Keeping labor organizers at bay used to be a bloody business. In May 1937, when United Auto Workers leader Walter Reuther tried to unionize a Ford plant in Dearborn, Michigan, he was confronted by Henry Ford's hired goons. In the mêlée that ensued, the legendary labor organizer was slammed to the ground, kicked in the head, and tossed down multiple flights of stairs.
Today's business executives don't hire goons--and, thanks to George W. Bush, they don't need to. While every worker technically has the right to organize and join a union, not all can do so under the protection of the National Labor Relations Board (NLRB), which sanctions government-supervised union elections and bars employer harassment. Denying certain workers these protections blocks them, in effect, from unionizing. And that is exactly what the NLRB--currently dominated by conservative Bush appointees--has done. For instance, the board has denied protection to certain temporary workers and subcontracted employees. Now the NLRB has handed business its biggest such victory yet: Earlier this month, it ruled that the nurses at a Michigan acute-care facility who set schedules for other nurses are not really employees but rather supervisors--which means they aren't protected by the NLRB. The Economic Policy Institute estimates that the decision could prevent as many as eight million workers in similar roles from joining unions. That would certainly please business leaders. But it should make the rest of us uneasy.
Professionals--such as the Michigan nurses--were a miniscule part of the U.S. workforce in 1937, when Reuther battled Ford in Dearborn. Today, they represent over one-fifth of all workers, and labor's survival in this country probably depends upon its growth in that sector. Many of these professionals occupy an ambiguous space in the workforce: Though they have little or no control over wages and workplace conditions, they still perform minor supervisory roles. Software programmers, for example, serve as team leaders; nurses have aides; and scientists rely on lab assistants.
Businesses are using this ambiguity to exploit an obscure 1947 amendment to the original National Labor Relations Act. The amendment, designed to prevent factory foremen from joining unions, denied supervisors NLRB protection to organize. Until recently, however, the NLRB still counted workers (including professionals) as employees rather than supervisors if they performed only rudimentary supervisory tasks. That was in keeping with the bill's original intent: The Senate's analysis of the amendment at the time distinguished actual supervisors from "straw bosses, leadmen, set-up men, and other minor supervisory employees." And the bill itself distinguished between the "independent judgment" of supervisors and the "discretion and judgment" exercised by professional employees.
The Rehnquist Court chipped away at these distinctions starting in 1994, but now the NLRB itself has left them in rubble. In this month's decision, the board ruled that "charge nurses"--who, as part of their duties, decide daily which patients other nurses will see--are supervisors, not employees. As the two Democrats on the NLRB noted in their dissent, the ruling ignores the fact that these "charge nurses" clearly functioned like "straw bosses" or "leadmen" rather than like foremen. They work with the employees they are said to supervise, and they lack the authority to discipline or reward these workers. The decision, the NLRB's Democrats wrote, "threatens to create a new class of workers under federal labor law: workers who have neither the genuine prerogatives of management, nor the statutory rights of ordinary employees." Such workers--who could include professionals like engineers, writers, editors, scientists, pharmacists, physicians, and social workers, as well as nonprofessionals like truck drivers, cooks, and construction workers--may soon find themselves stranded, along with charge nurses, in a gray area of the law.
That undoubtedly warms the hearts of Republicans everywhere. Labor's power may be on the wane, but unions are still the country's most organized advocates for social and economic equality--and a key counterweight to the political influence of big business. As Bush ally Grover Norquist explained in 2004, "Every worker who doesn't join the union is another worker who doesn't pay $500 a year to organized labor's political machine." No wonder Bush's NLRB appointees are so eager to strike blows against labor like the one they delivered this month. Think of it as the bureaucratic equivalent of being thrown down a flight of stairs.
THE EDITORS