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While all of Washington DC and much of the political world are focused exclusively on a recent intelligence report showing that the war in Iraq is spreading terrorism, Bob Woodward book detailing how we’re plagued by an administration of liars surrounding by yes-men, and finally predator-gate which threatens to drive the final nail in the Republicans’ ’06 coffin, there have been two major legal developments that could sharply affect the fate of organized labor in this country.

This afternoon, George W. Bush’s National Labor Relations Board, in a party line 3-2 decision, took away bargaining rights for millions of American workers. The Board released its long-awaited Kentucky River cases. The cases focused around whether certain nurses, called charge nurses, should be considered as “supervisors.”

As I explained in a previous piece, 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 responsibly 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. Yet, the Republican-appointed majority today ignored that context, essentially finding favorable definitions for in the dictionary, rather than from clear Congressional intent.

Of course for this administration, simple legalities are not the issue; crushing labor unions is.

NOTE: If this is all too confusing, just check out Stephen Colbert's hilarious interpretation here.

As the AFL-CIO’s Tula Connell points out in Daily Kos,

Sandra Falwell, a staff nurse at Children's National Medical Center in Washington, D.C., sometimes directs the work of less skilled or less experienced employees. Yet she's not part of hospital management. She does not have the ability to hire or fire employees, evaluate their performance or make other decisions regarding their work.

Under today's ruling, Falwell--and hundreds of thousands of workers like her--now could be classified as supervisors, and so cannot belong to a union. And not only nurses: journalists, building trades workers, port employees and many, many, others may now be considered supervisors under U.S. labor law and so barred from joining unions.

Most chilling are the voices of dissenting Board members Wilma Liebman and Dennis Walsh who warn all professional employees that:

Today’s decision 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. Into that category may fall most professionals (among many other workers), who by 2012 could number almost 34 million, accounting for 23.3 percent of the work force.

We’ll have to see what effect this ruling has on the ability of health care workers and others to organize. The Democratic members of the Board are pessimistic:

The result could come as a rude shock to nurses and other workers who for decades have been effectively protected by the National Labor Relations Act, but who now may find themselves treated, for labor-law purposes, as members of management, with no right to pursue collective bargaining or engage in other concerted activity in the workplace.

Indeed, supervisors may be conscripted into an employer’s anti-union campaign, while their pro-union activity is now strictly limited. The majority’s decision thus denies the protection of the Act to yet another group of workers, while strengthening the ability of employers to resist the unionization of other employees.

Nathan Newman notes that the Kentucky River ruling clears the field from more employer mischief and harassment of workers:

And the new expansive definition of "supervisor" means that more workers will be given nominal supervisory responsibilities to undermine their right to unionize-- and lock every union vote in endless delays as companies litigate who is and who is not a supervisor.

Even if the workers "win", the election will probably be delayed long enough to kill the union drive. And here are the dynamics when large numbers of workers are declared to be supervisors-- it means that friends in the workplace immediately are turned into enemies as supervisors are told to spy on their friends or lose their jobs. Instead of a union being about workers challenging the power of top management, it is turned into an internal workplace civil war.

But let’s not leave on a totally pessimistic note. It should be noted that the NLRB only took away these workers’ right to organize, not their ability to organize. In other words, instead of being protected by the NLRA – the right not to be fired for organizing activities, for example – these workers are being taken back to the law of the jungle that existed before the National Labor Relations Act was passed in 1935. Indeed, the famous Detroit sit down strikes of 1936-37, although they occurred after the Wagner Act was passed, did not use the NLRB’s protections, which most employers were ignoring anyway. In other words, to coin a phrase, “the workers united, will never be defeated” even if current interpretations of the law don't favor them.

That’s a tall order in a lawless world, but not a hopeless one. And unions, like the California Nurses Association are not giving up.

Executive Director Rose Ann DeMoro said the decision "provides employers a road map to exclude hundreds of thousands of RNs from their rights. It forces RNs to choose between protecting their patients and keeping their job." DeMoro said there will be "a comprehensive response to this disgraceful decision."

Initially, she said, CNA/NNOC will:

  1. Put employers on notice in all CNA/NNOC-represented facilities that the RNs will strike if the employer seeks to exploit the ruling. More than 30,000 CNA/NNOC members have already signed strike pledges to do just that.
  2. Hold protests or other public events with RNs Thursday, October 5 in Los Angeles, Chicago, St. Louis, Louisville, and Bangor, Me. as a beginning wave of actions in response to the decision.
  3. Work with the AFL-CIO and AARN on legislation in Congress to overturn the decision.

