Reagan inherited the largest backlog in NLRB history and his Republican appointees worked steadily to reduce it. Examination of individual members' productivity shows that Democrat Patricia Dennis and Carter appointee Don Zimmerman were the least productive members. The notion of an intention to create a backlog was a union propaganda ploy that was debunked by hearings conducted by Rep. Barney Frank. Chairman Dotson was by far the most productive member of the Reagan NLRB followed by Republican Robert Hunter. This is all a matter of record with the Executive Secretary of the NLRB who carefully monitors individual member productivity by number of proposed decisions put into circulation, number of decisions that could be issued but for the vote of one member and the number of decisions participated in. Members Zimmerman and Dennis we consistently slow in putting proposed decisions into circulation and in acting on decisions that could issue but for their vote. Member Dennis was apparently shamed by the Frank hearings and increased her productivity. Member Zimmerman was always a drag. Board productivity is a conglomerate of individual productivity. The Chairman has no power to compel other members to be productive other than to set an example. If the other members had been as productive as Chairman Dotson and Member Hunter, the backlog would have been eliminated much sooner and would have remained low. There is no evidence that the Republicans did anything to create a backlog.
Congress should pass an appropriations rider that prohibits the NLRB from using "speed of case closure" as a performance metric. Robb obsessively focused on reducing those numbers by the most obvious method available-- intentionally tanking investigations so that charges would be dismissed without going to hearing (which is obviously much faster than actually litigating complaints) or, at best, taking softball settlements.
For the last few years, Regions have been so badly shortstaffed that in many cases the "investigation" amounted to asking the charging party to investigate the case for themselves, with no subpoena power, and then throwing the charge out for lack of evidence (never mind that the Region is supposed to be the one OBTAINING the evidence).
Given that the purpose of the Act is to obtain recoveries for employees, and the theory that what gets measured gets optimized, the only relevant performance metrics should be dollars recovered for employees and cases won/settled.
If Ronald Reagan cared about the case backlog he wouldn't have left multiple seats on the Board vacant for years. As for Board member "productivity", everyone knows that those situated in the ideological minority in any given administration will always fare worse in that department if you are writing dissents at even a semi-regular clip. And pumping out rushed analysis to overturn precedent as fast as possible often just created more work for the Board on the back-end. See, e.g., the Otis Elevator fiasco.
Dotson's internal war with the GC's office and his power grab with the Reilly episode was certainly not the work of a man who cared about the "productivity" of the Board.
"Power grab?" It was members Jenkins, Hunter and Dotson who voted to have the solicitor supervise appeals to the courts. The reasons were that the general counsel was intentionally assigning weak, inexperienced attorneys to cases the general counsel disagreed with or that the general counsel had lost before the board. The board has a right to be represented by attorneys loyal to the board's decisions. Like all NLRB solicitors, Hugh Reilly, an experienced attorney, was selected by a majority of the board. The position was vacant. You have no problem with NLRB positions being filled with lawyers who have represented unions, but become agitated when a position is filled with a lawyer who has represented individual employees against unions and employers via the Right to Work Legal Defense Foundation. I have a feeling your position would be different if it were a Republican general counsel scuttling the decisions of a Democrat board. The law is not nearly as clear on the issue you have stated elsewhere.
"Dotson's internal war with the GC's office and his power grab with the Reilly episode was certainly not the work of a man who cared about the "productivity" of the Board."
Very little time was consumed by the board in that matter. It was the general counsel who went overboard organizing opposition to the board's decision. Are you suggesting that the board should be content to make decisions only to have them neutralized by another arm of the agency?
There has been an historic practice of evaluating NLRB decisions as either pro employer or pro union. This overlooks the fact that much of the law protects individual rights. There are situations in which unions and employers violate individual rights, sometimes in concert.
The courts of appeals denied enforcement in 40% of the Carter/Fanning board's decisions. The figure for the Reagan/Dotson board was 85% enforcement. With an enforcement rate of only 60% isn't it reasonable to assume there may be tortured interpretations and applications of the law taking place? The figure would probably be worse were it not for the fact that many employers cannot afford to litigate against the government.
