Testimony of
Wilma B. Liebman
Member, National Labor Relations Board
before the
Subcommittee on Labor, Health and Human
Services, Education and Related Agencies
of the
Committee on Appropriations
on
“NLRB Representation Elections and Initial
Collective Bargaining Agreements:
Safeguarding Workers’ Rights?”
April 2, 2008
Chairman Harkin, Ranking Member
Specter, and Members of the Subcommittee:
Thank you for inviting me to testify
today about the National Labor Relations Board (NLRB) and its activities.
I am pleased to appear before you
today. I began my service on the Board
more than ten years ago, in November 1997.
Before joining the Board, I served for several years at the Federal
Mediation and Conciliation Service (FMCS), first as Special Assistant to the
Director and then as Deputy Director. I
began my legal career as a staff attorney for the NLRB in 1974, and later served
on the legal staffs of two labor unions, the International Brotherhood of
Teamsters and the Bricklayers and Allied Craftsmen.
As you may know, consistent with
their duty to impartially apply the law as it is, members of the NLRB have a
tradition of refraining from discussions of legislative proposals to amend the
National Labor Relations Act. I respect that
tradition and will abide by it.
Nevertheless, I certainly know that
the Act is an aging statute, that it is under scrutiny, and that its
interpretation by the Board has become controversial. Indeed, I recently have addressed the current
state of labor law in Congressional testimony[1]
and in published articles.[2] There, I observed that “that National Labor
Relations Act, by virtually all measures, is in decline….”[3] I cited the Board’s plummeting case intake,
noting that “labor unions have turned away from the Board, and especially from
its representation procedures” and pointing out that “[t]his disenchantment has
intensified in recent years as the Board, in case after case, has narrowed the
statute’s coverage, cut back on its protections, and adopted an increasingly
formalistic approach to interpreting the law.”[4]
Consistent with my
previously-expressed views -- but without recommending any particular statutory
changes or commenting on pending legislation -- I would welcome comprehensive
re-examination of a law that has not been substantially revised for more than
60 years. As one scholar puts it,
American labor law is “ossified.”[5] Given the many changes in American society,
and in the global economy, it seems desirable -- whatever our policy preferences
might be -- to make sure that our labor law evolves and that the rights it
protects do not become illusory.
I understand that the focus of
today’s hearing is on the Board’s election procedures and initial
collective-bargaining agreements, i.e., first contracts. The overriding aim of the National Labor
Relations Act, a goal that was not
renounced by the Taft-Hartley Act in 1947, is to equalize bargaining power
between employers and employees by, in the words of Section 1 of the statute, “encouraging
the practice and procedure of collective bargaining and … protecting the
exercise by workers of full freedom of association … for the purpose of
negotiating the terms and conditions of their employment.”[6] To
that end, it is fair to ask whether the Act is working: whether the law
actually makes it possible for workers who want to be represented by a union,
and who want the benefits of collective bargaining, to achieve those ends.
As income inequality continues to
rise,[7] there
are troubling signs that the Act is not
working. And these signs are not
new. Nearly 25 years ago, an eminent
labor law scholar, Professor Paul Weiler of the
Notably, in the past decade, the
Board has experienced a dramatic, and unprecedented, decline in case
filings. In my view, this steep drop reflects a loss of
confidence in the Board and its processes.