And then there’s this:

The first Monday in October has now come and gone and we all know what that means. No, not that the World Series is around the corner; it means that a new session of the Supreme Court is starting. A New York Times headline last week read: "Roberts Court May Be Defined in Second Term." The article argued that "If Year 1 was the transition for the new Roberts court, Year 2 is likely to be the test." Not mentioned in the article, however, is one of the cases that the court will decide -- Washington v. Wash. Edu. Assoc. -- a case that will determine the first amendment rights of union members to raise money to participate in political campaigns.

Background

Representative democracy. That means we elect people to represent us. Politically, we elect the President (sort of), Senators and Congresspersons, or their state equivalents in the state legislatures. The problem is, of course, that sometimes the wrong people get elected and they do bad things like invading other countries under false pretenses or cut back on programs that I like. But I still have to pay taxes for the programs that these bad guys -- supposedly my representatives -- are carrying out.

Unions work kind of the same way. Workers elect to be represented a union which does a number of things in order to ensure that that members received the pay, benefits, safe working conditions, etc., that they want and deserve. Because unions understand that what happens in the workplace is also determined by larger political forces, unions also participate in the political process -- endorsing and working for candidates that promote the issues that are important to union members.

But unlike citizens of the United States who are forced to pay taxes no matter what hairbrained murderous schemes the White House or the ruling party in Congress dreams up, and unlike corporate shareholders who don't get to approve the political activities of the companies they "own," the Supreme Court decided in 1986 that workers who decide not to become members of the union that represents them can choose not to pay for the union's political activity -- even if those political activities support candidates that support workers. (Non-members still have to pay that part of the "agency fee" that goes into bargaining and representing workers) A pretty nice deal, if you ask me.

But not nice enough for some people. Right wing, anti-worker organizations like the National Right to Work Committee and the National Right to Work Legal Defense Foundation put considerable effort and funding into promoting so-called "paycheck protection" (aka paycheck deception) ballot initiatives that would force unions to get prior written permission of all members in order to spend money on politics. The object, of course, is to cripple unions' political efforts. And these measures have a rather expansive view of what's meant by "politics." As Tula Connell explains in the AFL-CIO Now blog,

paycheck deception bills and ballot initiatives have, for the most part, attempted to regulate a much broader range of union political activity, including legislative activity, voter registration, ballot question activity and public communications about working families issues

Connel points out that this would be a very bad thing for workers:

Most paycheck deception initiatives take away the right of union members to use payroll deductions for political purposes, which is one of the best ways for union members to pool resources—bit by bit, through our unions. The funds are used to counter the big money contributors who relentlessly write fat checks for corporate-backed candidates. In the 2004 election cycle, corporations outspent unions by a ratio of 23­­­–to–1.

Despite the advocates promise that these iniatives will "protect" workers paychecks, workers generally aren't fooled as the Los Angeles Times pointed out during last year's (losing) campaign by California Governor Arnold Schwarzenegger to pass paycheck protection deception initiative targeting public employees, there didn't seem to be a whole lot of worker support for the measure that was supposedly "protecting" their paychecks.

Out of more than 1 million union members who would be affected by the measure, only 181 have publicly endorsed it. The absence of union members within the Campaign for Paycheck Protection is striking because its advocates say that one-third to one-half of union households favor the measure.

In other words, in addition to workers actually wanting their unions to participate actively in politics, union members notice that those who promote paycheck protection deception are also the same organizations that oppose raising the minimum wage, favor cutting back worker safety protections, and want to dismantle social security.

From Washington State to Washington DC

The anti-union forces achieved a victory in 1992 in Washington State when voters approved an initiative stating that no political funds could be collected "unless affirmatively authorized" by each individual. The Washington Supreme Court, in Washington v. Wash. Edu. Assoc. later found the law to be unconstitutional because, as Nathan Newman explains:

since the procedure mandated by the state for enforcing the individual authorization procedure would be "extremely costly", thereby draining funds from union members and undermining their First Amendment rights. The US Supreme Court has stated that "the majority also has an interest in stating its views without being silenced by the dissenters," so the state imposing costly bureaucratic mandates on a union should be seen as itself a denial of free speech by the vast majority of union members who support a union's political activities.

We’ll see whether the Roberts court thinks that unions members (what’s left of them after Kentucky River) deserve the same first amendment rights that corporate America enjoys. One hopes they use better legal reasoning than the NLRB.

Jordan Barab pretends he has some effect on what's happening in this country over at Confined Space.