You appear to operate on a presumption that what unions want is automatically good for employees. Many employees do not agree.
I did not expect anyone in 2021 to still be defending Dotson's Solicitor plan. The power-grab against Lubbers was done in contrary to the plain language of Section 3(d) and did not have support from the Reagan administration. Even John Irving thought it was a plainly unlawful maneuver at the time it occurred. You can read more here: https://www.reaganlibrary.gov/public/digitallibrary/smof/counsel/roberts/box-033/40-485-6908381-033-007-2017.pdf.
Your issue here is with the Taft-Hartley Congress's clumsy bisecting of the agency's prosecutorial and adjudicative functions. And unless Lubbers was removed from office (which the Reagan administration had no interest in doing despite believing they possessed legal authority to do so), then he had a right to supervise attorneys as he saw fit for the remainder of his term, which only ran so deep into Reagan's first term because Irving served through almost the entirety of the Carter administration.
Judges have historically been hostile (and structurally always WILL be hostile) to interpretations of the Act that are faithful to Section 1's clear language encouraging the practice and procedure of collective bargaining. Enforcement records in activist and non-expert courts are a pretty meaningless criticism.
The action of the board resulted in an agreement with the general counsel that briefs would be submitted to the solicitor for review, a fact lost in the coverage of this issue. If the general counsel insisted in taking a position contrary to the board's wishes, presumably the board could have taken it up with the solicitor general. It seems doubtful that the NLRB general counsel would ultimately be put in a position to nullify board decisions before the courts. You continue to attribute what was done to the chairman. Again, the action taken was by a vote of the board which felt compelled to do something about attorneys in the general counsel's office undermining the board's decisions. This would be a situation in which a client is stuck with a lawyer who is acting contrary to the client's wishes.
What is to say that the board could not designate its "legal assistants" to handle appeals. Or for that matter, the solicitor general, who in fact does sometimes chose to represent the board before the supreme court. The statute does not make an exclusive grant to the general counsel of defending board decisions on appeal.
The memo you cite is not dispositive nor is the opinion of a former general counsel. Because an accommodation was reached, the issue was not ultimately resolved.
I attribute this plan to Dotson because it was he who decided to push for it and put it up for a vote. He admitted this through testimony before the House labor subcommittee in 1983. Hugh Reilly testified that he discussed the matter with Dotson as early as January of that year, five months before the vote happened and before either had transferred over from the Department of Labor. The fact that two other Republicans voted for it does not obfuscate its origins.
You are making a legal argument that does not apply to the facts at hand. Dotson did not designate Board members' staff attorneys to deal with enforcement; he delegated supervision of attorneys in the General Counsel's office to attorneys that were to report directly to the Board. That plainly contravened Section 3(d).
I've only accepted for the sake of argument Dotson's claim that there was a conspiracy under Lubbers to tank cases. In reality, that is a complete farce which was exposed in humiliating fashion for Dotson before the congressional hearings in the summer of 1983. When pressed by members of Congress to substantiate his claims that enforcement attorneys were engaging in "the sleaziest" of tactics, Dotson backed off this claim and mentioned only vague assertions of unprofessional behavior at oral arguments. He could not offer any specific incidents when challenged, and Howard Jenkins testified that there were only six cases in his 20 years on the Board (all spread out in time) in which he thought enforcement attorneys took liberties with the Board's doctrines on appeal. He specifically stated that he did not believe the attorneys were purposefully misrepresenting arguments, and Dotson did not testify as such, either. This was a complete fabrication by Dotson that blew up in his face, as demonstrated by the almost immediate disappearance of Reilly from the Board after his plan caught media attention. The Department of Labor didn't want Reilly back either, creating a pretty comedic situation in May of 1983.
