The Re-Empowerment of Skilled and Professional Employees and
Construction Tradeworkers (RESPECT) Act largely eliminates the
definition of supervisor from the National Labor Relations Act
(NLRA). This change would undermine companies' efficiency and
productivity. Specifically, it would:
- Necessitate the hiring of "deadweight" employees who add little
value to the company, hurting businesses at precisely the wrong
- Restore workplace hierarchies;
- Prevent supervisors from making essential business
- Prevent employers from rewarding or promoting supervisors on a
performance or merit basis; and
- Subject employers to an increased number of lawsuits under
other statutes, including the Fair Labor Standards Act (FLSA) and
Title VII of the Civil Rights Act of 1964.
These consequences would hurt companies under normal
circumstances but would be particularly painful during a recession.
Therefore, Congress should not virtually eliminate the definition
of supervisor from the NLRA.
Legal Definition of Supervisor
Under the law, supervisors are part of management and members of
the company that they help to run. Consequently, they cannot join
unions because, if the company is to be run effectively,
shareholders need managers with undivided loyalty.
Congress carefully crafted the NLRA to balance the competing
interests of management and labor when considering whether an
employee is a supervisor, defined in Section 2 (11) of the NLRA
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...[so long as this authority]
requires the use of independent judgment.
The RESPECT Act would change the definition of "supervisor" by
altering Section 2 (11) in the following three ways:
- Striking the word "assign";
- Striking the phrase "or responsibly to direct them"; and
- Inserting the phrase "and for a majority of the individual's
worktime" after the phrase "in the interest of the employer."
These changes would largely eliminate the position of
"supervisor" as a legal classification since very few managers
spend the majority of their work time hiring and firing
The RESPECT Act would also increase the number of workers that
unions can organize. Since between 1 percent and 2 percent of union
members' earnings is spent on union dues, this would mean a
significant financial boost to organized labor--a financial
windfall that would come at considerable cost to the economy.
Likely Consequences of the RESPECT
Loss of Flexibility and Encouragement of Deadweight
Hirings. Currently, the NLRA allows employers to use their
supervisory workforce to perform management and non-management
functions concurrently. A supervisor hires and promotes workers but
also works with them on the shop floor. Under the RESPECT Act,
employees classified as "supervisors" would be largely "precluded
from performing non-supervisor or bargaining unit work."
Employees could not use supervisors to perform multiple tasks on
Small companies trying to weather the current economic storm
need employee flexibility. The ability of workers to perform a
variety of tasks can make the difference between success and
bankruptcy, but the RESPECT Act would prevent such flexibility.
Instead, many small-business owners would be forced either to hire
additional employees to comply with the act or to forgo a portion
of their business operations entirely.
In most instances, these additional employees would be hired to
perform a specific task that does not require a full-time, or even
a part-time, position. Consequently, such new hires would
essentially constitute "deadweight" employees--workers that, other
than assuring compliance with the act, offer the company little to
no additional value. Indeed, money spent on wages and benefits for
these workers would likely far exceed any modest gains in
productivity. Few small businesses can afford that burden in this
The RESPECT Act would hit public utilities particularly hard.
American households need water and electricity, even if workers
strike. Utilities rely on their supervisors to keep facilities
operating during a strike when all non-supervisors are on the
picket lines. Under the RESPECT Act, utilities would need to hire
dozens of "supervisors" for the sole purpose of having employees to
call on during strikes, thereby adding to the costs passed on to
consumers. Failure to hire these additional supervisors would force
companies to operate with skeleton crews or less during strikes,
potentially endangering lives in the event of a mishap.
Restoration of Workplace Hierarchies. The RESPECT Act
would bring back top-down hierarchical workplaces. In the modern
workplace, the job hierarchy has flattened, blurring the lines
between management and supervisor. Employers expect workers today
to communicate with their bosses, use their individual knowledge,
and exercise initiative on the job. This represents a sharp change
from a generation ago when most workplaces operated with top-down
command and strict divisions between labor and management. By
narrowly defining supervisors as employees who spend a majority of
their time hiring or disciplining employees, the RESPECT Act would
reestablish the strict labor-management divisions that used to
characterize the workplace.
