[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
                       ARE NLRB AND COURT RULINGS
                MISCLASSIFYING SKILLED AND PROFESSIONAL
                       EMPLOYEES AS SUPERVISORS?

=======================================================================

                                HEARING

                               before the

                        SUBCOMMITTEE ON HEALTH,
                     EMPLOYMENT, LABOR AND PENSIONS

                              COMMITTEE ON
                          EDUCATION AND LABOR

                     U.S. House of Representatives

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

              HEARING HELD IN WASHINGTON, DC, MAY 8, 2007

                               __________

                           Serial No. 110-31

                               __________

      Printed for the use of the Committee on Education and Labor


                       Available on the Internet:
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                    COMMITTEE ON EDUCATION AND LABOR

                  GEORGE MILLER, California, Chairman

Dale E. Kildee, Michigan, Vice       Howard P. ``Buck'' McKeon, 
    Chairman                             California,
Donald M. Payne, New Jersey            Ranking Minority Member
Robert E. Andrews, New Jersey        Thomas E. Petri, Wisconsin
Robert C. ``Bobby'' Scott, Virginia  Peter Hoekstra, Michigan
Lynn C. Woolsey, California          Michael N. Castle, Delaware
Ruben Hinojosa, Texas                Mark E. Souder, Indiana
Carolyn McCarthy, New York           Vernon J. Ehlers, Michigan
John F. Tierney, Massachusetts       Judy Biggert, Illinois
Dennis J. Kucinich, Ohio             Todd Russell Platts, Pennsylvania
David Wu, Oregon                     Ric Keller, Florida
Rush D. Holt, New Jersey             Joe Wilson, South Carolina
Susan A. Davis, California           John Kline, Minnesota
Danny K. Davis, Illinois             Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona            Kenny Marchant, Texas
Timothy H. Bishop, New York          Tom Price, Georgia
Linda T. Sanchez, California         Luis G. Fortuno, Puerto Rico
John P. Sarbanes, Maryland           Charles W. Boustany, Jr., 
Joe Sestak, Pennsylvania                 Louisiana
David Loebsack, Iowa                 Virginia Foxx, North Carolina
Mazie Hirono, Hawaii                 John R. ``Randy'' Kuhl, Jr., New 
Jason Altmire, Pennsylvania              York
John A. Yarmuth, Kentucky            Rob Bishop, Utah
Phil Hare, Illinois                  David Davis, Tennessee
Yvette D. Clarke, New York           Timothy Walberg, Michigan
Joe Courtney, Connecticut            Dean Heller, Nevada
Carol Shea-Porter, New Hampshire

                     Mark Zuckerman, Staff Director
                   Vic Klatt, Minority Staff Director
                                 ------                                

         SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR AND PENSIONS

                ROBERT E. ANDREWS, New Jersey, Chairman

George Miller, California            John Kline, Minnesota,
Dale E. Kildee, Michigan               Ranking Minority Member
Carolyn McCarthy, New York           Howard P. ``Buck'' McKeon, 
John F. Tierney, Massachusetts           California
David Wu, Oregon                     Kenny Marchant, Texas
Rush D. Holt, New Jersey             Charles W. Boustany, Jr., 
Linda T. Sanchez, California             Louisiana
Joe Sestak, Pennsylvania             David Davis, Tennessee
David Loebsack, Iowa                 Peter Hoekstra, Michigan
Phil Hare, Illinois                  Cathy McMorris Rodgers, Washington
Yvette D. Clarke, New York           Tom Price, Georgia
Joe Courtney, Connecticut            Virginia Foxx, North Carolina
                                     Timothy Walberg, Michigan


                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on May 8, 2007......................................     1
Statement of Members:
    Andrews, Hon. Robert E., Chairman, Subcommittee on Health, 
      Employment, Labor and Pensions.............................     1
        Prepared statement of....................................     3
        Prepared Statement of the American Federation of State, 
          County and Municipal Employees, AFL-CIO (AFSCME).......    73
        Issue Brief, ``Supervisor in Name Only,'' published by 
          the Economic Policy Institute, July 12, 2006...........    74
    Kline, Hon. John, Senior Republican Member, Subcommittee on 
      Health, Employment, Labor and Pensions.....................     3
        Prepared statement of....................................     5
        Two letters from the American Hospital Association.......    69
        Letter from the National Association of Waterfront 
          Employers (NAWE).......................................    78

Statement of Witnesses:
    Fox, Sarah, AFL-CIO..........................................     7
        Prepared statement of....................................     9
    Gay, Lori, registered nurse..................................    16
        Prepared statement of....................................    18
    King, Roger, Jones Day, on behalf of the U.S. Chamber of 
      Commerce...................................................    19
        Prepared statement of....................................    22
    Tambussi, William M., partner, Brown and Connery, LLP, labor 
      counsel, Cooper University.................................    56
        Prepared statement of....................................    58

Additional Statement:
    Prepared Statement of Hon. Christopher J. Dodd, a U.S. 
      Senator from the State of Connecticut......................    71


                       ARE NLRB AND COURT RULINGS
                       MISCLASSIFYING SKILLED AND
                 PROFESSIONAL EMPLOYEES AS SUPERVISORS?

