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Beinhart's Body Politic: Nurses & Bus Drivers 

A young friend works as a certified nursing assistant. If you're in the hospital and you can't take care of yourself, she's the one who feeds you and cleans you. When I told one of the lawyers we spoke to what she did, he said, "Oh, an angel of mercy." He said it quite sincerely. Here's a list of the other things she does, taken pretty much verbatim from

—Administer medications and treatments, such as catheterizations, suppositories, irrigations, enemas, massages, and douches.
—Answer patients' call signals.
—Bathe, groom, shave, dress, and/or drape patients.
—Clean rooms and change linens.
—Apply dressings.
—Help with walking, exercising, and moving in and out of bed.
—Transport patients to treatment units, using a wheelchair or stretcher.
—Reposition bedridden patients to prevent bedsores.
—Collect specimens such as urine, feces, or sputum.
—Explain medical instructions to patients and family members.
—Restrain patients if necessary.
—Set up equipment such as oxygen tents, portable X-ray machines, and overhead irrigation bottles.

She put herself through community college and got an associate degree. Her job pays $12.85 an hour, an extra dollar an hour on weekends. She managed to have an apartment, a phone, and make car payments. She was doing better than a lot of other kids from Kingston and she was pretty proud of her accomplishments.

Then, a few weeks ago, a manager accused her of forging an overtime form. She claims it wasn't true. When she protested, she was fired. I believe her. But that doesn't matter. It turns out that innocence or guilt is not the issue. It's not even relevant.

New York is an "at will" employment state. Like 48 others, all except Montana. "At will" means that the "employer may terminate its employees at will, for any or no reason ... the employer may act peremptorily, arbitrarily, or inconsistently, without providing specific protections such as prior warning, fair procedures, objective evaluation, or preferential reassignment." (Guz v. Bechtel National, Inc., Supreme Court of California).

There are some limitations. You can't be fired because of race, ethnicity, religion, gender, or sexual orientation. Or for being pregnant, using your rights under the Family Medical Leave Act, in retaliation for being a whistleblower, filing a complaint, or trying to join a union. Sadly, few employers are stupid enough to publicly scream their favorite homophobic, racist slurs at you while they show you the door. They can say it's because of your red shoelaces, a perfectly valid reason to fire someone. It's up to you to prove differently, which is insanely difficult and prohibitively expensive.

Or you can have a contract that protects you.

About one-third of employees do. They fall into three groups.

The top 15 percent of income earners are likely to have individual employment contracts. As a rule of thumb, a job has to be worth enough that it makes sense to pay a lawyer between $100 and $1,000 an hour to read the contract, negotiate as necessary, and then to sue if things go wrong.

You could have a civil service job, as 16 percent of Americans do.

As a practical matter, if you're not in one of those two groups, there's only one way to have an employment contract that protects you from being fired at will and affords you the opportunity to defend yourself. That's to be in a union.

In the private sector, union workers make 23 percent more than nonunion workers. They're more likely to get health care and pensions. They have better work rules and safer workplaces.

Yet union membership is declining. Nationally, membership is down to just 6.6 percent in the private sector. Even in New York, the most unionized state in the nation, it's just 13.5 percent.


Birnie Bus Service recently won the transportation contract for Onteora School District here in northern Ulster County. They turned out to be such sufficiently repulsive employers that the bus drivers got together and said, "We better get a union." They signed enough authorization cards to have the Civil Service Employees Association stand for a union election.

The company went out and hired a professional union busting firm, Russ Brown Associates. Their website is There's a photo on their front page of five people in "worker" costumes, sort of like the Village People, except three of them are women. They're all baring their teeth, so it looks like an ad for a discount dentist or a indie horror film about the piranha people. Russ guarantees his personal participation, all but guarantees success, and explains its because he used to be on the National Labor Relations Board, supposedly the fair arbiter between employers and employees.

The usual number one tactic for keeping a union out is the threat of offshoring. "You bastards want a union? Well if you go union, this factory moves to China!" Except you can't drive the kids via Bejing. So that won't work. You can't even outsource, and have a nonunion subcontractor bring in buses and drivers from Alabama. Even the risk of being fired was minimal. Although employment is "at will," one of the things you can't be fired for is union activity.

But Russ pulled it off. The union lost the election 31-27.


The short answer is that Russ Brown was a whole lot better at his job than the union organizers. He had to convince one more than half the drivers that they would be better off with no rights to a hearing before getting fired, without the dignity of being able to stand up for themselves, probably lower wages and fewer benefits.

A somewhat longer answer is that government has moved to the wrong side. The power relationship between employer and employee is inherently unequal. The most significant factor in determining the success or failure of unions in America is whether government exercises its power to redress that imbalance. The political right has waged a well funded, 50-year public opinion campaign against unions. It has been successful. Government has offered unions less and less support. Unions have done a terrible job.

I called my state senator, Cecilia Tkaczyk. She's a Democrat. Practically a Liberal. I spoke to three separate members of her staff. None of them realized that employment in New York was "at will." They all assured me that she was pro-labor, but none of them could tell me any specific pro-worker policies of hers or of the party's. My assemblyman, Kevin Cahill, spoke to me himself. He was knowledgeable and was able to cite several positions that help people who work at the tough jobs, like nursing assistant. But he also said that he felt government should be neutral in the battle between unions and employers, unless one of them did something illegal. History says that if he does that, then hard-working young women can be fired because their supervisor had hives that morning and the bus drivers will always lose.

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  • Larry Beinhart discusses unions and "at-will" employment.


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