FOR IMMEDIATE RELEASE |
(R-2227) |
|---|---|
Wednesday, June 11, 1997 |
202/273-1991 |
It is a pleasure to participate in this thirteenth Governor's Labor-Management Conference. I am honored to speak to this audience of practitioners in the labor-management relations field which is my life's work.
This is my second visit to Alabama. My first was in 1966 when I was acting as a consultant and conciliator to the U.S. Equal Employment Opportunity Commission when it was just establishing its machinery and procedures. This was a very tense and tumultuous period and I can recall meeting with the late Oscar Adams, later to become the first black Supreme Court Justice of Alabama, as well as black ministers in Birmingham, as we investigated and attempted to conciliate unlawful employment practice allegations in this area.
My visit to Birmingham those 31 years ago represented the first time that I had ever been in the South. It was an eye-opener to me. There has been much progress in the nation since then and recognition on my part, and so many others, that racism, and the racial inequalities that flow from it, are an international problem as well as an American one. But we have a particular responsibility and burden to root out the racism which exists in our society and to do it while we are ever conscious of the ways in which the more overt practices of the past are inevitably embodied in so many of our institutional practices today.
I feel privileged and proud to serve as part of the Clinton Administration and President Clinton who, to my way of thinking, is the most committed President in the area of race relations since Lyndon B. Johnson's presidency from '63 to '69.
I also want to take this opportunity to thank Senator Richard Shelby of Alabama for his support of my nomination by President Clinton on March 2, 1994. I am grateful to Senator Shelby and look forward to working with him in the future.
This is my first Alabama Governor's Conference although I am familiar with the tradition of your conferences through Doug Marshall of our NLRB office in Birmingham. Doug has told me a bit about the history of the Governor's Conferences. I could not agree more with Labor Commissioner Jerry Ray's convictions regarding the value of getting the union and management practitioners of collective bargaining together -- the people who actually make collective bargaining work every day on the shop floor and who attempt to promote genuine dialogue.
The underlying premise of the conference is a particularly valuable one in today's polarized environment -- providing an occasion for labor and management to get together to break bread and share ideas and experiences outside the bargaining environment. These kinds of forums involving labor, management and government bring about better understanding amongst the people whose expertise and good faith are needed to make our unique system of free collective bargaining work. Thus, it is indeed a pleasure to be here to discuss with you some of the recent developments and issues of current concern involving the National Labor Relations Board.
This conference recognizes how important constructive labor-management relations are in today's global economy so I was pleased to see that Chrysler and the UAW, some of whose representatives I know from my Detroit days, were on the program yesterday telling about their joint efforts to improve product quality. Good relationships between labor and management, based on mutual respect, are a valuable asset to workers and employers, to states like Alabama who are seeking to attract new industry, and to our country in today's competitive world economy.
Employers are increasingly recognizing that they cannot afford the cost to their bottom line of labor-management conflict. They are discovering the value of cooperation and employee involvement and teamwork. Unions increasingly are becoming more comfortable with a more collaborative and cooperative role in addition to, not in place of, their traditional collective bargaining and employee advocate functions.
One of my main goals as Chairman of the National Labor Relations Board has been to foster a environment of labor-management cooperation and one which encourages employee involvement, participation and teamwork in union and non-union workplaces.
In recent years concern has been expressed by some employer groups about conflicts between Section 8(a)(2) of the National Labor Relations Act -- which was designed to prohibit the company unions of the 1930s -- and employee involvement programs, which have become so much more common in recent years both in union and non-union workplaces. A conflict between some employee participation programs and the National Labor Relations Act exists but, on balance, attention has been overstated.
There have been a few instances in recent years, beginning with the much discussed and frequently misinterpreted Electromation 1 case in 1992, where such programs have run afoul of the Act, but they are garden variety disputes similar to those that we confronted six decades ago and are relatively rare. For example, in 1996, Section 8(a)(2) cases represented less than 2 percent of the total unfair labor practices charges received. Sometimes I think that this is an issue in search of a problem.
Nevertheless, four years ago I wrote a book advocating legislation reform in this area 2 and the Dunlop Commission, of which I was a member until March 1994, recommended that consideration be given to amending the Act to provide for more flexibility for employee participation accompanied by corresponding changes in the law needed to ensure that workers have ready access to independent representation and collective bargaining. I supported that recommendation, but I do not support the TEAM Act . As currently proposed it would go too far in opening the door to company-dominated mechanisms.
My view is that the Act should be amended to clarify the legality of employee involvement programs whose goals are to improve product quality and productivity and to encourage teamwork, but not company-dominated programs where team leaders and agendas are determined by management and seek to serve as a substitute for collective bargaining or whose purpose is union avoidance. The decisions on 8(a)(2) rendered by the Clinton Board have reflected this view insofar as possible under the current law.