And on that note, I will not stipulate to your earlier assertion that Reilly was qualified for the Solicitor job. He absolutely was not. Reilly testified before Congress that he had never handled a Board case by himself and did very little Board work in general. He was experienced in a very specific subset of labor law cases dealing almost entirely with union dues jurisprudence in the federal courts (e.g. the Beck case). That does not describe someone capable of adequately advising Board members on highly esoteric questions under the NLRA with regards to unfair labor practices and representation elections. Reilly got the job because he was Dotson's sidekick at the Department of Labor and he was supposed to follow him to the Board after implementation of this scheme.
Section 3(d) of the Act is, in fact, abundantly clear that the General Counsel controls appellate attorneys. Period. The only attorneys the Board can employ are legal assistants to individual Board members. Even the Solicitor's office is a statutory aberration that is semi-sustainable only because of the dubious legal fiction that he is a GC-side employee "permanently detailed" to the Board.
And while I agree that tanking cases is improper, the proper way to deal with that situation is for the GC to simply refuse to represent the Board at all in cases where a complaint was dismissed. In those cases, the victorious respondent is perfectly capable of intervening to defend the Board's decision. We don't expect district court judges to file briefs on appeal defending their own decisions; why should it be expected of the Board?
Also, you are technically correct to state that 40% denial of enforcement suggest "there may be tortured interpretations and applications of the law taking place," but given the standard of review, what it suggests is that those tortured interpretations were taking place in the courts of appeals, not at the Board level.
I would expect the Biden Board to have relatively low enforcement rates relative to the Trump Board, because the courts are filled with hack right-wing judges who will blatantly re-weigh the evidence (cf. the Circus Circus case for an example of this sort of lawless behavior, or the 5th Circuit Dresser-Rand decision) and make up nonsensical anti-union legal rules (cf. the notice-posting rulemaking cases, or Epic Systems) to rule against it. That's not an indication that the Biden Board is doing bad things, it's an indication that the courts of appeals are filled with hacks who don't follow the law.
Marlowe.381 hr ago
Reagan inherited the largest backlog in NLRB history and his Republican appointees worked steadily to reduce it. Examination of individual members' productivity shows that Democrat Patricia Dennis and Carter appointee Don Zimmerman were the least productive members. The notion of an intention to create a backlog was a union propaganda ploy that was debunked by hearings conducted by Rep. Barney Frank. Chairman Dotson was by far the most productive member of the Reagan NLRB followed by Republican Robert Hunter. This is all a matter of record with the Executive Secretary of the NLRB who carefully monitors individual member productivity by number of proposed decisions put into circulation, number of decisions that could be issued but for the vote of one member and the number of decisions participated in. Members Zimmerman and Dennis we consistently slow in putting proposed decisions into circulation and in acting on decisions that could issue but for their vote. Member Dennis was apparently shamed by the Frank hearings and increased her productivity. Member Zimmerman was always a drag. Board productivity is a conglomerate of individual productivity. The Chairman has no power to compel other members to be productive other than to set an example. If the other members had been as productive as Chairman Dotson and Member Hunter, the backlog would have been eliminated much sooner and would have remained low. There is no evidence that the Republicans did anything to create a backlog.
Congress should pass an appropriations rider that prohibits the NLRB from using "speed of case closure" as a performance metric. Robb obsessively focused on reducing those numbers by the most obvious method available-- intentionally tanking investigations so that charges would be dismissed without going to hearing (which is obviously much faster than actually litigating complaints) or, at best, taking softball settlements.
For the last few years, Regions have been so badly shortstaffed that in many cases the "investigation" amounted to asking the charging party to investigate the case for themselves, with no subpoena power, and then throwing the charge out for lack of evidence (never mind that the Region is supposed to be the one OBTAINING the evidence).
Given that the purpose of the Act is to obtain recoveries for employees, and the theory that what gets measured gets optimized, the only relevant performance metrics should be dollars recovered for employees and cases won/settled.
This is a great point. I'm always wary when the Board brags about settlement rates in the 95% range. The by-product of a crunched budget.
