Labored Relations: Law, Politics, and the NLRB--A Memoir by William B. Gould IV, William B. IV |, Hardcover | Barnes & Noble
Labored Relations: Law, Politics, and the NLRB--A Memoir

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

by William B. Gould IV, William B. IV
     
 

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From 1994 to 1998, William B. Gould IV served as Chairman of the National Labor
Relations Board. One of only three NLRB Chairmen to come from an academic background, he quickly realized that he was an outsider in a very political world. In this compelling memoir, Gould describes the tribulations of trying to assure impartial administration of federal labor laws

Overview

From 1994 to 1998, William B. Gould IV served as Chairman of the National Labor
Relations Board. One of only three NLRB Chairmen to come from an academic background, he quickly realized that he was an outsider in a very political world. In this compelling memoir, Gould describes the tribulations of trying to assure impartial administration of federal labor laws while faced with a hostile, Republican Congress. He describes his difficult confirmation process and wrenching Congressional hearings, particularly the one over Proposition 226, a ballot initiative that required unions to get explicit authorization from all represented workers prior to expending dues for political purposes. He tells how the behavior of both Board members and members of
Congress, guided by self-interest and rigid ideology, contributed to the Board's problems. He also recounts the positive strides the NLRB made during his tenure, despite the turmoil. The book provides an insider's view of what goes on behind the closed doors in our nation's capital,
including discussions with members of Congress, the White House, and President Bill
Clinton.

The MIT Press

Editorial Reviews

From the Publisher

"Gould's spirited defense could not have been more timely, nor more trenchant." Joy
K. Reynolds Monthly Labor Review

The MIT Press

Publishers Weekly - Publisher's Weekly
Focused more on Washington political in-fighting than on labor issues (Beltway junkies will be drawn to it for that reason), this memoir begins on a heartwarming note about Gould's great-grandfather's pride in having served the U.S. Navy in the Civil War, where the battle for free labor was originally won. Because he believes that his own democratic championing of "the rights and obligations of both labor and management" as chair of the National Labor Relations Board from 1994 to 1998 is essentially a continuation of the selfless service his forefather gave, the author returns repeatedly to this theme. Deliberate and dignified, yet undeniably defensive, Gould shares, in great detail, the behind-the-scenes wrangling that took place during the heated nine-month approval process for his chairmanship, followed by the continued wrangling that marked his term. From the baseball strike, the battle over Proposition 226 ("what the Republicans called `paycheck protection,' but it was actually designed to cripple the financial relationship between the trade union movement and the Democratic party") to the Detroit newspaper controversy, political disputes are, Gould says, partly to blame for the increasing logjam in NLRB cases. An African-American who teaches at Stanford University's Law School and an avowed Democrat, Gould exhibits a particular partisanship ("the Republicans in the one hundred and sixth [Congress are] simply interested in reversing progress.") in this otherwise thorough and engaging look at government in action. (Nov.) Copyright 2000 Cahners Business Information.

Product Details

ISBN-13:
9780262072052
Publisher:
MIT Press
Publication date:
10/02/2000
Pages:
395
Product dimensions:
7.00(w) x 9.00(h) x 1.25(d)
Age Range:
18 Years

Read an Excerpt




Chapter One

The Philosophical Underpinnings


Two major developments in American politics and labor history emerged in the last decades of the twentieth century. First, President Lyndon Johnson's prediction that the Democratic Party would lose the "solid South" to the Republicans because of the Kennedy-Johnson administration's promotion of landmark civil rights legislation in the 1960s was realized. By the 1980s new-found Republican congressional strength had mirrored presidential electoral results and triggered a more rightward tilt to the Republican party nationally, although this trend was most pronounced in the South. It resulted from the "southern strategy" first adopted by Barry Goldwater in his 1964 landslide defeat and, more successfully, by Richard Nixon and Ronald Reagan. Republican adoption of conservative social and economic policies—as well as conservative appointments to the Supreme Court and subordinate federal courts by presidents Reagan and Bush—were followed in the early 1990s by election of a new group of congressional Republicans and, in 1994, of Republican majorities in both houses. The fierce partisanship of these new members culminated in the 1998 impeachment trial of President Bill Clinton. Together, these developments constituted an explicit realization of Johnson's prophecy.

