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September 16, 2004

NLRB: Disabled Workers Separate & Unequal

Well, this NLRB is raring to deny labor rights to as many groups as possible. Having said grad student employees had no right to organize, despite teaching the same kinds of classes as other academic workers, the NLRB by a 3-2 vote has now declared that disabled workers in vocational programs have no NLRA rights (see the BNA report in the extended entry below):

"Although the disabled clients work the same hours, receive the same wages and benefits, and perform the same tasks under the same supervision as the nondisabled employees, they work at their own pace, and performance problems are dealt with through additional training rather than discipline," the majority said.

The board overturned a regional director's July 2000 decision allowing the disabled workers to vote in a representation election to determine whether the Transport Workers Union would represent a unit of janitors, custodians, and leadpersons working for Brevard. It is unclear whether the union will still seek an election for a unit that excludes the disabled workers.

Dissenting, Members Wilma B. Liebman and Dennis P. Walsh asserted that the disabled workers "easily meet" the National Labor Relations Act's broad definition of employee. Citing federal law and policy designed to provide equal opportunity to disabled persons, the two members urged their colleagues to "abandon doctrines that were based on outdated notions about the place of the disabled in society" and to end "the needless segregation of those workers."

This is not just an assault on labor rights, it's a general attack on the idea that accomodation of the needs of the disabled should not turn them into second-class citizens with fewer rights.

It also converts the disabled into a source of potential scabs who have no rights under the law and are therefore dependent on management for any privileges they might wish to offer or withdraw from them.

All in all, one of the nastier decisions by the NLRB recently.

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BNA Daily Labor Report
Thursday, September 16, 2004 Page A-1

NLRB 3-2 Rules Disabled Workers
In Vocational Program Not NLRA Covered

Disabled workers in a vocational program who are paid for providing janitorial services and work alongside nondisabled workers are not employees covered by federal labor law, the National Labor Relations Board ruled 3-2 (Brevard Achievement Ctr. Inc., 342 N.L.R.B. No. 101, 9/10/04 [released 9/15/04]).
A board majority consisting of Chairman Robert J. Battista and Members Peter C. Schaumber and Ronald Meisburg found that the disabled workers' relationship with the nonprofit Brevard Achievement Center Inc. is "primarily rehabilitative" and not economic. "Although the disabled clients work the same hours, receive the same wages and benefits, and perform the same tasks under the same supervision as the nondisabled employees, they work at their own pace, and performance problems are dealt with through additional training rather than discipline," the majority said.

The board overturned a regional director's July 2000 decision allowing the disabled workers to vote in a representation election to determine whether the Transport Workers Union would represent a unit of janitors, custodians, and leadpersons working for Brevard. It is unclear whether the union will still seek an election for a unit that excludes the disabled workers.

Dissenting, Members Wilma B. Liebman and Dennis P. Walsh asserted that the disabled workers "easily meet" the National Labor Relations Act's broad definition of employee. Citing federal law and policy designed to provide equal opportunity to disabled persons, the two members urged their colleagues to "abandon doctrines that were based on outdated notions about the place of the disabled in society" and to end "the needless segregation of those workers."


Brevard Has Federal Government Service Contracts

Brevard, located in Rockledge, Fla., provides various training, educational, and rehabilitative services to disabled adults. One program involves service contracts with the federal government pursuant to the Javits Wagner O'Day Act. The contracts require that at least 75 percent of the direct-labor work hours be performed by individuals with severe disabilities.
Brevard has a JWOD contract to provide janitorial services at Cape Canaveral Air Station and employs about 53 disabled "clients." Most of the disabled workers are either mentally impaired or have severely disabling mental illnesses. The rest have physical disabilities. Brevard also employs five nondisabled leadpersons and two nondisabled regular workers to work at Cape Canaveral. Each leadperson is assigned a team of eight to 12 workers. The disabled and nondisabled workers perform the same janitorial duties, work the same hours, and receive the same wages and benefits.

A Brevard trainer comes to the site three days a week to train disabled workers who are new to the job and retrain those whose performance has regressed. A mental health counselor is available every day to provide counseling to the disabled workers on an as-needed basis. Brevard provides financial assistance to disabled workers who need outpatient mental health services that are not covered by the health insurance plan.

