Under federal law, unions cannot organize supervisors, but
legislation favored by Organized Labor--the Re-Empowerment of
Skilled and Professional Employees and Construction Tradeworkers
(H.R. 1644, S. 969), or RESPECT Act--would dramatically limit which
workers the National Labor Relations Act (NLRA) classifies as
supervisors. Unions see the legislation as a fix to a recent
National Labor Relations Board (NLRB) ruling that clarified the
definition of a supervisor and slightly increased the number of
workers considered supervisors. In contrast, the RESPECT Act would
make virtually all employees non-supervisors for NLRA purposes.
This would allow unions to collect tens of millions of dollars in
compulsory dues from supervisors, open the door to massive
litigation, and harm companies, which need supervisors without
divided loyalties to run effectively. Congress should reject calls
to change the legal definition of a supervisor.
Legal Definition of Supervisor
Section 2 (11) of the NLRA defines a "supervisor" as an employee
with the authority to "hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other employees,
or to responsibly direct them, or to adjust their grievances, or
effectively to recommend such action" so long as this authority
requires the use of "independent judgment." By law, supervisors
belong to the management of the company they help run. Unions
cannot organize management.
Organized Labor has long resented this fact, since it deprives
unions of tens of millions of dollars of compulsory dues from
supervisors each year. They have pushed the NLRB to narrowly define
supervisor, but the Supreme Court voided previous definitions as
inconsistent with the text of the NLRA. In Oakwood Healthcare
Inc. and two related cases, the NLRB modified the definitions
of "assign," "responsibly direct," and "independent judgment" (all
used to determine a supervisor) to conform to these Supreme Court
rulings. Under the new definition, the NLRB
designated 12 of the 178 employees involved in these cases as
supervisors--roughly 7 percent of the total.
Organized Labor responded to this limited decision with outrage.
Unions claimed that the ruling would deprive 8 million workers of
the right to join a union because they belonged to a management.
This claim has virtually no factual basis. The study that
generated the 8 million figure relied on a Bureau of Labor
Statistics (BLS) classification of supervisor that is far broader
than the NLRA definition. Under the BLS definition, workers do not
have to perform any of the statutory duties (such as disciplining,
hiring, or responsibly directing employees) that define supervisors
under the NLRA. Further, the BLS definition includes "lead workers"
on projects--a category of workers that the NLRB explicitly ruled
are not supervisors. The NLRB decisions only marginally expanded
the number of workers considered supervisors. And since the
decisions, few employers have sought to reclassify employees as
supervisors for collective bargaining purposes. Despite the unions'
outrage, the Oakwood decision has had little impact on
Push to Eliminate Supervisory
The RESPECT Act would remove from the definition of "supervisor"
the duties of assigning and responsibly directing other employees.
The legislation also specifies that supervisors must "hire,
transfer, suspend, lay off, recall, promote, discharge, reward, or
discipline other employees" for a majority of their work
time. These changes would virtually eliminate the status of
supervisor from labor law.
The essential role of a supervisor is managing and directing
other employees' work. Almost no supervisor spends a majority of
his or her time hiring, firing, rewarding, or disciplining
employees. They spend part of their time managing the employment
status of their workers, but most of their time is spent directing
those employees' work. What Organized Labor promotes as a
legislative remedy for an overly broad NLRB ruling is in fact a
push to abolish the distinction between supervisors and
non-supervisors in the workplace.
Upends Balance in the Workplace
This far-reaching change would upend the long-established
balance between labor and management in the workplace. Being in the
same bargaining unit as the workers would divide supervisors'
loyalties between the company and the union.
In order to run effectively, a company needs supervisors with
undivided loyalty to management. Supervisors should make decisions
based on efficiency and merit, not internal union politics or the
union's preferred work rules. Nor should supervisors face internal
union discipline for making decisions that the union opposes.
Conflicts between labor and management over work issues should be
resolved during collective bargaining, not through steep union
fines levied against supervisors as punishment for unpopular
Keeping supervisors out of the collective bargaining unit also
provides important protection for non-supervisory employees.
Workers should feel free to challenge their union without facing
retaliation from their supervisor. If a worker's supervisor belongs
to the union, then workers who stand up to union bosses would have
cause to fear being fired. Unions could also use supervisors to
collect union authorization cards. Few workers will refuse to sign
a union card when their boss presses them to do so, regardless of
whether or not they actually want union representation.
Unions Want More Members
Organized Labor wants to virtually eliminate the supervisory
exception from the labor code because adding supervisors to their
membership will swell their compulsory dues income by tens of
millions of dollars a year. With supervisors in the bargaining
unit, unions can also use supervisors to pressure reluctant workers
to join the union. The RESPECT Act represents a union push for more
members and more money, not a correction to an overreaching NLRB
The NLRA excludes supervisors from union coverage. This
exception provides important balance in the workplace. It ensures
that supervisors do not have divided loyalties or face union
discipline for their management decisions. It also protects
employers from retaliation from their supervisors if they stand up
to their union.
Unions now want Congress to pass legislation that would define
almost every worker in America as a non-supervisor. Organized Labor
claims that Congress must pass this change to prevent an NLRB
decision from defining 8 million workers as supervisors and hence
ineligible for union membership. The study that produced this
figure is without academic merit. The Oakwood decision had a
limited scope, and employers have reclassified few employees as
supervisors since its adoption.
The unions' true goal is to obtain tens of millions of dollars
in compulsory dues income from supervisors. Congress should not
adjust the NLRA's definition of supervisor.
NLRB v. HCR (1994) and NLRB v. Kentucky River Comty.
Care, Inc. (2001).
NLRB No. 37, 348 NLRB No. 38, and 348 NLRB No. 39 (2006).
Eisenbrey and Lawrence Mishel, "Supervisors in Name Only,"
The Economic Policy Institute Issue Brief No. 225,
July 12, 2006, at www.epi.org/content.cfm/ib225.
Testimony of the U.S. Chamber of Commerce, the
HR Policy Association, the Society for Human Resource Management,
by G. Roger King, before the Health, Employment, Labor and Pensions
Subcommittee of the Education and Labor Committee of the U.S. House
of Representatives, May 8, 2007, at /static/reportimages/2FB8FC386846E247E349CA0F42FAB369.pdf