    The second major development of the last decades of the century was the decline of unions in American society. A kind of free-fall descent began earlier but accelerated in the 1980s and was most pronounced in the private sector, in labor's traditional strongholds of manufacturing andtransportation. In the 1990s the old leaders of organized labor at Washington's AFL-CIO headquarters, already hunkered down into a posture of impotent defense, experienced a palace revolt—albeit one democratically implemented—and were routed by the opposition for their failure to recruit new members. The new leaders' emphasis on organizing and electoral politics threatened business interests and the Republican elements that had had it all their own way during the Reagan and Bush administrations. The result was an even more polarized labor-management relationship than had characterized the 1980s and early 1990s. This divisiveness was particularly obvious in Washington, where policy disputes are fought out. Its implications for the struggle between the adversarial and cooperative models of labor-management relations in America are not yet fully discernible.

    It was inevitable that these two developments would have repercussions for the administration and interpretation of the National Labor Relations Act, the principal statute governing labor-management relationships in the United States. In particular, they would affect the work of the administrative agency created by that statute, the National Labor Relations Board (NLRB), as well as my own nomination, confirmation, and four-and-a-half-year tenure (1994 to 1998) as chairman of the NLRB.

    Added into this mix of factors was the perspective on labor issues I brought to my new position from my life experience and training. I was born in Boston, Massachusetts, in 1936, the great-grandson of a former slave, William B. Gould, who escaped from Wilmington, North Carolina, served in the U.S. Navy during the Civil War, and afterward became a citizen of Dedham, Massachusetts, immediately south of Boston. As the firstborn child of university-educated black Americans—the first to attend college in their families—I was brought up with values and ideas that made me think, in retrospect, that I had been born into both the Democratic party and the Episcopal Church. Indeed, my great-grandfather was one of the founding members of the Episcopal Church of the Good Shepherd in Dedham, where I was baptized. All members of our family were staunch Republicans—because of that party's progressive position on slavery and race during the Civil War and Reconstruction—until my father broke with that tradition in 1932. It is not, therefore, surprising that I have rarely strayed from the Democratic party and its support of economic and social justice and of policies that demonstrate concern for ordinary, average Americans and those who have been ostracized and excluded.

    I believe this focus has never been more vital than it is today, given the increased income disparities in our country—a gap between the rich and poor greater than in any of the industrialized free-market nations of Europe, Canada, or Japan. It is clear to me that the government must intervene in the market to help those who cannot help themselves. Such intervention and the provision of essential social services are the prerequisites for civilization—a point expressed by Justice Oliver Wendell Holmes in his 1927 maxim, "Taxes are what we pay for civilization."

    Inextricably tied to this idea is my own—and many others peoples'—conviction that what best unites us across racial and class lines is a government that performs well. Integral to this system of belief is a firm dedication to the rule of law, not as noisily proclaimed by the Republican House managers during the Clinton impeachment proceedings in 1998, but, rather, as a philosophy mirroring genuine commitment to independent adjudication. In such an environment, third-party adjudicators such as members of the NLRB would not be pressured in the name of partisan passions or pilloried for unpopular decisions predicated upon antimajoritarian considerations.

    This adherence to judicial and administrative agency independence seems to me one of the surest means by which individuals' rights to freedom of speech, conscience, association, and religion have been protected for more than two hundred years. This is the first reason why the Bill of Rights that contains these safeguards has so well stood the test of time. The protection of such individual liberties is part of the democratic, liberal faith to which I subscribe.

    A final basis for my loyalty to the Democratic party is that in the twentieth century it was an internationalist party more supportive than the Republicans of such organizations as the United Nations and the International Labor Organization. The latter association attempts both to establish a code for workers and employers around the world and to provide a means of effectively ordering international labor-management relations. Yet another part of my internationalist belief system, perhaps rooted in the military service of my forebears in the nineteenth and early twentieth centuries, is the importance of maintaining a strong military under civilian rule.