In order to run effectively, businesses need some managers who
are loyal to the firm. Because of this necessity, businesses would
respond to the RESPECT Act by reassigning job duties or hiring new
employees that spend a majority of their time doing nothing but
making personnel decisions, thereby securing the managerial loyalty
essential to a successful business by stripping supervisory
functions from other deserving employees. Instead of today's world
of flattened hierarchies, the RESPECT Act would harden the
distinction between worker and supervisor.
Hierarchical workplaces also separate supervisors from the rank
and file. The NLRA currently allows regular employees to gradually
assume greater managerial responsibilities. By requiring
"supervisors" to spend more than 50 percent of their time on
supervisory activity, the RESPECT Act would remove the ability of
employees to assume managerial duties over time. This new
requirement would have two detrimental effects.
First, rank-and-file workers would have fewer
opportunities to obtain the managerial experience essential to
career advancement, further reinforcing the strict division between
labor and management.
Second, supervisors would be legally prevented from
spending more than 49 percent of their time working on the same
tasks as the workers they manage. Consequently they would have less
insight into the concerns of rank-and-file workers, who would have
less opportunity for advancement under a less responsive and less
The RESPECT Act would also negate one more advantage provided by
the traditional supervisor: the benefits gained when a boss works
alongside his or her employees, performing the same tasks under the
same conditions. Since supervisors would be brought back into the
bargaining unit, the message that the workplace is unified, working
toward a common goal would be lost.
Less Effective Managers. Under current law, supervisors
make personnel decisions and direct employees to perform specific
tasks. If the RESPECT Act becomes law, however, many supervisors
who "assign" and "responsibly direct" workers without making
personnel decisions will be brought into the union. These employees
will essentially become "working supervisors": men and women
expected to perform some managerial functions while remaining part
of the bargaining unit.
This change would hinder the ability of these employees to
direct workers in the best interest of the firm because they would
be subject to union discipline. For example, consider a "working
supervisor" who assigns a less senior but more capable employee to
a critical task or who makes changes in the workplace that improve
productivity but require more effort from the employees. Affected
employees could file a grievance, and during the subsequent
hearing, the union would side with the grievant and subject the
working supervisor to union fines for his managerial decisions. In
the eyes of the rank-and-file employees, the working supervisor--an
essential component of workplace efficiency and
profitability--would be rendered ineffective.
Unrewarded Performance. By bringing working supervisors
into the bargaining unit, the RESPECT Act would prevent employers
from rewarding good performance or disciplining unproductive
managers. Unions typically negotiate seniority-based pay systems
that give the same raises to all workers regardless of effort. By
law, employers may not unilaterally pay an individual worker more
than is called for by the union contract.
The RESPECT Act would require employers to ignore the individual
performance of the working supervisors who assign and responsibly
direct the tasks of their fellow employees. Employers could not
give raises or promotions for good performance or fire or demote
ineffective managers. Companies could not create incentives for
good performance by the men and women who make critical business
decisions for them. This lack of incentive would also hold back
businesses at precisely the wrong time.
Restoring strict workplace hierarchies, undermining the
authority of managers, and preventing employers from rewarding or
disciplining managers would severely restrict workforce
flexibility. Employers would have less ability to assign the right
employees to the right tasks and to provide them with the best
motivation to get the job done. The effect of these changes would
be to retard productivity and, ultimately, to hinder overall
Statutory Confusion. Many federal statutes do not define
the term "supervisor." Consequently, courts frequently look to
other statutes--particularly the NLRA--for guidance. When
considering what constitutes sexual harassment under Title VII,for
example, courts have used the NLRA as a point of reference.
While the RESPECT Act would not automatically change other laws
such as Title VII or the FLSA, it would provide a new means by
which statutes that lack a formal definition of "supervisor" can be
interpreted. For instance, an employee might have qualified as a
supervisor under both the NLRA and the FLSA but, in the wake of the
RESPECT Act, would now be a supervisor only under the FLSA. Such
new interpretations would inevitably cause confusion among
employers who are already struggling to balance variances in how
the law defines "supervisor."
Disturbing a Delicate Equilibrium
Through seemingly minor statutory alterations, the RESPECT Act,
by redefining the criteria used to determine whether an employee is
a supervisor, would destroy the delicate equilibrium that currently
exists between management and organized labor. As a result,
productivity and efficiency would decrease-- a dangerous
development under any economic conditions, let alone during the
James Sherk is Bradley Fellow in Labor Policy
in the Center for Data Analysis and Ryan O'Donnell, a former
private-sector labor attorney, is a Web Editor at The Heritage