R.E.S.P.E.C.T.

The RESPECT Act, [Re-empowerment of Skilled and Professional Employees and Construction Tradeworkers Act], was the topic of a hearing on Tuesday, May 8, before the House Subcommittee on Health, Employment, Labor and Pensions [HELP]. This is the bill that would delete "assign" and "responsibly to direct" from Section 2(11) of the NLRA, which defines who is classified as a "supervisor" under the Act. The bill would also require that individuals classified as supervisors have supervisory authority for at least 50% of their working time.

The Democratic House members of the committee were totally supportive. The hearing room was packed with interested, engaged nurses who gave enthusiastic support to the witnesses and to Members of Congress who spoke in support of the bill. I've never been to a hearing with so much applause -- or any applause, for that matter. Only one Republican member attended the hearing.

Testifying in support of the RESPECT bill was a very strong and knowledgeable panel that included Sarah Fox, of counsel to Bredhoff and Kaiser and former member of the NLRB, Lori Gay, an RN at the Salt Lake Regional Medical Center, and William Tambussi, a management lawyer and counsel to Cooper University Hospital. Roger King of Jones, Day testified against the bill on behalf of the Chamber, the HR Policy Association and the Society for Human Resource Management (SHRM).

Former NLRB member Sarah Fox expertly guided the Committee through an overview of the purpose and history of the supervisory exception. She argued that this clarification of the supervisory definition is a positive and necessary reform that will create a fair, appropriate and bright-line test for determining whether individuals are entitled to the protections of the Act.

Lori Gay, an RN for 21 years at the Salt Lake Regional Medical Center, testified about the legal machinations which have denied her and her co-workers collective bargaining since the RNs there voted in May of 2002 for representation by the United American Nurses. Their ballots were impounded, the case appealed to the Board, remanded post-Oakwood, re-heard and again appealed to the Board. The Regional Director's decision would eliminate 64 out of 153 nurses as supervisors, including Gay.

William Tambussi, a management lawyer and counsel to Cooper University Hospital explained how this hospital created a boundary between professional nursing staff that are part of the bargaining unit and those who are genuinely supervisory, without relying on the "assign" and/or "responsibly to direct" language. According to Tambussi, enactment of RESPECT would not interfere with any managerial perogatives. Rather, it would eliminate the current confusion, misinterpretation and inconsistent application of the supervisory exemption.

Roger King of Jones, Day claimed that, in fact, the recent Oakwood trilogy found that most of the challenged workers were NOT supervisors - ignoring the roadmap the Board created a for employers to manipulate the duties of their workers in order to exclude them as supervisors. He also argued that the bill would detrimentally impact small and medium size employers, that it would interfere with the "delicate compromise" in the NLRA, and that it would make it hard for employers to comply with OSHA, FLSA and other employment statutes becuase they wouldn't have enough supervisors. [You have to wonder if they are saving their good arguments for later.]

Check out copies of the testimonies, or watch an archived hearing webcast.

(Thanks to the AFL-CIO Lawyers' Coordinating Committee for this post!)