    As a small child and youth in Massachusetts and, later, New Jersey, I was deeply affected by the practices of racial discrimination that pervaded all aspects of American life. During and after World War II, segregation was still proudly proclaimed as the official policy of some corporations and unions. On numerous occasions my father was denied job opportunities because of racial discrimination and, in some instances, was fired from a job after it was discovered that he was black—his light complexion sometimes not immediately revealing this fact to the employer. His story, and the chronicles of so many others I knew and read about—people well qualified for the positions they aspired to but denied the chance to advance—were defining memories for me.

    The second, and almost equally significant, contribution to my political outlook was the legacy of the Great Depression and the poverty into which it drew so many black and white Americans. My mother's stories of this difficult period emphasized the terrible importance of every nickel and penny and how often she and my father had to worry about where the next coin would come from. Tales of the long-lasting unemployment and misery of the thirties nurtured in me an acute awareness of, and a sensitivity to, economic inequality. In fact, this focus on economic justice led directly to my interest in and, ultimately, professional commitment to ameliorating conditions in the workplace.

    These values antedated my formal education and were even more deeply entrenched. But they were complicated by a wariness of the labor movement engendered by the exclusionary policies of, in particular, the construction unions and the American Federation of Labor. This distrust was common to many black Americans at that time. The violent conduct of my future employer, the United Auto Workers (UAW) during the Kohler dispute in the 1950s caught my father's attention and elicited his unreserved condemnation. His attitude undoubtedly influenced my own view that whatever the worth of unions in protecting the wage standards and working conditions of employees, there were avenues of protest that should be discouraged as inconsistent with sound public policy. The effects of racial discrimination and arbitrary treatment generally, as well as the inequities many Americans experienced in the 1930s, encouraged in my family the conviction that the best objective for life was working for the public good, particularly for the masses of our people rather than for those already privileged by financial security and connections to the seats of power. This sense of public obligation derives, I think, from our family's political and religious values and from my great-grandfather's naval service during the Civil War—and that of his six sons in the Spanish-American War and World War I. Often during my tenure in Washington, as I came to the end of another emotionally and physically exhausting day, I found new strength in the commitment of my great-grandfather, as reflected in a diary he kept between 1862 and 1865. His firm sense of purpose was directly linked to my own professional aspirations and, ultimately, to my work at the NLRB.


I was first attracted to the rule of law and decided to become a lawyer as a senior in high school by the Supreme Court's landmark 1954 ruling in Brown v. Board of Education. In it, the Court held unanimously that segregation in public education was unconstitutional. This opinion—along with a previously developed interest in government and politics---led me to the law. When I arrived at Cornell Law School in 1958, I soon realized that there were few constitutional lawyers in the United States, and fewer still who focused on civil rights matters such as those pursued by Thurgood Marshall and Charles Houston in Brown and its precursors. My own specialty became labor law—in part because I believed workplace democracy to be an important and relatively undeveloped value that lagged far behind the progress made elsewhere in the political arena.

    The "comfortable words of the Episcopal Book of Common Prayer and the New Testament (Matthew 11:28)— Come unto me all ye that travail and are heavy laden"—were special to my father and, thus, to myself. This concern for the heavy-laden is inextricably linked to the need for society and the state to help those in need of protection from Unbridled market forces. The policies of certain unions, particularly those associated with the Congress of Industrial Organizations (CIO), were deeply concerned with the kind of democratic public policies I supported. My interest in labor law was also furthered by the intellectual challenge and intricacies of the National Labor Relations Act and related legislation and case law.

    This interest, facilitated and encouraged by my Cornell law professor, the late Kurt Hanslowe, took me from Ithaca to Detroit in the summer of 1960; there I began my career on the legal staff of the United Automobile Workers. In the 1960s the UAW and Detroit were excellent places in which to strengthen and fortify my interests in the unions and the Democratic party. At the same time, working there gave me a wonderful opportunity to meet many pioneers of the struggle for workers' democratic rights, men like Walter Reuther, with whom I conversed from time to time. In the Skilled Trades Department I came to know and work with Reuther's almost-immediate successor, Douglas Fraser; later, in the 1970s, I had a good deal of contact with Fraser during his presidency of the UAW.

