At a Friday afternoon (Jan. 6) session at the 64th Annual Labor and Employment Relations Association meeting in Chicago, Wilma Liebman, LERA member whose term as chair of the National Labor Relations Board ended in August, was the meeting's distinguished speaker.
(Editor's note: If you'd like to watch a video of an earlier version of this speech, her Dec. 1, 2011 Derber Lecture at the University of Illinois, Urbana-Champaign School of Labor and Employment Relations, click here.)
She spoke in the Palmer House's elegant Honoré Ballroom. The title of her talk was "Rhetoric, Reaction and the Rule of Law at the NLRB."
The good news, Liebman said, is that the NLRB "still functions." Citing other good news, she channeled Monty Python, "I'm not dead yet." A sense of humor was necessary equipment for her contentious 14-year tenure.
Make no mistake, she said, we are in an “existential struggle” over the legitimacy of American labor law and collective bargaining rights ... that is "more about politics than the law." She quoted historian Richard Hofstadter on his characterization of American politics as "often … an arena for angry minds."
Controversy for the NLRB isn’t new, she said. The 1935 National Labor Relations Act has proven to be "the most controversial and bitterly contested New Deal law." But "over the past three or four years, the conflicts have escalated. ... By 2010 nearly everything we did started a firestorm."
Liebman spoke three days after President Obama made three recess appointments to the NLRB. Republican presidential candidate Mitt Romney described the new members (one a Republican) as "union stooges."
Liebman allowed that the Obama recess appointments were necessary as Republicans in the Senate had vowed to block all of the president's appointees for the rest of his term.
Currently, the key theme, Liebman said, of political attacks on the NLRB is: “government is regulating American business to death and killing American jobs."
Liebman's response: "Collapses on Wall Street, mine disasters in West Virginia and oil spills in the Gulf of Mexico don't suggest to me the need for less government regulation...”
Through it all, Liebman's view is that the last 18 months at the NLRB were marked by "modest but meaningful steps to keep the law vital. We need a living law not a dead statute or New Deal relic.
"Many agree that we need a renewed conversation about labor law, but beyond that there is no consensus. Some in the business and legal communities have never believed in this law. Then there are those who value the law but bemoan its ability to protect worker rights. They urge its revitalization.
"The NLRA has been almost totally resistant to legislative change; there have been no significant changes since 1947."
The result, said Liebman, is the "persistent challenge in adapting existing law to changing workplace realities."
Liebman nonetheless describes the enduring core values of the NLRA as critical to "fairness, [national] economic health and social stability."
Explaining those values, she said:
1. The NLRA provided "a system of governance" that substituted for the bitter, often violent, efforts by workers to secure union recognition by their employers. "The law transformed the way those disputes are resolved."
2. "The law protected freedom of association and gave working people a voice in the workplace."
3. "The law envisioned economic advancement of the nation by equalizing bargaining power between workers and business, thereby increasing workers' purchasing power.
4. Instead of government mandates, the "NLRA established a system where business and labor work out their own solutions through collective bargaining. In turn, the private dispute-resolution processes that have been negotiated have provided order in countless workplaces."
Through it all, Liebman regards the future of American labor law and policy with guarded optimism. In the near term, manufacturing has ticked up, she noted. The silver lining of the NLRB controversies, such as the Boeing case, has been "increased public awareness about collective bargaining and labor law." And in some places, such as recently in Ohio, the public voted down an attempt to restrict the collective bargaining rights of teachers, police and firefighters.
Finally, Liebman said, we "will look to people like those in this room to provide the leadership to seize the greater public awareness and transform the rancor into a serious and creative public discourse ...”