                              ----------                              


                          Tuesday, May 8, 2007

                     U.S. House of Representatives

         Subcommittee on Health, Employment, Labor and Pensions

                    Committee on Education and Labor

                             Washington, DC

                              ----------                              

    The subcommittee met, pursuant to call, at 2:30 p.m., in 
Room 2175, Rayburn House Office Building, Hon. Robert Andrews 
[chairman of the subcommittee] Presiding.
    Present: Representatives Andrews, Kildee, McCarthy, Wu, 
Holt, Sanchez, Sestak, Loebsack, Clarke, Courtney, and Kline.
    Staff Present: Aaron Albright, Press Secretary; Alli 
Tylease, Hearing Clerk; Jody Calemine, Labor Policy Deputy 
Director; Carlos Fenwick, Policy Advisor for Subcommittee on 
Health, Employment, Labor and Pensions; Michael Gaffin, Staff 
Assistant, Labor; Jeffrey, Hancuff, Staff Assistant, Labor; 
Brian Kennedy, General Counsel; Danielle Lee, Press/Outreach 
Assistant; Joe Novotny, Chief Clerk; Megan O'Reilly, Labor 
Policy Advisor; Michele Varnhagen; Labor Policy Director; 
Robert Borden, Minority General Counsel; Steve Forde, Minority 
Communications Director; Rob Gregg, Minority Legislative 
Assistant; Victor Klatt, Minority Staff Director; Jim Paretti, 
Minority Workforce Policy Counsel; Molly McLaughlin Salmi, 
Minority Deputy Director of Workforce Policy; Linda Stevens, 
Minority Chief Clerk/Assistant to the General Counsel; Loren 
Sweatt, Minority Professional Staff Member; and Richard Hoar, 
Minority Professional Staff Member.
    Chairman Andrews. The subcommittee will come to order. I 
would ask if people could please take their seats. Good 
afternoon. We are very pleased to welcome our panel of 
witnesses here today to examine a very important, salient 
question of labor law. We are also pleased that the citizens 
and others who are here to join us today are here.
    I especially want to make mention to many members of the 
nursing profession who are with us this afternoon. I know this 
is National Nurses Week. We think every week should be nurses 
week. I think that is true on both sides of the aisle. We both 
have great respect for the work done by the men and women of 
the nursing profession.
    The topic of today's hearing is what I would call a Bermuda 
triangle for workers rights in our country. It has long been 
established under the National Labor Relations Act and its 
cousin statutes that there is a group of people who are 
entitled to the protections of the National Labor Relations Act 
that can be in a bargaining unit, that can be represented at 
the bargaining table, that can have the rights won in the 
contract; and then there is another group of people who are 
part of the management, who are supervisors, for whose divided 
loyalties would never make it possible to be in both a union 
and representing the employer.
    And for a very long time, although the definitions of those 
terms were not without controversy and ambiguity, for a very 
long time there was an understanding as to who was where in 
those definitions.
    In response to a decision of the United States Supreme 
Court, commonly known as Kentucky River, last September the 
National Labor Relations Board issued a trilogy of decisions 
which have come to be known as the Kentucky River decisions, 
which I believe make a substantial change in settled law in the 
country--and an unwise and unwelcome one, in my view.
    I believe that these decisions, when practiced in the 
workplace and the marketplace to their fullest extent, 
something that, frankly, could not have happened at this very 
early time, since the decisions are only from September on, I 
believe that these decisions, unfortunately, create a third 
category of American worker who has the worst of all worlds. 
That he or she has all the burdens of being a rank-and-file 
employee, has essentially no say in who gets hired or fired, no 
say in how compensation is structured, no say in how the 
organization is run. So he or she has all of those burdens but, 
frankly, none of the benefits of being in the managerial 
category.
    By the same token, the person does not have the rights of 
being regarded as a rank-and-file worker, doesn't have the 
right to be in the bargaining unit, doesn't have the right to 
bargain collectively, doesn't have the right to avail him or 
herself of a grievance process that a contract may create.
    So we have created this Bermuda triangle, in my view, where 
workers rights disappear, never to be heard from again.
    Working with Senator Dodd in the less significant body of 
the Capitol, a number of us have come up with a legislative 
proposal to remedy that situation which we believe would 
provide clarity to employers, fairness to employees, and 
predictability to the economy.
    Clearly this will not be an uncontroversial proposition. We 
have assembled a group of witnesses today that will have some 
disagreements among the four of them. But I believe strongly 
that the decisions that were rendered in September of 2006 are 
misguided, and I believe it is both the opportunity and the 
obligation of the Congress to remedy those decisions so that we 
can restore fairness and predictability in this area.
    Pursuant to the rules of the committee, all members of the 
committee have the right to submit opening statements, without 
objection. But I will now turn to my friend, the Ranking Member 
of the subcommittee, Mr. Kline, for his opening statement.
    [The prepared statement of Mr. Andrews follows:]

Prepared Statement of Hon. Robert E. Andrews, Chairman, Subcommittee on 
                 Health, Employment, Labor and Pensions

    A major contributor to this middle class squeeze is the decline in 
workers' freedom to organize and collectively bargain. Organized 
workers earn more, have greater access to healthcare benefits, and are 
more likely to have guaranteed pensions than unorganized workers. When 
workers get their fair share, the economy benefits and the middle class 
grows stronger.
    Yet the freedom to organize and collectively bargain has been under 
severe assault in recent decades, thanks to weak federal labor laws in 
dire need of reform. It has also been rolled back by a number of 
misguided decisions by the National Labor Relations Board (NLRB) in the 
last few years.
    Last year, the NLRB issued a trio of decisions, collectively often 
referred to as the ``Kentucky River'' decisions, which eviscerated the 
meanings of ``employee'' and ``supervisor'' under the National Labor 
Relations Act (NLRA). The NLRA protects employees' freedom to organize 
and collectively bargain. Supervisors are not considered employees and 
are therefore not covered by the Act's protections. If an individual is 
determined to be a supervisor, she has no right to organize, no right 
to engage in concerted activity with her fellow employees, and no right 
to collectively bargain. Every fundamental right protected by the Act 
may turn on this question of whether she is a supervisor or an 
employee. The Kentucky River decisions dramatically expanded the 
definition of supervisor far beyond the limits that the authors of the 
act intended and far beyond the limits of common sense. In so doing, it 
stripped an estimated 8 million workers--particularly skilled and 
professional employees--of the freedom to organize.
    To address this problem, I have introduced ``Re-empowerment of 
Skilled and Professional Employees and Construction and Tradesworkers 
(RESPECT) Act'' this Congress. The RESPECT Act serves to restore that 
freedom by addressing a series of decisions which stray dramatically 
from and undermine the original intent of the National Labor Relations 
Board and which fly in the face of common sense. This bill provides 
clarity in the NLRA on one aspect of the fundamental question of 
coverage: who is an employee and who is a supervisor.
    Today, you will hear the opponents of the RESPECT Act argue that it 
unnecessary legislation because it is a solution in search of a 
problem. To the contrary, you will hear a first hand account of how one 
employer used the NLRB decisions to their advantage and to the demise 
of their employees by stripping them of their right to collectively 
bargain and organize. The RESPECT Act is necessary and its passage this 
year is essential to protecting millions of workers rights and 
protections.
                                 ______
                                 