    In the late 1960s, working both within the UAW and, subsequently, in a New York City law firm representing employers, I gained considerable firsthand, practical knowledge of modern labor law. From this experience I developed the view that the laws of a democratic country must not only guarantee the right of free trade unions to exist, to bargain collectively, and to expand their membership but must also be properly rooted in a reciprocal system of rights and obligations for both labor and management. While representing employers, I particularly disliked the cases in which management arrayed itself against union representation altogether and sought, through NLRB decertification challenges, to limit labor's attempts to ballot workers or to recruit members through other means. Of course, my view has always been that, while workers have a democratic right not to participate in collective bargaining, collective bargaining is the system most compatible with the idea of democracy in the workplace.

    Nonetheless, early in my career I accepted the view—to borrow the words of Archibald Cox in a 1960 law review article—that there are "union rights and union wrongs." This approach led me to concur with Governor Adlai Stevenson of Illinois, the Democratic party's 1952 standard bearer, who supported legal regulation of unions as well as employers, thereby rejecting the party's platform plank advocating repeal of the 1947 Taft-Hartley amendments to the NLRA.

    The idea that both labor and management need to be regulated was also part of my thinking about the racial discrimination practiced by some unions. The need to eliminate racial inequality in all venues prompted inclusion of Title VII in the Civil Rights Act of 1964 and its application to labor unions as well as employers.

    In the early 1970s, during my first academic assignment, at Wayne State University, I represented black workers in a case involving discriminatory hiring and promotions. They were fighting both an employer, the Detroit Edison Company, and two unions with which the company customarily bargained. Thus, litigation experience and my research and writing interests—as well as my early life influences—coalesced into the conviction that both unions and employers are capable of misdeeds and good deeds. Moreover, my time working for the United Auto Workers and representing employers in labor disputes convinced me that the rights of both sides must be respected. Unions should have the right to air grievances and bargain collectively, whereas management—particularly once a contract is secured —should be able to insist on receiving the benefits of uninterrupted production realizable from labor's compliance with no-strike a pledge in the collective agreement. During my student days at the London School of Economics in the early 1960s and in subsequent visits to the United Kingdom, I witnessed the plague of guerrilla warfare waged through "wildcats" or unofficial work stoppages. They reinforced my view that both unions and employers should adhere strictly to the rule of law.

    In essence, I have come to subscribe to what is characterized in both the Clinton administration and the Blair administration the U.K. as a "third way" in labor-management relations. I advocate government intervention to promote union recognition and collective bargaining—as do the NLRA and Britain's 1999 Employment Rights Bill. At the same time, autonomy for both sides should be enhanced, not only in the collective-bargaining process but also by using dispute-resolution procedures to decide a wide variety of issues that would otherwise burden society through litigation. A demystified law should speak, I believe, simply and clearly, so that the average layperson will be unafraid to rely on his or her own devices in seeking its protection.

    By the 1980s, I was also fervently convinced that employee participation in management—particularly in industries (whether union or nonunion) besieged by foreign competition—would be advantageous to both sides. Employees would benefit from promoting their own involvement in the firm and from access to information formerly an exclusive managerial province. Employers, on the other hand, would profit from workers' help in fending off competition that would otherwise cost jobs and lower workers' wages and benefits.


In the decade or so prior to 1994, the decline in trade unions and collective bargaining begun in the mid-1950s had accelerated to a gallop. In 1955, unions represented 35 percent of American workers; by the time the 1990s drew to a close, the figure had dropped to 14 percent, only 10 percent of them in the private sector! The absence of unions in many areas of business during this period was one factor in the increasing income differences among workers and between workers and employers—a problem that is continuing into the new century. That inequality means, most importantly, that a democratic nation has no democracy in its workplaces.