If Ronald Reagan cared about the case backlog he wouldn't have left multiple seats on the Board vacant for years. As for Board member "productivity", everyone knows that those situated in the ideological minority in any given administration will always fare worse in that department if you are writing dissents at even a semi-regular clip. And pumping out rushed analysis to overturn precedent as fast as possible often just created more work for the Board on the back-end. See, e.g., the Otis Elevator fiasco.
Dotson's internal war with the GC's office and his power grab with the Reilly episode was certainly not the work of a man who cared about the "productivity" of the Board.
"Power grab?" It was members Jenkins, Hunter and Dotson who voted to have the solicitor supervise appeals to the courts. The reasons were that the general counsel was intentionally assigning weak, inexperienced attorneys to cases the general counsel disagreed with or that the general counsel had lost before the board. The board has a right to be represented by attorneys loyal to the board's decisions. Like all NLRB solicitors, Hugh Reilly, an experienced attorney, was selected by a majority of the board. The position was vacant. You have no problem with NLRB positions being filled with lawyers who have represented unions, but become agitated when a position is filled with a lawyer who has represented individual employees against unions and employers via the Right to Work Legal Defense Foundation. I have a feeling your position would be different if it were a Republican general counsel scuttling the decisions of a Democrat board. The law is not nearly as clear on the issue you have stated elsewhere.
"Dotson's internal war with the GC's office and his power grab with the Reilly episode was certainly not the work of a man who cared about the "productivity" of the Board."
Very little time was consumed by the board in that matter. It was the general counsel who went overboard organizing opposition to the board's decision. Are you suggesting that the board should be content to make decisions only to have them neutralized by another arm of the agency?
There has been an historic practice of evaluating NLRB decisions as either pro employer or pro union. This overlooks the fact that much of the law protects individual rights. There are situations in which unions and employers violate individual rights, sometimes in concert.
The courts of appeals denied enforcement in 40% of the Carter/Fanning board's decisions. The figure for the Reagan/Dotson board was 85% enforcement. With an enforcement rate of only 60% isn't it reasonable to assume there may be tortured interpretations and applications of the law taking place? The figure would probably be worse were it not for the fact that many employers cannot afford to litigate against the government.
You appear to operate on a presumption that what unions want is automatically good for employees. Many employees do not agree.
I did not expect anyone in 2021 to still be defending Dotson's Solicitor plan. The power-grab against Lubbers was done in contrary to the plain language of Section 3(d) and did not have support from the Reagan administration. Even John Irving thought it was a plainly unlawful maneuver at the time it occurred. You can read more here: https://www.reaganlibrary.gov/public/digitallibrary/smof/counsel/roberts/box-033/40-485-6908381-033-007-2017.pdf.
Your issue here is with the Taft-Hartley Congress's clumsy bisecting of the agency's prosecutorial and adjudicative functions. And unless Lubbers was removed from office (which the Reagan administration had no interest in doing despite believing they possessed legal authority to do so), then he had a right to supervise attorneys as he saw fit for the remainder of his term, which only ran so deep into Reagan's first term because Irving served through almost the entirety of the Carter administration.
Judges have historically been hostile (and structurally always WILL be hostile) to interpretations of the Act that are faithful to Section 1's clear language encouraging the practice and procedure of collective bargaining. Enforcement records in activist and non-expert courts are a pretty meaningless criticism.
The action of the board resulted in an agreement with the general counsel that briefs would be submitted to the solicitor for review, a fact lost in the coverage of this issue. If the general counsel insisted in taking a position contrary to the board's wishes, presumably the board could have taken it up with the solicitor general. It seems doubtful that the NLRB general counsel would ultimately be put in a position to nullify board decisions before the courts. You continue to attribute what was done to the chairman. Again, the action taken was by a vote of the board which felt compelled to do something about attorneys in the general counsel's office undermining the board's decisions. This would be a situation in which a client is stuck with a lawyer who is acting contrary to the client's wishes.
