ISSN 1062-7421
Vol. 12 No. 4 (April 2002) pp. 169-172.
LABORED RELATIONS: LAW, POLITICS, AND THE NLRB-A MEMOIR by William B. Gould IV. Cambridge, MA: The MIT Press,
2000. 449 pp. Cloth $37.95. ISBN: 0-262-07205-X. Paper $22.95. ISBN: 0-262-57155-2.
Reviewed by Stephen L. Wasby, Department of Political Science, University at Albany.
Despite the importance of federal administrative agencies, we lack insight into their inner workings. A contribution
to this topic, which bears on our knowledge of administrative law and politics, would be most welcome. William
B. Gould IV is the Stanford Law School professor and labor law expert who, appointed by President Clinton, served
as chairman of the National Labor Relations Board (NLRB) from 1994 to 1998. In LABORED RELATIONS, to provide his
memoirs for that period, Gould has drawn very heavily on the diary he kept while in office and on excerpts from
his congressional testimony. Unfortunately, the 300 pages of text and additional 80 pages of speeches provide little
insight into either the external politics of administrative agencies or the agencies' internal politics. Indeed,
because the volume is so far from providing useful--indeed, any--analysis, I would recommend that subscribers to
this Review--whether their interest be administrative law, labor policy, or relations between regulatory agencies
and Congress-not expend time on it.
In this travel through his Labor Board tenure, Gould devotes most of his attention to process. He starts with
his confirmation and continues through a variety of activities in which the chairman and other actors at the Board
engage, including interaction with Congress and with members of the executive branch. The account touches upon
labor statutes, certain NLRB policies, labor unions, rulemaking, the slow work pace within the agency, and independence
of regulatory agencies.
Gould scatters small pieces of material on aspects of labor policy throughout the book. However, he doesn't stay
long even with major substantive issues that dominated his tenure, such as single- as against multi-location bargaining
units, so, unless someone is well versed in labor-management relations, it will be difficult to gain much about
the substance of policy from this running account.
A principal focus is Gould's activities in attempting to achieve adoption of his preferred reforms. As cases constitute
the work that goes on while reforms are attempted, the mixture of reforms and cases Gould presents may capture
the working-day reality within an agency, but 300 pages were not needed to provide a sense of that atmosphere.
Gould touches on many central concerns in administrative law, but he does so in such a fleeting way that we lose
the possibility of a valuable addition to the literature about administrative agencies. Rulemaking, for which
Gould pushed, is particularly important, but, after a few pages of basic description (pp. 69-74), the author quickly
segues into stories about obstacles to
Page 170 begins here
achieving its more frequent use. There is little to tell the reader that the NLRB is the major regulatory agency
that relies most heavily on adjudication and over its history has made least use of rulemaking. Indeed, throughout,
the NLRB Relations Board is treated in isolation from other regulatory agencies, without attention to ways in which
it differs from them.
Discussion of the independence of regulatory agencies receives a few pages of focused, if general, attention in
one chapter, before Gould again quickly turns to reporting his experience. As to interaction between an "independent"
agency and the White House, Gould is not systematic even as to his own contacts, as he wanders from those with
the White House to those with the Solicitor General. Nor is he consistent as to whether the Labor Board's independence
was respected, saying at one point that the White House did so but then saying that the Solicitor General's views
dominated.
We are, however, made privy to friction between an administrative agency and the Solicitor General over cases in
the Supreme Court (at pp. 137-147). Gould tells us that in two instances, the Solicitor General kept the Board's
(contrary) view from the Court, even when justices raised the matter of the Board's view at oral argument. Gould
fails to point the significance of these fascinating and important incidents, which are buried in a morass of diary
and personal recounting; instead he appears to be complaining about those with whom he must deal. Virtually nothing
is provided about the Solicitor General's role, nor is effective use made of the extensive literature on the subject.
This is a problem throughout the book, although elsewhere Gould does make limited use of some political science
literature,
citing Terry Moe and G. Calvin MacKenzie's work on the appointment process.
