The Outlook At The NLRB: An Interview With Board Chairman Wilma Liebman

(Metropolitan Washington Council, AFL-CIO)

WASHINGTON (PAI) - Her board is short-handed and the law it administers is 74 years old, but Wilma Liebman (right), designated as the new chair of the National Labor Relations Board, looks forward to a future where workers’ rights - and how to ensure them - are once again at the top of the national agenda.
 
“What I would like to see is that over the next few years, the discussion of labor law and policy becomes much more in the public eye,” the veteran National Labor Relations Board (NLRB) member told Press Associates Union News Service.
 
There seems to be no question of that: Labor’s top legislative priority, the Employee Free Choice Act, would make significant changes to the National Labor Relations Act (NLRA), which Liebman and other NLRB members enforce.  It’s already a hot legislative topic in Washington and in at least 16 states where labor is campaigning.
 
There will be action in that legal field this year, Liebman predicts, though she cannot take a position for or against the Employee Free Choice Act.  “But the statute we labor under is 70 years old and written for an industrial era,” she notes, when workers toiled on assembly lines and often stayed with the same firm for years – not like now.
 
“I would hope any changes made take into account changes in the workplace and in the economy.  The point of many of my dissents” to GOP-majority NLRB rulings in the past few years “is that the board ignored realities,” she said in the interview.
 
 Liebman, a Democrat who joined the NLRB in 1997, is one of only two sitting members on what is supposed to be a 5-person board.  The other is Republican Peter Schaumber.  Democratic President Barack Obama designated her to chair the board, but has yet to nominate anyone for the other three seats.  By law, the board must be bipartisan, with the majority party holding three seats and the minority party two.
 
“I’m hopeful that sooner rather than later we’ll have five members,” Liebman says.  “But I’ve had no indication when that will occur.”
 
But it’s not just the Employee Free Choice Act - with labor’s massive mobilization for it being opposed by a $1-million-a-week business ad campaign against it – that Liebman says will push labor law and workers’ rights back into the public eye.  It’s the state of the economy, and the apparent lesson learned in Washington from the causes of the financial collapse: That regulation of business is needed to curb excesses.

“The stars are quite aligned, especially with a Democratic president and Congress and the economic crisis.  We’re back in the mode of considering government regulation – and the role of unions and labor law in building the middle class,” she says.
 
“These issues are very much related to the economy,” she says of the fight over the Employee Free Choice Act.
 
Historians consider the National Labor Relations Act to be part of FDR’s “Second New Deal,” measures that laid the legal foundations for broad-based future prosperity by curbing the excesses of laissez-faire business practices that plunged the nation into the Great Depression.  Other second New Deal laws included the Fair Labor Standards Act – which set up the minimum wage and overtime pay – and the Public Utility Holding Company Act, since repealed by the GOP, which regulated runaway utilities. 
 
Unlike those other second New Deal laws, the NLRA has very light penalties for labor law-breakers.  Increasing those to $20,000 per violation, and giving the board more power to get court orders against labor law-breakers, are goals of the Employee Free Choice Act.  Its key aim, however, is to write majority sign-up verification, otherwise known as card-check, into labor law. 
 
Majority signup says that when the union gains signed authorization cards from a majority of workers at a site, and seeks recognition that way, the employer must agree.  The NLRB would have to verify the union achieved the majority.  Workers could opt for either majority sign-up or an NLRB-run election.  Now, it’s the employer’s choice.  Many employers choose the election, then some break the law in the campaign.
           
Unions, frustrated by the NLRB election process – including that rampant labor law-breaking and the law’s small penalties – increasingly have turned to negotiating majority signup agreements with companies.  That’s one reason, Liebman says, that the board’s union representation caseload has declined by 47% since she joined the NLRB.  “Unions are seeking voluntary recognition.  They’re skeptical about board outcomes, delays and remedies,” Liebman admits.
 
Voluntary recognition is also the subject of one of the major cases pending before the NLRB, she adds.  In yet another case involving the auto parts maker Dana Corp., the legality of “whether a business and a union having discussed, pre-majority signup agreement, of what the contract may look like” is being litigated.
 
“The question is whether that is legal.  It’s the most significant unfair labor practice case we have” on the board’s docket, Liebman notes.  Even some big corporations agreed such pre-majority recognition discussions are legal, she points out.
 
This Dana case also points up another facet of the board:  The agency can rule only on what comes before it, like a court.  Other federal regulatory agencies are not hamstrung like that, and can initiate investigations.  By contrast, Liebman notes the 1947 Taft-Hartley Act even bars the agency from doing economic analysis of cases.  Taft-Hartley was the last major NLRA rewrite, and significantly changed it at business and GOP behest.  It passed over strong labor opposition and President Truman’s veto.
 
“So even if you have a board committed to a dynamic interpretation of labor law, you are limited in what you can do,” by what cases come to the agency, Liebman says.
 
As a result, she adds, some of the most-noted rulings of the 5-member Bush-named NLRB chaired by management-side attorney Robert J. Battista – where Liebman often found herself in dissent – will stand for now.
 
That means major Battista board rulings will stand until a case comes to the board challenging them.  Those rulings include one declaring nurses – and potentially millions of other workers – are supervisors.  Liebman dissented from that decision. Legislation is also pending in Congress to overturn the Bush-named majority’s workers-as-supervisors ruling, by tightening the definition of who is, and is not, a supervisor.
 
She also dissented from a Battista board majority ruling that deprives non-union workers of the right to have a colleague (sometimes the union shop steward) in the room with them when they face the boss on potential discipline, as well as from other NLRB decisions that ruled various groups of workers ineligible for labor law protection.
 
That still leaves important issues pending before the NLRB.  All are on hold until the board has five voting members.  Right now, Liebman and Schaumber work through cases, trimming the backlog, by deciding those for which there is ample and unchanged precedent, and on which they agree.  Pending big-issue cases she mentioned include:
 
* Bannering.  “Twenty years ago, the Supreme Court ruled that hand-billing by unions at a worksite” to let customers and other suppliers of a business know about a labor dispute “is not a secondary boycott,” which Taft-Hartley outlaws.  “Now the question is: Is a banner banned?  Is it coercive” of customer and suppliers “or is it protected by the 1st amendment” to the Constitution and its free speech clause.
 
* Private property rights of employers.  In a case involving New York New York
casino in Las Vegas, workers were distributing handbills outside a restaurant within the
casino.  The catch is the casino doesn’t own the restaurant or employ its workers.  New York New York evicted the unionists.  The case will decide if that eviction was legal.  

- by Mark Gruenberg, PAI Staff Writer