“A Welcome Debate” over Labor Reform

Wilma B. Liebman, new chair of the NLRB, talks with Academe about labor law, academics, and reversing ossification.
Interview by Cat Warren

See this Q&A on video:

Wilma B. Liebman was appointed by President Barack Obama on January 20, 2009, as the new chair of the National Labor Relations Board (NLRB). She has been a member of the NLRB since 1997, when Bill Clinton appointed her. She sat down with Academe editor Cat Warren on November 12 to talk about the challenges facing academic labor.

Created by statute in the summer of 1935, the National Labor Relations Board was part of Franklin D. Roosevelt’s New Deal. Its purpose—conceived of as part of the economic recovery during the Great Depression—was to give workers in the private sector the right to organize and bargain collectively. In 1947, what most view as antiunion amendments were added to the statute in a backlash against the growth of labor unions. The law has not been significantly amended since that date. The basic role of the NLRB is to adjudicate unfair labor practice claims, on the part of both unions and management, and to conduct union representation elections. But the board has been operating with only two of its five members for the past two years. Three nominees are awaiting Senate confirmation, but Senator John McCain has placed a hold on one of those nominees (labor attorney Craig Becker). And the U.S. Supreme Court in early November agreed to hear a case challenging whether only two members, Liebman and a George W. Bush appointee, Peter C. Schaumber, have the authority to decide cases.

Cat Warren: It sounds as though there are several challenges even once they send you the Supreme Court decision: for instance, the fact that there are three NLRB appointees on hold right now in the Senate.

Wilma B. Liebman: Yes. Just to be precise, there’s a hold on only one of the nominees, but because the nominations are presented as a package, effectively all three are stalled. The challenges that we face obviously are “When are we going to have a new board?” and “What is the Supreme Court going to do with our two-member cases?” because if it should rule that we did not have authority, we’re going to have to figure out what to do with those cases. A big looming question is that of labor law reform. The Employee Free Choice Act [EFCA] is pending in Congress. This is the first real effort to change the labor laws in thirty years, and thirty years ago it failed. But it is being debated, so it remains to be seen whether we will have a labor law reform bill enacted.

Warren: So what would the passage of EFCA do for the work of the NLRB?

Liebman: If the card-check provision were to pass, it would alter the way we handle representation petitions. There is some talk that instead of a card-check provision, there would be an expedited election procedure. Right now our elections occur, on average, about forty days after the petition is filed. There’s talk of speeding it up to, say, seven days or ten days. If that happens, we’re obviously going to have to change all of our procedures, which is going to require a certain amount of work. The bill also provides for stiffer remedies in the case of discharging people during an organizing campaign or for refusing to bargain in good faith during negotiations for the first contract.

All of these measures may increase the role of the NLRB in organizing situations, so we could expect that our caseload would increase. This might reverse the trend of the last few decades, during which unions have, I think, become disenchanted with the board’s processes. The unions argue that because elections can be drawn out, employers are able to engage in antiunion campaigns between the filing of the petition and the actual election.

Warren: Let’s turn to academic labor. We’ve had a string of decisions that affect the right of workers in the private sector to organize, starting with the U.S. Supreme Court’s Yeshiva decision [NLRB v. Yeshiva University] in 1980, that faculty are managerial employees, through the NLRB’s 2006 decision on Oakwood Health Care, Inc., that again expanded the notion of who a supervisor is. What do you think about that particular trend and where do you see it heading in academic labor?

Liebman: I certainly see the trend in business, probably including universities, toward more flexible employment relationships. That is likely to continue as the economy picks up and as jobs are created again. In terms of the trends of the law, Yeshiva is a Supreme Court decision that’s nearly thirty years old, and we’re stuck with it. And we’re stuck with the statutory language, which goes back to 1935 and 1947, when the employment relationship and the nature of the workplace were obviously very different from what they are today. But in my view, and my dissenting opinions on these issues certainly made this clear, we should be giving these definitions a more dynamic interpretation [for example, who is an “employee,” who is a “supervisor”], taking into account or adapting to the vast changes in the model of the workplace.

Warren: We’re looking at the graduate labor organizing landscape for this issue of Academe. Let’s go back to the 2004 Brown University case. You wrote the dissent, which described the majority’s decision as being “woefully out of touch with contemporary academic reality.” I’d love for you to talk about what you were thinking at the time, and whether you see that changing.

Liebman: The university, of course, was arguing that graduate teaching assistants didn’t really have an employment relationship with the university; they had a student relationship, or an educational relationship, and therefore shouldn’t be entitled to organize for collective bargaining. The majority did not find that graduate teaching assistants did not meet the statutory definition of an employee; only one member found that. But they found that it just wouldn’t be appropriate as a policy matter for graduate teaching assistants to engage in collective bargaining—for a variety of reasons, including that it would interfere with academic freedom, and because they didn’t really have an economic relationship. In the dissent, we challenged all those views. First of all, starting with the basics, they met the literal definition of an employee: they taught students, just like a lot of other faculty did, and they received compensation in return for it. We said case closed, that gives them an economic relationship. The fact that they might also have a student relationship, or an educational relationship, really didn’t matter because they were working in return for compensation. We faulted the majority for failing to look at the changing nature of the university. Increasingly, universities operate as businesses. These graduate teaching assistants were providing an essential service. I don’t think that I’ve had occasion to look at these graduate student cases since then, because Brown sort of put an end to them. I’m not aware that the situation has changed in universities. If anything, with the current economic situation, they’re probably even more business focused than they were in the past, looking more to save costs.

Warren: It sounds as though your dissent in Brown did a good job of capturing the reality of graduate student labor, and in your mind the situation has only worsened in the years since.

Liebman: I don’t have the empirical evidence, but it would stand to reason that that’s the case. I understand that the universities are dead set against having to bargain collectively with graduate teaching assistants, and one of the arguments that was expressed to me was that universities don’t want to prolong the relationship with the graduate students. They want them to get their degrees and move on, so they don’t want to have a longstanding employment relationship. But of course that’s true in a lot of workplaces today with the volatility and fluidity of employment relationships; the model of working for one employer for a lifetime and moving up the promotion ladder doesn’t exist that much anymore.

Warren: Could you talk a little bit about how you see the linkup between the recession and the pressure on universities?

Liebman: Obviously, all industries are facing issues as a result of the economy; it’s not just universities. It remains to be seen, in universities or elsewhere, whether these kinds of pressures lead employees to organize in greater numbers in an effort to try to find some kind of security or protection.

Warren: So just to wrap this up, and to go back to the overarching role of the NLRB, do you have some final thoughts about its continued relevance?

Liebman: People have been questioning the continuing relevance of this law for some time now. If you read the scholarly literature, you’ll see words like “death” and “dying” and “ossification” and “moribund.” I think there’s been a real diminishing of confidence in the board. So this debate over labor law reform is very welcome after so many decades of Congressional silence. The debate is extremely rancorous; both sides are spending a lot of money to try to persuade the public and Congress of their points of view. Very different visions of reality and history are coming out of this debate. But I still think it’s a welcome debate.

I am hopeful that going forward, it won’t take sixty years till we revisit the law. I think that we’re going to see comprehensive labor law change coming only from Congress. Looking just at the board itself, as I’ve said, we can have a more dynamic approach to the law, a more vigorous approach—less of a formalistic and static approach, and more looking at workplace realities to keep the law current. I’d like to think that the principles of this law are as vital today as they were seventy-five years ago and that we can find a way to keep the law relevant. It’s important to our democracy and to our economy to keep this law working.