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NLRB Turns Back the Clock, Relegates Disabled Workers to Second-Class Status
Written by Erin Johansson   
October 31, 2004

This summer, the National Labor Relations Board (NLRB) told hard-working graduate research and teaching assistants that they were not workers, and therefore denied them the right to organize and collectively bargain.  Workers’ rights took another step backwards when the NLRB recently decided that disabled employees who receive rehabilitative services from their employer are not workers, and are therefore ineligible to form a union under the protections of federal law.  This ruling is not only a major setback for disabled Americans and their efforts to fully integrate into the workforce and society, but represents another move by the NLRB to shrink federal protections of worker rights. 

 According to the GAO

32 million workers-­25% of the workforce-do not have collective bargaining rights.2

The janitors who clean the Cape Canaveral Air Station in Florida had been members of the Transport Workers Union (TWU) for many years.  When the Brevard Achievement Center (BAC) took over the government contract in 1997, it refused to recognize the janitors’ union.  After it won the contract intended for employers who hire disabled workers, BAC replaced most of the non-disabled janitors with disabled workers.

Three years later, the janitorial staff sought to form a union with the TWU to win back the sick leave and affordable health benefits lost after BAC took over the contract.  When the workers petitioned the NLRB to hold a union election, the Regional Director found the disabled janitors to be employees under the law, and ordered that they be allowed to vote in the election.  BAC appealed an NLRB Regional Director’s decision to the members of the Board, arguing that the disabled janitors were not employees under the National Labor Relations Act (NLRA), even though they were expected to do the same amount of work in return for the same compensation as the non-disabled janitors. 

Four years after BAC filed its appeal, the George W. Bush-appointed majority of the Board ruled that the disabled janitors’ relationship with BAC was "primarily rehabilitative" rather than economic, and thus they should not be considered employees.1  The majority derived their conclusion on the basis that the disabled janitors were eligible to receive counseling services and were not subject to the same disciplinary procedures as their non-disabled coworkers.

The two dissenting members of the Board sharply criticized the majority’s decision, writing that the NLRA "commands that ‘[t]he term ’employee’ shall include any employee.’  There is no ambiguity."  They argue that the law, as interpreted by the Supreme Court, is written plainly enough to cover these disabled janitors.

The minority dissent also argued that the ruling ignores the progress in federal policy brought about by the 1990 Americans with Disabilities Act, which afforded disabled Americans equal opportunities in the workforce.  The minority wrote, "The majority thus relegates the Employer’s disabled janitors and all similarly-situated workers to the economic sidelines, making them second-class citizens both in society and in their own workplaces."

The Board’s decision denies the disabled janitors at BAC a voice on the job.  On a larger scale, the decision deprives disabled workers across the country an important means of improving their working conditions.  By continuing to narrowly define whose organizing rights are protected by law, the Board is limiting its effectiveness to promote and protect workers’ freedom of association-the core principles of the NLRA.


1. Decision and Order of the National Labor Relations Board.  Brevard Achievement Center and Transport Workers Union of America, Local 525, AFL-CIO. Case 12-RC-8515, decided September 10, 2004.

2.  U.S. General Accounting Office. Collective Bargaining Rights: Information on the Number of Workers With and Without Bargaining Rights.  GAO-02-835, September 2002.  According to the GAO’s 2001 estimate, 31,989,000 workers are without collective bargaining rights under federal, state or local statute.
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The National Labor Relations Board (NLRB) is a federal agency responsible for protecting workers’ rights to form unions and promoting collective bargaining.


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Erin Johansson Erin Johansson writes our Eye on the NLRB blog.  Erin has worked as a Senior Research Associate at American Rights at Work since 2004 and is the author of some of our reports.  


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