    Mr. Kline. Thank you, Mr. Chairman, and thank you to the 
witnesses for being with us here today. In thinking about 
nurses week--of course in my house since my wife is a nurse, 
she says she is a retired nurse, we debate that sometimes, 
spent her whole life in nursing and my sister-in-law is a nurse 
and my niece is a nurse--every day is nurses day in our house.
    The subcommittee meets this afternoon to examine the 
question, quote, ``Are National Labor Relations Board and court 
rulings misclassifying skilled and professional employees as 
supervisors?'' that is the question.
    I would say at the outset that I don't think we can answer 
that question today in any meaningful fashion, largely because, 
as we will hear, a new standard of law has only just been 
announced by the National Labor Relations Board. Indeed the 
vast majority of the cases raising this question are currently 
being examined by the courts and the Board to determine on an 
individual, factual, and case-by-case basis whether and how 
this new standard applies to the status of a range of 
employees.
    I am speaking, of course, of the Board's decision in 
Oakwood Healthcare announced last fall which revised the 
standard under the National Labor Relations Act for determining 
which employees are, in fact, supervisors. The Oakwood 
Healthcare decision, which was prompted by the Supreme Court's 
rejection of a prior standard for determining supervisors in 
the cases of NLRB versus Kentucky River Community Care, Inc., 
the case to which the Chairman referred, clarified and refined 
the supervisor analysis to conform with the plain text of the 
National Labor Relations Act.
    Under the Board's test in section 211 of the act, to be 
considered a supervisor, an employee must exercise one of a 
specified ranges of duties. He or she must do so exercising 
independent judgment; these activities must be exercised in the 
interest of the employer; and, of particular note, the 
supervisory duties must be those to which the employee devotes 
a regular and substantial portion of his or her time.
    We are not talking about isolated instances where an 
employee occasionally directs the work of a coworker. We need 
to be clear about that.
    Organized labor has been highly critical of the Board's 
Oakwood decision and labor allied think tanks have made a range 
of claims, which as we will hear today I am sure range from 
exaggerated to simply insupportable, in fact. This is 
unfortunate but perhaps not entirely surprising.
    Long before the Board even issued its decision, organized 
labor had begun a campaign to discredit the upcoming ruling, 
complete with trumped-up, I believe, allegations that millions 
of workers would be transformed into supervisors overnight. Not 
surprisingly, we will again hear today, this Doomsday 
prediction has not come to pass.
    We will also hear from witnesses today regarding 
legislation introduced by our subcommittee Chairman, Mr. 
Andrews. That bill, H.R. 1644, the Reempowerment of Skilled and 
Professional Employees and Construction Tradesworkers, RESPECT 
Act--you spent a lot of time on that didn't you, Mr. Chairman--
departs from 60 years of legislation under the National Labor 
Relations Act and would, in my view, dramatically change the 
definition of a supervisor under the National Labor Relations 
Act. It would remove from the list of supervisory duties such 
criteria as assigning and responsibly directing other 
personnel, which to me in many instances may represent the very 
definition of supervisor.
    I should interject that in my wife's several years--she 
never lets me say how many years of nursing--one of her 
assignments was as the head nurse of the ICU in Walter Reed, 
and so supervisory duties as a nurse is something that she is 
very familiar with.
    Equally important, it would provide that any supervisory 
employee who spends more than half of his or her time doing his 
or her own work, rather than supervising others, would not be 
considered a supervisor. That is not the test used under a host 
of other statutes and represents a significant departure from 
60 years of well-settled law.
    Finally, I think it is important to note for the record the 
far-reaching application of Mr. Andrews' bill. While we will 
hear a lot of testimony about the classification of supervisors 
in the health care industry, the charge nurse issue, I think we 
must establish at the outset that neither the Board's Oakwood 
Healthcare decision nor Mr. Andrews' legislation is limited to 
that context. Instead, as we will hear from some of our 
witnesses, H.R. 1644 would change the law and potentially 
reclassify supervisory employees in a range of industries, from 
health care to manufacturing to maritime shipping and beyond.
    With that, Mr. Chairman, I look forward to hearing the 
views of each of our witnesses and yield back.
    [The prepared statement of Mr. Kline follows:]

   Prepared Statement of Hon. John Kline, Ranking Republican Member, 
        Subcommittee on Health, Employment, Labor, and Pensions

    Good afternoon, and welcome to our witnesses.
    The Subcommittee meets this afternoon to examine the question ``Are 
National Labor Relations Board and Court Rulings Misclassifying Skilled 
and Professional Employees as Supervisors?'' I would say at the outset 
that I don't think we can answer that question today in any meaningful 
fashion, largely because, as we will hear, a new standard of law has 
only just been announced by the National Labor Relations Board. Indeed, 
the vast majority of cases raising this question are currently being 
examined by courts and the Board to determine, on an individual, 
factual, and case-by-case basis, whether and how this new standard 
applies to the status of a range of employees.
    I'm speaking of course of the Board's decision in Oakwood 
Healthcare, announced last fall, which revised the standard under the 
National Labor Relations Act for determining which employees are, in 
fact, ``supervisors''. The Oakwood Healthcare decision, which was 
prompted by the Supreme Court's rejection of a prior standard for 
determining supervisors in the case of NLRB v. Kentucky River Community 
Care, Inc., clarified and refined the ``supervisor'' analysis to 
conform with the plain text of the National Labor Relations Act.
    Under the Board's test and Section 2(11) of the Act, to be 
considered a supervisor, an employee must exercise one of a specified 
range of duties; he or she must do so exercising independent judgment; 
these activities must be exercised in the interest of the employer; 
and, of particular note, these supervisory duties must be those to 
which the employee devotes a regular and substantial portion of his or 
her time. We are not talking about isolated instances, or an employee 
who occasionally directs the work of a co-worker. We need to be clear 
about that.
    Organized Labor has been highly critical of the Board's Oakwood 
decision, and labor-allied thinktanks have made a range of claims, 
which, as we will hear today, range from exaggerated to simply 
insupportable in fact. This is unfortunate, but perhaps not entirely 
surprising--long before the Board even issued its decision, Labor had 
begun a campaign to discredit the upcoming ruling, complete with 
trumped up allegations that millions of workers would be transformed 
into supervisors overnight. Not surprisingly--as we will again hear 
today--this doomsday prediction has not come to pass.
    We will also hear from our witnesses today regarding legislation 
introduced by our Subcommittee Chairman, Mr. Andrews. That bill, H.R. 
1644, the Re-Empowerment of Skilled and Professional Employees and 
Construction Tradesworkers or so-called RESPECT Act, departs from 60 
years of legislation under the National Labor Relations Act and would, 
in my view, dramatically change the definition of ``supervisor'' under 
the National Labor Relations Act. It would remove from the list of 
supervisory duties such criteria such as ``assigning'' and 
``responsibly directing'' other personnel--which to me, in many 
instances, may represent the very definition of ``supervisor.'' Equally 
important, it would provide that any supervisory employee who spends 
more than half his or her time doing his own work, rather than 
supervising others, would not be considered a ``supervisor.'' That's 
not the test used under a host of other statutes, and represents a 
significant departure from 60 years of well-settled law.
    Finally, I think it is important to note for the record the far-
reaching application of Mr. Andrews' bill. While we will hear a lot of 
testimony today about the classification of supervisors in the health 
care industry--the ``charge nurse'' issue--I think we must establish at 
the outset that neither the Board's Oakwood Healthcare decision nor Mr. 
Andrews' legislation is limited to that context. Instead, as we will 
hear from some of our witnesses, H.R. 1644 would change the law and 
potentially reclassify supervisory employees in a range of industries--
from health care to manufacturing to maritime shipping, and beyond.
    I look forward to hearing the views of each of our witnesses.
    With that, I yield back my time.
                                 ______
                                 
