Wilma Liebman, Chairman of the National Labor Relations Board, Speaks at Fredrikson & Byron
By: RICHARD A. ROSS
May 2011
Fredrikson & Byron recently hosted a meeting of the Minnesota Management Attorneys Association with Wilma Liebman as the keynote speaker. Ms. Liebman, who has served as a Member of the National Labor Relations Board (NLRB, or Board) since 1997, and was recently appointed Chairman of the NLRB by President Obama, spoke about the status of labor organizations in the 21st century. Noting that unions have significantly decreased in size and influence over the last half century, she stated that the recent controversy in Wisconsin and other states over collective bargaining rights has ignited a discussion and possible revival of the relevance of labor unions in today’s economy.
Chairman Liebman noted that the Board is a political institution that oscillates between Democratic and Republican majorities. The Board, which has five members appointed by the President and confirmed by the Senate, has gone through turbulent times, with only two of its current members serving for longer than two years. During that time, Chairman Liebman and her sole Republican counterpart adjudicated more than 600 cases. However, many of those decisions were challenged on the grounds that two Members cannot issue decisions and the Board must have at least three members to issue a decision. The U.S. Supreme Court recently upheld those challenges and the Board must now review and reissue all of those decisions.
Historically, the Board has rarely used its rulemaking authority to issue new regulations. Instead, over the years, it has used adjudication of individual cases to create policies and precedents. Chairman Liebman has not ruled out the use of rulemaking and noted that there have been requests for various rules for decades, which now may be implemented through the rulemaking process. The first example of this is the upcoming requirement that private employers post a notice at work explaining employees’ rights under the National Labor Relations Act.
Whether there are going to be changes through rulemaking or adjudication, the clear implication of Chairman Liebman’s comments were that changes are coming and they are likely to be more union-side friendly under the Obama Administration. Chairman Liebman stated that it was hard to imagine a democracy without a strong labor movement and collective bargaining.