Congress Considers Bill to Permit Supervisors to Organize

Under federal labor law, supervisors are excluded from the protections of the National Labor Relations Act (NLRA) and thus may not be included in a bargaining unit with unionized employees. With a bright-line rule such as this, disputes often arise regarding who qualifies as a supervisor. In response to labor union concerns that too many employees were being excluded from the bargaining unit, Democratic members of Congress have proposed legislation that would modify the definition of "supervisor" under the NLRA. The Re-Empowerment of Skilled and Professional Employees and Construction Tradesworkers (RESPECT) Act would narrow this definition to effectively widen the pool of employees eligible to join a union.

The impetus for RESPECT is the Kentucky River decisions, a series of 2006 rulings by the National Labor Relations Board (NLRB) regarding the definition of "supervisor." According to the Section 2(11) of the NLRB, the term "supervisor" means:

"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 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."

Prior to the Kentucky River decisions, the NLRB inconsistently applied the Act's definition, leading to several Supreme Court decisions criticizing the NLRB's interpretation. In the Kentucky River decisions, the NLRB modified the meaning of "assign," "responsibility to direct," and "independent judgment" to conform to the Supreme Court decisions. The decisions maintained a broad definition of the term "supervisor," enabling employers to classify as a supervisor any worker who has the authority to assign or direct another and uses independent judgment in his or her job. Moreover, the NLRB ruled that a worker may be a supervisor even if he or she spends only 10 to 15 percent of his or her time overseeing other employees.

RESPECT is intended to reverse the Kentucky River decisions by severely curtailing the definition of "supervisor." The legislation would delete the terms "assign" and "responsibility to direct" from the definition, and would require that a worker be classified as a supervisor only if he or she spends a majority of the workday in a supervisory capacity.

If RESPECT is signed into law, it will significantly alter the long-standing relationship between labor and management in the workplace. First, it would create a new pool of employees that can organize. Second, there is the potential for divided loyalties. Supervisors, who are traditionally agents of the company, may now also become union members, which could create conflict with management. Supervisors should be free to make decisions based on efficiency, merit, and what is best for the company — not on internal union politics or work rules. Moreover, if supervisors are part of a bargaining unit, they could be used as tools of the union to retaliate against other employees who challenge a union boss.

For more information on RESPECT, please contact Evan Rosen (404.869.5325 or [email protected]).