Legal Alert: Organized Labor Urges Congress to Modify Definition of Supervisor

Date   May 3, 2007


Hot on the heels of the Employee Free Choice Act, organized labor is pushing another piece of legislation with a catchy, if not misleading, name.



Hot on the heels of the Employee Free Choice Act, organized labor is pushing another piece of legislation with a catchy, if not misleading, name. In late March, supporters introduced the RESPECT Act in both the U.S. House and Senate. Short for the Re-Empowerment of Skilled and Professional Employee and Construction Tradeworkers Act, the RESPECT Act is no ode to Aretha Franklin. Rather, it would amend the definition of “supervisor” under the National Labor Relations Act (NLRA) and undo the National Labor Relations Board's (NLRB) recent Oakwood decision.

Whether a worker is a supervisor is an important issue under the NLRA. Unlike non-supervisory employees, supervisors do not have the right to organize under the NLRA. Additionally, other rights under the NLRA are not available to supervisors.

In Oakwood Healthcare, Inc., 348 NLRB No. 37 (2006), the NLRB took the opportunity to address and refine the definition of what it is to be a supervisor under the NLRA.

Section 2(11) of the NLRA defines supervisor as:

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.

29 U.S.C.S. § 152(11).

Oakwood is important for its discussion of three of the components of supervisory status: “assign;” “responsibly to direct;” and “independent judgment.” But the decision is not the cataclysmic event portrayed by the AFL-CIO, other unions and the supporters of the RESPECT Act. The decision simply clarifies and refines statutory terms that have bedeviled employers, unions, practitioners, courts and the NLRB for years.

Organized labor has portrayed Oakwood as expanding the definition of supervisor and robbing employees of the right to organize. For example, the AFL-CIO’s website declares that Oakwood’s “expanded definition of supervisors means up to 8 million workers, including nurses, building trades workers, newspaper and television employees and others may be barred from joining unions.”

To correct the perceived (and erroneous) view that Oakwood will be applied to deprive workers of their rights under the NLRA, the RESPECT Act would specifically delete “assign” and “responsibly to direct” from Section 2(11)’s definition of supervisor. In addition, the proposed law would require that an employee spend “the majority of the individual's worktime” performing the remaining supervisory functions in Section 2(11) in order to be a supervisor under the Act, thus dramatically restricting the class of workers who would fit within the definition of a supervisor.

Like the Employee Free Choice Act, the RESPECT Act is another attempt by organized labor to make an end run around the NLRB. Labor has long been dissatisfied with the NLRB and its processes and, to some degree, blames the NLRA and the NLRB for its falling membership levels.

We will continue to monitor this legislation and will keep you apprised of relevant developments. If you have any questions about this legislation or any other labor or employment related issue, please contact the Ford & Harrison attorney with whom you usually work or the author of this Alert, Chris Johlie, a partner in our Chicago office, at or 312-960-6114.