Gerald Mayer
Analyst in Labor Policy
Jon O. Shimabukuro
Legislative Attorney
The National Labor Relations Act (NLRA) establishes certain protections for private sector employees who want to form or join a labor union. These protections do not extend to supervisors. Historically, Congress has debated where to draw the line between employees who have different levels of management responsibility. It is generally agreed that employees who have significant supervisory duties, such as hiring and firing, are supervisors. However, disagreement occurs with respect to employees who have minor supervisory duties.
In 2001, the U.S. Supreme Court ruled that the test administered by the National Labor Relations Board (“NLRB” or the “Board”) to determine whether an employee is a supervisor was inconsistent with the NLRA. In response to NLRB v. Kentucky River Community Care, Inc., the Board issued a September 2006 decision in Oakwood Healthcare, Inc. in which it established new definitions for three key terms that are used to identify supervisors for purposes of the NLRA: to “assign” and “responsibly to direct” employees and to exercise “independent judgment.”
Applying the new definitions, the NLRB concluded that 12 permanent charge nurses employed by Oakwood Healthcare were supervisors. The Board found that the nurses exercised independent judgment in assigning employees to patients and assigning overall tasks to other employees. However, the Board found that none of the charge nurses at Oakwood Healthcare responsibly directed other employees.
In the 112th Congress, Senator Richard Blumenthal introduced the Re-Empowerment of Skilled and Professional Employees and Construction Tradesworkers (RESPECT) Act (S. 2168). The legislation was also introduced in the 110th Congress by Representative Robert Andrews and Senator Chris Dodd (H.R. 1644/S. 969).
The RESPECT Act would narrow the definition of the term “supervisor” in the NLRA. The legislation would eliminate “assign” and “responsibly to direct” from the current definition of supervisor in the NLRA. In addition, the act would add a limiting phrase to the definition of supervisor. Under the act, employees would be classified as supervisors if they are engaged in supervisory activities more than 50% of the time. Currently, an employee may be classified as a supervisor if the employee acts as a supervisor for at least 10%-15% of the employee’s worktime. This change would reduce the number of employees who are classified as supervisors and, therefore, increase the number of employees protected by the NLRA
The RESPECT Act, if it were enacted, may have a significant impact on foremen. In 1947, the Supreme Court upheld the position that the Board followed at the time that supervisors were included in the definition of employee. In response, Congress amended the NLRA to exclude supervisors from the definition of employee. The new definition was included in the Labor Management Relations Act of 1947 (P.L. 80-101). Because the RESPECT Act would eliminate “responsibly to direct” as a supervisory function, foremen and employees with similar duties may no longer be classified as supervisors. They could, therefore, receive the same protections as other employees under the NLRA.
Date of Report: July 5, 2012
Number of Pages: 12
Order Number: RL34350
Price: $29.95
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