Labor & Employment Law — 12/26/08

Changes advocated by Liebman "do not recognize economic realities," says one NLRB advisory member

Recent assertions by Wilma B. Liebman, three-term National Labor Relations Board member and likely pick to head the NLRB in the Obama Administration, that current labor laws are antiquated and in need of change raise troubling issues, according to Joel E. Cohen, a partner in McDermott Will & Emery LLP and New York-based co-chair of the firm's U.S. employment practice. Cohen said the changes advocated by Liebman to expand the power of unions do not represent a realistic view of today's workplace.

"Ms. Liebman has implied her support for such labor law changes as passage of the Employee Free Choice Act, which would forgo secret ballot union representation elections, and for allowing different unions to represent small groups of employees, which would eliminate the fundamental principle of single-union 'exclusive representation' of similarly situated employees," Cohen states.

"These proposed changes purport that unionization as currently constituted is the wave of the future and a consistent positive force in our economy. The reality," Cohen adds, "is that the workplace issues that predominated at the genesis of the union movement in this country no longer predominate, and unionization has proven largely irrelevant to the concerns of most current workplaces."

Cohen bases this belief on more than 30 years of labor law experience, which began with his work as a trial attorney with the NLRB. He is currently one of only 26 management labor lawyers in the country who serve on an advisory panel to the Board.

During the past 50 years, employment and labor laws at the federal, state and local levels have institutionalized all the protections that employees once sought to secure through union representation, Cohen asserts. Examples include employment anti-discrimination laws, pension protection under ERISA, fringe benefit protection by the COBRA statute, occupational health and safety laws, family medical leave, plant closing notification, and prohibition of unlawful discharge. Moreover, Cohen believes, the vast majority of employees--who are not unionized--receive competitive wages, benefits and pensions because employers recognize the correlation between fair compensation and high productivity.

"It is not simply that unionization as it currently exists is largely irrelevant," Cohen adds. "In many cases it is disruptive to our economy and to our common good. While unionization is certainly not the only reason for problems of dying manufacturing industries like apparel and autos, these industries are heavily unionized. Unions which represent employees who hold these jobs spend inordinate amounts of resources trying to maintain them at artificial levels not supported by global competition, instead of re-training these endangered employees for new, higher skilled jobs that have a real future in the United States."

Cohen agrees that change is needed in unions' workplace roles. However, that change should be for unions to become more like trade associations, representing employees in industry-wide dialogue with employers to advocate with government on issues of common interest, to negotiate industry-wide best practices, and to provide training and re-training as industries adapt to changing economic times.

"Our current labor laws should be changed to encourage more employer-employee communication and joint decision-making on the micro-level without the need for a union, and to provide for a new role for unions as representatives of employee interests on industry-wide issues," Cohen summarizes. "This will change unions' focus to the big picture--encouraging the education and skills that the next generation of American workers need in a service-based economy to build a new middle class that reflects the reality of a changing economic world."

Cohen represents manufacturing, service sector and health care employers in employment discrimination lawsuits and administrative proceedings, NLRB matters, unionization campaigns, collective bargaining and employment contracts.

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