(I say that with regret, because I have the greatest respect for the
Agency and its history.) Between fiscal
years 1997 and 2006 the number of representation petitions filed dropped from
6,179 to 3,637, a 41% decline. (From
2005 to 2006 alone, the representation case intake dropped by 26%.)[12] More and more, unions are seeking to
negotiate recognition in the workplace, rather than use the Board’s election
machinery.[13] The Board’s procedures are seen as taking too
long, leaving workers vulnerable to coercion by employers, and generating
campaign animosity that can taint a new bargaining relationship.[14]
It is difficult to quarrel with this
perception. For example, union access to workers on the
job is sharply limited under current law, which permits employers to exclude
non-employees from their property under ordinary circumstances.[15] Employers, meanwhile, have great freedom to
campaign against unionization, using means such as captive-audience meetings.[16] Although workers are often economically
dependent on their employers, and so very sensitive to what they hear from the
boss, the law permits employers to vocally oppose union representation, so long
as they do not make threats or promises to employees.[17] Of course, what constitutes a threat is open
to interpretation. In several recent
decisions, for example, the Board (over a dissent) has permitted intimidating
employer statements during organizing campaigns.[18] Worse, discharges of employees that are
designed to nip organizing drives in the bud are nothing unusual,[19]
while remedies for such unlawful firings are notoriously weak -- and getting
weaker.[20] Remedies that fail to make workers whole, and
that fail to deter unlawful employer conduct, undermine the law’s
effectiveness. Unions, in turn, face
special problems as the result of two recent, divided-Board decisions: In the Harborside
case, the Board reversed precedent and made it easier to set aside a union’s
election victory, based on pro-union
supervisory conduct (such as collecting signatures on union-authorization
cards), even where the employer’s anti-union
stance is clear.[21] Because it is often difficult to determine
whether a worker is, in fact, a statutory supervisor, Harborside creates a dilemma for unions in seeking supporters. That dilemma was compounded by the Board’s Oakwood decision, which interpreted the
statutory definition of a supervisor and expanded the universe of potential
supervisors.[22]
It is one thing for workers to win
union representation; it is another for their new union to win a first contract
from the employer. In 1994, the Dunlop
Commission, a blue-ribbon federal advisory committee reporting to the Secretary
of Labor and the Secretary of Commerce, examined this issue. It found that one-third or more of
newly-certified unions failed to reach a first contract, a sharp increase from
the earliest available estimate in the late 1950’s, when the figure was 14
percent.[23] The Commission observed that “roughly a third
of employers engaged in bad faith ‘surface’ bargaining with the newly-elected
union representative,” a factor that “significantly reduces the odds that
employees will secure an initial agreement from their employer.”[24] The Commission also pointed to the nature of
union-representation elections, which it described as “highly conflictual for
workers, unions, and firms” -- meaning that “many new collective bargaining
relationships start off in an environment that is highly adversarial.”[25]
Accordingly, the Dunlop Commission
“encourage[d] employers and unions who desire a cooperative relationship to
agree to determine the employees’ majority preference via a ‘card check.’”[26] Under long-established law, an employer is
free to recognize an employer voluntarily – rather than demanding that the
Board conduct an election – if the union is able to demonstrate that it has
uncoerced majority support among employees, typically by collecting signatures
on authorization cards.[27] The Board, however, has recently created a
new obstacle to voluntary recognition.
The Board’s Dana decision now
requires employers who voluntarily recognize a union to post a notice informing
employees that it has done so and telling them how they can get rid of the
union.[28] That posting opens a 45-day window period
during which employees – provided they marshal 30 percent support among their
co-workers – may petition the Board for an election to decertify the union. Dissenting in Dana, Member Walsh and I pointed out that this new mechanism
frustrates voluntarily-established bargaining relationships.[29] During the window period, unions will be
under great pressure to produce results for employees, yet employers will have
little incentive to bargain seriously, if they cannot be sure the relationship
will continue. It is now debatable,
then, whether voluntary recognition is still a “favored element of national
labor policy.”[30]
Meanwhile, new research on the
difficulty of reaching a first contract is being conducted by John-Paul
Ferguson and Thomas Kochan, scholars at the Sloan School of Management of the
Massachusetts Institute of Technology. They
point to the series of obstacles facing workers who want to engage in
collective bargaining -- in their metaphor, workers confront the difficulty of
passing through not just one, but several, needles’ eyes, beginning with the
filing of an NLRB representation-election petition. Their preliminary study, based on data
obtained from the NLRB and the FMCS, suggests that an election petition leads
to a first contract in only one out of five cases.[31] Forty-four percent of newly-certified unions
failed to win a first contract. Unfair
labor practices significantly reduce the chances both of getting to an election
and of securing a contract.
The Board’s recent decision in Garden Ridge Management illustrates what
can happen after a union’s election victory.[32]
There, the union won and began bargaining for a first contract. The employer repeatedly refused the union’s
requests to meet more often. Just over a
year after the union was certified, with no contract reached, employees
presented the employer with a petition saying they no longer wanted to be
represented by the union. The employer promptly withdrew recognition. A Board majority found that the employer
should have met more often with the union, but otherwise found that the
employer had bargained in good faith and that it was free to stop recognizing
the union. I dissented, arguing that the
Board should use extra care in monitoring first-contract bargaining and that
the evidence showed that the employer had never intended to bargain in good
faith with the employer.[33] On that score, I cited statements made by the
employer’s officials before the election, telling employees that even if the
union won, the employer would simply tie it up at the bargaining table
indefinitely and would never reach an agreement. Under the circumstances, it was predictable
that the union would lose support.
