For years, union organizers have targeted for unionization individuals with severe disabilities who participate in rehabilitation and training programs. The union organizing often met with little success, but that may change. A new initiative at the National Labor Relations Board (“NLRB”) may give a major boost to union officials’ attempts to unionize valuable community programs designed to help individuals with severe disabilities obtain independence.
On August 12, 2021, NLRB General Counsel Jennifer Abruzzo ordered NLRB Regional staff to submit to the Regional Advice Branch cases involving the extension of National Labor Relations Act (“NLRA”) coverage to individuals with severe disabilities in rehabilitation programs. General Counsel Memorandum 21-04 (Aug. 12, 2021). Ms. Abruzzo may use referred cases to alter decades-old case law governing whether rehabilitation program participants are statutory employees under the NLRA.
Community Rehabilitation Programs (“CRPs”) liberate individuals with severe disabilities by providing intensive rehabilitation and training that permits the pursuit of a path toward independence. For individuals whose severe limitations make them generally unemployable in the competitive job market, a CRP can provide valuable, life-changing options.
The NLRB has long held that the NLRA is premised on the view that, in arms-length economic relationships, areas of conflict may exist between employers and employees that may be resolved through a contest of economic strength. The Board also has recognized that this premise, which includes granting union officials a monopoly over representation of employees, is not well-suited to a setting that is primarily rehabilitative. As a result, for years, the NLRB has declined to assert jurisdiction over sheltered workshops, rehabilitative vocational programs, and similar programs that are primarily rehabilitative in nature. The NLRB explained in Brevard Achievement Ctr., Inc., 342 NLRB 982 (2004), that it declines to assert jurisdiction over relationships that are primarily rehabilitative because the “imposition of collective bargaining on relationships that are not primarily economic does not further the policies of the Act.”
The statutory-employment issue arises particularly in the context of the AbilityOne federal contracting program which provides employment training opportunities to CRPs. In determining whether individuals with severe disabilities are statutory employees and subject to the NLRA, the Board examines the nature of the relationship between the individuals and the CRP. 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.
If, on the other hand, the relationship is primarily rehabilitative in nature, the individuals will not be found to be statutory employees, which means they are outside the scope of the NLRA. Under Brevard Achievement Ctr., the Board examines numerous factors, including the existence of 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 in the program, including the existence/absence of a job-placement program.
In the Brevard Achievement Ctr. case, a majority of the NLRB followed established case law and found that the individuals at issue were not statutory employees under the NLRA because their relationship with the CRP was primarily rehabilitative. The ruling has protected the special rehabilitative relationships from intrusion by union officials, with a Board majority holding that “[t]he imposition of collective bargaining at the rehabilitative stage could interfere with the rehabilitative process itself, and thereby delay the day when the clients can enter in the mainstream of economic society.”
Brevard Achievement Ctr. and other NLRB case law generally has permitted rehabilitation professionals to focus on the best interests of CRP participants without interference from union officials. Union organizers, possibly with the help of the NLRB General Counsel, however, may threaten CRPs and the tremendous benefits they deliver. To change NLRB case law, a General Counsel, who is effectively a prosecutor under the NLRA, needs cases which he or she can use to obtain policy objectives. By “compel[ing] centralized consideration” by her office of “[c]ases involving the applicability of Brevard Achievement Center, Inc.,” as she ordered in her August memorandum to NLRB Regional staff, General Counsel Abruzzo apparently hopes to generate a pipeline of cases she can use to achieve her policy goals, which presumably include subjecting individuals with severe disabilities to the vagaries of union organizers.
The action by the NLRB General Counsel should cause CRP leaders to reevaluate the substantial risks that the NLRB General Counsel’s initiative and organized labor pose to the relationships between CRPs and the special individuals they help. CRP leaders should be prepared to respond to the heightened risks, including by careful evaluation of the factors that affect whether, in the eyes of the NLRB, the CRP’s relationship with individuals with significant disabilities is primarily rehabilitative. CRPs may also consider training for front-line CRP leaders so they understand restrictions under the NRLA and are acting properly to protect program participants from union organizers.
Timothy M. McConville is a management-side labor relations attorney and President of Praemia Law, PLLC. He also serves as President and Chairman of the National Institute for Labor Relations Research. This article is for general informational purposes only and should not be relied upon or regarded as legal advice. Mr. McConville is available at 703-399-3603, ext. 1, and Timothy.McConville@praemialaw.com.