Congress May Pass Law Expanding Union Eligibility, Members

Organized labor has become unusually resourceful in seeking members.  Representing only 12 percent of the U.S. work force in 2006, union leaders know they have to pull out the stops, especially as their bill to force private-sector employers to recognize union card-check majorities has stalled in the Senate.  But as a backup, lawmakers on Democrat-controlled Capitol Hill already had another idea in the works.  It’s called RESPECT, an ingenious acronym for the Re-Empowerment of Skilled and Professional Employees and Construction Tradesworkers Act (H.R. 1644, S. 969), introduced back in March.  The House and Senate bills would redefine “supervisors” under the National Labor Relations Act, so as to make more of them eligible to become union members.  The full House Education and Labor Committee on September 19 took a big step toward making that ambition a reality, voting 26-20 in favor.  Whether the bill is on sound legal footing, or whether it would yield a bumper crop of new union members, is less than certain. 


Major changes in public policy sometimes originate in small, seemingly insignificant rewordings of law.  This is one such instance.  The 1947 Taft-Hartley amendments to the National Labor Relations Act (29 U.S.C. 152 [11]) established the current statutory definition of “supervisor.”  The term refers to: 


any 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 responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if the connection with the foregoing of the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.  


The RESPECT legislation would do three things:  1) insert “and for a majority of the individual’s worktime” immediately after “the interest of the employer”; 2) delete the word “assign”; and 3) delete the words “or responsibility to direct them.”  The result could be a new round of aggressive union organizing.  The unions and their allies in Congress, at least, are counting on it. 


On a practical level, the measure would make eligible for union membership all employees who perform a supervisory function, but who spend less than 50 percent of their shift in that capacity.  Employers, not surprisingly, think RESPECT is based on disrespect for reality.  In an open letter to the House of Representatives dated September 13, U.S. Chamber of Commerce Executive Vice President for Government Affairs R. Bruce Josten expressed his organization’s opposition.  The bill, he argued, “flies in the face of more than 50 years of settled labor law,” and “would delete the functions of assigning work and directing work of other employees from those functions deemed to be supervisory in nature.”  The American Hospital Association and other health care organizations also oppose the bill, arguing that supervisors would be subject to union work rules and thus no longer could serve as management’s voice.


Labor leaders, by contrast, are delighted with the prospect of swift passage, arguing that Congress must undo recent damage done to workers’ rights by the National Labor Relations Board.  AFL-CIO President John Sweeney stated:  “The NLRB defied Congressional intent by reclassifying as ‘supervisors’ many workers with only low-level supervisory duties, professionals such as nurses, and other skilled craftsperson.  The RESPECT Act will restore Congress’s original intent, which was never to deny protection to these workers.”  Anna Burger, chairperson of the federation’s new rival, Change to Win, in an open letter dated May 24, 2007, likewise urged Congress to “ensure that those employees who are not supervisors have their rights to join a union and collectively bargain protected.”


Let’s get specific about the context.  The proposed law, first and foremost, is a response to three rulings issued by the five-member NLRB on September 29, 2006, collectively known as the Kentucky River decisions.  They are:  Golden Crest Healthcare Center, Croft Metals, Inc. and Oakwood Healthcare, Inc.  Since Oakwood (348 NLRB No. 37 [2006]) is the lead case, “Kentucky River” and “Oakwood” effectively refer to the same thing.  The National Labor Relations Board had sought to clarify potentially confusing statutory definitions.  By a 3-2 margin along party lines, the NLRB held in Oakwood that year-round, full-time supervisory nurses (also known as “charge nurses”) could be defined by their employer as supervisors within the meaning of NLRA statutes.  The majority interpreted “assign” and “responsibility to direct” as applying to their jobs. 


The NLRB had hoped to clear away confusion, not create it.  In its definition of “assign,” the majority opinion read:  


The ordinary meaning of the term ‘assign’ is ‘to appoint to a post or duty’…we construe the term ‘assign’ to refer to the act of designating the 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 significant overall duties; i.e., tasks to an employee.  That is, the place, time and work of an employee are part of his/her terms and conditions of employment.  In the health care setting, the term ‘assign’ encompasses the charge nurses’ responsibility to assign nurses and aides to particular patients.  It follows that the decision or effective recommendation to affect one of these – place, time, or overall tasks – can be a supervisory function. 


Likewise, the board held that “responsibility to direct” may include ad hoc instructions not constituting an official assignment.  The majority put it this way:


(T)he authority ‘responsibility to direct’ is not limited to department heads as the dissent suggests…If a person on the shop floor has ‘men under him,’ and if that person is a supervisor, provided that the direction is both ‘responsible’ and carried out with independent judgment…(F)or direction to be ‘responsible,’ the person directing and performing the oversight of the employee must be accountable for the performance of the task by the other, such that some adverse consequence may befall the one providing the oversight if the tasks performed by the employees are not performed properly…Thus…it must be shown that the employer delegated to the putative supervisor the authority to take corrective action, if necessary.  It must also be shown that there is a prospect of adverse consequences for the putative supervisor if he/she does not take these steps.


Such language is very specific and hardly amounts to an imprimatur for union-busting.  But organized labor has been up in arms, arguing that Oakwood invented a nonexistent authority for employers to make low-level employees into classic straw bosses, excluding them from participation in a collective-bargaining unit.   


To bolster their claims, unions and their allies in Congress are relying on a couple of dramatic statistical claims from outside sources.  The first is a statement by the Washington-based Economic Policy Institute that 8 million employees are at immediate risk of losing their bargaining rights as a result of the Kentucky River rulings.  The second is NLRB’s own dissenting opinion, which anticipated nearly 34 million workers by 2012 being stripped of their right to join a union.  The House Education and Labor Committee cited these numbers in its final report.  Committee Chairman George Miller, D-Calif., for good measure added this note in a press release:  “According to the Kentucky River rulings, skilled and professional workers who regularly direct a co-worker on a single, discrete task just 10 percent of the workday could be considered supervisors, even if they have no authority to discipline, reward, promote, hire or fire employees.”


These claims are highly questionable.  The Kentucky River decisions were meant as a clarification to National Labor Relations Act statutes, particularly Section 2(11).  Nothing in the rulings explicitly created an employer right to reclassify workers as supervisors. The NLRB simply said that workers might or might not be considered as such, based on the circumstances of their job duties.  The board tried to shed light on what it means to “direct” or “assign” workers, urging employers to exercise “independent judgment” as called for by the Taft-Hartley Act.  The NLRB’s review found a mere 12 individuals in the Kentucky River cases to be “supervisors” under its own clarified definition – and roughly 160 persons to be “employees.”  If the U.S. labor force were similarly unaffected, fears of union suppression would seem way overblown.  Labor activists have yet to provide hard evidence of employers over the past year rushing to reclassify workers as supervisors.

If the RESPECT Act becomes law, the result ironically might be more rather than less legal confusion.  For what does a supervisor do, if not direct or assign?  The law would invite a multitude of lawsuits with hair-splitting definitions about what people do or ought to do at work.  Congress is not well-equipped to define “supervisor” on a case-by-case basis.  This is a function best performed by the National Labor Relations Board, whose main Congressionally-mandated purpose for over seven decades has been to anticipate and adjudicate grievances.  RESPECT, at bottom, is an attempt by lawmakers to micromanage the workplace – and to the advantage of unions.  (Change to Win, 5/24/07; Adjunct Law Prof Blog, 9/21/07; Alliance for Worker Freedom, 9/21/07; other sources).