Indeed, it seems that some labor consultants advise employers to go
through the motions of bargaining, with no intention of reaching a contract,
precisely so the union will lose support, essentially undoing its election
victory.[34] Surface-bargaining violations are hard to
prove (as Garden Ridge illustrates)
and hard to remedy effectively. An
employer who has bargained in bad faith is simply ordered to cease-and-desist
its unlawful conduct, to start bargaining in good faith, and to post a notice
advising employees of what it has been ordered to do.[35] For an employer bent on continuing its
campaign to defeat the union at the bargaining table, the deterrent effect is
negligible.
The problem of achieving first
contracts has not escaped the Government’s attention. The Federal Mediation and Conciliation
Service places special emphasis on first-contract negotiations, recognizing
that such negotiations are “critical because they are the foundation for the
parties’ future labor-management relationship” and “are often more difficult
than established successor contract negotiations, since they frequently follow
contentious representation election campaigns.”[36] (FMCS mediation is purely voluntary, of
course.) I gained familiarity with this
problem when I served at the FMCS.[37]
The NLRB’s current General Counsel
has followed suit, launching a remedial initiative that focuses on unfair labor
practices that occur after a union is certified and bargaining for a first
contract is, or should be, under way.[38] He has cited NLRB data showing that unfair
labor practice charges alleging employer refusal-to-bargain “are meritorious in
more than a quarter of all newly-certified units.”[39] And he has observed that unfair labor
practices during this “critical stage” may have “long-lasting deleterious
effects on the parties’ collective bargaining and frustrate employees’
freely-exercised choice to unionize.”[40]
Whether the initiatives of the FMCS
and the NLRB General Counsel will make a difference, within the existing
statutory framework, is an open question.
Unfortunately, the Board itself has
not been as vigorous in protecting workers and unions from the effects of unfair
labor practices committed during first-contract bargaining. Cases
involving the remedy when employers fail to bargain in good faith with
newly-certified unions are one example.
By way of background: The
doctrine known as the “certification-year bar” is designed to give unions a
fair chance to succeed before their status can be challenged: for one year
after a union is certified, an employer is required to recognize and bargain
with the union, even if the union appears to have lost majority support among
employees.[41] Without such an insulated period, the
Supreme Court has observed, a union would “be under exigent pressure to produce
hothouse results or be turned out.”[42] As a corollary to this rule, the Board may
extend the certification year, by as much as another 12 months, if the employer
does not bargain in good faith.[43] As part of his current first-contract-bargaining
remedial initiative, the General Counsel has emphasized the importance of
seeking adequate certification-year extensions.[44] But, as the General Counsel notes, a divided
Board has recently rejected such extensions in some cases.[45] I dissented in one of those cases (the only
one in which I was on the panel), objecting to the majority’s invocation of the
statutory rights of employees who might oppose
union representation. As I said there,
“[w]e should not be so quick to vindicate the employees’ right to refrain from
union representation when we have not first vindicated the employees’ initial
choice of union representation.”[46]
The Board’s split July 2007 decision
in Badlands Golf Course is another
example.[47] That case involved an employer who had
unlawfully withdrawn recognition from a union, after expiration of the
certification year, but before a first contract had ever been reached. The Board ordered the employer to bargain,
which it did, for six months and three weeks, before withdrawing recognition again.
The issue posed was whether this
withdrawal was lawful, under the Board’s rule in Lee Lumber, a 2001 decision, which established a six-month minimum insulated
period, and one-year maximum insulated period, for such remedial bargaining.[48] The Lee
Lumber Board had emphasized that one important factor in determining the
required period for remedial bargaining was whether the parties were
negotiating a first contract.[49] “It is not unusual,” the Board observed, for
first-contract bargaining “to take place in an atmosphere of hard feelings left
over from an acrimonious organizing campaign.”[50] Although Badlands
Golf Course involved first-contract bargaining, a single remaining contract
issue, and the absence of a bargaining impasse, a Board majority permitted the
employer to withdraw recognition from the union, finding that it had bargained
for a reasonable period of time. The
majority relied not only on bargaining conducted in compliance with the Board’s
initial order, but – remarkably -- on the bargaining that culminated in the
employer’s first, and unlawful, withdrawal of recognition. Member Walsh and I dissented, arguing that
the majority had erred in several respects, including by “grossly miminiz[ing]
the fact that the parties were bargaining for an initial contract.”[51]
As a Member of the Board, and a
frequent dissenter in recent years, I have pointed out that the Board’s
decisions may exacerbate disenchantment with the Act. If employees and labor unions, for example,
turn away from the Board because they lack confidence in it, then the Board’s
effectiveness is necessarily diminished.
