going into court to get an injunction under sec. 10(l). There is also an expedited process for going into court against employers under sec. 10(j). I tried and was otherwise involved in a number of these when I was with the NLRB. Obvoiusly there is a differnece between the two. One often cited is that the 10(l) decision can be made in the Region, whereas the 10(j) requires approval from the General Counsel and Board itself. There is another difference which I have never seen discussed but which is relevant. The investigation before seeking a 10(l) is relatively easy. You look for pickets. The issues of motive are usually easy to see from the signs and where the picketing is being done. (This is not to say I support secondary boycott law). The facts and proofs are very cut and dried. Putting together a case to prove an employer has violated the NLRA is more difficult. There is just no way to make it simple. In my years with the NLRB I only once found a letter from an employer that said: "We fired our workers because they were involved in union activity." That's what you have to show. It takes careful investigation to put together a case to prove what is hidden away. Even if the Region could decide the case, putting together the proofs of intent, act, harm would take a minimum of a few weeks working very long hours. I know. I've done it. And I tended to win these cases. > This, > given the backlog of cases, can take months or years. Maggie's > experience is quite typical. Ask why there was this backlog even before the Reagan years. We had to investigate our cases in 26 days. This is pretty speedy given what has to be proved. It was backlogged mainly because there weren't enough personnel. Even before Reagan there was a lack of financial support to let the NLRB hire enough staff. Adding additional requirements of speed and other legal proposals, even going back to the failed 1978 amendments, will not result in improvements unless enough money is allocated to hire enough judges and investigators and attorneys. Throughout my years there, the agency was woefully underfunded. It's amazing it had the win rate it did. We did not have basic legal materials. When I left the NLRB, we still did not have access to westlaw or lexis -- this was in 1991. Lexis had been in use since before 1978. Everyone we tried cases against had this sort of support and more. The attorneys did not have computers. Those who did bought their own and brought them in. Now I will raise a controversial point and just wait for angry responses. How is it that an agency which was there to protect the workers was allowed to be so underfunded and hamstringed that dedicated agents could nto do their work? Unions and friends of labor let budget bill after bill pass without demanding more funding. They even engaged in acts which were complicit with the enemies fo labor by calling for the repeal of the NLRA and the NLRB. The Right to Work Defense Foundation responded by suggesting a joint petition to congress in support of this proposal by the AFL-CIO to call its bluff. Unfortunately, there has been a lot of blaming which has been highly destructive to the cause of labor. When there should have been support for agencies which were put in place and lobbying to make sure they had the means to be effective, there were the opposite. > Actually, more on these sorts of things can be found in my > forthcoming RRPE article, The Breakdown of the U.S. Postwar > System of Labor Relations: an Econometric Study. (Shameless plug). > > Eric If you don't take these things into account in looking at what has happened, your analysis will be very incomplete and thus not very helpful in coming to grips with the complexity and reality of what has occurred and been allowed to occur over the past decades. I've seen a lot of analyses of what went wrong with the NLRB, and they all fail to make any effort to understand the factors that affected the NLRB. One gets the impression that the decision / outcome desired is chosen and then the evidence is looked for. It would improve all such studies if the ones making them asked for some insider information. You don't have to accept it, but you will come to a better result if you at least mull it over. ellen Ellen J. Dannin California Western School of Law 225 Cedar Street San Diego, CA 92101 Phone: 619-525-1449 Fax: 619-696-9999
