President Obama designated Wilma B. Liebman to be Chairman of the National Labor Relations Board (NLRB) on January 20, 2009. Liebman, who was originally appointed by President Clinton, has served as a member of the NLRB since November 14, 1997. The NLRB is a federal agency that decides unfair labor practice and representation cases under the National Labor Relations Act. Prior to joining the NLRB, Liebman served for two years as Deputy Director of the Federal Mediation and Conciliation Service (FMCS). She acted as the Chief Operations Officer of this federal agency, overseeing arbitrations, alternative dispute resolution and international affairs. Before joining the FMCS in January 1994, Liebman was Labor Counsel for the Bricklayers and Allied Craftsmen from 1990 through 1993. Prior to working for the Bricklayers, she served as Legal Counsel to the International Brotherhood of Teamsters for nine years.
Liebman, one of the most fiercely pro-compulsory union members ever to sit on the NLRB, testified last year about what she described as "a loss of confidence in the Board and its processes." What she has indicated is that she feels the NLRB is preoccupied with "freedom of choice." Liebman believes that the Board has favored freedom of choice (the freedom to reject unionization), and that this sentiment prevails over promoting collective bargaining (promoting the acceptance of unions). It would appear that Liebman finds that the foundation of democratic freedom stands in the way of the ability of organized labor to gain membership and power. Liebman is an outspoken proponent of employees not being free to reject union representation and refrain from union activity.
In a March 2008 article in the "The Journal of Labor and Society," Liebman stated:
"As the National Labor Relations Board, in several recent decisions, has said for the first time, that freedom of choice, which is to say, the freedom to reject union representation, prevails in the statutory scheme. It is as if the law, in abandoning the primacy of achieving economic justice through collective action has been turned inside out. The stakes for this shift in policy are great."
The same way that the National Labor Relations Act protects employees in seeking unionization, it just as well states that employees have a right to reject a union. Liebman, in so many words, trashes the freedom of choice for employees. Liebman has actually stated:
"Collective action at work encourages engagement in the community and its politics. Without a functioning collective bargaining system, fundamental economic issues are placed off the table: distribution of wealth, control, and direction of economic enterprises. What institution will be as effective in efforts to minimize the randomness of fortune of democratic capitalism? And without a strong independent trade union movement, what institution will stand effectively as a counter weight in our democracy to the growing political influence of corporations? What institution will speak for working people - indeed for the middle class - as effectively?" The Journal of Labor and Society, March 2008.
Clearly, Liebman promotes forced unionism over individual rights. Liebman's appointment comes at a time when management-side labor and employment lawyers are bracing for potentially sweeping changes to labor laws and the NLRB. Undoubtedly, Liebman is a staunch supporter of the Employee Free Choice Act (EFCA). Even without the EFCA passing, obviously, with Liebman's appointment, the NLRB's philosophy will certainly swing toward a pro-union stance, which will have long lasting pro-union/anti-company effects into the future. Employers would be well served to recognize this pro-union change in philosophy at the NLRB from the previous administration and prepare, the best that they can, for the future. Obviously, the current administration is looking to sign into law the EFCA in the near future, which will make Liebman very happy because the legislation, most likely, will substantially reduce the freedom of choice for employees to remain union-free.
If you would like to discuss the subject matter of this article, or any other employment-related issue, please feel free to contact attorney Joseph H. Laverty at (563) 333-9102 or email him at jolaverty@wesselssherman.com.
