NLRB Chair Liebman: 'Political Paralysis' Sours Hopes For Labor Law Reform

(Metropolitan Washington Council, AFL-CIO)

By Mark Gruenberg, PAI Staff Writer

            “Political paralysis” in Washington, exemplified by the Senate filibuster that killed an Obama administration nomination to the National Labor Relations Board “makes it hard to be hopeful” about the prospects for overall labor law reform, NLRB Chair Wilma Liebman says. That’s even though, she adds, the National Labor Relations Act, unlike other key federal regulatory acts, has not been adapted to changing circumstances for decades. “The election of Barack Obama was an historic moment in many respects, not least for those interested in labor law. The hopes of some -- and fears of others -- for the revitalization of labor law was enormous,” Liebman said in a Feb.17 address to the Access to Justice lecture series at Washington University School of Law in St. Louis.

“Given the bitter politics of the last months, it is hard to think hopefully about the future of labor law.  Today, the NLRB has become emblematic of political paralysis.  And the underlying legislation, first enacted in 1935, and last significantly amended in 1947, appears completely resistant to revision notwithstanding dramatic social and economic transformation since that time,” she said, calling labor law “a dinosaur.” 

            Those bitter politics have left the 5-member board with two members -- her and Republican Peter Schaumber -- making decisions for the last 26 months, Liebeman said.   Legality of those rulings was challenged in court and the U.S. Supreme Court will hear the case in March. 

            And an Obama administration attempt to break the NLRB logjam, by filling the three vacant board seats, was stymied by a GOP filibuster against one of his choices, union attorney Craig Becker (see related story about NLRB recess appointments).

            But it’s not just the board that’s the problem, Liebman said.  It’s that the law itself hasn’t changed: “As NYU Law Professor Cynthia Estlund observed, ‘I know of no other major American legal regime – no other body of federal law that governs a whole domain of social life -- that has been so insulated from significant change for so long.’”

            With Obama’s election, the union movement readied itself to push through what would be the first successful comprehensive revision of labor law since that 1947 legislation, the Taft-Hartley Act.  The GOP-run Congress approved Taft-Hartley, severely weakening the original National Labor Relations Act, over strong AFL-CIO opposition and a veto by Democratic President Harry S Truman.

            Labor’s chosen change is the Employee Free Choice Act, designed to help level the playing field between workers and bosses in organizing drives and in bargaining first contracts.  It would write “majority sign-up” -- also known as “card check” -- into law.  Majority signup says once a majority of workers at a job site sign union election authorization cards, NLRB would verify the cards’ authenticity.  Then workers, not the bosses, could then choose automatic recognition by the cards or an NLRB-run election. 

            The proposed legislation, stalled for lack of 60 votes to break a GOP Senate filibuster, would also vastly increase fines for labor law-breaking, make it easier to get court orders against law-breakers, and would mandate binding arbitration of a first contract if the two sides could not agree within 120 days of starting talks.

            Labor law did not change with the changing economy, from manufacturing to services, from regulation to deregulation, and in response to companies’ response to widespread low-wage global competition, Liebman noted.  She also pointed to GOP President Reagan’s 1981 firing of air traffic controllers, who struck for safety reasons, as a key event -- unleashing business to challenge the law and the Depression-era social compact the original act created.

            “Contingent employment relationships became common as firms struggled to achieve flexibility. So did corporate restructurings, downsizings, and outsourcing. In short, was once was secure, became uncertain. And these competitive pressures, and resulting trends, have only accelerated over the last two decades,” she said.

“Compounding the challenge in this climate was a greater willingness by some employers not just to bend the law, but to break the law to defeat unions and to frustrate collective bargaining. That resistance is a matter of both ideology and economic rationality, as companies faced competition from non-union rivals. Low union density is both a cause and a consequence of employer resistance.

            “And where was labor law during all of this?  Failing, more or less obscurely,” Liebman declared.

            The board itself hasn’t helped, Liebman admitted.  She said it does not defend its own premise -- written into the orginal 1935 act -- that promotion of collective bargaining is a public good and the best way to advance workers’ interests.  And the Bush-name GOP majority on the board withdrew labor law coverage from groups of workers.

            Instead, more and more, she said, workers are left on their own to sue their employers on such issues as job safety and health and sexual discrimination.  But “an
army of trial lawyers is no substitute” for collective action, she pointed out.

            “In keeping with my position” as chair of what is right now a 2-person board, Liebman took no stand on EFCA, which Obama has said he will sign.  She called its passage “the prospect of an end to the ossification of our law,” but not a complete rewrite -- and pointed out issues any such rewrite should address.  they include:

            * “What, if any, changes in the law’s coverage provisions should be made, so that workers in non-traditional employment relationships are protected and can effectively organize?”  Millions of workers are now “casual workers or so-called independent contractors,” unprotected by labor law, she pointed out.

            * “Does the bargaining-unit model of representation, based on majority rule and exclusive representation, still make sense, in an economy where workplaces are in constant flux, where bargaining units disappear through consolidations and restructurings, where jobs are constantly churning?” Liebman questioned. 

            * Overhauling the National Labor Relations Act’s “famously weak” remedies for lawbreaking.  And she asked if “the current scope of mandatory collective bargaining (is) too narrow to adequately take into account workers’ interests and competencies? Are there better ways for administering labor law than our New Deal-agency model?”

             Liebman did not answer those questions, because of her post as NLRB chair, but she did urge civil debate about them.  Creation of labor law helped lead to the middle class, she said.  Updating labor law should aim to create and preserve it.

            “Issues that divide capital and labor will always be with us, in some form and to some degree…Labor law provides access to economic justice at the workplace…Sober public dialogue is sorely needed if we are to figure out how to allow, indeed encourage, business to be flexible and competitive, yet also ensure workers the protections and promise of the law,” she concluded.