Chicago, IL
Working families are under attack as never before. Will there be retirement security? Who will pay for rising health care costs? What about unaffordable gas prices? And in an increasingly ruthless economy, workers are facing downsizing, outsourcing, and offshoring. We are working more and harder for less pay, fewer benefits and diminished buying power. Now the Bush-appointed National Labor Relations Board is poised to issue a series of decisions that could narrow even further the one road to economic security that a shrinking number of America’s workers still possess: the freedom to form and join unions.
Nurses, construction workers, news reporters, factory workers, skilled trades and many others are bracing for what may well be the most devastating assault on their rights in decades. NLRB rulings in three cases, collectively known as the “Kentucky River” cases, could strip hundreds of thousands of workers of their union protections and block many more from forming unions by reclassifying them, with a stroke of the pen, as “supervisors.” Workers in every industry may be affected -- 8 million according to a July 2006 report by the Economic Policy Institute.
Unlike “employees,” “supervisors” have no federal labor law protections; they not only lose the right to have a union contract, but can be fired or disciplined for any union activity. Any skilled or experienced worker who sometimes directs or assigns the work of less skilled and experienced workers is vulnerable to a broadened definition of “supervisor” in these cases. Already, employers are refusing to continue union contracts for workers they intend to reclassify as “supervisors” under the anticipated NLRB rulings.
The determination of “employee” status is critical to all rights under the National Labor Relations Act. Yet the Board has denied oral argument in these cases of such great and historical significance. In fact, the Bush-appointed Board has not heard oral argument in any case, despite a past practice by prior Boards of invoking this valuable analytic tool. Thirty distinguished professors of law from the most prestigious law schools across the country have asked the Board to reconsider its denial of oral argument, as have 134 members of Congress. In cases of such importance and broad applicability as these, the Board should seek guidance through all available means, including oral argument. This Board has refused.
The pending decisions in the “Kentucky River” cases come at a time when the Bush-dominated Board appears to have abandoned its mandated role under the National Labor Relations Act to protect collective bargaining and the freedom to form and join unions. Board decisions have increasingly and aggressively reversed the course of the Act away from its original purposes of fostering workplace democracy and redressing economic inequality and instead towards a regulatory regimen that protects employer property and employer prerogatives at the expense of workers’ rights. In case after case, the rights of workers yield, especially those of workers trying to form and join a union. Instead of adapting to new workplace realities, this Board has pushed the Act to near irrelevancy in the modern American workplace.
This abdication by the Board of its role as protector of employees’ rights comes at a time when the right to organize is already under growing attack. The numbers paint a stark and compelling picture of what workers face when they try to form a union. During organizing campaigns, more than one-third of employers discharge workers for union activity; more than half threaten a full or partial shutdown of their facility if the union effort succeeds and between 15 and 40 percent make illegal changes to wages, benefits and working conditions, give bribes to those who oppose the union or spy on union activists.
Yet in case after case, the Bush-controlled Board has ruled that workers’ rights must yield -- to employer property interests, however miniscule, to employer prerogative, to national security and to other statutes. In apparent concert with increased employer resistance, this Board has diminished workers’ rights during organizing campaigns by allowing workplace rules that discourage union support, permitting employers’ greater leeway to make threats and spy on workers’ union activities, and restricting workers’ ability to solicit union support.
This Board has denied workers the Act’s protections with decisions that eliminate entire groups of employees through broad interpretations of managerial, student, independent contractor and other excluded categories, including temporary workers. It has emboldened anti-union employers and betrayed the Act’s promise of federally protected worker rights by adopting an extremely restrictive and narrow view of what constitutes remedial relief and the necessity for remedial relief. Particularly when workers' are engaged in organizing campaigns, the bargaining order remedy, injunctive relief, and special organizing remedies have fallen into virtual disuse.
Under no prior presidential administration, Republican or Democrat, has the Board so abandoned its founding commitment to workplace democracy and workers’ rights.
In response to this failure to protect workers’ participation in the representation process, unions have moved away from the NLRA’s delay-ridden, intimidating procedure in favor of voluntary recognition campaigns. The NLRA’s bureaucratic process manifestly does not work for workers; in fact, it encourages intense, coercive and aggressive employer resistance to organizing efforts. In contrast, voluntary recognition provides workers with a fair process for determining representation, one that reaffirms the right of freedom of choice and has been endorsed and approved by the U.S. Supreme Court, Congress, and the very language of the Act. But instead of embracing voluntary recognition as an important opportunity for workers who want to unionize, the Board has taken aim and is poised to fire, reconsidering decades old policies in an apparent effort to hobble this important path to representation.
Fifty-seven million workers want unions, but decisions from this Bush Labor Board have created new obstacles and hurdles.
Instead of shrinking the Act’s coverage, protections and remedies, the Agency charged with enforcing the National Labor Relations Act should be trying to figure out why virulent anti-union campaigns are still the norm, why workers face such fear and intimidation when they try to form a union, why so many organizing campaigns still involve so many violations of workers’ rights, and why the rights guaranteed by the Act are still beyond the grasp of so many workers.
Last month, during the July 10 “Week of Action,” ten thousand workers in 22 communities across America joined to support workers facing reclassification as excluded “supervisors” and to protest any more rollbacks of workers’ rights by the National Labor Relations Board. In Washington, D.C., 1,500 demonstrators protested at the Board’s headquarters. This worker mobilization captured the attention of the media across the country, resulting in news stories, op-eds, and nationally televised reports.
Now we must escalate our efforts to educate, engage and mobilize our members, the public and elected officials. We need to let them know that we will not tolerate the elimination of hundreds of thousands of workers from protection under the National Labor Relations Act; that we will fight the collective bargaining battles necessary to retain workers’ contract coverage and collective bargaining rights, notwithstanding any NLRB rulings; and that we will aggressively pursue a political and legislative agenda to restore workers’ freedom to organize.
We will elect lawmakers who understand that collective bargaining is critical to lifting the wages, benefits and working conditions not only of our union members, but of all workers. And we will hold our elected officials accountable.
With renewed passion, energy and conviction, we will continue our efforts towards the passage of laws, including the Employee Free Choice Act and other legislation, that protect workers and their right to form unions and bargain collectively and that guarantee all workers have this inviolable right to improve their lives.