As I have stated on previous occasions, the genius of the National Labor Relations Act is that it provides a framework for industrial relations designed to keep government out of the workplace, leaving most problems to resolution by the parties who are best equipped to solve them using the kinds of creative means preferred by those most directly affected. Since March 1994, our decisions have attempted to reflect a balance and consideration for the competing interests of labor, management and individuals, as well as a commitment to the practice and procedure of collective bargaining and the promotion of procedures voluntarily negotiated by the parties.
For those of you who may not be familiar with the National Labor Relations Board, it is one of the independent regulatory agencies established in the Roosevelt New Deal era. The NLRB is composed of two main parts: a five-member Board appointed by the President and confirmed by the Senate. By custom, the Chairman and two other members of the Board are from the Administration's party, and the other two are from the other party.
Since the Taft-Hartley amendments of 1947, the agency has had an independent General Counsel who also is appointed by the President and who prosecutes cases brought before the Board for adjudication.
Our agency administers the National Labor Relations Act, the nation's primary labor law governing labor relations in the private sector which establishes the legal framework for labor-management relations in the country. The Act was passed by the Congress in 1935 and has been amended three times since. The NLRB is a small agency by Washington standards: employment in 33 field offices throughout the country and our Washington headquarters is 1,950, down from a peak of just under 3,000 in 1979.
The agency performs two main functions. We conduct about 3,000 secret ballot elections each year to determine whether a majority of employees in a plant, company or other employing unit wish to be represented by a union or to cease being represented by a union. The agency gives priority to this process. The median time from receipt of an election petition to the actual election is 44 days. Between five and six percent of these elections are conducted by mail in cases where employees are scattered and cannot easily vote in their workplace and in some cases where small employers are located in remote locations in order to reduce the cost to the Board. The vast majority of the elections are still held in the traditional way since the 1930s -- in the workplace.
Our second function is to adjudicate charges of unfair labor practices by employers or by unions that arise in the context of the elections and, among others, charges of failure to bargain in good faith in contract negotiations between employers and unions. Our agency receives about 40,000 unfair labor practice charges each year. More than 90 percent are resolved relatively quickly at the regional level without ever reaching the Board in Washington.
For many years our agency's policy has been to encourage private processes for resolving disputes and we defer to the decisions of private arbitrators in most situations.
Grievance arbitration is a long established and well accepted procedure in the unionized sector of the workforce. The process dates back to the 1920s. It has been endorsed by the U.S. Supreme Court in the Steelworkers Trilogy 3 as a cornerstone of national labor policy. Well-established safeguards for employees and employers are contained in collective bargaining agreements, in procedures and protocols of the National Academy of Arbitrators, the American Arbitration Association, and in the law.
Using arbitration to resolve employment disputes in the non-unionized sector of the economy is a more recent but rapidly growing practice -- a phenomenon accelerated by both the emergence of employment-related statutes and wrongful discharge actions. In my view, this issue is closely related to employee involvement and participation since some fair and equitable method must be found to resolve differences between employees and employers when they occur as they inevitably will do. In 1984, I co-chaired a panel of the California Ad Hoc Committee on Wrongful Dismissals which recommended legislation providing for arbitration of wrongful discharge disputes in the non-union sector. Those proposals never became law in California or in any major jurisdiction. But now the adoption of alternative dispute resolution procedures by nonunion employers is moving forward.
The Dunlop Commission examined the use of arbitration, mediation and other forms of private dispute resolution. It concluded that private parties should be encouraged to adopt in-house alternative dispute resolution systems, and that private arbitration systems should meet certain standards of fairness. The Commission's 1994 final report said:
The challenge . . . is how to encourage the creative potential of alternatives to standard court litigation, while ensuring that the legal needs and priorities of a diverse American work force are fairly satisfied.4
At the Board our challenge is to determine the legality of such procedures as they come before our Agency.
As has been pointed out by many, the savings through alternative dispute resolution to the government agencies and to the parties by avoiding litigation and appeals can be enormous. However, for the system to succeed in the long run, the focus must be on whether the ingredients of impartiality of the arbitration panels, in the selection of the arbitrator, in sharing the cost of the hearing and on the empowerment of the arbitrator to fashion a remedy comparable to those available in the courts under the statute.
Turning now to my own agency, we have instituted a number of administrative innovations designed to make our processes more efficient and conducive to labor-management cooperation. These include the appointment of Advisory Panels composed of outstanding employer and union attorneys, the adoption of new Administrative Law Judge procedures designed to encourage voluntary settlements by the parties and the adoption of Speed Team and Superpanel procedures to simplify and speed up the decisions of the five-member Board.
One of our first actions after confirmation was to appoint Advisory Panels composed of distinguished union and management labor lawyers, 26 of each. These panels serve without compensation and meet twice yearly to advise the Board and General Counsel on improving service to the public. The panels have provided an invaluable sounding board for the agency on various public policy issues and a link to the labor law bar and our constituents in labor and industry.
