A ruling by Bush's NLRB could weaken labor protections for hundreds
of thousands of workers
Just when the last thing America's workers need is another economic kick in
the groin, the Bush labor board is poised to deliver what could be its lowest
and most devastating blow yet. The Bush National Labor Relations Board is easily
the most anti-worker labor board in history and has lost few opportunities to
turn back the clock on workers' rights*but even against this sorry backdrop,
the scope of what they now are contemplating is breathtaking.
In a series of pending cases known as Kentucky River, the National Labor Relations
Board could strip what remains of federal labor law protections from hundreds
of thousands, perhaps millions, of workers whose jobs include even minor, incidental
or occasional supervisory duties. The pending cases involve charge nurses in
a hospital and a nursing home and lead workers in a manufacturing plant, but
these workers, though they constitute a large group, could be just the tip of
The consequences of bad labor board rulings in these cases will reverberate
far and wide, potentially stripping coverage in every nook and cranny of the
workforce and creating innumerable new opportunities for mischief by employers
and their hired gun consultants bent on denying workers' their fundamental human
right to form a union. Long established unions and collective bargaining relationships
will also unravel, as employers emboldened by the Bush labor board's rulings
assert that they no longer have a duty under federal labor law to recognize
or bargain with their employees' unions. It will be back to the law of the jungle
in industries like health care, where disruptions from labor disputes became
so severe in the early 1970s that Congress passed special legislation to bring
employees of private non-profit hospitals under federal labor law coverage.
The stakes are high for the public, too. In health care, for example, solid
scholarly research has documented that heart attack survival rates are higher
for patients in hospitals where nurses have a union than in hospitals where
nurses do not have a union. Bad rulings in Kentucky River may be good news for
morticians, but they will be very bad news for everyone else.
Already in 2000, months before George Bush was declared President, Human Rights
Watch issued a powerful report that found U.S. labor laws were grossly out-of-
compliance with international human rights norms and were failing utterly to
protect workers' basic freedom to form unions and bargain collectively. HRW's
bill of particulars was lengthy, but it is noteworthy that the first item on
their list was the failure of the United States to extend coverage of its labor
laws to so many millions of workers*including, among others, managers and supervisors
in the private sector. As the HRW report made clear, there is no valid excuse
in human rights terms for such enormous exclusions from coverage. Two years
later when the Government Accountability Office put a pencil to it, they estimated
that fully 32 million federal, state and private sector workers lacked coverage
under U.S. labor laws and thus were denied even the minimal protections afforded
by these laws of their human right to form unions and bargain collectively.
Included in this number were nearly eleven million private sector managers and
supervisors, even before the Bush labor board's rulings in Kentucky River.
The ink was barely dry on the GAO report before the huge numbers they reported
became out of date, in the wake of a full-scale assault on workers' rights by
the Bush administration, its labor board, and right-wing Republican governors
in several states. In the private sector, the Bush labor board stripped coverage
from graduate student employees, certain disabled workers, and employees of
temporary help agencies. These retrograde rulings harmed large numbers of workers,
but are a drop in the bucket compared with the probable impact of Kentucky River.
Congress opened the door in 1947 by excluding supervisors from labor law coverage
as part of the notoriously anti-worker Taft-Hartley amendments to the National
Labor Relations Act. Even the reactionary Congress that passed Taft-Hartley,
however, made it clear that it did not intend to deny coverage under U.S. labor
law to professional workers, lead workers or others whose jobs do not include
major managerial responsibility to hire, fire and discipline other employees.
Ever since Taft Hartley, a shameful series of decisions by unelected judges
and NLRB members has steadily expanded the supervisory exclusion. In its notorious
1980 Yeshiva decision, for example, the Supreme Court ruled that because professors
in private universities tend to participate in campus governance via their membership
in faculty senates, they were supervisors and therefore not eligible for federal
labor law protection of their freedom to form unions and bargain collectively.
Henceforth private universities could and did snuff out faculty organizing campaigns
with complete impunity. Within a few years of Yeshiva, collective bargaining
for faculty had vanished at some two dozen private universities where it had
previously been established.
The pending decisions in Kentucky River could be Yeshiva on steroids for workers
in every state, occupation and industry who have ever given incidental direction
to a colleague or coworker in the performance of their job. The United States
is already paying a high economic, social and political price for its failure
to protect workers' freedom to form unions; the Bush labor board's rulings may
be about to make a bad situation dramatically worse.
For America's workers, the stakes could not be higher. When it comes to wages,
benefits and other terms and conditions of employment, collective bargaining
plays a critical role. It raises wages, not only for union members, but for
all workers. It reduces race and gender pay gaps by bringing the wages of women
and workers of color closer to parity with white males.
In the United States, the only industrialized nation without universal public
health insurance, collective bargaining enables workers and their families to
have decent affordable health care; only 2.5% of union members lack health insurance
coverage, versus 15% of non-union workers. Retirement income security has become
virtually non-existent for workers who lack the protection of a union contract,
but is still widespread for union members. Workers without a union contract
rarely have recourse if their employer disciplines or fires them unjustly; union
members are nearly always protected against wrongful discipline or discharge
by strong contract language. Collective bargaining gives workers a voice in
their workplace and dignity on the job.
Society as a whole benefits when workers' freedom to form unions and bargain
collectively is protected. In states where unions are stronger, wages are higher
for all workers than in states where unions are weaker. Important social and
economic indicators are more favorable for all residents than in states where
unions are weaker. Where unions are stronger, the percentage of people without
health insurance is lower; life expectancy is higher and infant mortality is
lower; and there is less poverty. These higher union density states devote more
resources per pupil to public education; they have lower workplace fatality
rates; and safety net programs such as unemployment insurance and Workers' Compensation
are more protective for everyone.
Without strong unions there is no effective counterweight against unbridled
corporate power. It is no accident that as legal protections for workers' freedom
to form unions have diminished and collective bargaining coverage has eroded,
an ever-larger share of the federal tax burden has shifted from corporations
For all these reasons and more, we must push back against the Bush labor board's
assault on workers' rights. We in labor invite, encourage and urgently need
support in this fight from people of good will throughout our country, in every
major institution of American life. If you want a better, fairer and more just
economy and society, please stand with workers in this important struggle.
Stewart Acuff is Director, AFL-CIO Organizing Department;
Sheldon Friedman is Research Coordinator, AFL-CIO Voice@Work Campaign.
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