What is to say that the board could not designate its "legal assistants" to handle appeals. Or for that matter, the solicitor general, who in fact does sometimes chose to represent the board before the supreme court. The statute does not make an exclusive grant to the general counsel of defending board decisions on appeal.
The memo you cite is not dispositive nor is the opinion of a former general counsel. Because an accommodation was reached, the issue was not ultimately resolved.
I attribute this plan to Dotson because it was he who decided to push for it and put it up for a vote. He admitted this through testimony before the House labor subcommittee in 1983. Hugh Reilly testified that he discussed the matter with Dotson as early as January of that year, five months before the vote happened and before either had transferred over from the Department of Labor. The fact that two other Republicans voted for it does not obfuscate its origins.
You are making a legal argument that does not apply to the facts at hand. Dotson did not designate Board members' staff attorneys to deal with enforcement; he delegated supervision of attorneys in the General Counsel's office to attorneys that were to report directly to the Board. That plainly contravened Section 3(d).
I've only accepted for the sake of argument Dotson's claim that there was a conspiracy under Lubbers to tank cases. In reality, that is a complete farce which was exposed in humiliating fashion for Dotson before the congressional hearings in the summer of 1983. When pressed by members of Congress to substantiate his claims that enforcement attorneys were engaging in "the sleaziest" of tactics, Dotson backed off this claim and mentioned only vague assertions of unprofessional behavior at oral arguments. He could not offer any specific incidents when challenged, and Howard Jenkins testified that there were only six cases in his 20 years on the Board (all spread out in time) in which he thought enforcement attorneys took liberties with the Board's doctrines on appeal. He specifically stated that he did not believe the attorneys were purposefully misrepresenting arguments, and Dotson did not testify as such, either. This was a complete fabrication by Dotson that blew up in his face, as demonstrated by the almost immediate disappearance of Reilly from the Board after his plan caught media attention. The Department of Labor didn't want Reilly back either, creating a pretty comedic situation in May of 1983.
And on that note, I will not stipulate to your earlier assertion that Reilly was qualified for the Solicitor job. He absolutely was not. Reilly testified before Congress that he had never handled a Board case by himself and did very little Board work in general. He was experienced in a very specific subset of labor law cases dealing almost entirely with union dues jurisprudence in the federal courts (e.g. the Beck case). That does not describe someone capable of adequately advising Board members on highly esoteric questions under the NLRA with regards to unfair labor practices and representation elections. Reilly got the job because he was Dotson's sidekick at the Department of Labor and he was supposed to follow him to the Board after implementation of this scheme.
Section 3(d) of the Act is, in fact, abundantly clear that the General Counsel controls appellate attorneys. Period. The only attorneys the Board can employ are legal assistants to individual Board members. Even the Solicitor's office is a statutory aberration that is semi-sustainable only because of the dubious legal fiction that he is a GC-side employee "permanently detailed" to the Board.
And while I agree that tanking cases is improper, the proper way to deal with that situation is for the GC to simply refuse to represent the Board at all in cases where a complaint was dismissed. In those cases, the victorious respondent is perfectly capable of intervening to defend the Board's decision. We don't expect district court judges to file briefs on appeal defending their own decisions; why should it be expected of the Board?
Also, you are technically correct to state that 40% denial of enforcement suggest "there may be tortured interpretations and applications of the law taking place," but given the standard of review, what it suggests is that those tortured interpretations were taking place in the courts of appeals, not at the Board level.
I would expect the Biden Board to have relatively low enforcement rates relative to the Trump Board, because the courts are filled with hack right-wing judges who will blatantly re-weigh the evidence (cf. the Circus Circus case for an example of this sort of lawless behavior, or the 5th Circuit Dresser-Rand decision) and make up nonsensical anti-union legal rules (cf. the notice-posting rulemaking cases, or Epic Systems) to rule against it. That's not an indication that the Biden Board is doing bad things, it's an indication that the courts of appeals are filled with hacks who don't follow the law.
Your references to Chairman Dotson consistently reflect union propaganda.