On September 19, 2007, the House Committee on Education and Labor approved H.R. 1644, a bill that would alter the organization rights of supervisory workers under the National Labor Relations Act (NLRA). The bill is entitled Re-Empowerment of Skilled and Professional Employees and Construction and Tradesworkers Act (RESPECT) and was proposed in response to a series of National Labor Relations Board (NLRB) decisions that broadly interpreted the definition of “supervisor” as used in the NLRA. The legislation would significantly increase the number and types of workers eligible for protection under the NLRA.
“Supervisors” currently are excluded from protections and privileges under the NLRA and consequently have no organization rights and no rights to engage in protected concerted activities. The current definition of supervisor includes “any individual having authority . . . to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively recommend such action . . . .” An individual is a supervisor under the Act if he or she performs any one of the twelve listed functions in the interest of the employer and while exercising independent judgment.
For instance, an employee who has the authority to fire other employees based upon his or her own judgment would be a “supervisor” under this current definition.
In a series of decisions known as the “Kentucky River” decisions, the NLRB interpreted this definition to include workers who engage in any of these supervisory roles for more than ten to 15 percent of their working time. It further broadly interpreted the supervisory functions “assign” and “responsibility to direct” to classify more workers as supervisors. To illustrate, in one of these “Kentucky River” decisions, In Oakwood Healthcare, Inc., the NLRB held that the term “assign” includes “designating an employee to a place (such as a location, department, or wing), appointing an employee to a time (such as a shift or overtime period), or giving overall duties, i.e., tasks to employees,” and that the phrase “responsibility to direct” contemplates situations where an employee is held accountable for the performance of the one he or she is directing. In applying those definitions, the NLRB held that charge nurses who determine what patients other nurses will see “assign” other employees, and because they use independent judgment and perform this task at least 10 percent of the time, they are supervisors. As such, the nurses are excluded from NLRA coverage and were precluded from joining a petitioned-for bargaining unit.
The RESPECT Act, in an effort to reverse this trend of NLRB decisions, would require that to be excluded as supervisors, workers perform supervisory activities for the majority (at least 51 percent) of their working time. It would also amend the definition of supervisor by eliminating the term “assign” and by eliminating the phrase “responsibility to direct them,” reducing the recognized supervisory functions from twelve to ten. The effect of these amendments would be to narrow the class of workers who can be categorized as supervisors and in turn expand the class of workers with organizational rights under the NLRA. For example, the nurses who were classified as supervisors in the Oakwood case and consequently denied organizing rights would not be considered supervisors under the proposed legislation because to “assign” would no longer be a recognized supervisory function. As a result, the nurses would receive protections of the NLRA and could join the petitionedfor unit.
More generally, under the current statutory standard an employee would be an exempt supervisor if he or she spends 10 percent of his or her time disciplining other employees (or performing another supervisory function) and the other ninety percent performing rank-and-file tasks. Under RESPECT, that same employee would not be exempt because he or she does not devote 51 percent of his or her time to disciplining other employees. Additionally, the employee above who was a supervisor because he could fire other employees would not be a supervisor under RESPECT unless he spends 51 percent of his time firing employees or performing other supervisory functions.
Should this bill become law, it is likely that there will be a surge of challenges to labor practices in which employees who perform supervisory functions test the limits of the new definition. This is especially true in light of this language that would require employees to perform one of the ten proposed functions a majority of that employee’s time. Quantifying the job description in this manner will likely make it easier for employees to manipulate their job duties and avoid classification as a supervisor, to gain organizing rights.
Although the bill is in its early stages, if it is enacted the implications would be important for all employers acrossthe- board, regardless of whether a union is currently in place. As noted above, supervisors and management are currently excluded from NLRA coverage and do not have collective rights, including the right to engage in concerted activity, the right to organize, the right to strike or the right to bargain collectively. This exclusion allows businesses to operate at a managerial level notwithstanding labor disputes or ongoing collective bargaining with rank-and-file employees. Furthermore, if the definition of supervisor is narrowed and individuals with supervisory capacity are given rights to organize and in turn bargain, the management will effectively be forced to bargain with the management in situations where supervisors are successfully unionized. In addition to creating these functional problems, the RESPECT Act would directly undermine the policy behind the NLRA. The NLRA was enacted to address inequality of bargaining power. Giving supervisors collective rights does not advance this policy because supervisors, being higher-ranking employees, have the ability to bargain at arms length and are thus not at a disadvantage at the bargaining table.
A related bill was introduced by Senator Christopher Dodd of Connecticut and is currently in the Senate Committee on Health, Education, Labor and Pensions, awaiting vote.