    Chairman Andrews. Thank you very much, Mr. Kline.
    I would like to take a moment and introduce the witnesses. 
Joining us today is Sarah Fox who is a consultant to the AFL-
CIO on various legal and policy matters. Ms. Fox is of counsel 
to the Bredhoff and Kaiser law firm. She previously served on 
the National Labor Relations Board and was chief Democratic 
labor counsel to the U.S. Senate Committee on Labor and Human 
Resources. Prior to that Ms. Fox was in-house counsel to the 
International Union of Bricklayers and Allied Crafts. She holds 
degrees from Yale University and Harvard Law School. Welcome.
    Lori Gay is a critical care registered nurse at the Salt 
Lake Regional Medical Center, a position she has held for the 
past 21 years. In 2002 Lori and her coworkers decided to form a 
union so they would have a voice in helping deliver safe 
patient care and earn more respect on the job. The hospital 
responded by hiring antiunion consultants, pulling nurses off 
patient care to attend antiunion meetings and claiming that the 
hospital would be forced to close if workers joined the union.
    In May of 2002 the nurses held an election but, 
unfortunately, the hospital challenged the results, saying that 
Lori and many of the other organizers were actually 
supervisors.
    The regional National Labor Relations Board eventually 
ruled that nearly half the nurses were supervisors, and the 
workers are currently seeking review of this decision by the 
National Labor Relations Board. Welcome, Ms. Gay.
    Roger King is a partner in the law firm of Jones Day, a 
very excellent law firm, a labor and employment group, and 
previously served as professional staff counsel to the U.S. 
Senate Labor Committee. He has practiced labor and employment 
law for over 30 years, and is active in various trade and 
professional associations that deal with labor and employment 
matters. He is a graduate of the finest law school in the 
United States of America, Cornell Law School. He was the author 
of the American Hospital Association's brief in the Oakwood 
Healthcare, Inc., case. Welcome, Mr. King.
    I am especially privileged to welcome Bill Tambussi whom I 
have known since he was a child, more or less. He is a partner 
in the outstanding law firm of Brown & Connery in New Jersey. 
He concentrates in labor and employment litigation as well as 
government affairs and complex litigation. Bill has been 
certified as a civil trial attorney by the New Jersey Supreme 
Court since 1991. He represents both public- and private-sector 
clients, including the County of Gloucester, Lockheed Martin, 
as well as serving as the special labor and employment counsel 
to the Camden County Health Services Center, in addition to 
many other positions he holds. Mr. Tambussi earned his graduate 
degree from Dickenson College and a law degree from the New 
England School of Law.
    I would also mention he is here today in his capacity as 
general counsel for the Cooper Hospital University Medical 
Center, a name that is probably now known across our country. I 
think most people know that our Governor of New Jersey, 
Governor Corzine, was involved in a near fatal car accident 
just a few weeks ago. And Bill, I hope that you would convey to 
the men and women at Cooper Hospital the great respect we have 
for the great work they did in healing our Governor and 
bringing him back to work. I hope you pass that along to the 
people at Cooper.
    Mr. Tambussi. I will do so.
    Chairman Andrews. Thank you very much.
    Let me just explain the rules. We have the written 
testimony from each of our four witnesses, which will be 
entered into the official record in the statements' entirety. 
We would ask each of the witnesses to summarize your remarks in 
about 5 minutes. In front of you is a light box. When the 
yellow light goes on it indicates you have 1 minute remaining; 
when the red light goes on we ask you to wrap up so we can get 
on to questions from the members.
    Without objection, all members will have 14 days to submit 
additional materials for the hearing record.
    So let's begin with Ms. Sarah Fox. Welcome back to the 
committee and we look forward to your testimony.

                STATEMENT OF SARAH FOX, AFL-CIO

    Ms. Fox. Thank you very much. As you said, I am counsel to 
the Washington, DC labor law firm of Bredhoff and Kaiser and I 
am also a former member of the National Labor Relations Board, 
having served on the Board by appointment of President Clinton 
from 1996 through 2000.
    I appreciate the opportunity to testify toda, and at the 
outset I would just personally like to commend the committee 
for undertaking consideration of not only this matter but also 
H.R. 800, the Employee Free Choice Act.
    The National Labor Relations Act was enacted in 1935, but 
unlike virtually ever other major New Deal statute, it really 
has not been periodically revisited and updated by Congress. 
Despite significant changes in the structure and organization 
of work that have really transformed labor relations in many 
industries and significant problems that have developed over 
time in the administration of the act and particular provisions 
of the act, because of a kind of impasse, a political impasse 
at the Federal level between those who would want to reform and 
those who are against, there really has not been an opportunity 
to really take a look at what is at this point a 70-year old 
statute.
    And I really do think it is very important that this 
subcommittee, Chairman Andrews, and others are, through these 
legislation, these two different bills, really taking a look at 
this question and giving us an opportunity to really have a 
debate about the kind of labor law relations system we really 
want for the 21st century. So, just with that background.
    I also want to thank you for taking up this particular 
issue because of my own experience as a member of the Board. 
During the 5 years that I was on the Board I would say that the 
issue of whether particular employees were or were not 
supervisors was probably the most litigated issue before the 
Board. I think I would estimate that about one-fourth of the 
cases we decided in those 5 years involved, in one way or 
another, questions about whether employees were supervisors.
    Over that time I really came to believe, and I will argue 
today, that there is a fundamental problem with the statute and 
a fundamental tension between the strict literal words of the 
statute and the intention of Congress when it enacted this 
particular provision in 1947 not to exclude professionals and 
other skilled employees who, as a matter of course, direct the 
work of other employees.
    So I do think that this is a wonderful opportunity to deal 
with something that has been festering for a long time.
    Let me say, first, why it matters. For purposes of the 
NLRA, whether a worker is classified as an employee or a 
supervisor can be an incredibly important matter not just for 
that worker but for coworkers as well. Obviously, as Chairman 
Andrews said, someone who is classified as a supervisor has, 
themselves, no right to engage in collective bargaining, can't 
have a union, can't bargain over their conditions of work. But 
being a supervisor means not only that you have no affirmative 
rights under the act but also that you have no protections 
under the act.
    Because supervisors are not covered by the act, a 
supervisor can be disciplined or fired for engaging in pro-
union activity and a supervisor can be required by their 
employer to actively participate in the employer's own 
antiunion activities.
    A finding that a particular individual is a supervisor and 
not an employee can also have a devastating effect on the 
organizational rights of the other employees in the
    workplace. That is because under a 2004 decision by the 
NLRB, in a case called Harborside Health Care, the 
participation by a supervisor in pro-union activities can be 
grounds for setting aside a vote by the employees in support of 
unionization, even though that supervisor did not--at the time 
he engaged in that activity, he or she engaged in the 
activity--know that they were a supervisor, did not consider 
themselves to be a supervisor; but because of this doctrine of 
what is called supervisory taint we have had, for instance, a 
decision in a case called SNE Enterprises last year in which 
the Board refused to accept the results of an election in which 
the employees voted in favor of the union because two lead 
persons whose sole authority over the other employees consisted 
of the ability to assign workers to different production line 
tasks had participated in soliciting authorization cards used 
only to support the filing of a petition for an election.
    The Board held that the leads' action on behalf of the 
union were inherently cohesive even though the leads had 
participated and voted as employees in three previous NLRB 
elections, and once their employer informed them that at this 
point the employer considered them to be supervisors, they had 
stopped all pro-union activity 3 months before the election.
    Chairman Andrews. If you could wrap up for us, please.
    Ms. Fox. Yes. So I just want to say that it is very 
important that the committee address this issue today, and I 
look forward to some discussion with the others about it.
    Chairman Andrews. Thank you, Ms. Fox.
    [The statement of Ms. Fox follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
                                ------                                

    Chairman Andrews. Ms. Gay, welcome to the committee.

