Via Nathan Newman's Laborblog, the bush NRLB does it again!

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equal opportunity to disabled persons, the two members urged their colleagues to "abandon doctrines that were based on outdated notions about the place of the disabled in society" and to end "the needless segregation of those workers."