    A whole host of factors were responsible for the union decline and its consequences. Debate continues about whether income inequality has been principally fostered by foreign competition or by technology—although both elements undoubtedly played a role in weakening the unions. Well before the 1990s' debates about free trade and labor protection under NAFTA and GATT, the global economy was inducing employers to relocate factories to countries where labor was less expensive and even less well protected than in the United States, or that were closer to the ultimate consumer. At home, meanwhile, the nature of employment relationships was changing. Temporary employees (what Europeans call "atypical workers") and independent contractors were being widely substituted for permanent workers whose rights were secured by union contracts. Companies' ongoing relationships with these new groups of employees undermined collective bargaining and made organizational activity arduous or all but impossible. The advent of foreign-born workers (some of them undocumented workers) had much the same effect; such workers are afraid to protest low wages and benefits and poor working conditions, even though American labor law entitles them to the same rights as other employees.

    The American economy also led the western countries in substituting low-paid service for jobs in manufacturing. Employers in the burgeoning service sector resisted union organizing drives all the more tenaciously because increased costs could not be absorbed through productivity enhancement and labor-saving devices; to them, union-negotiated wages meant either higher (and less-competitive) prices or reduced profits.

    Moreover, the new information technologies developed in the last few decades of the century had spawned new high-tech industries, such as those concentrated in the Silicon Valley of California. The unions knew little about these growing industries or the firms that made them up, and they devoted insufficient resources to recruitment. The unorganized employees of such technology companies, often more mobile and less job-oriented than workers in manufacturing, were difficult to organize. In addition to the prevalence of contingent workers—part-time and temporary employees, independent contractors, and undocumented workers—the shift to white-collar jobs meant trying to recruit people for whom unions are frequently synonymous with low social status. Decades of well-publicized corruption scandals in key unions had promoted a negative image of organized labor that recruiters found nearly impossible to shake.

    The Reagan and Bush administrations, meanwhile, cultivated downright hostility toward unions. This attitude was first manifested in President Reagan's discharge of illegally striking air traffic controllers in 1981; some observers have seen this stance as a signal to the many employers who subsequently began utilizing the right to replace even lawful strikers permanently, a right they had possessed since a 1938 Supreme Court ruling but had infrequently exercised. Members of the NLRB appointed by Reagan and Bush reversed precedents that had protected employees' rights; they thus emasculated what was once thought of as the workers' Bill of Rights. In the 1980s, these developments buttressed Supreme Court precedents—which are not always favorable to the basic purposes of the NLRA—and encouraged some employers, from the 1970s on, to exploit newly apparent administrative loopholes and delay dispute settlement interminably.

    This was the situation in the early 1990s during the Senate debate about my confirmation as chairman of the NLRB. In the private sector, the precipitous decline of trade unions to almost single-digit status during the 1990s not only meant less security for unions and individual workers but also threatened the very existence of the labor movement. More-polarized labor-management relations gave birth to new employer organizations even more aggressively committed to a nonunion workplace than such old-line groups as the National Association of Manufacturers (NAM). In an era when cooperation between employees and employers was being given much lip service—especially in debates on legislation designed to enhance workplace teamwork arrangements in, for example, the automobile industry—the effect of such hostile groups was to intensify conflict in the making of national labor policy.

    There was also more overt partisan conflict. As the Reagan and Bush administrations sought to steer the Supreme Court to the right, bitter ideological and personal confrontations resulted from Supreme Court nominations—particularly those of Robert Bork in 1987, Douglas Ginsburg shortly thereafter, and Clarence Thomas in 1991. These battles were presaged by much-earlier disputes over President Nixon's nominations of Clement Haynesworth and George Harold Carswell in 1969 and 1970; both were rejected by the Democratically controlled Senate, as was Bork. The Senate majority's attack on "one of the club," Senator John Tower (R-Texas), whom President Bush nominated as secretary of defense, provoked further acrimonious and long-lasting partisan resentment.