            STATEMENT OF LORI GAY, REGISTERED NURSE

    Ms. Gay. Good afternoon. Thank you for the opportunity to 
be here today. My name is Lori Gay. I have been a critical care 
registered nurse for 21 years at Salt Lake Regional Medical 
Center in Salt Lake City, Utah. I work in the intensive care 
unit taking care of the hospital's sickest patients. It is a 
very physical and mentally demanding job.
    Every day at our hospital nurses are asked to do more with 
less, and we struggle to have our voices heard, which is why we 
decided to form a union. We wanted to protect our patients and 
ourselves against management making decisions about health care 
based on the bottom line.
    Delivery of safe patient care and winning respect on the 
job fueled our organizing drive in 2001. After 8 months of 
campaigning with the United American Nurses and educating 
nurses in our hospital about what we could accomplish through 
forming a union, we voted in a National Labor Relations Board 
election in May 2002.
    However, the hospital's owner, Tennessee-based IASIS 
Healthcare, appealed the election to the regional office of the 
NLRB in Denver. IASIS argued that the charge nurses, about two-
thirds of the nursing staff, were actually supervisors and 
therefore should be excluded from the bargaining unit. Our 
ballots were impounded, meaning they were never opened or 
counted.
    We hoped that a favorable ruling from the regional director 
would result in an order for our ballots to be opened and 
honored; but, unfortunately, after we got that favorable 
regional decision, the legal struggle was far from over.
    IASIS appealed to the NLRB in Washington, D.C. For 5 years 
our ballots have remained impounded while we have waited for 
clarification on what it means to be a supervisor. The ballot I 
cast in 2002 has never been opened and may never be counted, a 
fact I now blame more on ambiguous legal language than anything 
else.
    When the Oakwood decisions were released last year the 
Washington, D.C. NLRB remanded our case back to the regional 
director. According to the regional director's decision, 64 out 
of 153 nurses at Salt Lake Regional Medical Center in 2002 were 
supervisors, including myself. All the RNs in the neonatal 
intensive care unit were declared to be supervisors, 
essentially supervising each other on a rotating basis. In the 
inpatient rehab unit, 10 of the 12 RNs were declared to be 
supervisors. In the newborn nursery, 10 of the 12 RNs were also 
declared to be supervisors. In the labor and delivery unit, the 
ratio of supervisors to nonsupervisory employees was 12 to 5. 
In the surgical unit the ratio was 10 to 7.
    The regional director arrived at these absurd results 
through an analysis of what it means to perform what is called 
``charge duty.''
    I want to talk to you today about what it means to be a 
charge nurse. Basically, as a charge nurse I am in charge of 
the pencil. Typically I spend 10 minutes at the end of my shift 
filling out an assignment sheet for the oncoming shift, making 
sure that every patient has a bed and a nurse. I record the 
traffic in and out of the unit. It is simple as that.
    I don't have the authority to hire, fire, evaluate or 
promote other nurses, nor do I have the authority to discipline 
another nurse for not taking an assignment or for doing an 
assignment poorly. Any nurse who has been on the job for a year 
or more is automatically added to the pool of nurses who serve 
charge duty. There is no application process for the job and 
there is no job description. Anyone who works there for a year 
is expected to charge on occasion.
    The reality of the situation that we are now dealing with 
is absurd. Management tells us that only nurses who can safely 
engage in protected union activity are the nurses who have 
worked for less than a year, the younger nurses, because they 
are not serving charge yet, and even those nurses will only be 
protected for a short time until they start serving charge.
    There are some days when I come into work and look around 
and every nurse on the floor is someone who at some time or 
another serves as a charge nurse and therefore, according to 
these absurd rules, is a supervisor. That just doesn't pass the 
commonsense test. Simply labeling someone a supervisor doesn't 
make them a supervisor if the institutional structure doesn't 
support it.
    When we serve charge duty, we have a responsibility without 
authority. When I am designated the charge nurse I still have a 
full load of my own patients. If there are nurses who have 
problems with the assignments I make, I refer them to the unit 
director, who is the real supervisor. He has the power to hire, 
fire, discipline, evaluate and promote. He also goes to regular 
managerial meetings that we are not invited or welcome to 
attend.
    The supervisors at my hospital, like the unit director, are 
paid a salary. They get bonuses and compensation time. When I 
serve charge duty, I get a dollar more an hour as long as I 
remember to clock in correctly. All I do is put patients in 
beds.
    At the end of the day, I don't see myself as a supervisor 
and neither do my colleagues. At our hospital there is a 
managerial track and there is a clinical track, and as nurses 
we squarely are within the clinical track. We take care of 
patients. That is what we do.
    I believe that nurses will continue to lose their rights 
until Congress steps in to establish rules that reflect 
reality. I am here to ask you to make the law do just that. 
Nurses like me are not supervisors in the real world. We should 
be protected. The way things are now, nurses in this country 
will never have a clear and direct path to having their voices 
heard, a basic premise of democracy in this country.
    That disheartens me because as a nurse for 21 years I 
believe that what is good for nurses is also what is best for 
patients. Thank you.
    Chairman Andrews. Ms. Gay, thank you very, very much.
    [The statement of Ms. Gay follows:]

