 Nurses protest losing their union representation. Washington, DC, July 13. Photo: UPI/Eduardo Sverdlin |
Workers make important on-the-job decisions every day. Nurses give instructions on how to take care of patients, construction workers decide how to best complete a job, retail managers direct where things go in a store and so on. Now, employers around the country are trying to use these day-to-day workplace decisions as an excuse to deprive millions of workers of their rights to union representation and collective bargaining.
At issue is a legal classification that might seem like a technicality for most people—what it means to be a “supervisor.” Because anyone considered a supervisor is not eligible for union representation under the National Labor Relations Act, bosses have been pushing over the past five years to expand the limits of who is considered a supervisor.
The administrative board that interprets the NLRA is called the National Labor Relations Board. This board is set to hear a trio of cases this summer, known as the “Kentucky River” cases, which will decide whether or not millions of employees are to be classified as supervisors.
The NLRA, also known as the Wagner Act, is the primary federal labor law that determines the rights of employees to join unions and bargain collectively with employers over wages and terms and conditions of employment.
Enacted by Congress in 1935, the Wagner Act also deemed anti-union activities by owners and violent union busters to be “unfair labor practices.” It passed in the wake of three massive general strikes across the United States in 1934: in San Francisco, Toledo and Minneapolis. Then-president Franklin Roosevelt and the bourgeoisie saw this act as a necessary concession to quell a potential revolutionary working-class upsurge and to preserve U.S. capitalism.
Although the Wagner Act promised more workers’ rights, it also diffused the struggle by shifting union power from strikes to elections and collective bargaining negotiations.
Congress amended the Wagner Act with the reactionary Taft-Hartley Act in 1947. Although the U.S. labor movement surged in militancy and strikes in 1946 following the government-imposed wage freeze that lasted throughout World War II, the passage of Taft-Hartley the following year was clear proof of the damage done to the U.S. labor movement by the rising tide of anti-communism as the anti-Soviet Cold War began to take hold everywhere.
Communists and socialists began to be purged from the U.S. labor movement. Without their militant vanguard, the labor movement was rapidly weakened by the U.S. capitalists, who went on the offensive to roll back pro-worker labor laws that had been passed under the pressure of the mass strikes of the 1930s.
Taft-Hartley, among many other things, made certain union activities “unfair labor practices”—putting a false equal sign between the organized workers and the capitalist owners—and expressly excluded supervisors from coverage under the act. This gave employers the green light to sack any supervisors who might be sympathetic to union activities or those not supporting the employer’s stance in labor struggles.
The language of the NLRA thus became extremely broad, allowing capitalists and courts to deem many senior employees as supervisors. “Supervisors” are defined in the law as individuals who control the working fate of others by hiring, firing, disciplining, promoting and so forth—or those who direct other employees’ work while exercising “independent judgment.” Administrative and court rulings have continued to widen the meaning of “supervisor” over the years.
More recently, as unions have organized in new, formerly non unionized industries like health care, capitalist owners have used the expanded supervisory language to their advantage to crush organizing drives or bust unions. Now, the issue is coming to a head for millions of workers.
 Can ‘supervisors’ like this one be denied union rights? Photo: Hector Amezcua |
“We strongly believe that anybody who has supervisory authority should be exempt,” said Stephen Bokat, senior vice president and general counsel for the U.S. Chamber of Commerce. “Exempt” means not eligible for union membership.
“You cannot have double loyalty in a unionized facility,” Bokat whined. “If you are directing subordinates, then you should report to management. But that won’t work if you are also a member of a union because your loyalties are divided.”
Classifying millions of employees as supervisors would be a major blow against unions and hurt workers in numerous industries. Workers classified as supervisors would be ousted from their union if they have one, and it would prevent them from joining a union if they do not. This would greatly hinder union organizing efforts.
Kentucky River cases
The “Kentucky River” cases, based on charges filed with the NLRB by employers in 2002, could affect the status of up to 8 million workers. Organized labor correctly fears that the NLRB, a board of five rotating members appointed by the president to serve five-year terms, will side with big business—as they have in so many cases over the past years.
