Reconsidering Brevard Achievement Center: An Opportunity for Labor and Disability Rights To Build Worker Power

By Adrienne Langlois

Source: 9to5 website

This August, Jennifer Abruzzo, newly-appointed General Counsel (GC) of the National Labor Relations Board (NLRB), issued her first memo to NLRB Regional Directors and Officers detailing the types of cases requiring centralized investigation. The memo reads like a worker-power wish list and provides a road map for union activists hoping to challenge the anti-worker policies of prior GC Peter Robb.

Abruzzo’s first public statement of policy also contained a pleasant surprise for disabled workers and disability advocates; the memo indicates a desire to reconsider Brevard Achievement Center, a 2004 decision in which the Board declined to extend the protections and organizing rights to a bargaining unit of custodians at the Cape Canaveral Space Station. The bargaining unit included non-disabled workers as well as workers with intellectual disabilities and mental health diagnoses. The prospective union members with disabilities were employed pursuant to a federal contract under the Javits Wagner O’Day Act and received training and support services through their employer. Despite this extra support, the disabled workers received the same wages and worked the same hours as their non-disabled coworkers, and were also subject to the same standard of discipline for misconduct not resulting from their disabilities.

Nevertheless, a majority of the Board declined to recognize NLRB jurisdiction, holding that the employee-worker relationship at the Brevard Achievement Center (BAC) was "primarily rehabilitative” and not purely economic. As the dissent noted, the majority’s standard represented a significant shift from prior Board precedent, which considered a rehabilitative relationship as just one factor in assessing whether or not a bargaining unit of disabled workers could organize under the National Labor Relations Act.

Brevard and its promotion of an outdated standard wasn’t only a loss for the Cape Canaveral custodians and other disabled workers; the denial of organizing rights and protections to disabled people facilitates the devaluation of the labor of other vulnerable workers, too. Former NLRB Chair Wilma Liebman, who wrote the BAC dissent along with Member Brian Walsh, notes that the decision must be understood “in the context of the long-term project by Republican NLRB members to narrow the protections of the National Labor Relations Act Act and limit the obligations of employers.”

These members, Liebman says, “argued for a constrained interpretation of the Act, based on the fact that the NLRA was written to cover manufacturing and transportation disputes” in 1938. 

Another 2004 Bush-era case illuminates this intrinsic link between the rehabilitative standard and the conservative project of limiting the scope of the Act. Two months before the BAC decision, the same Board majority denied the protections of the NLRA to graduate student workers at Brown University on the grounds that collective bargaining would interfere with the workers’ academic relationship to their employer. The Board analogized this “educational relationship” to the “primarily rehabilitative rather than economic or industrial” relationship between disabled workers and their vocational program employers. Graduate student workers have since won the right to organize, but as long as Brevard is good law, the “primarily rehabilitative” standard has the potential to be used in the future to further limit organizing rights.

Abruzzo’s signal could be considered a reason to mount a challenge to the 2004 decision. But a sympathetic administration isn’t the only asset on the side of worker power. Recent hard-won policy shifts in favor of the rights of people with disabilities provide a unique opportunity for organized labor and the disability rights movement to eliminate this doctrine, preventing its use by future anti-worker administrations and more broadly, expanding the collective power of disabled workers.

Brevard’s conclusion feels outdated, precisely because it is: the "primarily rehabilitative" standard relies on the policy promoted by two 1938 laws. The first, the Wagner-O’Day Act, sought to encourage the employment of blind workers by creating a market in the federal government for the “brooms, mops, and other commodities” they produced. Nonprofits employing a workforce of at least seventy-five percent blind workers were eligible for these contracts. The Act was amended in 1971 to include services provided by organizations employing people with disabilities. Today, the Javits-Wagner-O’Day Act is administered under the AbilityOne program, which produced $4 billion in goods and services for the federal government in 2020 and employs over 42,000 people with disabilities.

Congress also addressed the employment of workers with disabilities in section 14(c) of the Fair Labor Standards Act (FLSA), which provided an exception from the new federal minimum wage requirements of the landmark law. Upon receiving a certificate from the Department of Labor, organizations could pay workers “whose earning or productive capacity [were] impaired by age, physical or mental deficiency, or injury” at a rate less than the minimum wage, based on that worker’s productivity.

