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38 Lab. & Emp. L. 1 (2009-2010)

handle is hein.journals/laboemplo38 and id is 1 raw text is: lOymen FALL 2009 VOLUME 36, NUMBER 1 Section of Labor and Employment Law American Bar Association AMERICAN BAR ASSOCIATION Section of Labor and Employment Law Chairman Liebman Says NLRB Is Poised for Change By Victoria L. Bor On inauguration day, President Obama named Wilma Liebman chairman of the National Labor Relations Board (NLRB). Liebman was first nominated by President Clinton in 1997, and twice reap- pointed by President Bush. Look- ing forward to the confirmation of Craig Becker, Mark Pearce, and Brian Hayes to bring the board to its full complement, Liebman shares her observations with LEL. I am privileged to have the opportunity to be chairman at this historic moment, Chairman Liebman says, calling the board poised for change. Reflecting on what she sees as a crisis of confidence in the National Labor Relations Act and the agency that administers it, Liebman would like to see a revitalized law, restored confidence in the process, and a re- newed image of the agency-ideals she considers closely interrelated. In Liebman's view, the law has not kept up with radical changes in the workplace. The Bush board jettisoned a living approach to the law, instead treating it in a static, formalistic way, focusing on ab- stractions such as the meaning of individual words without stepping back to look at the real dynamics in the workplace. Whether dealing with coverage issues (for example, who is an employee or a super- visor) or the treatment of e-mail as a means of communication, for example, the Bush board refused to look at either workplace realities or the real-world consequences of its decisions, she says. During the Bush years, Lieb- man explains, the board members differed on just about everything, from whether to grant a request for an extension of time to substantive law and policy, legal methodology, and judicial philosophy. At times, the majority and minority revealed competing views of the statute. According to the then-majority, after passage of the Taft-Hartley Act in 1947, the statute no longer is primarily intended to promote collective bargaining as a national policy goal. She disputes the view that Taft-Hartley somehow dimin- ished the primacy of collective bargaining as a national policy goal. Employees are free under the statute to choose freely to decline unionization, but the fact remains that the statute's primary goal is to promote collective bargaining when freely chosen without coer- cion by either side. Chairman Liebman acknowl- edges that, no matter who serves on the board, there are limits to what they can accomplish-limits imposed by statutory text, prec- edent, the courts, and the delays exacerbated by the contentious appointment process. The real road to revitalizing the law through fundamental change will therefore only come from the Congress. But the board can make meaningful incremental changes. Among those she would like to see: adapting the doctrine to the changing environ- ment, developing more meaningful remedies, applying the statutory coverage definitions more dynami- cally than in the past, and eschew- ing a wholly laissez-faire approach to the bargaining process. Turning to her second goal- restoring confidence in the pro- cess-Liebman sees the problem as related to the board's approach to decision making. Thus, in her view, the board's formalistic, continued on page 10

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