            Prepared Statement of Lori Gay, Registered Nurse

    Good Afternoon. Thank you for the opportunity to be here today. My 
name is Lori Gay. I have been a critical care registered nurse for 21 
years at the Salt Lake Regional Medical Center (SLRMC) in Salt Lake 
City, Utah.
    I work in the intensive care unit, taking care of the hospital's 
sickest patients. It is a very physically and mentally demanding job, 
but I wouldn't trade it for the world. I am passionate about improving 
the practice of nursing.
    Everyday at our hospital, nurses are asked to do more with less, 
and we struggle to have our voices heard, which is why we decided to 
form a union. We wanted to protect our patients and ourselves against 
management making decisions about health care based on the bottom line. 
Dedication to our patients and the desire to get the job done right 
fueled our organizing drive in 2001.
    After eight months of knocking on doors with the United American 
Nurses to talk to the nurses in our hospital about what we could 
accomplish through forming a union, we voted in an NLRB representation 
election in May 2002.
    However, the hospital's owner, Tennessee-based IASIS Healthcare, 
appealed the election to the regional office of the NLRB in Denver. 
IASIS argued that the charge nurses--about 2/3 of the nursing staff--
were actually supervisors and should therefore be excluded from the 
bargaining unit, even though all the charge nurses rotated in and out 
of charge while still carrying a full patient load. Our ballots were 
impounded--meaning they were never opened or counted.
    We hoped that a favorable ruling from the regional director would 
result in an order for our ballots to be opened and honored, but 
unfortunately after we got that favorable regional decision, the legal 
struggle was far from over. IASIS appealed to the NLRB in Washington, 
D.C.
    For five years, our ballots have remained impounded while we have 
waited for clarification on what it means to be a supervisor. The 
ballot I cast in 2002 has never been opened and may never be counted--a 
fact I now blame more on ambiguous legal language than anything else.
    When the Oakwood decisions were released last year, the Washington, 
D.C., NLRB remanded our case back to the regional director. According 
to the regional director's decision, 64 out of 153 nurses at the Salt 
Lake Regional Medical Center in 2002 were supervisors, including 
myself.
    All the RNs in the neonatal intensive care unit were declared to be 
supervisors, essentially ``supervising'' each other on a rotating 
basis. In the inpatient rehabilitation unit, 10 of the 12 RNs were 
declared to be supervisors. In the newborn nursery, 10 of 12 RNs were 
also declared to be supervisors. In the labor and delivery unit, the 
ratio of supervisors to non-supervisory employees was 12 to 5. In the 
surgical unit, the ratio was 10 to 7.
    The regional director arrived at these absurd results through an 
analysis of what it means to perform what is called ``charge'' duty.
    I want to talk to you today about what it means to be a ``charge 
nurse.'' Basically, as charge nurse, I am in charge of a pencil. 
Typically, I spend 5 minutes at the beginning of the shift filling out 
an assignment sheet, making sure that every patient has a bed and a 
nurse. I record the traffic in and out of the unit--it's as simple as 
that. I don't have the authority to hire, fire, evaluate or promote 
other nurses, nor do I have the authority to discipline another nurse 
for not taking an assignment, or for doing an assignment poorly.
    I can't speak for every arrangement at every hospital, but at my 
hospital, taking charge duty is what we do to pitch in and help out, 
and we are expected to take it once in a while. It's just part of the 
job.
    Any nurse who has been on the job for a year or more is 
automatically added to the pool of nurses who serve charge duty. There 
is no application process for the job. And there is no job description. 
Anyone who works there for a year and learns the ropes is expected to 
do it.
    The reality of the situation that we are now dealing with is 
absurd. Management tells us that the only nurses who can safely engage 
in protected union activity are the nurses who have worked for less 
than a year--the younger nurses--because they are not serving charge 
yet. And even those nurses will only be protected for a short time--
until they start serving charge.
    There are some days when I come into work and look around and every 
last nurse on the floor is someone who at some time or another serves 
as a charge nurse and therefore, according to these absurd rules, is a 
``supervisor.'' Now, that just doesn't pass the common sense test. How 
can we all be supervisors of each other, depending on who is randomly 
selected to do charge that day? Everybody here in this room knows that 
is just not how it works in the real world.
    Simply labeling someone a supervisor doesn't make them a supervisor 
in the true sense of the word if the institutional structure doesn't 
support it. When we serve charge duty, we have responsibility without 
authority. We cannot and do not throw our weight around with other 
nurses, because we do not have that kind of authority. The only way the 
system of rotating charge duty works is through goodwill and 
cooperation among the nurses. We get the work done thanks to 
collegiality and collaboration.
    When I am designated charge nurse, I still have a full load of my 
own patients. If there are nurses who have problems with the 
assignments I make, I refer them to the Unit Director, who is the real 
supervisor. The real supervisors at my hospital are paid a salary, and 
they get bonuses. When I serve charge duty, I get a dollar more an 
hour--as long as I remember to clock in correctly. The real supervisors 
hire, fire, discipline, evaluate and promote. All I do is put patients 
in beds.
    At the end of the day, I don't see myself as a supervisor, and 
neither do my colleagues. At our hospital, there's a managerial track 
and there's a clinical track--and as nurses we are squarely within the 
clinical track. We take care of patients. That's what we do.
    Management doesn't see us as supervisors either. They have regular 
managerial meetings, and we are not invited or welcome at those 
meetings.
    I have been on this journey for many years now, and I can tell you 
that there will be no clear path to justice until Congress intervenes 
to solve the problem once and for all. It shouldn't be this legally 
convoluted and complicated to make a democratic choice to form a union.
    Of course, I am not a lawyer, I am a nurse, but I think nurses will 
continue to lose their rights until you step in to establish rules that 
reflect reality and make sense to everyone. We can't afford to wait for 
years and years of continued litigation, with no likelihood of clarity 
at the end of the process.
    All nurses should be able to know whether they will be protected if 
they engage union activity before they attempt to form a union, not 
after the fact. I'm here to ask you to make the law reflect the obvious 
reality that nurses like me just aren't supervisors in the real world. 
We should be protected.
    The way things are now, nurses in this country will never have a 
clear and direct path to having their voices heard--a basic premise of 
democracy in this country. And that disheartens me because as a nurse 
for 21 years, I believe that what is good for nurses, is also what's 
best for patients.
                                 ______
                                 
    Chairman Andrews. Mr. King, welcome to the committee.

