Recent developments at the National Labor Relations Board should cause leaders of non-profit Community Rehabilitation Programs (“CRPs”) to reevaluate the substantial risks that the law and organized labor pose to the relationships between CRPs and the special individuals that they help.  CRPs liberate individuals with severe disabilities by providing them with intensive rehabilitation and training that permit them to pursue a path toward independence.  For individuals whose severe limitations make them generally unemployable in the competitive job market, a CRP can provide life-changing, valuable options. 

Of course, a valuable work environment also tends to attract union organizers looking for union dues, and CRPs are not immune to this phenomenon. Unions have a history of targeting CRPs for organizing, and recent legal developments make clear that CRPs should be prepared to protect rehabilitative relationships from union activity.  The National Labor Relations Board, which administers the National Labor Relations Act, has issued a line of cases that address the circumstances under which unions may (or may not) interject themselves into CRPs’ relationships with individuals with significant disabilities. 

For years, the NLRB has declined to assert jurisdiction over sheltered workshops, rehabilitative vocational programs and similar programs that are primarily rehabilitative in nature.  As a majority of the NLRB explained in Brevard Achievement Ctr., Inc., a 2004 case, the Board 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 Board has held that the Act 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.  This premise, which includes granting union officials a monopoly over representation of employees, is not well-suited to a setting that is primarily rehabilitative.

The 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 thus subject to union organizing under 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.  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 in the case were not statutory employees under the NLRA because their relationship with the CRP was primarily rehabilitative. The ruling 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.”

The Brevard Achievement Ctr. case did not cause any significant change in established precedent governing the unionization of individuals with severe disabilities who participate in CRPs.  What stands out, however, is a dissenting opinion by Members Wilma B. Liebman and Dennis P. Walsh, who called for wholesale application of the NLRA to individuals with significant disabilities participating in CRPs.  The dissent is remarkable for its express willingness to insert union officials with no rehabilitative qualifications between CRP professional counselors and the severely disabled, whom the dissenters acknowledged are not capable of independently obtaining a job in a competitive work environment. 

In at least two NLRB cases this year, a union has relied on the dissenters’ theory and petitioned the NLRB for the power to be the exclusive representative of individuals with severe disabilities who were obtaining rehabilitative services from a CRP.  In one case, the union initially sought to include both non-disabled workers and individuals with significant disabilities in the bargaining unit.  In another case, the union demanded exclusive bargaining power over a unit that consisted entirely of individuals with significant disabilities.  In both cases, the CRP succeeded in resisting the union organizing campaigns, but not without having to put up a substantial defense. 

Along the way, the NLRB’s procedures exposed the rehabilitative program to significant risk.  Specifically, Board procedures require that respondents in representation cases disclose private information relating to the individuals in targeted bargaining units, including names, addresses, email addresses, phone numbers, and shift designations.  In a case in which the entire bargaining unit consists exclusively of individuals with severe disabilities, compliance with the Board’s disclosure requirements will expose a CRP to a violation of privacy rules under the Health Insurance Portability and Accountability Act.  Failure to disclose the required information also would impose consequences under the Board’s rules, including the waiver of important legal arguments.  The Board’s procedures, known among employers as “ambush election rules” for their fealty to conducting elections as soon as possible, have other requirements that dramatically compromise a CRP’s ability to defend its program and rehabilitative relationships with program participants. 

In the past, rehabilitation professionals generally have been able to focus on the best interests of CRP participants without interference from union officials.  Now, recent labor relations developments threaten CRPs and the tremendous benefits they deliver.  CRP leaders should be prepared to respond to the heightened risks, including by careful evaluation of the legal factors that affect whether, in the eyes of the NLRB, the CRP’s relationship with individuals with significant disabilities is primarily rehabilitative.