American Workers’ Freedom to Form Unions Threatened Under Bush NLRB

[Omaha Steve]

http://blog.aflcio.org/2006/06/29/american-workers%e2%80%99-freedom-to-form-unions-threatened-under-bush-nlrb

American Workers’ Freedom to Form Unions Threatened Under Bush NLRB

A few nights ago, a group of New Jersey nurses in contract negotiations with Robert Wood Johnson University Hospital held a candlelight vigil. The nurses are seeking contract language that will protect them from an expected anti-worker decision by the Bush-packed National Labor Relations Board. The NLRB is set to rule on three cases collectively known as “Kentucky River”—and the ruling literally could take away bargaining rights from hundreds of thousands of employees.

And not just nurses. If the NLRB agrees to alter the definition of “supervisor,” building trades workers, newspaper and television employees, port workers and many others could be prohibited from forming unions.

Meanwhile, the NLRB has refused to hear oral arguments on the cases—and has heard no oral arguments, a fundamental part of any due process, since the Bush administration took office. In fact, the NLRB denied union requests to heard oral arguments in these cases.

(We urge you to contact your members of Congress to tell Bush’s labor board to reverse its decision and allow oral arugments in the Kentucky River cases.)

During the week of July 10, hundreds of thousands of union members will take to the streets in a week of action to demand that their employers not fire them for their union membership. Already, some 7,000 nurses and other health care workers at eight New Jersey hospitals threatened to strike to protect nurses’ right to speak out for their patients through their union.

How did we as a nation come to the point where those in power threaten the rights of hundreds of thousands of workers to exercise the freedom to form unions—one of the pillars of the Bill of Rights?

Although nurses in 2006 New Jersey may seem to have little in common with auto foremen in the 1940s, the attack the hospital nurses face today is part of a relentless, decades-long assault by corporate-backed members of Congress on the bargaining rights of workers—from auto foremen to nurses.

From the time the National Labor Relations Act (NLRA) was passed in the 1930s, Big Business interests have sought to deny America’s workers their fundamental freedom to form unions. One strategy has been to limit the number of workers who qualify for union membership and federal labor law protection. Among those targeted are workers whom employers seek to classify as “supervisors.”

In 1941, foremen at Ford’s Rouge plant began forming a union. Although foremen’s unions had existed for decades in the printing, building trades and other industries, the independent Foremen’s Association of America represented a clear challenge to industrial management’s authority. Between 1920 and 1940, the ratio of foremen to workers remained static but increased by 70 percent in the 1940s.

Not only were foremen a large and burgeoning segment of one of the nation’s most powerful and fastest-growing workforces, their successes in organizing their peers quickly gaining momentum: By the early post-war years, an estimated 100,000 foremen had joined together in some form of bargaining unit.

The idea of foremen (“supervisors” in today’s parlance) forming unions scared corporate interests.

No, scratch that. It didn’t scare them.

It terrified them.

By 1947, corporate-backed Republicans in the House and Senate, who had spent years trying to legislatively hamstring the NLRA, succeeded in passing the Taft-Hartley Act. With its passage, Taft-Hartley basically destroyed the main goal of the NLRA: to give workers a fair chance to decide whether to form unions.

Taft-Hartley includes a dirty laundry list of rules, but among the most significant—although the least noted at the time of the law’s passage—is its ban on supervisors forming unions.

So, the Ford foremen’s union was abolished. And the growing number of white-collar, “middle management” professionals who proliferated throughout the 1960s, 1970s and 1980s were powerless to join together and bargain collectively with their bosses. Today, such workers are called “at-will” employees, a friendly sounding euphemism that in fact means they can be fired for anything—as long as it doesn’t violate federal discrimination or other such laws.

Under Taft-Hartley, a supervisor is defined as

…any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

But this definition wasn’t enough for Big Business. In the decades following Taft-Hartley passage, corporations have continued to expand Taft-Hartley’s meaning of “supervisor.”

Current U.S. labor law makes it easy for employers to delay recognizing unions. If a group of workers votes to join a union, union-hating employers can merely assert the workers perform supervisory functions and are not eligible to be part of a bargaining unit. In doing so, employers accomplish two things:

They delay, often by years, the time in which they recognize and must bargain with the union.

If successful in their challenge, they further limit the number of America’s workers who can join unions.

The legal process is long and tedious, but by working through the federal courts and the National Labor Relations Board, which was set up by the NLRA to administer the law, corporations have successfully chipped away at the scope of “supervisor.”

With the extension of the NLRA to nonprofit hospitals, the question of what duties a worker must perform to be considered a “supervisor” moved to the health care field, now among the nation’s fastest-growing job sectors. Two key cases on the question of whether nurses are supervisors wound their way through years of NLRB and federal court rulings to the Supreme Court. And in all three cases, the high court agreed with employers and further limited the ability of nurses to form unions.

In the most recent Supreme Court case, NLRB v. Kentucky River Community Care, the justices in 2001 ruled, 5–4, that six RNs at the Caney Creek Developmental Complex in Pippa Passes, Ky., were supervisors. The ruling stood on the issue of “independent judgment.” In his dissent, Justice Stevens argued the statutory terms “independent judgment” and “responsibility to direct” are ambiguous. Stevens further warned:

…if the term “supervisor” is construed too broadly, without regard for the statutory context, then Congress’s inclusion of professionals within the Act’s protections is effectively nullified.

Justice Stevens is right that construing the term “supervisor” broadly will eliminate professional employees from NLRA protections. This is exactly what many fear the Bush labor board will do.

Although it would be nice to buy in to the fiction that regulatory bodies are above politics, they aren’t. As James Gross has shown in his volumes on the history of the NLRB, the board rules in the interests of its members. And if those members are corporate-backed Republicans, they almost inevitably will rule in the interests of Big Business.

The connection between political action and organizing could never be more clear.

(The background on auto foremen stems from historian Nelson Lichtenstein’s great study, “The Man in the Middle: A Social History of Automobile Industry Foremen,” On the Line: Essays in the History of Auto Work, eds. Lichtenstein and Stephen Meyer.)

by Tula Connell