There's an important
new bill in Congress that hasn't gotten much attention as of yet.
Senators Dodd, Durbin, and Kennedy, and Reps. Rob Andrews and Don
Young have just introduced the Re-empowerment
of Skilled and Professional Employees and Construction Tradeworkers
(RESPECT) Act, S. 969 in the Senate and H.R. 1644 in the House.
Here's the short summary. The 1947 Taft-Hartley Act -- legislation
meant to emasculate the 1935 National Labor Relations Act -- excluded
employees classified as "supervisors" from the protections
of the NLRA. Back in October of 2006, a National Labor Relations
Board's decision in what's known as the Kentucky
River cases opened the gates on employees exempt from labor
protections by deciding that charge nurses are indeed "supervisors."
These are RNs, you see, who have the responsibility to assign other
nurses, LPNs (licensed practical nurses), and other medical staff
to take care of certain patients, and who may generally oversee
patient care in their units during their shifts. The Kentucky River
decision hinged on the definition of "supervisor" under
the law in 29
U.S.C. § 152 (11):
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 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 gist of the statute, of course, is someone who operates as
management, with the clear capacity to dramatically shape the work
lives of employees. As the dissent in Kentucky River said, charge
nurses aren't "vested with such genuine management prerogatives."
They cannot hire and they cannot fire. In its decision, the NLRB,
however, went strict constructionist -- saying that it could only
rely upon an on-their-face reading of words like "assign"
and "direct." So in comes the RESPECT Act. The RESPECT
Act is a five-line bill crafted to combat Kentucky River. All it
does is this:
Section 2(11) of the National Labor Relations Act (29 U.S.C.
152(11)) is amended -- (1) by inserting "and for a majority
of the individual's worktime" after "interest of the
employer'; (2) by striking assign," and (3) by striking "or
responsibility to direct them,".
Why would the NLRB make the Kentucky River call in the first place?
An NLRB cynic would say that expanding the definition of "supervisor"
expands the opportunity for employers to give some employees minimal
supervisory roles in order to keep them from unionizing. As it stands,
a common tactic among employers trying to subvert a union certification
process is to claim that some number of employees are actually supervisors
-- creating confusion and slowing the process while who is and isn't
one gets sorted out. There's been a constant battle in the Bush
years between pro-labor forces and a National Labor Relations Board
that sees its role as limiting the ability of workers to organize
a majority, certify a union, and get to initial contract.