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As if American workers and American unions didn’t have enough problems these days, hundreds of thousands or even millions of American workers may be on the verge of losing their right to organize a union, if the Bush administration has its way.

The National Labor Relations Board (NLRB) is set to rule on a series of cases collectively known as "Kentucky River," which will determine whether nurses can be considered "supervisors." Supervisors, traditionally considered to be employees who could hire, fire and discipline other employees, are not allowed to join unions, according to American labor law.

The origin of the supervisory exclusion was the Taft-Hartley Act which amended the National Labor Relations Act in 1947. The original National Labor Relations Act gave all employees the right to form unions and required that employers recognize certified employee unions and bargain in good faith. The Taft-Hartley, however, excluded supervisors, 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.

However, even the anti-union authors of the Taft-Hartley act made it clear that it did not intend to deny coverage to professional employees, lead workers or others whose jobs do not include major managerial responsibility to hire, fire and discipline other employees.

The current problem stems from a 2001 Supreme Court ruling that found that the NLRB’s analysis of the supervisory status of six registered nurses at a Kentucky nursing facility was flawed. The Board is therefore required to come up with a better definition of "supervisor." The problem is that some nurses act as "charge nurses," who are allowed to decide which patients will be seen by his or her colleagues. And despite the fact that charge nurses can’t discipline other employers, hire or fire, they could be considered management by an overly broad interpretation of the law.

Even worse, the implications of the decision would go far beyond just nurses. There are a variety of professional and other occupations where line workers are given some authority to give instructions to other workers. AFL-CIO organizing director Stewart Acuff  

estimates 300,000 nurses could be affected by the rulings and up to 1.5 million other workers. "Team leaders and gang leaders in ports, lead men in mines, lead men in docks at manufacturing facilities and warehouses, engineers, people who oversee apprentices in trades—almost every senior worker does this to some extent."

Business that oppose unions have been successful in using the vague Taft-Hartly language to fatally delay union elections by asserting that the workers perform supervisory functions and are not eligible to be part of a bargaining unit. Even if they fail, the elections are delayed for years. And if they’re successful, there’s no election. Win-win.

Finally, just to add insult to injury, the NLRB has refused to hear oral arguments on the cases. In fact, according to the AFL-CIO, the NLRB

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. 

An unfavorable NLRB decision could have devastating effects on labor relations in this country

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. 

And this isn’t good new for anyone who’s ever planning on being a patient in a hospital either. Nurses unions are known to be strong advocates of increasing nurse-patient staff ratios and other measures that improve patient outcomes. Research shows that that increased nurse-staff ratios mean fewer hospital fatalities, fewer heart attacks, shorter time spent in the hospital, and fewer patient-safety errors.

Things are already bad enough in the U.S.  A 2002 Government Accounting Office one quarter of the civilian American workforce — 32 million workers — were without collective bargaining rights.

The largest groups without rights were about 8.5 million independent contractors; 5.5 million employees of certain small businesses; 10.2 million supervisory/ managerial employees (including 8.6 million first-line supervisors); 6.9 million federal, state and local government workers; approximately 532,000 domestic workers; and 357,000 agricultural workers.

And as is increasingly common in George Bush’s United States, US laws are out of sync with international human rights. A 2000 report by Human Rights Watch (HRW) found that U.S. labor laws were grossly out-of-compliance with international human rights norms and failed to protect workers’ rights to organize unions and bargain collectively. The effect, according to HRW is that  

Big chunks of the labor force are defenseless against employer reprisals if they try to exercise freedom of association. If they protest abusive working conditions, employers can fire them with impunity. If they seek to bargain collectively, employers can ignore them. Protection of the right to organize and bargain collectively, a bedrock requirement of international labor rights norms, is denied these workers.

(We already talked about public employees here.)

But would the NLRB actually go so far as to take away the collective bargaining rights of millions of American workers? Probably.

In July 2004, the Board ruled that graduate teaching and research assistants were not covered under the NLRA, arguing that their status as students superseded their role as employees. In September 2004, the Board ruled that disabled persons receiving rehabilitative services are also not eligible to form unions under the NLRA. Two months later, temporary employees were barred from organizing unless they had the permission of both their employer and temp agency. The . . . majority then went on to strip organizing rights from artists’ models and newspaper carriers. And earlier this year, the majority ruled that employees of a private nonprofit that performs quasi-public functions are public employees, without coverage by the NLRA.

Not everyone is going to sit back and take it. The AFL-CIO has organized demonstrations today in Los Angeles, Oakland and Bangor, Maine, and in Chicago on Thursday, and is planning additional rallies in other locations. Members are asking Congressto Congress to tell NLRB Chairman Robert J. Battista to reverse the decision not to hear oral arguments in these critical cases.

Meanwhile, in the workplaces of America, workers are threatening to take things into their own hands. 7,000 nurses and other health care workers at eight New Jersey hospitals are threatening to strike to protect nurses’ right to speak out for their patients through their union.

And if all else fails

Gene Giacobbe , 52, says he is concerned about losing union status, too. He runs the flower shop at a Stop & Shop in Saugus, and supervises the activities of four part-time employees. "I do some evaluations, but as far as hiring, firing and suspensions, that is done by the store manager and not by me," said Giacobbe. If the NLRB sides with employers and he gets reclassified as an exempt manager, Giacobbe said he would rather remain in the union.

"I’d look at stepping down from department manager to a clerk," he said.  "It would cost me some money, but in the long run, I’d be better off."

Jordan Barab blogs at Confined Space