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State of the Profession: The Hits Keep Coming
By Michael Mauer
Unfortunately, the “hits” are attacks on the right of workers to engage in collective bargaining.
The latest blow came in October, when the National Labor Relations Board (NLRB) issued long-awaited decisions in a series of private-sector health-care cases known as Kentucky River. The board found certain charge nurses to be “supervisors” rather than “employees” and thus outside the coverage of federal labor law. The legal test formulated was that individuals who assign “significant overall duties” to others and “exercise independent judgment” in doing so are ineligible to unionize.
Some estimate that well over 1 million nurses will be affected by these rulings. And as this new, broader definition of “supervisor” is applied to other occupations, we can expect to see a ripple effect, with upwards of 8 million other private-sector workers stripped of the legal right to unionize.
This watershed development in the world of health care parallels what we in higher education experienced with the notorious 1980 decision in the Yeshiva case. In that case, the U.S. Supreme Court determined that by virtue of participation in shared governance, faculty at Yeshiva University were “managers” rather than “employees” and therefore exempt from federal labor law. The Kentucky River rulings on supervisory status will surely lead to developments similar to those we experienced after Yeshiva: at least some employers will refuse to continue to deal with the nurses’ union, and many nurses who have not yet chosen to unionize will now have a nearly insurmountable legal barrier in their path. And another weapon will be added to the employer’s arsenal when nurses attempt to unionize: time-consuming and expensive litigation.
The numbers in our ranks immediately affected by this ruling are not great, since for all intents and purposes, private-sector faculty already lack legal protection when they seek to collectively bargain. But higher education will see some immediate effects of Kentucky River. Institutions employing academic professionals (who are not generally subject to the Yeshiva ruling) now have a potent argument that at least some of these individuals are ineligible to unionize. And it is not a terribly farfetched scenario to suggest that in the public sector—where Yeshiva has gotten almost no foothold as yet—the Kentucky River rulings may trigger employers to take another look at trying to exclude some groups of employees from the statutory right to unionize.
Unsettling, too, is the possibility that the climate to which this ruling contributes will further embolden those who seek to thwart new faculty organizing and those who are contemplating walking away from existing collective bargaining relationships. For this latest ruling is just one of a series of restrictions on a right that is considered fundamental in the rest of the developed world. (Indeed, the AFL-CIO has filed a complaint with the International Labor Organization of the United Nations alleging that the Kentucky River decisions violate the ILO standard that all workers “without distinction whatsoever” have the right to freedom of association, including union representation.) A report issued by Human Rights Watch in 2000 estimated that the ranks of those excluded from U.S. labor laws at that time included approximately 3 million farm workers, 1 million domestic employees, many of the 7 million or so independent contractors, 4 million supervisors, 10 million managers, 500,000 employees of religious institutions, and millions of public employees of all types. Since the issuance of that report, the NLRB has deprived statutory protection to some 45,000 disabled workers in rehabilitation programs, over 50,000 graduate student employees, a large portion of the 2 million or so workers supplied by temporary staffing agencies, and now the millions newly deemed to be “supervisors.” In the public sector, the wake of the September 11, 2001, attacks saw aggressive efforts by the federal government to eliminate or severely restrict the right to collectively bargain for hundreds of thousands. Similarly, we’ve seen successful initiatives to cut back on collective bargaining rights for state and local employees.
I agonized in my column in the July–August issue of Academe over whether the glass of academic unionism is more accurately described as half empty or half full. I’m still not sure; but that glass has certainly developed a leak.
Michael Mauer is AAUP director of organizing and services.
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