    These fights masked two profound changes occurring in the body politic: a shift of the two parties away from broad coalitions of interests and regions and the Democrats' loss of the South to the Republican party:


As long as the South was solidly Democratic, the two political parties remained broad coalitions. The Democrats were a mixture of conservative Southerners and urban Northerners. (both groups supported Franklin Roosevelt's populist economic activism, but they agreed on little else); the Republicans represented Wall Street and Main Street, the Eastern elite and the Western middle class (who agreed on a preference for limited government, and little else). In the fifties, and the first half of the sixties, the southern Democrats, who by seniority controlled many of the significant congressional committees—joined with Republicans to prevent much of anything from happening except appropriations for highways and defense.

    But the "solid South" was shattered over civil rights. When Northern Democrats decided to support desegregation—a new generation of Southerners emerged within two decades and became Republicans. [They became the House Managers who impeached and sought to remove President Clinton from office.] At the same time, many of the liberal children of the eastern Republican elite joined the Democrats, as did southern blacks when they gained the right to vote. As the parties grew more ideologically "responsible," debate became more abrasive and partisan.... The musty, ornate rituals of collegiality, the respectful parliamentary language, the staff and privileges granted to the minority were gradually abandoned or severely modified to the Republicans' "disadvantage."


    Nothing more vividly demonstrates the role reversal of the political parties than debates on the civil rights bills of 1990 and 1991. In both years, the Democratic members of Congress sought to revise several decisions rendered by an increasingly conservative Supreme Court, decisions they viewed as at odds with the intentions of the framers of 1960s civil rights laws. On August 3, 1990, the House passed a civil rights bill by a vote of 274 to 154. Among southern Democrats, 65 members voted in favor and 10 voted against passage; all 13 Democratic representatives of border states voted for it, and 35 of 39 southern Republicans voted against it. In the Senate, the bill passed as well, only to be vetoed by President Bush; his veto was upheld by the narrowest of margins, 65 to 34, with all 16 Democratic southerners voting for the bill and all 8 southern Republicans voting against it. These votes marked the completion of a remarkable political transformation.

    In 1991 congressional Democrats made another attempt to pass a civil rights bill. The House voted 381 to 38 to enact the new legislation, with 77 of the 78 southern Democrats voting yea while southern Republicans split 25 to 15 against it. Again, all 14 Democratic representatives of the border states supported the legislation.

    This result contrasts starkly with the votes of a quarter of a century earlier, when the southern Republicans of the 1990s were still Democrats. Of the 96 Democrats in the House who voted against the Civil Rights Act of 1964, 88 were from southern states. When the Senate ultimately passed the legislation 73 to 27, 20 of the 21 Democratic votes against passage were cast by southerners and the remaining nay vote came from by a senator from West Virginia. In the final passage by the House on July 2, 1964, 85 of the 91 Democrats voting against it were from southern states and the remaining 6 came from border states.

    As historian Andrew Hacker has commented about the contemporary political situation:


One of the two major parties—the Republicans—has all but explicitly stated that it is willing to have itself regarded as a white party, prepared to represent white Americans and defend their interests. Of course, Republican administrations make sure that they appoint a few black officials, either vocal conservatives or taciturn moderates willing to remain in the background. (And they were especially adroit at finding apt candidates for the Supreme Court and Chairman of the Joint Chiefs of Staff.) An unwritten plank in the party's strategy is that it can win the offices it wants without black votes. More than that, by sending a message that it neither wants nor needs ballots cast by blacks, it feels that it can attract even more votes from a much larger pool of white Americans who want a party willing to represent their racial identity.... [A] politics purposely permeated by race has consolidated enough white Americans as a self-conscious racial majority.


    When I was introduced to one of these "new" Republicans, Senator Strom Thurmond of South Carolina, during the confirmation process in 1994, I said: "Senator, my great-grandmother came from Charleston, South Carolina." He had not the slightest interest, and I had no opportunity (or, indeed, inclination) to tell him about her purchase out of slavery in 1858. Thurmond, the presidential candidate of the Dixiecrats in 1948 and now a leading member of the Republican party, evidently saw before him only a black Californian who was supportive of the NLRA and spoke in the urban accents of the Northeast. He did not attend the hearings but, like Senator Orrin Hatch (R-Utah), inserted in the record a statement against my nomination. Needless to say, he voted to deny me confirmation.