   STATEMENT OF ROGER KING, JONES DAY, ON BEHALF OF THE U.S. 
                      CHAMBER OF COMMERCE

    Mr. King. Mr. Chairman, members of the committee, thank you 
for having me. I appear here today on behalf of the United 
States Chamber of Commerce, the HR Policy Association and the 
Society for Human Resource Management, or SHRM. And as this 
committee is well aware, those organizations and their 
respective members represent a substantial portion of the 
employers in this country and millions of employees. I can say 
without any hesitation that we are concerned about the 
legislation that the Chairman has introduced. We believe it is 
not only technically in error, but also would cause serious 
harm to employers in this country. And I will get into that in 
my overview of my testimony.
    I think at the outset what we need to focus on is that this 
legislation is just not about health care; it would impact all 
employers in the country and particularly small and medium-size 
employers that often utilize employees both in a supervisory 
capacity and in a nonsupervisory capacity. They simply need to 
have individuals function in those dual roles to serve their 
legitimate business purposes.
    The criticism that is being labeled unfair, unjust, not 
following the law, as attributed to the present National Labor 
Relations Board, is also I would submit in serious legal and 
factual error. Twice the United States Supreme Court has 
directed the National Labor Relations Board to look at section 
211 of the act and to refine its analysis and to make it more 
predictable and indeed to follow the legislative mandate that 
traces back to 1947.
    Not only have two decisions of the United States Supreme 
Court seriously criticized past National Labor Relations Board, 
but they have directed that the Board do something about these 
errors. A great number of United States courts of appeal have 
also leveled similar criticism. So we have objective judicial 
review of this issue, and we have had a very strong signal sent 
by not only the United States Supreme Court, but various 
courts, that the National Labor Relations Board needs to do a 
better job in this area. So that is the history really.
    The history going back--as Ms. Fox has in her testimony and 
I have in mine--goes back to 1947, the Taft-Hartley amendments. 
The predecessor to Taft-Hartley was the Wagner Act. Supervisors 
were not defined. We had a great deal of turmoil in this 
country because we didn't have a demarcation line between who 
was management and who isn't.
    Irrespective of how we may feel ultimately about this 
issue, we all would agree, I hope, that an employer needs to 
have a sufficient number of supervisors to run its business. If 
you can't do that, you can't function. You couldn't run your 
congressional offices without some direction, some control. The 
same is true in the private sector. We have to have a 
satisfactory number of supervisors.
    That very delicate and difficult equilibrium was reached in 
1947, and I would ask the subcommittee to be very careful 
before you disturb those many, many years of history with Taft-
Hartley and what went into those amendments. A very delicate 
and important compromise was reached.
    Finally, if an employer does not have the requisite number 
of supervisors to run its business, it is going to have a 
difficult time complying with the many laws that this body 
enacts and indeed the State legislative bodies and municipal 
government impose upon employers.
    Oftentimes that first-line supervisor is the difference 
between complying with OSHA, with Fair Labor Standards Act, and 
a whole host of other Federal and State legislative enactments. 
If you don't have, as an employer, control over the workplace, 
compliance in those areas could be highly suspect.
    With respect to some of the criticism that has been 
directed to the National Labor Relations Board I would just 
like to make a few comments. First of all, the so-called 
findings by the Economic Policy Institute, the so-called 
Washington think tank, predicted before--I want to underline 
before--before these decisions even issued that millions of 
workers were going to be reclassified from nonsupervisory 
status to supervisory status. How you can make that prediction 
before the case is even issued is, of course, a difficult 
question to answer.
    But beyond that we have not had millions of people being 
impacted. In fact, I just checked with the National Labor 
Relations Board yesterday. Only four cases were unit 
clarification petitions that have raised the Kentucky River 
issue. There is a very small minority of representation cases.
    In closing I want to emphasize that we have heard a lot 
about Kentucky River. Less than 7 percent, ladies and 
gentlemen, of the employees at issue in those three cases where 
the issue was were these supervisors are not, less than 7 
percent were found by this National Labor Relations Board to be 
supervisors, and in fact most of the employees were found not 
to be supervisory, including nurses.
    So in summary, Mr. Chairman, we don't believe there is a 
case that can be made for this legislation. We think the 
criticism of the National Labor Relations Board is factually 
and legally inaccurate. We have attached to the presentation a 
substantial study of cases going back to 1995 that supports our 
position. Thank you very much.
    Chairman Andrews. Thank you, Mr. King.
    [The statement of Mr. King follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
                                ------                                

    Chairman Andrews. Mr. Tambussi, welcome to the committee.

STATEMENT OF BILL TAMBUSSI, ESQUIRE, COOPER UNIVERSITY HOSPITAL

    Mr. Tambussi. Thank you, Chairman Andrews and members of 
the committee, thank you for allowing me to appear and testify 
on behalf of the RESPECT Act. Mr. Chairman, I would like to 
thank you for the kind words of introduction. We have known 
each for such a long time.
    I will focus my remarks today on the implications of the 
bill for labor management decisions in the acute care hospital 
setting, specifically in terms of the trilogy of the recent 
cases or decisions of the NLRB. I will also use Cooper 
University Hospital as an example with which I have a great 
deal of familiarity, having been the hospital's legal counsel 
during labor negotiations with its unionized nurses who are 
represented by the Health Professionals and Allied Employees 
Union.
    In the Cooper model what distinguishes the supervisory 
role, particularly of those employees involved in nursing care, 
are three essential attributes: The individual is involved in 
setting compensation; the individual is involved in decisions 
regarding hiring and termination and also discipline; and the 
individual is involved in scheduling decisions regarding 
assignment of staff on a weekly and monthly basis as opposed to 
simply a shift basis.
    These criteria clarify the boundary between those employees 
of the professional nursing staff that are part of the 
bargaining unit and those employees who are genuinely 
supervisory employees and active in a managerial capacity.
    At Cooper University Hospital, charge nurses do not fit 
that practical criteria and are not considered supervisors or 
management employees. Rather, charge nurses are part of the 
existing registered nurses professional bargaining unit and 
recognized as such by Cooper University Hospital.
    That said, charge nurses at Cooper Hospital do use 
independent judgment to assign and responsibly direct other 
nurses and technicians and licensed practical nurses with 
respect to patient care. That is, they have the kind of 
authority that the Board has found to be supervisory.
    These charge nurses must exercise these duties to provide 
effective patient care. It is a function of their professional 
licensure. In addition, the charge nurses at Cooper are 
responsible for staff assignments within the narrow confines of 
a given shift, not longer-term assignments between shifts and 
units.
    It is important to point out that all Cooper nurses, not 
just charge nurses, use their independent judgment in the 
course of their professional practice as nurses. For example, 
all nurses, to some degree, assign and responsibly direct other 
employees such as technicians and licensed practical nurses and 
other hospital employees.
    Nevertheless, the performance of these duties by charge 
nurses does not in the Cooper model make charge nurses 
supervisors.
    This system works because Cooper values having a collective 
bargaining relationship with these professional workers as part 
of a single bargaining unit. Moreover, in this model, Cooper 
retains management prerogatives and authorities in the 
workplace and exercises such prerogatives and authority through 
its designated supervisors.
    If the RESPECT Act is enacted, it would not change or 
affect the Cooper model because Cooper does not consider or 
define charge nurses who assign and responsibly direct other 
nurses, technicians, licensed practical nurses and other staff 
personnel with respect to patient care as supervisors.
    Further, the RESPECT Act would not interfere with 
managerial prerogatives exercised through designated 
supervisors.
    From my own vantage point in terms of having practiced 
labor law in bargaining table negotiations and in courtroom 
litigation, I believe that the RESPECT Act provides clarity to 
the current situation in light of the recent conflicting 
decisions by the NLRB. The act eliminates the highly ambiguous 
terms ``assign'' and ``responsibly to direct'' from the 
definition of supervisor, terms open to confusion and 
misinterpretation and inconsistent application.
    The clarity achieved by the RESPECT Act reflects both the 
original intent of the NLRA's framers and everyone's 
commonsense and practical notions of who is a supervisor in the 
workplace. So long as these employees are not engaging in or 
have the authority to engage in other supervisory duties as 
defined by section 211 more than 50 percent of the time, if all 
they are doing is assigning and responsibly directing, that is 
not reason enough to treat them as supervisors.
    An employer like Cooper University Hospital recognized 
this, and is able to maintain effective labor relationships in 
that framework.
    To sum up, the decision of the Board in Oakwood Healthcare 
and a comprehensive dissent to that decision does little to 
resolve the issue from a practical standpoint for those of us 
in the field, at the bargaining table, or at counsel table. The 
Board's observation that debating linguistic niceties does 
little to realistically assist in formulating working 
definitions that fit both the language of section 211 and the 
overall intent of that provision has become a self-fulfilling 
prophesy, begetting yet more debate of linguistic niceties. 
Accordingly, it is in everyone's best interest to temper the 
debate and focus on the practicalities of what can work in the 
workplace, as Cooper University has done. Thank you, Mr. 
Chairman.
    [The statement of Mr. Tambussi follows:]

