A New Assault on Workers’ Rights

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

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 iceberg.

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

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

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
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 to individuals.

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.