    In a sense, my nomination as NLRB chairman and my tenure in that position fused together the ever-deepening antipathy of the Republican Right, particularly members of the House of Representatives, toward labor and race issues. Yet the increasingly malicious environment in Congress did not relate exclusively to civil rights or even union matters. Earlier it had become one in which newspapers began to report more intimate details of the personal lives of nominees and notable figures (e.g., Senator Gary Hart's [D-Colo.] ill-fated 1988 presidential campaign and the fights over the Supreme Court nominations of Robert Bork and Clarence Thomas).

    As my nomination to the NLRB chairmanship languished in committee, the president's appointments of me and other administration officials were sometimes described as being "Borked." Yet the vast difference between myself and Judge Bork was that he had opposed the civil rights initiatives of the 1960s—including public accommodations and fair employment practices legislation—that had since become part of the bedrock American consensus relating to race relations. He had thus defied the mainstream. On the other hand, my views, reflecting fidelity to the statutory goals enshrined in the provisions of the National Labor Relations Act of 1935, were, if anything, moderate and mainstream and were recognized as such by other academics. It was obvious that the Republicans' objective was to pay back the Democrats for the slights they had suffered while in the minority. Theirs was a payback rooted in vengeance, not in logic or reason.

    Into this fertile ground of conflict came the new Republican leadership and Newt Gingrich, who became Speaker of the House after the "Republican Revolution" and "Contract with America" that captured both houses in the 1994 congressional elections. On the Senate side stood Majority Leader Senator Trent Lott of Mississippi, who was identified with white supremacist organizations in his state. He stated in a speech that "a lot of the fundamental principles that Jefferson Davis believed in are very important to people across the country, and they apply to the Republican party. From tax policy, to foreign policy, from individual rights to neighborhood security are things that Jefferson Davis and his people believed in."

    This was the new ideological and regional fault line within which politics was being debated. The origins of the confrontation were admittedly racial in tone and substance, but they also had broad implications for labor policy—where the fight was about a balance of power as ideologically explosive as race. It was into this arena that I stepped a few months after President Clinton nominated me in late June of 1993. The battle that followed reflected the changing landscape of Washington and of American labor-management relations.

    A prominent manifestation of this contentious atmosphere were the fights over administrative nominations; even prior to the advent of the Hundred and Fourth Congress, President Clinton had more than his share of them. The new element in the Senate was the use of the filibuster to block confirmation of nominees. Two recent students of the filibuster note that "about two-thirds of the legislative deaths by filibuster occurred between 1962 and 1994, a period of just 33 years out of the 205 year history of the Senate before 1995.... [But] the rate of death by filibuster ... has been increasing since that time.

    The increased use of this maneuver has transformed the constitutional requirement that a majority of the Senate give its "advice and consent" to presidential appointments to the need to obtain sixty votes to end a filibuster. It has also made the Senate a forum for a return match over issues on which the public had already expressed itself in the presidential election. The substantial increase in the number of filibusters in recent years provides, according to one nonpartisan report, "abundant opportunities for partisan mischief in the appointment process." And mischief in 1993-1994 there was aplenty, as we learn in chapter 2.

What People are saying about this

From the Publisher
"Gould's spirited defense could not have been more timely, nor more trenchant." Joy K. Reynolds Monthly Labor Review

The MIT Press

Meet the Author

William B. Gould IV is Charles A. Beardsley Professor of Law, Emeritus at Stanford University and William M. Ramsey Distinguished Professor of Law at Willamette University College of Law. He is the author of Agenda for Reform (MIT Press, 1993) and A Primer on
American Labor Law
(MIT Press, 1993). The recipient of five honorary doctorate degrees, he has been an impartial arbitrator since 1965 and a member of the National Academy of Arbitrators since 1970.

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