Although the Congressional record indicates that the Javits-Wagner-O’Day Act and section 14(c) of the FLSA were intended to create opportunities for people with disabilities, disabled workers have organized and fought against the regressive realities of the laws for nearly three-quarters of a century. In Sheltered Workshops of San Diego, the NLRB considered a petition from a union seeking to represent disabled workers in a subminimum-wage workplace that provided goods and services through state and federal contracts. Declining jurisdiction, the Board unquestioningly accepted the employer’s contention that “the Workshop’s essential purpose is to provide therapeutic assistance rather than employment.”

In Goodwill Industries of Southern California (1977), the Board conceded the existence of an employment relationship when it denied the representation petition of Teamsters Local Freight Drivers 208. However, it also described the vocational employment program as the “rare instance where the employer's concern for the welfare of his employees…displaces the union's ordinary concern for employee well-being.” According to the Board, the “collective-bargaining process” could “distort the unique relationship between employer and client and impair the employer's ability to accomplish” its therapeutic objectives.

After acknowledging the employee-employer relationship inherent in rehabilitative workplaces, the Board developed the “primarily rehabilitative” standard to assess whether disabled workers were “employees” under the NLRA. The standard necessitated a fact-intensive approach and relied heavily on employer testimony, leading to inconsistent outcomes. In Key Opportunities (1982), the Board denied employee status to a group of disabled “clients,” even as it acknowledged the potential for “exploitation” of those clients and granted employee status to non-disabled workers disciplined for walking out over working conditions. During the same period, in Lighthouse for the Blind of Houston and Cincinnati Association for The Blind, the Board found that the work environments of these nonprofits were more “typically industrial” than rehabilitative, assessments which were affirmed on appeal by the Fifth and Sixth Circuits, respectively. However, when the NLRB made the same determination in Arkansas Lighthouse for the Blind, the Sixth Circuit overturned the decision, holding that “work constitutes a form of rehabilitation,” even in circumstances where workers can be subjected to discipline and discharge.

Despite the BAC Board’s affirmation of this problematic and inconsistent standard, disability activists have made great strides since 2004. Sheltered workshop employees have successfully sued their employers for violations of the Americans with Disabilities Act and back wages. Advocates have also passed legislation eliminating the subminimum wage in ten states.

Workers in rehabilitative placements made significant gains with the 2014 passage of the Workforce Innovation and Opportunity Act (WIOA). Among other wide-reaching reforms, WIOA expanded the definition of “competitive integrated employment” in the Rehabilitation Act, prioritizing vocational rehabilitation placement in traditional workplaces with at-market wages where workers of all abilities work side-by-side. WIOA also mandated the creation of the Advisory Committee on Increasing Competitive Integrated Employment for People with Disabilities (the Advisory Committee), which issued a 2016 report recommending stricter enforcement of and gradual phase-out of subminimum wage certificates, along with the immediate elimination of subminimum wage in the AbilityOne program. Five years later, the recommendation has become reality: on October 12, 2021, the AbilityOne program issued a notice of proposed rulemaking indicating the agency’s intent to eliminate the use of subminimum wage among its contractors.

With the passage of WIOA, the Board-created “primarily rehabilitative” standard is now inconsistent with federal policy in favor of the rights of disabled workers. Unions and disability advocates have already recognized this opportunity for cross-movement organizing. During a 2016 hearing held by the Advisory Committee, custodian and building services union SEIU 32BJ presented testimony on the dangers Brevard Achievement Center poses to WIOA’s promise of competitive integrated employment. “Without full labor rights under the NLRA,” noted 32BJ attorney Jessica Drangel Ochs, “a worker can be disciplined or fired for talking to union organizers or coworkers about problems on the job or for advocating for changes in working conditions—like better wheelchair access or accommodations.” And in July 2021, a coalition of fourteen disability and eight labor organizations submitted a joint comment in response to an Office of Management and Budget (OMB) request for information on advancing equity in federal contracting. The comment advanced ambitious proposed reforms for the AbilityOne program, including “recognition of the right of workers under the AbilityOne program, and workers with disabilities more broadly, to unionize and engage in collective bargaining,” as well as the development of an “offsets” program that would permit more integrated worker placements in AbilityOne contractors.

The recommended policies of this joint disability and labor coalition show the organizing promise of expanding NLRA rights for disabled workers: overturning Brevard has the potential to serve as a stepping stone to larger workplace reforms. Using WIOA’s policy sea-change and the advantages of the most worker-friendly NLRB GC to date, workers with disabilities and labor unions can overturn the obsolete standard and build a broader—and stronger—worker movement.

Adrienne Langlois (she/her) is an attorney who has previously worked as a disability advocate, union-side lawyer, and union steward. She lives in New Jersey.