Given all the obstacles workers face when forming unions these days, the last thing they should have to worry about is whether they are, in fact, workers under the law.  Yet for the third time since 2004, the National Labor Relations Board (NLRB) has ruled that a category of workers should not be considered employees.  This time around, newspaper delivery carriers didn’t make the cut.  But the NLRB decision didn’t simply end a semantic debate for thousands of men and women who deliver newspapers around the country, it denied them legal protection to form a union to improve their working conditions. 

All workers—whether they are in a union or not—are supposed to be protected under the National Labor Relations Act when they engage in reasonable on-site work stoppages or job actions. Try telling that to the 83 employees who the National Labor Relations Board (NLRB) ruled were allowed to be fired after peacefully protesting on their employer’s parking lot.  This recent NLRB decision sends the message that employers and their parking lots are more worthy of protection than the already limited rights of workers.

It is a regular pastime for co-workers to chat during a coffee break, at a union hall, or over a beer about workplace issues, good grilling recipes, and celebrity gossip.  Yet a recent ruling by the National Labor Relations Board (NLRB) allows employers to ban off-duty fraternizing among co-workers, severely weakening the rights of free association and speech, and violating basic standards of privacy for America's workers.

Just as it's against the law for employers to discriminate on the basis of race, gender, ethnicity, age, or disability in hiring practices, it's illegal to not hire someone because of their union affiliation.  Yet that's exactly what happened to eight electricians in Nebraska.  Although the National Labor Relations Board just ruled in their favor, the case demonstrates that while discrimination is technically illegal, a weak and delay-ridden labor law system renders it an effective strategy for an employer to remain union-free. 

When five workers voted unanimously to form a union through the National Labor Relations Board process, they likely thought it would be a matter of weeks before they could begin bargaining with their employer.  They were mistaken.  Two years and three separate legal determinations later, these workers haven't gotten to the bargaining stage, thanks to an NLRB election process enabling frivolous legal objections filed by the employer.

As we've made clear in our Workers Rights Watch: Eye on the NLRB series, a number of recent decisions from the National Labor Relations Board have restricted the rights of workers struggling to form unions. What we haven't mentioned before is that the Board has narrowed legal protections for the majority of Americans who are not represented by a union, but who need to turn to co-workers for 'mutual aid and protection' when they fear employer reprisal.  A case involving a non-union Wal-Mart employee makes evident how labor law impedes rather than protects these workers' rights.

When a small group of engineers asked for union recognition, their employer responded with retaliation so severe—including threats of job loss, unlawful surveillance, and the firing of their co-worker—that it was no wonder they voted against forming a union when the election was eventually held.  Unfortunately, the engineers had to wait for two years for a judge to find the employer guilty.  And while the judge threw out the results of the election and ordered the employer to recognize the union and bargain with the engineers, the ruling was immediately appealed by the employer.  The ultimate insult for the engineers, however, was the National Labor Relations Board's recent decision to overturn the judge’s ruling. The Bush-appointed NLRB members decided that the best solution to an employer seriously threatening and intimidating employees was… another election.