A Minute With...

Wilma Liebman, former chair of the National Labor Relations Board

10/16/2012  7:00 am

Wilma Liebman is a visiting professor in the College of Law and the School of Labor and Employment Relations on the Urbana campus of the University of Illinois. In an interview with News Bureau business and law editor Phil Ciciora, Liebman, who served on the National Labor Relations Board under presidents Clinton and George W. Bush and as chair of the labor relations board under President Obama, spoke about labor issues in the news.

It has received comparably little fanfare or media attention, but Wisconsin Gov. Scott Walker’s highly controversial anti-union legislation recently was ruled unconstitutional by a Wisconsin judge. Generally speaking, are there ways to rein in labor costs without resorting to union busting and costly court battles?

image of professor wilma liebmanOf course. The collective bargaining process has the built-in flexibility to accommodate the need for reducing or restructuring labor costs. If you unleash the creative potential of collective bargaining it can solve problems because it allows the parties to fashion solutions of their own making. Developing basic trust between the parties is, of course, essential.

In Wisconsin, the unions were willing to meet the governor’s monetary demands – and yet the governor was intent on pushing beyond that, to curb significant aspects of the public employees’ collective bargaining rights. The dispute was about far more than budgetary issues.

Unions represent less than 7 percent of the private sector workforce, and yet organized labor is often scorned and invoked as a bogeyman by politicians. Why?

That is indeed a paradox. I think the reasons are complex. There is a long history of anti-unionism in this country. Some people have never accepted the legitimacy of trade unions. For some, the notion of collective activity – which unionization is, by definition – is threatening or “un-American.” Some politicians are reflecting the views of business, which may strenuously oppose unions because of the loss of total autonomy that comes with the duty to bargain with a union and because they view the wage premium, traditionally associated with unionization, as anti-competitive. A popular refrain is that unions are “job killers.”

I also think that the opposition has successfully created cleavage between working people themselves. To me it seems that, instead of some people resenting unionized workers, the more natural reaction would be, “We, too, should form a union to try to improve our conditions.”

The Wagner Act of 1935 guarantees the right of workers to organize and collectively bargain. Do we need to amend the law to fit today’s complex economy and labor market?

I believe that the Wagner Act is badly in need of modernization. Its basic guarantee to workers of the right to organize and bargain collectively with their employers remains essential, but overall the law does not really work for most workers or firms.

Seventy-seven years after enactment of a law intended to equalize bargaining power between labor and capital through collective bargaining, and thereby to increase workers’ purchasing power, union density in the private sector is under 7 percent while income inequality is at record levels not seen since the Gilded Age.

The last major revision to the Wagner Act was in 1947. Needless to say, our economy and the workplace have changed dramatically since then. The law was written for an industrial economy; it clearly had a factory model and that form of employment in mind. But the labor market has become far more complex. Increasingly, people no longer work in traditional employment arrangements. They don’t stay at one place for a lifetime. Many employers, in their quest for flexibility and competitiveness, are using contingent and temporary employment arrangements, and persons classified as independent contractors. Many of these workers are excluded from union representation. The statute is not written to cover these forms of work in large part.

Some commentators have criticized the basic model of the statute whereby the only form of workplace representation that employees can enjoy is exclusive union representation based on majority rule, in a decentralized bargaining unit. Other forms of representation are not permitted under this law, which makes this a unique system. The labor laws everywhere else in the world – except for the U.S. and Canada – allow for different forms of workplace representation, including non-exclusive union representation. For example, European countries have “works councils,” which are something separate from unionization. Under some labor law systems, if five people in the workplace wanted some sort of representation, they could band together, even if the majority did not join. Changing the existing model in the U.S. would be controversial.

All this said, the chances at present for significant federal labor law reform do not seem great. While many would agree that this Industrial-era law warrants updating, there is no political consensus about how to fix it. At the moment, the only apparent activity on labor law is going on at the state level.

What if anything can be done to elevate the public discourse surrounding organized labor and collective bargaining?

There is obviously a deep national divide over issues of organized labor, collective bargaining and the role of government in protecting the rights of workers. In the current political environment, it seems to be virtually impossible to have a serious political dialogue. Political and economic discourse on these subjects is degraded and the rhetoric overheated. I would like to hope that serious discussions could begin outside of the political arena, with labor and business ultimately coming to realize that we are in an impossible stalemate and change of direction is needed. Issues of worker rights and income inequality should all be part of a broader discussion of how to create a sustainable market economy that works for all Americans.


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