BNA Daily Labor Report: Next NLRB Can Only 'Incrementally' Improve Labor Law

November 24, 2008: Even when the National Labor Relations Board gains a Democratic majority in the upcoming administration of President-elect Barack Obama, the board can be expected to make only incremental improvements in labor law, and Congress instead is the starting point for labor law reform, Member Wilma B. Liebman said Nov. 20.

Speaking at a conference sponsored by the Washington, D.C., chapter of the Labor and Employment Relations Association, Liebman said the board “operates under serious constraints” that prevent it from making “fundamental changes in labor law.” Liebman, who has served on the board since late 1997, would be a logical choice for Obama to designate to chair the board.

Current labor law is “a product of the Great Depression and the New Deal that responded to it,” Liebman said. She observed that the National Labor Relations Act's promotion of collective bargaining succeeded for decades in increasing “the purchasing power of wage earners.” But as there have been major changes in the economy and the workplace during the past several decades, “unionization rates have steadily gone down,” income inequality has gone up, and jobs and benefits have disappeared, Liebman said.

The NLRA, which has not had a major revision since 1947, currently “does not effectively protect workers' right to organize” and “does not effectively promote the institution of collective bargaining, let alone encourage constructive labor management relations,” Liebman said. She asserted that the board during the Clinton administration made modest efforts to try to keep labor law relevant in the changing economy but that the board during the Bush administration “moved backward” and caused “a loss of faith” in the agency. “The legacy of the Bush Board is troubling—and not an easy one to change,” Liebman said.

In addition to limitations imposed by the NLRA, such as barring the board from conducting economic analysis, the board is bound by decades of precedent and its decisions are subject to judicial review that is “often skeptical and sometimes even hostile,” Liebman said. She also cited turnover among board members and bureaucratic problems such as delay in processing cases. Consideration of these factors “does not suggest that the path to a revitalized labor law starts at the NLRB,” she said.

Congress the Starting Point for Labor Law Reform.

Instead, “the starting point” for labor law reform “seems more likely to be on Capitol Hill,” Liebman said. Citing the current economic crisis, Democratic control of Congress, and the election of a Democratic president “with a powerful message of change and a demonstrated commitment to advancing the interests of working people,” she said “it seems that we are poised for big changes in labor law.”

The proposed Employee Free Choice Act, which Obama has endorsed, is “the most significant labor-law initiative in many, many years,” Liebman said. The legislation would require employers to recognize a union if NLRB finds that a majority of their employees signed authorization cards. It also would provide for the Federal Mediation and Conciliation Service to mediate and arbitrate first bargaining contracts if the parties fail to reach agreement within certain time periods, and would establish tougher penalties for unfair labor practices committed by employers during an organizing campaign or during bargaining for a first contract.

In March 2007, the House passed EFCA (H.R. 800) by a vote of 241-185 (41 DLR AA-1, 3/2/07), but in June 2007, supporters of the Senate bill (S. 1041) fell nine votes short of the 60 needed to limit debate and proceed to final consideration of the bill (123 DLR AA-2, 6/27/07).

Although Liebman refrained from taking any position on EFCA, she said “it is not hard to see why” the bill is the top legislative priority for organized labor. She observed that the percentage of private sector workers who are represented by unions “is at a historic low” and that “the gap between the percentage of workers who have unions and the workers who want them is remarkably high.”

Unions see a flawed representation-election process that gives unfair advantages to anti-union employers, Liebman said. She commented that “EFCA addresses this dilemma by allowing unions to win representational rights through a card-check process that employers are required to honor, and by imposing meaningful consequences on employers who unlawfully fire union supporters during organizing drives.”

Regardless of whether the current representation election process actually is flawed, “perception really is reality,” Liebman said. She asserted that unions “have already made a dramatic turn away from using the NLRB's election machinery, in favor of winning voluntary recognition directly from employers.” According to Liebman, the number of representation petitions filed with the board declined by 46 percent between fiscal years 1997 and 2007. And even when workers vote for union representation, it often can be difficult to reach a first contract with the employer, she said.

‘Fundamental Re-Examination' Needed, Liebman Says.

EFCA “does not represent comprehensive labor-law reform,” Liebman said. But she described it as “a logical place to begin, if the aim is to restore the original promise” of the NLRA. “Everything surely starts with being able to win union representation in the workplace,” she said.

A “fundamental re-examination” of labor law “would have to address a whole range of issues that are not yet on the agenda,” Liebman said, suggesting a number of issues to be discussed:

“What, if any, changes in the law's coverage should be made, so that workers in non-traditional employment relationships are protected and can effectively organize? 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? Is the current scope of mandatory collective bargaining too narrow to adequately take into account workers' interests and competencies as well as the urgent need for labor and business to engage strategically in this hyper-competitive global economy? … [A]re there better ways for administering labor law than the New Deal-agency model? And what should be the relationship between federal and state law, and between our domestic law and international labor standards?”

Liebman expressed hope that in contrast to decades of stalemate in Congress on whether to amend the NLRA, “the law will be periodically revisited and revised.” She called for integrating “labor law and policy into an overall strategy for transforming the American economy in ways that would both strengthen competitiveness and provide working families a path to a middle class standard of living.”

“What we need is a labor law we can believe in, and I have hope that we will get one,” Liebman said.

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