Another important matter is congressional oversight of agencies, but again Gould presents material unsystematically
as part of a largely emotive approach to the onslaught from hostile Republican members of Congress. He also starts
to talk about the questions that members of Congress posed to the agency about cases, important on the subject
of "political interference" with an "independent" agency, but he quickly slides away from focused
treatment. Gould no doubt felt "put upon" by conservative Republicans, but both he and his readers are
ill-served by complaints like those about Rep. Ernest Istook (R-Okla.) for his "abuse on me and the agency"
(p. 159). We may applaud Gould's honesty in expressing his feelings about conservative Republicans, but rather
than explaining the basis for his belief in the error of Republicans' views, Gould assumes it is error. Frequent
repetition of complaints does not aid analysis. Perhaps Gould was an agenda-driven partisan Democrat--this is
the way he comes across--but even so, the reader would have learned more if opposing views and alternative perspectives
were given more respect. Likewise, when Gould presents ideas for reforms, he does so one right after the other,
as the embodiment of sweet reason, as if their merit is self-evident. Examination of possible consequences and
of alternatives is lacking, as is serious understanding of objections to implementation of the reforms-beyond a
portrayal of objectors as bureaucratically resistant.
The topic of delays in confirmation of officials is also of increasing contemporary interest. Here Gould mentions
his friction with the relevant section of the American Bar Association (see Chapter 4). However, he fails to
Page 171 begins here
provide discussion, much less analysis, of the interesting interaction, little remarked in the literature, between
this important legal organization and government agencies. We are given only Gould's mention of the length of
a commissioner's term, but no examination of patterns, when it would have been helpful to know whether commissioners
serve their entire term.
A book by an agency commissioner, even one providing, as promised here, "an insider's view of what goes on
behind the closed doors in Washington," could have provided valuable perspective about a regulatory agency
during divided government. Had the author delivered a book "about the relationship between law, a quasi-judicial
administrative agency, and politics in the volatile arena of labor policy" (p. xxii), we would have much for
which to be thankful. However, some degree of self-consciousness about, and some distance from, the process in
which the author has found himself and an ability to reflect on his experience is necessary to provide such a volume.
Perhaps because of attacks on his proposals, Gould felt the need to justify himself and to get into print quickly.
Whatever the reason, the distance is not developed, and the "I, I, I" tone of the volume interferes
with our learning much.
The largest problem with this book is that Gould has filled it with extended entries from his dairy. And I do
mean extended: for example, in a thirty-page chapter on the agency's failure to move cases and on appropriation
problems, twenty-four pages are taken up with small-font excerpts from the diary. It would have been far better
to use a short excerpt of "This is what I thought at the time," followed by, "On reflection, this
is what I now believe to have been the case." An official might present a politician's face to the public
while using a diary or journal not simply to record events but for some serious analysis, but that appears not
to have been done in this instance.
To make matters worse, often the diary and other narrative are not brought to bear on a chapter's purported topic.
Certainly a law professor, particularly one who has written as much as Gould, should be able to produce more systematic
treatment, just as editors should have insisted on revision to obtain it. Instead of the analysis unleavened by
stories that academics often produce, we instead have stories unburdened by analysis. The author does begin some
chapters with a few pages of background and context, but he then immediately slips the traces and is off on a story-telling
binge. Chapter 6, "Balls and Strikes," does a better job on the legal background of the 1994-1995 baseball
strike, and we don't encounter the diary until past the half-way mark in this twenty-page chapter, but the reporting
then
dissolves and no analysis is provided. Useful charts which provide data do not appear until the last chapter,
where they aid in discussion of the "dilatory virus" of delays in case-production (at pp. 287-90); more
typical is the inadequate presentation of limited data on caseload (pp. 81-83), not provided in graphic form.
Wait, you say, cut the author some slack: the title says this is a "memoir." Please understand that I
am not asking that Gould should have written another textbook on the administrative process. What the reader deserves
from a practitioner is material that would supplement or complement such a text. Gould could have done that by
providing some background in addition to "telling stories," or by analyzing the stories he had just recounted.
Page 172 begins here
What does this picture by an academic-in-political-office tell us? Although Gould may not have intended it, the
book's tone suggests that when academics accept political appointments, the academic is left behind and the person
operates by the seat of the pants. Perhaps more important, one gets the sense that Gould never learned the importance
of becoming a team player, which is interesting given his enthusiasm for sports. He appears to have swept ahead
as if he were alone at the helm of the ship, with the crew (or bench) being expected to follow him. Certainly,
he makes little effort to look cooperative.
By default, the author has apparently left almost totally to others the badly needed analysis of a commissioner's
situation. A regulator has told us about what being a regulator felt like in a difficult political environment.
To borrow a friend's analogy, Gould has told us about the size and shape of his kitchen, the amount of heat and
who produced it, and with what materials. However, to continue the analogy, he did so in terms so vague that a
contractor would have had the devil's time trying to draw plans from it. In short, Gould hasn't told his story
well and thus has given us far, far less than he might have--and should have-done.
**************************************************************************
Copyright 2002 by the author, Stephen L. Wasby.