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The 1994–’95 Baseball Strike and National Labor Relations Board To the Precipice and Back Again* William B. Gould IV I n a series of strikes and lockouts commencing in 1972, baseball labor and management engaged in what came to be regarded as a near thirty-year war!1 In 1994, the National Labor Relations Board (NLRB) was at the center of what would become the mother of all Major League Baseball disputes. This did not constitute the first involvement of the Board inasmuch as it had issued a complaint and unsuccessfully attempted to obtain an injunction against the owners in 1981. That petition had been rejected by federal district court.2 That time, the NLRB case went nowhere as the parties labored onward for more than eighty days until the owners’ strike-insurance fund was exhausted. This time around, the NLRB obtained the injunction, and, in so doing, it brought the players back to the field and ultimately produced a collective-bargaining agreement. This time around I was chairman of the NLRB, one of the alphabet agencies created during the Roosevelt New Deal, a five-member administrative agency which possesses quasi-judicial authority and responsibility. I had been nominated by President Bill Clinton on June 28, 1993, and after a nine-month delay I was confirmed by a vote of 58–38 on March 2, 1994. In those nine months, my writings in support of the National Labor Relations Act (which the NLRB interprets and administers ) were debated and attacked by many on the conservative side of politics. My confirmation obtained the greatest number of “no” votes of any Clinton nominee through that date, more than a year into the Clinton presidency. But the price of my confirmation was acceptance of a rightwing , Republican, conservative board member who would be a thorn in my side during my NLRB tenure, and who would cause me considerable problems in the resolution of the baseball dispute itself. Although they were still not a majority—that was yet to come in the 1994 fall elections— Republicans in the Congress had considerable leverage. Senator Edward Kennedy wrote me the day after my confirmation, “It’s a good thing the Republicans decided not to filibuster!”3 They had 93 The 1994–’95 Baseball Strike and National Labor Relations Board the votes to do it, i.e., to resist the sixty votes which are a prerequisite for cloture and thus shut off debate and have a vote! Senator Nancy Kassebaum, the ranking Republican minority leader on the Senate Labor and Public Welfare Committee, had interviewed all potential Republican nominees by asking them this question: “If Chairman Gould is in the majority in a policy case of consequence, will you dissent from his position?” A number of individuals could not give that guarantee because, quite obviously, they could not foresee the cases that would come before us and what our respective positions would be in advance of their resolution. Those who regarded this kind of pledge as inconsistent with the independence that is inherent in the NLRB’s quasi-judicial process did not make the cut. Only those aspirants who answered the question affirmatively could be supported by the Republicans, most of whose representatives in Congress would not have voted for the National Labor Relations Act and its promotion of collective bargaining itself! This was the environment in which the baseball dispute would take place during my tenure as NLRB chairman, and it helps explain the sharp and vigorous dissents rendered against our majority opinion in that case (as well as some other policy cases). These dissents were frequently cited by both the Republicans in Congress and, in this case, the baseball owners, as evidence for the claim that the NLRB was not impartial. Again, the Board was immediately involved in a number of policy issues, and baseball was only one of the disputes, albeit the most visible, that we handled while I was in Washington. Before departing from Stanford for the nation’s capital, I had told the late Leonard Koppett, my good friend and co-teacher at Stanford Law School, that my deepest regret in taking the NLRB job was giving up my baseball salary arbitrations. In ’92–’93 I had arbitrated a series of cases involving then California Angels’ outfielder Luis Polonia, as well as Oakland A’s utility infielder Jerry Browne (often referred to as the Governor); Dale Sveum, utility infielder of the Philadelphia Phillies; and the San Diego Padres’ ace starter Andy...

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