Labor and Employment Law: Current Developments

Senators Dodd, Durbin, and Kennedy recently introduced the “Re-empowerment of Skilled and Professional Employees and Construction Tradeworkers Act” (RESPECT) (S. 969). The proposed statute would modify the definition of a “supervisor” in the National Labor Relations Act (NLRA). Congressman Rob Andrews and Congresswoman Rosa DeLauro have introduced companion legislation in the House of Representatives.

The NLRA defines a supervisor as an:

individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

The amendment would add “and for a majority of the individual’s worktime” after “interest of the employer” and strike the words “assign” and “responsibility to direct them.”  The amended section of the  statute would read, therefore:

any individual having authority, in the interest of the employer and for a majority of the individual’s worktime, to hire, transfer, suspend, lay off, recall, promote, discharge, reward, or discipline other employees. . .

What Is the Significance of the RESPECT Act?

On its face, this looks like a modest change, but it could  have far-reaching impact, particularly in health care.   There has long been tension as to who is and who is not a supervisor. Supervisors are not allowed to organize into unions. When a union seeks to organize an employer for the first time, the bargaining unit defined by the parties must exclude supervisors. Consequently, employers generally want to treat as many employees as possible as supervisors, while the union wants to minimize the number of persons identified as supervisors in order to limit the size  of the bargaining unit.

There has long been tension between the more conservative and the more liberal members of the National Labor Relations Board (NLRB).  When I worked at the Board the staff often joked that for some Board members “everyone was a supervisor.”  

The issue  came to a head in  the broad context of charge nurses. Generally in a hospital each unit has at least one charge nurse.  The nurse may assign others duties and oversee the unit for his or her shift.  However, charge nurses usually do not have the power to hire and fire nor perform other managerial functions.  In 1996, the Board held in Kentucky River Community Care, Inc,; 323 NLRB No. 209 (1997),  that  six  registered nurses in a 110 member bargaining unit  were not supervisors because the nurses  did not use “independent judgment” when they exercised “ordinary professional or technical judgment in directing less-skilled employees to deliver services in accordance with employer-specified standards.”  

The Supreme Court ultimately rejected the Board’s reasoning, however in NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001).   In 2006, the Board decided Oakwood Healthcare, Inc., 348 NLRB No. 37 (2006), finding charge nurses supervisors and devising a new test for measuring who is and who is not a supervisor, consisten with the Supreme Court’s pronouncement in Kentucky River. The result is employees who perform even limited supervisory duties part of the time may be viewed as supervisors and prohibited from joining labor organizations.  By requiring that an employee can only be deemed a supervisor under the NLRA if he or she acts as a supervisor the majority of  his or her worktime and by eliminating the words “assign” and “responsibility to direct them,” the amendment would allow most charge nurses, and  perhaps many other part-time supervisors, to be represented by a union.

Needless to say, unions are lobbying hard for the bill, while employers are generally opposed to it.