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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