April 13, 2010: The newly reconstituted National Labor Relations Board under the Obama administration is eager to start resolving cases but is not likely to usher in any “radical” policy changes, NLRB Chairman Wilma B. Liebman said April 12.

Speaking at the annual Hunter College national conference on collective bargaining in higher education, Liebman noted that the four-member board had only met for the first time the week before. With the recess appointments by President Obama of two new members, the board has a Democratic majority for the first time since December 2001 (66 DLR AA-1, 4/8/10).

For 27 months, Liebman said, the board had operated with only two members, a function of “gridlock” over Bush and Obama administration nominees. The reconstituted board, she said, “will operate, I assume, under continuing scrutiny and controversy.”

Disavowing any lists or agenda of cases to be reversed, Liebman said that the board's members “are in agreement that we want to issue cases that have been languishing for too long” during the two-member board period.

But any suggestions of radical change are unfounded, she indicated.

While the board will seek a “more dynamic” reading of the National Labor Relations Act than the “static” approach of the Bush years, it would be unrealistic to expect “fundamental, wholesale, or radical change,” Liebman said.

As “real constraints,” she cited the language of a 1935 statute that has not been amended since 1947, 75 years of precedent, and the prospect of judicial review.

The courts, for example, have shown skepticism and even hostility toward the concept of collective bargaining in higher education in reviewing the board's application of the 1980 Supreme Court decision in NLRB v. Yeshiva University (444 US 672 [1980]) on faculty organizing, Liebman said.

The board has had difficulty with the courts in applying the Yeshiva doctrine, which requires a fact-intensive inquiry into a university's structure to determine the bargaining unit status of faculty members, she said.

Graduate Assistant Issue

On another issue in higher education, Liebman noted that the employment status of graduate assistants has been an example of the board's policy “flip-flops,” after their right to organize was upheld during the Clinton administration and then reversed in the Bush administration.

The reconstituted board, she said, would not raise the issue on its own and has not been asked to rule on any graduate-student organizing disputes.

Liebman also raised the graduate assistant issue as one that might be addressed by board rulemaking, as part of a discussion of proposals by New York University Law School professor Samuel Estreicher to use rulemaking procedures to reduce the board's “policy oscillation,” which she called “a polite term for flip-flopping.”

She cautioned, however, that “comprehensive rulemaking would be an enormous undertaking.” So “even if we stick our toe” into rulemaking at the board, that would not eliminate the policy changes, she said.

She expressed hope for another approach, which she said would be for members to ultimately find a way to consensus on the issues that have gone back and forth over the years.

In administrative reforms, Liebman said, “there are modest but meaningful things we can do” without statutory change.

Commentators have suggested shortening the time for board elections, for example, she noted. She also pointed to the possibility of steps to strengthen remedies and reduce delays in board decisionmaking.

But Liebman hesitated to make any specific predictions, suggesting that they would be premature when the board had only been reconstituted five days earlier.

Economic Climate

In general, Liebman said, the board has an opportunity to apply the law “in a way that reinvigorates collective bargaining,” especially in the conditions created by the economic downturn.

Decisions by the Obama board, she said, will seek “a more dynamic interpretation of the statute,” looking at real-world impacts, needs, and facts, “not just the words of the law.”

She added: “I would argue that an administrative agency has a duty to bring the statute to life.”

As examples, she pointed to the graduate assistant issue and also to issues involving contingent workers. Volatility in employment relationships and the shift to flexible working arrangements, she said, “has meant the destruction of many bargaining unit jobs and many bargaining units.”

The “static” approach in the Bush years, Liebman said, “had the effect of removing more and more employees from the protections of the law, especially vulnerable contingent workers.”

Organizing, Cooperating in Downturn

In a later panel discussion at the conference, Phil Kugler, director of organizing and membership services at the American Federation of Teachers, reported that the AFT in the last five years had organized 60 higher education bargaining units with nearly 27,000 people.

That growth was in the face of “one of the most anti-labor administrations in history,” as well as two years of recession and “enormous” budget cuts in education, Kugler said.

The trend, he added, goes against the theory that unions thrive in times of rising economic expectations but suffer in economic downturns. In the current climate, he said, interest in unions is driven by a “concern for security and a need for a voice” to complement other university governance structures.

Although higher education organizing rights in the public sector are on firmer ground than in the private sector, “there is still much to be done,” Kugler said.

After successful organizing campaigns at the universities of Vermont and Alaska, he added, a joint effort between AFT and the American Association of University Professors is now looking at organizing the faculties of large research universities. The AAUP/AFT combination began in September 2008, he said.

Some 60,000 faculty members at the universities of California, Illinois, Michigan, Minnesota, New Mexico, Ohio, Oregon, and Pennsylvania are eligible for representation but not organized, Kugler said. “We're seeing plenty of interest out there,” he said.

Another member of the panel, Assistant Vice Chancellor Michael Mottola of the Pennsylvania State System of Higher Education, pointed to labor-management cooperation efforts as particularly valuable in a time of financial strain. “We need to work together to fight shrinking budgets and competition from for-profit colleges,” he said.

By John Herzfeld for BNA Daily Labor Report