Labor law enforcer: “I’m not dead yet!”

MINNEAPOLIS – While collective bargaining is under attack in many parts of the country, it remains one of the few effective ways to preserve the American middle class, the chair of the National Labor Relations Board says.

Board chair Wilma Liebman asserted that proposition in a March 31 speech at the University of Minnesota Law School, where she discussed the history and role of the National Labor Relations Board.

Noting the turmoil that has erupted from Wisconsin to New Hampshire over the question of worker rights, she wished the debate “were less rancorous,” but added, “It has brought collective bargaining back into the public eye, the public discourse.”

The NLRB administers federal law safeguarding the rights of private sector workers – except at airlines and railroads — to organize unions and bargain contracts. Liebman, with nearly 14 years on the board, is one of its longest serving members.

Democratic President Barack Obama named her chair in 2009.

While hundreds of thousands have mobilized for rallies and other events sparked by the current debate, the conflict over worker rights is nothing new, Liebman said.

“The NLRB is no stranger to controversy,” she said. “The law is the product of fierce battles, some of them quite bloody.”

In 1935, when Congress passed the National Labor Relations Act and created the NLRB, most workers had no right to form a union. During the worst economic depression in U.S. history, millions marched in the streets, occupied factories and some died in the struggle to win collective bargaining rights.

“It’s worth remembering why Congress did what it did at that time,” Liebman said. “The act was seen as a means of restoring the country to economic prosperity by restoring the purchasing power of wage-earners.

“The law really worked for the first few decades. Millions of people achieved a middle-class way of life through collective bargaining in major industries.”

Workers’ ability to achieve gains began to unravel, however, first through congressional action and later through economic change. In 1947, a GOP-run Congress passed the Taft-Hartley Act, over labor’s opposition and Democratic President Harry S. Truman’s veto, weakening labor protections contained in the NLRA.

And in recent decades, the growth of a global economy, overseas competition, new technology and deregulation have created new pressures on both management and labor, leading to major drops in union membership and ramping up employer opposition to unions.

Today, many types of workers, such as “independent contractors,” now fall outside the protections offered under federal labor law.  “It’s fair to say the law did not keep up with all these changes,” Liebman said.

Despite efforts “to reinvigorate the law” in the 1970s and more recently through the Employee Free Choice Act, it has not been amended since Taft-Hartley. Each attempt gets bogged down in partisan and ideological division, according to Liebman.

And at times, the five-member NLRB has been nearly immobilized as appointments were held up in Congress or left unfilled. For 27 months during the GOP Bush administration, Liebman and one other board member issued rulings and tried to carry on normal business, despite three vacancies.

The U.S. Supreme Court later decided they did not have the authority to act and the board – which has four members – has to revisit many of those decisions.

Even though the National Labor Relations Act states it is national policy to encourage the practice of collective bargaining, “I don’t think there is really a consensus of what the statute is all about,” Liebman said.

“There are still people in the business and legal community who never accepted the legitimacy of this law in the first place.”

In recent decades, many NRLB and related court decisions have focused on individual – as opposed to collective – rights, she said.

Despite being told that labor law is “dead, dying, ossified, neutered,” Liebman holds out hope. “My answer to it all is, ‘I’m not dead yet.'”

She said the board is making modest gains in keeping the law “relevant and dynamic” by issuing a new rule requiring all employers to post worker rights notices in the workplace – something never mandated before – and by making use of tools such as injunctions to prevent the most serious abuses.

“I think that labor law still matters very much in this country,” Liebman said. “The rights contained in this statute are enduring values.  They are now recognized around the world…[and are] critical to a fair economy.”