The newsletter of the ISBA’s Standing Committee on Government Lawyers
National Labor Relations Board Chairman Wilma Liebman: Forging a new process
The National Labor Relations Board is an independent federal agency that was created on July 5, 1935, by the National Labor Relations Act (the Act). The Board is charged with protecting the rights of certain private sector employees to organize and designate representatives for collective bargaining, determining appropriate bargaining units, conducting representation elections, and enforcing prohibitions against specified employer and union unfair labor practices.
The NLRB is organized into two major components: a five-member governing Board and the Office of the General Counsel. Board members and the General Counsel are appointed by the President and confirmed by the Senate. The Board is a quasi-judicial body that decides labor issues, while the General Counsel investigates and prosecutes cases. The Agency’s headquarters are located in Washington, D.C. It has field offices in 51 U.S. locations.
On January 20, 2009, Wilma Liebman was appointed as the 20th Chairman of the National Labor Relations Board by President Obama. Although she does not see herself as a trailblazer, Chairman Liebman is only the second woman to serve in this capacity since the creation of the Board in its current form. Chairman Liebman, a native of Philadelphia, Pennsylvania, holds a B.A. from Barnard College in New York and a J.D. from George Washington University Law Center. She was first appointed to the Board on November 14, 1997.
I had the distinct privilege of interviewing Chairman Liebman. Seeking a job in labor law, she came to work for the Board in Washington, D.C. as a staff attorney upon her graduation from law school in 1974. She says that working for the Board “seemed like an excellent way to learn the field.” Government service, she notes, is a wonderful opportunity, particularly for young lawyers, to learn a field of specialty. Working for the Board exposes attorneys to a broad range of issues and to parties with different interests and, thus, provides a wonderful learning opportunity, she observes.
Chairman Liebman believes that the Board continues to make a difference. “As a member of the NLRB, I feel that I am doing something that matters, and I feel privileged to have the chance to do it,” she says.
Chairman Liebman believes that at its core, the Act is a human rights statute. She explains, “The Act recognizes the right of workers to organize collectively, a form of freedom of association.” The freedom of association and the freedom to engage in collective bargaining embodied in the Act are recognized around the world as core principles of democracy, she states. Chairman Liebman fully expects the Act, the collective bargaining system it establishes, and the labor movement itself to endure.
American employees, Chairman Liebman observes, may need the Act’s protections more than ever. “Every day,” she says, “I read the cases that come before us about working people who, despite the odds, despite the risks and obstacles, join together to improve life on the job. They work on assembly lines, in industrial laundries, on construction sites, and in mega-stores. They slaughter hogs, drive trucks, clean hotel rooms, and care for the disabled.” Although these workers sometimes have unions to help them, other times they act spontaneously to help each other. Chairman Liebman emphatically states that, “anyone who says that workers do not want, or need, some form of representation in today’s economy is mistaken.”
Chairman Liebman notes that In the midst of plenty, inequality is rising. “Much has changed in our society since 1935 when Congress enacted the Act in the midst of the Great Depression. Much has changed since the 1950s and 1960s, when millions of Americans came to enjoy a middle class way of life through the collective bargaining system,” she says.
In her years with the Board, Chairman Liebman has seen significant changes in the dynamics of the American workforce. “Accelerated competitive pressures have certainly led businesses to look for greater flexibility in the employment relationship,” she observes. Significantly, Chairman Liebman says, “employers seem to be using more and more part-time employees, temp workers, contract employees, and leased employees, and contracting out many ancillary functions.” In her opinion, this has resulted in enormous flux and unpredictability in the employment relationship. She further observes significant volatility in the business world, with the rise of mergers, consolidations, and restructurings and the dislocations that result for countless workers.
Chairman Liebman finds that all of this instability makes collective bargaining more important than ever. “The constant churning of jobs, technological change, elimination of jobs, and creation of different types of jobs, causes tumult, which makes stable collective bargaining relationships very difficult. Enormous strains have been put on the system. Yet, the institution of collective bargaining is flexible enough to play a meaningful role in managing all of this change and allowing the parties to reach their own solutions,” states Chairman Liebman.
Her term as Board Chairman has been marked by historic challenges. During a 27-month period that ended with the recess appointment of two members in late March 2010, the Board operated with only two members: Chairman Liebman and former Chairman and Board member Peter Schaumber. They decided nearly 600 cases on which they could agree. On June 17, 2010, the United States Supreme Court ruled that the Board was not authorized to issue decisions when three of its five seats were vacant. See New Process Steel, L.P. v. NLRB, 560 U.S. ___ (2010). In July 2010, three-member panels of the Board began considering about 100 cases pending in the courts when the Supreme Court issued New Process Steel.
Under Chairman Liebman’s leadership, the Board has issued 315 decisions between October 1, 2009 and September 30, 2010. Notably, about 182 decisions have been issued since August 2010.
Several significant decisions have been issued by the Board in recent months. The Board has adopted two new remedial policies: adding daily compound interest to backpay and other monetary awards and requiring many employers and unions to notify employees electronically of NLRB orders in unfair labor practice cases. In addition, the Board recently found that a union practice of displaying large, stationary banners at the businesses of secondary employers (with which unions were not involved in a primary labor dispute) was lawful and not coercive.
Chairman Liebman has mixed feelings about the controversy over the last year surrounding proposed legislation to amend federal labor law and the nomination of new Board members. “While rancorous, it is in some respects welcome because it has brought important labor issues back into the public eye,” she says. Ideally, however, the controversy will lead to a more constructive, sober dialogue about these serious issues.
Labor law practitioners, she believes, will see a more dynamic approach to the law from the new Board, one that will “make the law work better in a changed economy.” She would also like to see confidence in the Agency restored. “Many stakeholders have avoided our processes, especially election processes, for years. I think a restoration of confidence will come through a combination of decision making and minimizing delays.”
Another of Chairman Liebman’s goals for the remainder of her term is to enhance public awareness of the Agency and the value of its work. She hopes that the Agency’s current public outreach efforts will allow the Agency to “tell our own story rather than have the story told for us” and in so doing to better educate workers regarding their rights and employers their obligations.
Chairman Liebman has kind words for employees in the field. “I want to thank them all for their commitment and service to this Agency, and to the public, and their dedication to applying this statute in a meaningful way,” she said. She recognizes that the controversy of the last few years has been difficult. Chairman Liebman says, “I want to thank everyone for staying with us through this difficult period.” She also welcomes input from people who work for the Agency as to ways to make the Agency work more effectively.
“Today’s labor laws were the product of tremendous struggle,” she says. “We honor that struggle when we take the Act seriously, when we enforce it fairly and thoughtfully, and even when we point out its shortcomings.”
In this 75th anniversary year of the National Labor Relations Act, she still sees its significance. “The Act still has vital importance for our country, in supporting a democratic society and a fair economy,” she says. “The basic values in the Act are as vital today as they were 75 years ago.” But because the Act has gone over 60 years without any substantial revision, “it is our responsibility to try to keep the Act dynamic and vital and make it work in today’s changed economy.” ■