 Labor rights were won in the major strikes of the 1930s, like this one in San Francisco’s 1934 general strike. Photo: Gen’l Photo Svcs/Getty Imgs |
The issue of classifying workers as supervisors is not new. The Supreme Court has twice eroded the law over the last 12 years to assist the bosses in labeling workers as supervisors—the last time was a 2001 decision called the “Kentucky River” case.
Two years ago, the Department of Labor moved to prevent millions of people from overtime compensation eligibility based on employment reclassification.
This strategy is part of the overall anti-labor offensive mounted by the capitalist bosses and the government. They work in tandem to make it harder for workers to organize unions or stay in them. They want workers to have the fewest rights possible.
Attacks against workers under capitalism are constant. The newest concerted assault on organized workers’ rights started in the late 1970s under the Carter administration, and was ratcheted-up significantly by President Reagan. The attacks have continued under Bush, Clinton and now Bush, Jr.
Over the past few decades, union ranks have been diminished by millions. The percent of workers in unions reached its height in 1953 at 32.5 percent of the workforce. By the fall of 2004, unions represented only 12 percent of the non-farm labor force and 8 percent of workers in the private sector.
These statistics do not mean that workers do not want to join unions. Organized labor still represents more than 13 million workers, and more than 57 million nonunion workers in the United States want to join a union. (IBEW, “Union Busting Business is Booming,” Nov. 7, 2003) But workers and unions face unrestrained, systematic opposition from employers and the government in organizing and fighting for union rights.
New labor strategies and tactics needed
The AFL-CIO, one of two U.S. union federations, has been challenging the potential denial of union rights to millions. The labor federation held rallies in 21 cities in July to urge the NLRB to protect and not erode workers’ rights. Over 1,500 union members and leaders rallied in Washington, D.C., on July 14 outside the NLRB office. Rallies also happened that day in Portland, Ore.; Phoenix; Chicago; Milwaukee and Albuquerque, N.M.
The country’s other labor federation, Change to Win, has been less vocal on the issue, although some important CTW member unions like the Service Employees have spoken out against changing workers’ classification.
The AFL-CIO has launched an online e-mail campaign, directing thousands of letters to members of Congress. But national labor leaders have yet to propose or carry out broader or militant actions. There has been no grassroots education campaign to raise consciousness about this issue among workers, organized and unorganized.
This is emblematic of the general lack of class struggle tactics employed by the labor leadership in recent decades. Rather than ignite rank-and-file action, organized labor has kept most of its struggles squarely in the halls of Congress.
This current struggle over supervisory status is no different. Organized labor is directing its members’ ire toward the NLRB and the Bush administration, highlighting the fact that Bush’s three recent appointees to the NLRB—on the five-member panel—will issue an anti-worker decision in the “Kentucky River” cases.
Bush’s appointees likely will rule in favor of the corporate owners. However, focusing political pressure almost solely on the NLRB shows an underlying faith in how the board works. These trade unionists, along with many Democratic Party allies, argue that the NLRB, if different in composition, would actually operate in the interests of workers.
They claim that when a Democrat is president, the NLRB will magically become pro-worker because the president can appoint more pro-union members. This notion is utterly false.
Through both Democrat and Republican administrations over the past 70 years, the NLRB has eroded labor laws won with the blood and struggle of millions of workers. And when it has not done the job well enough for the capitalists, Congress or the courts have stepped in to smash workers’ rights. Every NLRB decision can be appealed to federal courts of appeal and, ultimately, the Supreme Court.
Additional procedural measures keep the NLRB from being effective. When the board determines that owners break the law—a regular occurrence—there are no meaningful remedies or penalties to stop them. Labor laws are easily manipulated by employers.
At bottom, the NLRB’s normal role is to regulate labor-management conflict in a way that is beneficial to maintaining labor peace—for the benefit of the ruling class. It does this by channeling the class struggle into a mediated arena that guarantees the interests of the corporations. In recent decades, as labor militancy has ebbed, the NLRB has become a more explicit tool for smashing union organizing drives.
It is an agency of the executive branch controlled by the president. No organization created by the capitalists can be an adequate substitute for vigorous factory, plant, worksite and street struggles waged with the aim of building class solidarity and class consciousness.