A progressive discipline policy applies to the nondisabled workers, but disabled workers are not disciplined for any conduct related to their disabilities. A trainer works with them to correct deficiencies or assigns them to a different team. Although all the workers are assigned the same amount of work and are expected to meet the same quality standards, disabled workers are allowed to work at their own pace. Brevard annually evaluates the disabled workers to determine if they have progressed enough to work in a competitive employment environment and therefore no longer qualify for the program.


Following a Nearly Half Century Practice

"For nearly half a century, the Board has declined to assert jurisdiction over employment relationships, such as sheltered workshops or rehabilitative vocational programs, which are primarily rehabilitative in nature," the board majority said. It explained that the board examines the nature of the relationship between the disabled individuals and their employer.
"If that relationship is guided primarily by business considerations, such that it can be characterized as 'typically industrial,' the individuals will be found to be statutory employees; alternatively, if the relationship is primarily rehabilitative in nature, the individuals will not be found to be employees," the board said.

Factors the board considers include "the existence of employer-provided counseling, training, or rehabilitation services; the existence of any production standards; the existence and nature of disciplinary procedures; the applicable terms and conditions of employment (particularly in comparison to those of nondisabled individuals employed at the same facility); and the average tenure of employment, including the existence/absence of a job-placement program."

"That approach is consistent with the overall purpose and aim of the Act," which "contemplates a primarily economic relationship between employer and employee, and provides a mechanism for resolving economic disputes that arise in that relationship," the board said. It found that courts consistently have affirmed the validity of the typically industrial/primarily rehabilitative standard.

In Goodwill Industries of Tidewater, 304 N.L.R.B. 767, 138 LRRM 1271 (1991), and Goodwill Industries of Denver, 304 N.L.R.B. 764, 138 LRRM 1211 (1991), "the Board concluded, on facts similar to those in this case, that disabled individuals who were performing janitorial and merchandise-stocking work at government military bases pursuant to contracts obtained by the employers under the JWOD Act were not statutory employees," the board said.

Although Brevard's disabled and nondisabled workers "work the same hours, receive the same wages and benefits, and perform the same tasks under the same supervision," the company "provides training and counseling services to its disabled clients," responds differently to the performance problems of disabled and nondisabled workers, and allows disabled workers to work at their own pace, the board said. It found "[t]hese policies support a determination that the relationship between [Brevard] and its clients is primarily rehabilitative, not motivated principally by economic considerations."

"[W]e find, contrary to the Regional Director, that the absence of precise evidence as to each disabled client's tenure of employment does not militate against a finding that [Brevard's] program is rehabilitative in nature," the board said. It found that some clients stay with Brevard for several years, while some move on within a few months. This "supports the rehabilitative quality" of the program, the board concluded.


Dissenters Cite Evolution Regarding Disabled Workers

"Modern Federal law and policy have moved steadily toward assuring disabled persons the same opportunities available to everyone else in our society, including the chance to participate fully in the workplace," Liebman and Walsh said in their dissenting opinion.
"This case presents the Board with the perfect opportunity to revisit longstanding precedent governing disabled workers in light of a legal and policy landscape that has evolved dramatically in the last 15 years," the dissenters said. "By excluding disabled workers from the protections of the [NLRA] because they may also receive rehabilitative services from their employers, the majority continues the needless segregation of those workers."

The U.S. Supreme Court has said that the NLRA's broad definition of covered employees includes "any person who works for another in return for financial or other compensation," the dissenters said. They found that Brevard's disabled workers "easily meet the statutory definition."

"[E]conomic activity need not be the sole, or even dominant, purpose of a cognizable employment relationship," the dissenters said. "All the Act requires is that there be an economic aspect of the relationship." The statute "simply contains no exemption based on an employee's receipt of rehabilitative assistance from his employer," they said.

In talking to the union president about the benefits of collective bargaining, "the disabled janitors asked whether the Union could negotiate for more full-time positions, whether the Union could bargain for better health insurance, and whether the Union could obtain mileage reimbursement for employees who use their personal vehicles at work," the dissenters said. "Needless to say, these interests mirror those routinely in conflict between management and labor generally."

"[D]enying these disabled workers the freedom to decide for themselves whether they desire collective bargaining ... contravenes contemporary federal policy to eliminate the barriers to disabled workers' full participation in the workplace," the dissenters said. They asserted that "the 'typically industrial--primarily rehabilitative' framework is rooted in the same dated, stereotypical assumptions about the disabled that contemporary federal policy seeks to undo."

Posted by Nathan at September 16, 2004 08:47 AM