It is not a stretch to assert that a hallmark of a society’s progress in “promot[ing] the general welfare” can be seen in its efforts to afford dignity to citizens with physical and mental disabilities. On July 26, 1990, the Americans with Disabilities Act (ADA) was signed into law, affording citizens with disabilities new opportunities to participate in the nation’s economic, cultural, and social life. The ADA has had a profound effect upon expanding the rights of and opportunities for Americans with disabilities to secure economic independence as well as mobility and, through increased visibility, greater acceptance.
A substantial proportion of Americans have some kind of disability. According to the US Bureau of Labor Statistics (06/21/18), 51.2 million (18.7%) of the nation’s population have a disability, and 32.5 million (12%) have a severe disability. These data span all groups, ages, and genders, from military veterans to the blind. Of those with a disability, 56% are reported to be employed, part- or full-time, and 44% with a non-severe disability work full-time, year-round.
Labor strikes are a rare event in the Commonwealth, as is a union presence in its economy. Thus, a strike by employees in Fairfax County, in microcosm, reflects an unusual occurrence and represents an important social concern. But it has happened: A group of employees with disabilities have engaged with their employer in a union organizing contest. The public policy issue is whether such employees qualify for union representation, a right enjoyed by persons without disabilities, a decision to be made by the National Labor Relations Board (NLRB).
Under a federal program called Ability One, Didlake, a Manassas, Virginia-based not-for-profit, employs 20 persons with disabilities at a military facility in Arlington. Under the program, “75% of the direct labor hours … must be performed by individuals with significant disabilities who are unable to engage in competitive employment….” The Arlington group is among the 2,000 persons served by Didlake across the Commonwealth. In late May, Didlake employees in Arlington walked out and picketed the facility. In June, the regional NLRB sided with the employees’ petition allowing unionization, which the employer has appealed.
According to the employer, wage rates of Didlake employees are well above the minimum wage due to federal contractor requirements; they are also covered by health insurance and are eligible to elect participation in pension benefits under a 401(k) plan. Thus the traditional labor-management economic issues appear muted to some degree, although the employees, according to media reports, seek increased wages and health coverage. The employer’s challenge to the unionization efforts rests upon a 2004 NLRB decision concerning the standing of the employees as a “statutory” or rehabilitative one in relation to their employment and with their employer.
Under IRS rules, a “statutory” employee is simply anyone who performs services for compensation where the employer determines what work is done, where, and how. Generally, this is the definition used by the NLRB unless there are strong reasons to find otherwise. Unfortunately, the case relied upon and cited by the employer appears to contain a tautology to support a finding of non-statutory employment:
The 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 into the mainstream of economic society.… Because collective bargaining could constitute a harmful intrusion on the rehabilitative purpose of these programs, assertion of the Board’s jurisdiction would work at cross purposes…. (emphasis added)
An official Didlake statement echoed the NLRB decision: “We are highly concerned that unionization for people with disabilities participating … will threaten the rehabilitative services afforded under the program” (emphasis added). No medical or clinical evidence appears to have been submitted to the NLRB to support the assertion of a threat to rehabilitative services. Nor does there appear any evidence on that aspect in the precedent decision. In fact, the language there is tautological, i.e., self-serving in the absence of evidence of harm or interference. In addition, the precedent NLRB decision, in effect, makes entry “into the mainstream of economic society” questionable because such rehabilitative stage may be said to continue indefinitely. In the absence of any description of a “rehabilitative stage” designation, progress to statutory would be elusive and arbitrary. Such indefinite status contradicts the NLRB’s own desire for entry by clients “into the mainstream of economic society.”
In the absence of demonstrable harm to the rehab process, what is preventing reconciliation of the dispute? Why not cooperate with the union to anticipate and delimit interference with the rehab process? Perhaps a certain sense of noblesse oblige creates a barrier. Consider the following statements from Didlake officials:
[we are concerned about] not being able to help our people with significant disabilities if the union comes between us.
[we] want to make sure they’re not losing access to government-funded programs and services.
We agree that the wages and costs of healthcare can be improved for our employees.
The first two statements are troubling as they imply unionization is a threat to the existence for the program’s clients, while the third offers agreement with the workers’ complaints. The noblesse hurdle appears also in the following statement from another Didlake official:
We are very constrained by the legal requirements around this issue so we are unable to communicate with our own employees around this issue. It would be construed as interfering with the employees’ rights to organize.
There is no necessity for the employer to communicate directly with its employees since that is the function of the union and the employer’s legal counsel. In most such circumstances, communication between the parties is actually an avenue toward resolution.
In describing the services available to those with disabilities, the Didlake website describes an initial period of 3–4 months during which an individual is fully integrated into workplace culture. This is accomplished by way of “situational assessments” to experience and learn about employment. The goal, states the website, is successful employment, following which support services remain available to program participants as needed.
In the 14 years since the precedent decision, progress and experience in the employment of those having disabilities should have produced more contemporary evidence regarding validity of the distinction in the statutory and rehabilitative status dichotomy. Didlake itself might conclude that insufficient evidence exists to demonstrate that unionization “will threaten” rehabilitation efforts and voluntarily accept unionization. This latter possibility likely means the necessity of “carve out” provisions in the collective bargaining agreement as new employees complete training for employment, as well as identifiable criteria in the agreement to provide opportunity for the employees to avail themselves of emergent services during employment. For its staff employees, Didlake provides for a similar benefit under an Employee Assistance Program, a feature of many mature business organizations.
On one hand, the employer’s perceived fear of compromise of its relationship with employees offers a defensive redoubt while on the other, the prospect of a third party’s participation in its work creates another. However, it appears that any willingness to communicate or perceive solutions has been surrendered to bunker positions that sound likely fortified by legalities. Cannot the union and Didlake see that they share the same goals for the same cohort of individuals?