Human Rights Watch wishes to express its deepest concern that the National Labor Relations Board (NLRB) decision in the so-called Kentucky River Trilogy violates United States obligations under international human rights law and international labor law. The decision announces an expanded definition of “supervisor” under the National Labor Relations Act (NLRA), the main U.S. law governing workers’ right to organize. Under the new definition, employers can classify as “supervisors” those employees with incidental oversight over coworkers, even when such oversight is far short of genuine managerial or supervisory authority.
All “supervisors” are excluded from the NLRA’s protections. As a result, employers can now fire these new “supervisors” for trade union activity. Employers can force such “supervisors” to participate in employers’ campaigns to break up workers’ self-organizing efforts and fire them if they hesitate. And employers can try to break up long-standing unions that include employees now reclassified as “supervisors.”
The Kentucky River Trilogy sets the stage for destroying the rights of millions of workers to form and join trade unions and to bargain collectively. By stripping all protection of these rights from employees mislabeled as supervisors, the decision violates the principles of freedom of association as established in international law.
The Universal Declaration of Human Rights states that "[e]veryone has the right to freedom of peaceful assembly and association," and "[e]veryone has the right to form and to join trade unions for the protection of his interests." As a member of the United Nations, the United States has committed itself to uphold the declaration’s principles. Similarly, the International Covenant on Civil and Political Rights, to which the United States is party, declares: "Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests."
International Labor Organization (ILO) Convention No. 87 concerning Freedom of Association and Protection of the Right to Organize says that "[w]orkers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization." Although the United States has not ratified ILO Convention No. 87, it is obligated both by ILO membership and by the ILO's Declaration of Fundamental Principles and Rights at Work to uphold the rights protected in the convention.
The ILO Declaration says expressly: "All members, even if they have not ratified the Conventions in question, have an obligation arising from the very fact of membership in the Organization, to respect, to promote, and to realize, in good faith and in accordance with the [ILO] Constitution, the principles concerning the fundamental rights which are the subject of those Conventions, namely: (a) freedom of association and the effective recognition of the right to collective bargaining."
Decisions of the ILO Committee on Freedom of Association, whose authority the United States has recognized, have laid out the following principles in cases involving alleged “supervisors”:
• The expression "supervisors" should be limited to cover only those persons who genuinely represent the interests of employers;
• Legal definitions of “supervisors” or other excluded categories of workers should not allow an expansive interpretation that excludes large numbers of workers from organizing and bargaining rights;
• Employees should not be “excluded” to undermine worker organizing or to weaken the bargaining strength of trade unions;
• Even true supervisors, distinct from top management, have the right to form and join trade unions and to bargain collectively, though the law may require that their bargaining units be separate from those of supervised employees.
We believe that the two dissenting members of the Board were correct in their compelling dissent in the Kentucky River Trilogy:
“Today’s decision threatens to create a new class of workers . . . who have neither the genuine prerogatives of management, nor the statutory rights of ordinary employees. . . . If the National Labor Relations Act required this result—if Congress intended to define supervisors in a way that swept in large numbers of professionals and other workers without true managerial prerogatives—then the Board would be dutybound to apply the statute that way. But that is not the case. . . .
The result could come as a rude shock to nurses and other workers who for decades have been effectively protected by the National Labor Relations Act, but who now may find themselves treated, for labor law purposes, as members of management, with no right to pursue collective bargaining or engage in other concerted activity at the workplace. Indeed, supervisors may be conscripted into employers’ anti-union campaigns, while their pro-union activity is now strictly limited. The majority’s decision thus denies the protection of the Act to yet another group of workers, while strengthening the ability of employers to resist the unionization of other employees.”
Human Rights Watch regrets that in the Kentucky River Trilogy, the Board majority turned its back on international human rights and labor rights standards and flouted U.S. obligations under international law. We condemn the NLRB decision in the Kentucky River Trilogy and support efforts of workers, trade unions, other human rights advocates, and allied social movements to seek legislation restoring the traditional, balanced definition of “supervisor” under the National Labor Relations Act.
Sincerely,
Jamie Fellner, Esq.
Director, U.S. Program
Cc. Wilma B. Liebman
Peter C. Schaumber
Peter N. Kirsanow
Dennis P. Walsh