Even if I am not in a position to suggest what should be done, I fully
understand why the Subcommittee and the Congress would be concerned.
I would be happy to answer your questions.
[1]
On December 13, 2007, I testified at a
joint hearing of Senate and House subcommittees, called to examine recent
decisions of the NLRB. See Statement of Wilma B. Liebman,
Member, National Labor Relations Board, before the Subcommittee on Employment
and Workplace Safety, Committee on Health Employment, Labor and Pensions,
United States Senate, and the Subcommittee on Health, Employment, Labor and
Pensions, Committee on Education and Labor, United States House of
Representatives on “The National Labor Relations Board: Recent Decisions and
Their Impact on Workers’ Rights” (Dec. 13, 2007).
[2] See Wilma B.
Liebman, Decline and Disenchantment:
Reflections on the Aging of the National Labor Relations Board, 28
[3] Liebman, Decline and Disenchantment, supra, at
572.
[4]
[5] Cynthia Estlund, The
Ossification of American Labor Law, 102 Colum. L. Rev. 1527 (2002).
[6] 29 U.S.C. §151.
[7] See, e.g., Greg Ip, The
Gap Is Growing Again for U.S. Workers, Wall St. J., Jan. 23, 2004
(describing the declining power of unions as a factor in widening income
disparities).
[8] Paul C. Weiler, Promises
to Keep: Securing Workers’ Rights to Self-Organization under the NLRA, 96
Harv. L. Rev. 1769, 1769 (1983).
[9]
[10]
[11] The cited figures are drawn from the Current Population
Survey conducted by the Bureau of Labor Statistics and are available in
historical chart form (“Union Membership, Coverage, Density, and Employment
Among Private Sector Workers, 1973-2007”) at www.unionstats.com.
[12] For the same period, unfair labor practice charges dropped
from 33,439 to 23,091, a 31% decline.
These statistics are drawn from the Board’s annual reports. See
Seventy-First Annual Report of the National Labor Relations Board for the
Fiscal Year Ended September 30, 2006 3 (Chart 1), available at
www.nlrb.gov.
[13] See James J.
Brudney, Neutrality Agreements and Card
Check Recognition: Prospects for Changing Paradigms, 90
[14] For a scholar’s critical
examination of representation procedures
under the NLRA, see Craig Becker, Democracy
in the Workplace: Union Representation Elections and Federal Labor Law, 77
Minn. L. Rev. 495 (1993).
[15] See Lechmere, Inc. v.
NLRB, 502
[16] Member Walsh and I cataloged some of the means available to
employers in our dissent in Harborside
Healthcare, Inc., 343 NLRB 906, 917 & n. 14 (2004).
[17] See Section 8(c) of the National Labor Relations Act, 29
U.S.C. §158(c).
[18] See, e.g., Medieval Knights, LLC, 350 NLRB No. 17 (2007) (finding that consultant’s statement that hypothetical employer could lawfully “stall out” contract negotiations was not threat that electing union would be futile); TNT Logistics North America, Inc., 345 NLRB No. 21 (2005) (finding that supervisor’s unsupported statement that employer would lose only customer if employees unionized was lawful expression of personal opinion); Manhattan Crowne Plaza Town Park Hotel Corp., 341 NLRB 619 (2004) (finding that employer’s statement recounting mass discharge of recently-unionized employees at another employer’s hotels was not threat of reprisal); Curwood, Inc., 339 NLRB 1137 (2003) (finding that employer’s letter stating that customers viewed unionization negatively was lawful).
[19] See, e.g., California
Gas Transport, Inc., 347 NLRB No. 188, slip op. at 8-9, 10-11 (2006)
(discussing discharges and other violations designed to stop organizing drive),
enfd. 507 F.3d 847, (5th Cir. 2007).