One of the first innovations discussed with the Advisory Panels and adopted by the Board involved our agency's 62 Administrative Law Judges, who are the first level of appeal of unfair labor practice findings by our regional offices. The agency now has fewer judges than at any time in recent history. Their numbers have been reduced by attrition from 117 in 1981 to 62 today. More than 1,000 cases are resolved by our judges each year by decisions and settlements. The ALJ hearings often last several weeks and produce long transcripts of hundreds or even thousands of pages. The median time required for decisions was 111 days (62 days from receipt of briefs from the parties). These cases consume considerable resources of the NLRB and of the parties. So, this was the first area we studied for ways to improve. Three changes were made: (1) an informal settlement judge process was created to produce settlements agreeable to the parties through informal conferences; (2) a rule was adopted permitting the judges to hear oral arguments in simple cases, dispense with written briefs and issue bench decisions; and (3) the adoption of time targets for the issuance of ALJ decisions.
We are very proud of the results achieved to date under the new procedures. We have reached settlements in more than two-thirds of our settlement judge referrals. Of such cases, 136 were settled without formal hearings, lengthy transcripts or costly appeals to the Board in Washington and possibly to the Courts of Appeals. The bench decision procedure also has produced worthwhile results. In 1996, it was used in 48 or 4.5 percent of all ALJ decisions.
The time targets adopted by the Board have produced good results as well. The median number of days from hearing to decision dropped from 138 days in 1993 to 128 in 1994 to 114 in 1995 and to 111 in 1996. To give you an idea of the resources involved in this process, the average hearing transcript was 603 pages in 1996. These are complex, vigorously contested cases.
Overall, our Administrative Law Judges issued 442 decisions and obtained 725 settlements in 1996. The settlements represented a 13 percent increase over the previous year. This significant improvement reflects greater emphasis by the Clinton Board on settling cases where possible in order to reduce the cost and delay of litigation.
For many years a recurring criticism of the NLRB has been the time required for the rendering of Board decisions -- justice delayed is justice denied.
In an effort to respond to this complaint, the Board has adopted two innovative changes in its procedures designed to speed up the processing of simpler and less controversial cases. They are called "Speed Teams" and "Superpanels."
Speed Team cases are presented orally to a Board member and, after discussion, a written decision is prepared within a few days so that the Board member can approve it while the case is still fresh in his or her mind. This procedure eliminated the preparation of duplicative documents in cases which are essentially factual and where credibility determinations have already been made. The Speed Team procedure has been used in about 30 percent of our cases since it was adopted with a reduction of about 20 percent in the time for decisions. Median processing times were reduced from l05 days in 1993 to 84 days in 1996.
The Superpanel system was implemented in November 1996 for processing certain cases carefully pre-selected by the agency's Executive Secretary. Under this procedure, a three-member panel meets weekly to decide cases which lend themselves to quick decisions without lengthy written analyses by each Board member's staff. Most of the cases are resolved unanimously based on straightforward application of settled precedent within a few days of their receipt by the Board.
Since the Superpanel procedure was implemented, of the 151 cases referred to the panel, 125 were resolved unanimously, 16 with brief dissents, and 10 were not resolved. This procedure has been used to resolve about one-third of the representation cases received by the Board since it was adopted. The procedure differs from a similarly-named procedure tried in the 1980s in that it is used solely for the simplest cases and primarily for representation cases, whereas the previous procedure was used briefly for more complex unfair labor practice and representation cases in an effort to deal with a growing case backlog. This effort was dropped because the Board found that complex unfair labor practice cases did not lend themselves to quick resolution based only on oral presentation. The approach we are now using deals only with the simplest cases freeing the attorneys for more detailed analysis of the more complex cases. It appears to be working well.
Because of the deadlock in the Senate confirmation process, the Board currently is functioning with only three members instead of a full complement of five. Two of the three are recess appointees who have not been confirmed by the Senate. We are hopeful that the matter will be resolved and that the Board will be restored to five members before the end of the current session of Congress.
This opportunity to speak to you has been a great one for me. Your conference represents what is best in labor-management relations. I wish you Godspeed in your deliberations and your work.
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* * * FOOTNOTES * * *
1 309 NLRB 990 (1992), enforced, 35 F.3d 1148 (7th Cir. 1994).
2 William B. Gould IV, Agenda for Reform: The Future of Employment Relationships and the Law (MIT Press) 1993.
3 United Steelworkers v. American Manufacturing Co. 363 U.S. 564,(1960); United Steelworkers v. Warrior and Gulf Navigation Co., 363 U.S. 574 (1960); United Steelworkers v. Enterprise Wheel and Car Corp., 363 U.S. 593 (1960).
4 Report and Recommendations, Commission on the Future of Worker-Management Relations, December 1994, p. 27. Although I did not participate in the preparation of the final report, its recommendations are consistent with the policy advocated by the California State Bar Committee on Wrongful Discharge advocated in 1984.
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