Unions Under Assault

The Kentucky River Decision

By DAVID MACARAY

There are two "wars" going on in this country, each of which has the power to dramatically affect the future of working people. One is the war being waged by organized labor, seeking (through membership drives, lobbying and political contributions) to expand its base, gain new members, and galvanize its existing membership against assaults from anti-union forces.

This war to "recruit and maintain" is an uphill battle. The AFL-CIO's recent failure to organize even one of Wal-Mart's then 3,600 stores in the U.S. (today there are 4,000), despite allocating enormous resources to the effort, is an indication of just how daunting a mission this is.

The other war is a political one. It is a war being waged by the Bush administration's Department of Labor, Department of Justice and National Labor Relations Board (NLRB), a war committed to reducing even further labor's diminishing influence.

The corporation-owned Bushies have a clear mandate: To cripple organized labor. And they've been busy at it, being creative. For example, the administration has attempted to strip the collective bargaining privileges from the 160,000 employees of the Department of Homeland Security, and has argued that graduate assistants and temp workers cannot, by law, seek union representation. They've been busy.

But one of the most significant recent battles in this war was the October, 2006, ruling by the Bush-appointed NLRB, involving three separate groups of health care employees. It has come to be known collectively as the "Kentucky River" decision.

A bit of history: While the 1935 National Labor Relations Act (the "Wagner Act") gave unions the statutory right to organize workers and to act as their sole representative in the collective bargaining process, the anti-union 1947 Taft-Hartley Act added a key restriction. Taft-Hartley stipulated that "supervisory personnel" were exempt from the statute. In short, managers, supervisors and other "bosses" were not allowed to be represented by a union. No supervisors allowed. Fair enough.

To clarify the restriction, the Taft-Hartley Act defined a supervisor 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."

The employees involved in the Kentucky River cases are nurses employed at nursing facilities in Kentucky-specifically "charge nurses," the ones who act more or less as lead persons, directing other nurses as to what patients need attending, what medications are to be administered, when to administer them, etc. Charge nurses have no managerial authority; they can't hire, fire, reprimand, reward, alter seniority or adjust the pay of their fellow workers.

Even though it's clear that the Taft-Hartley Act was not intended to apply to lead men, hourly clerical administrators or "straw bosses," the Bush administration's minions on the NLRB willfully misinterpreted its language, and ruled that charge nurses (while having no supervisory authority) fell into the broad category of "supervisor," and, therefore, did not qualify as employees eligible to join a union.

While this ruling was directed specifically against employees in a Kentucky nursing home, it's a decision (a "clarification") that has broad implications and clearly transcends the health care industry. Judging by the Bush administration's aggressive track record, nurses are just the first step.

Lame duck president or not, there's still time for this crew to severely damage the movement. The Kentucky River decision cuts to the heart of a worker's right to seek union representation, and affects, potentially, millions of employees across the United States.

In truth, the only way organized labor can hope to alter these and similar decisions is by electing a Democrat to the White House and having a substantial majority (not the razor thin one that exists now) of Democrats in the House of Representatives and Senate. There are simply too many enemies of labor lurking about-from corporations, libertarians, lobbyists, Republicans, the Supreme Court-to win this war by any other means.

Labor needs to regain, at least nominally, the control of the three political arms of the government. A Democrat-whether it's Clinton or Obama-can be depended upon to appoint an NLRB 5-person board that is infinitely friendlier to labor than the one that's been in place for the last seven years.

Only with a labor-friendly congress and a pro-labor president in the White House will it be possible for substantive changes to be made. As much as labor unions feel that they've been betrayed and let down by the Democrats (and, God help us, they have), they can't go it alone. There are simply too many obstacles in the way. They'll need help.

David Macaray, a Los Angeles playwright and writer, was president and chief contract negotiator of the Assn. of Western Pulp and Paper Workers, Local 672, from 1989 to 2000. He can be reached at: dmacaray@earthlink.net