[20] See
[21] Harborside Healthcare,
supra, 343 NLRB at 909-912. Member Walsh
and I dissented.
[22] Oakwood Healthcare,
Inc., 348 NLRB No. 37 (2007).
[23] Commission on the Future of Worker-Management Relations
(Dunlop Commission), Fact Finding Report
73 (May 1994), available at http://digitalcommons.ilr.cornell.edu/key_workplace/276/. See
also Commission on the Future of Worker-Management Relations, Final Report 44 (December 1994),
available at http://digitalcommons.ilr.cornell.edu/key_workplace/2/.
[24] Dunlop Commission, Fact
Finding Report, supra, at 74.
[25] Dunlop Commission, Final
Report, supra, at 38.
[26]
[27] See, e.g., NLRB v.
Gissel Packing Co., 395 U.S. 575, 596-597 (1969) (discussing history of
voluntary recognition under NLRA Section 9(a), proving that representatives may
be “designated or selected” by a majority of employees, without specifying
means).
[28] Dana Corp., 351
NLRB No. 28 (2007). Such a
notice-posting requirement is unprecedented.
Employers, for example, are not generally required to post notices to
employees informing them of their labor-law rights. Only if the employer commits an unfair labor
practice is notice-posting required, as part of the Board’s remedial order.
[29]
[30] NLRB v. Lyon &
Ryan Ford, Inc., 647 F.2d 745, 750 (7th Cir. 1981).
[31] See John-Paul Ferguson, The
Eyes of the Needles: A Sequential Model of Union Organizing Drives, 1999-2004
(March 25, 2008) (unpublished working paper). See also Thomas A. Kochan, Updating
American Labor Law: Taking Advantage of a Window of Opportunity, 28
Comparative Labor Law & Policy Journal 101, 111-112 (2007) (discussing
data).
[32] Garden Ridge
Management, Inc., 347 NLRB No. 13 (2006).
[33]
[34] See Martin J. Levitt, Confessions
of a Union Buster 204-225 (1993).
Describing his own experience as a consultant, Levitt writes:
The negotiation of a first contract is very
delicate, so the process is highly controlled by labor law. Company executives who have just been forced
to recognize a union – after spending tens of thousands of dollars to defeat it
– rarely walk into their first bargaining session with open arms…. The purpose of the rules is to impede
management from undermining negotiations….
As with most labor laws, however, the rules are largely
ineffective. Worse, the hands of a union
buster can quite easily twist those rules into a precision weapon against the
union.
[35] See, e.g., Dish
Network Service Corp., 347 NLRB No. 69 (2006).
[36] Federal Mediation and Conciliation Service, Fifty-Seventh Annual Report 18 (2004),
available at www.fcms.gov.
[37] See John Calhoun Wells & Wilma B. Liebman, New Models of Negotiation, Dispute Resolution,
and Joint Problem Solving, 12 Negotiation Journal 119, 124-125 (1996).
[38] NLRB General Counsel Memorandum GC 06-05, First Contract Bargaining Cases (April
19, 2006), available at www.nlrb.gov (endorsing use of Section 10(j)
injunctions and special remedies). See also NLRB General Counsel Memorandum
GC 07-08, Additional Remedies in First
Contract Bargaining Cases (May 29, 2007), available at www.nlrb.gov
(endorsing additional remedies, including requiring bargaining on a prescribed
or compressed schedule, requiring periodic reports on bargaining status,
minimum six-month extensions of the certification year protecting unions’
representative status, and reimbursement of bargaining costs).
[39] General Counsel Memorandum GC 06-05, supra, at 1.
[40] General Counsel Memorandum GC 07-08, supra, at 1.
[41] See Ray Brooks v. NLRB, 348
[42]
[43] See Mar-Jac Poultry
Co., 136 NLRB 785 (1962).
[44] See General
Counsel Memorandum GC 07-08, supra, at 4-5.
[45]
[46] American Medical
Response, supra, 346 NLRB at 1007.
[47]
[48] Lee Lumber &
Building Material Corp., 334 NLRB 399 (2001), enfd. 310 F.3d 209 (D.C. Cir.
2002).
[49]
[50]
[51] Badlands Golf Course,
supra, 350 NLRB No. 28, slip op. at 5.