Prepared Statement of William M. Tambussi, Partner, Brown and Connery, 
             LLP, Labor Counsel, Cooper University Hospital

    Good afternoon, Chairman Andrews, and members of the committee. I 
am pleased to offer testimony on the RESPECT Act. I will focus my 
remarks on the implications of the bill for labor management relations 
in the acute care hospital setting, and specifically in terms of the 
trilogy of recent decisions by the National Labor Relations Board.
    I also will use Cooper University Hospital as an example with which 
I have some familiarity, having been the Hospital's legal counsel 
during labor negotiations with its unionized nurses, who are 
represented by the Health Professionals and Allied Employees Union.
    What distinguishes the supervisory role, particularly of those 
employees involved in nursing care at Cooper are three essential 
attributes:
    1. the individual is involved in setting compensation;
    2. the individual is involved in decisions regarding hiring and 
termination; and
    3. the individual is involved in scheduling decisions regarding 
assignment of staff on a weekly and monthly basis.
    These criteria clarify the boundary between those members of the 
professional nursing staff that are part of the bargaining unit, and 
those employees who are genuinely supervisory and act in a managerial 
capacity. At Cooper University Hospital, charge nurses do not fit that 
practical criteria and are not considered supervisors or management 
employees. Rather, charge nurses are part of the existing registered 
nurses professional bargaining unit.
    That said, charge nurses at Cooper University Hospital do use 
independent judgment to assign and responsibly direct other nurses and 
technicians and licensed practical nurses with respect to patient care 
(i.e., they have the kind of authority that the Board has found to be 
supervisory). Charge nurses must exercise these duties to provide 
effective patient care. In addition, charge nurses at Cooper are 
responsible for staff assignment within the narrow confines of a given 
shift, not longer term assignment between shifts and units.
    It is also important to point out that ALL Cooper's nurses, not 
just charge nurses, use their independent judgment in the course of 
their professional practice as nurses. For example, all nurses to some 
degree assign and responsibly direct other employees such as 
technicians and licensed practical nurses.
    Nevertheless, the performance of these duties by charge nurses does 
not in the Cooper model make charge nurses supervisors. This system 
works because Cooper values having a collective bargaining relationship 
with these professional workers being part of a single bargaining unit. 
Moreover, in this model, Cooper retains management prerogatives and 
authority in the workplace and exercises such prerogatives and 
authority through its designated supervisors.
    If the RESPECT Act is enacted, it would not change or affect the 
Cooper model because Cooper does not consider or define the charge 
nurses who assign and responsibly direct other nurses, technicians and 
licensed practical nurses with respect to patient care as supervisors. 
Furthermore, the RESPECT Act would not interfere with managerial 
prerogatives exercised through designated supervisors.
    From my own vantage point, in terms of having practiced labor law 
in bargaining table negotiations and courtroom litigation, I believe 
that the RESPECT Act provides clarity to the current situation, in 
light of recent conflicting decisions by the NLRB. The Act eliminates 
the highly ambiguous terms ``assign'' and ``responsibly to direct'' 
from the definition of supervisor--terms open to confusion/
misinterpretation and inconsistent application--and the clarity 
achieved by the RESPECT Act reflects both the original intent of the 
NLRA's framers and everyone's common sense and practical notions of who 
a supervisor is in the workplace. So long as these employees are not 
engaging in or have the authority to engage in other supervisory duties 
as defined in Section 2(11) more than 50% of the time, if all they are 
doing is assigning or responsibly directing, that is not reason enough 
to treat them as supervisors. An employer like Cooper University 
Hospital recognizes this and is able to maintain effective labor 
relations within that framework.
    The decision of the Board in Oakwood Healthcare and the 
comprehensive dissent to that decision does little to resolve the issue 
from a practical standpoint for those of us in the field, at the 
bargaining table or at counsel table. The Board's observation that 
``debating linguistic niceties does little to realistically assist in 
formulating workable definitions that fit both the language of Section 
2(11) and the overall intent of the provision'' has become a self 
fulfilling prophesy begetting yet more debate of linguistic niceties. 
Accordingly, it is in everyone's best interest to temper the debate and 
focus on the practicalities of what can work in the workplace as Cooper 
University Hospital has done.
    Mr. Chairman, I appreciate the opportunity to testify here today 
and I would be happy to answer any questions you may have.
                                 ______
                                 
    Chairman Andrews. I would like to thank each of the four of 
you for very illuminating testimony. We will begin with 
questions.
    Ms. Gay, I was struck by the difference between your 
description of what you do at your job at which you have been 
labeled a supervisor and what Mr. Tambussi just described as 
the way the institution he represents characterizes a 
supervisor. I go back to the three points that Mr. Tambussi 
talks about characterizing a supervisor at the institution he 
represents. Are you involved in your job in setting the 
compensation for any individual?
    Ms. Gay. No, not at all.
    Chairman Andrews. Are you ever asked for input on that 
question?
    Ms. Gay. No.
    Chairman Andrews. Are you involved in decisions about 
hiring individuals, get to determine who gets hired?
    Ms. Gay. Never.
    Chairman Andrews. Are you involved in decisions as to who 
gets terminated or disciplined or suspended?
    Ms. Gay. Never.
    Chairman Andrews. Is your input ever asked for in those 
cases?
    Ms. Gay. No.
    Chairman Andrews. Are you involved in schedule decisions 
regarding assignment of staff on a weekly or monthly basis?
    Ms. Gay. No. There is someone assigned for that.
    Chairman Andrews. And about what percentage of your time--I 
think you said 5 minutes a day, is that right--what percentage 
of a typical work shift for you is devoted to the duties that 
rendered you a supervisor?
    Ms. Gay. I said about 10 minutes. Maybe some days it would 
take 15 minutes if the whole unit is full. But it is about 10 
minutes, averages 10 minutes.
    Chairman Andrews. Unless this decision from the regional 
Board is overturned, you won't be collectively bargained and 
represented, will you?
    Ms. Gay. No.
    Chairman Andrews. If there is a grievance process in the 
contract that is finally agreed to, you won't be entitled to 
use it, will you?
    Ms. Gay. No I won't.
    Chairman Andrews. Mr. King, I wanted to come back to your 
testimony. You make the point that fewer than 7 percent of the 
individuals that were considered for what their status is were 
regarded as supervisors in the trilogy cases.
    Let me ask you this question: In the Oakwood case if the 
employer had done the following thing with the rotating charge 
nurses, if the employer had said this group over here will be 
charge nurses every Monday, this group will be charge nurses 
every Tuesday, this group will be charge nurses every 
Wednesday, and so on and so forth, and gave a regular day of 
the week in which case each one of those charge nurses would be 
a charge nurse, would they then be supervisors under the 
trilogy, in your opinion?
    Mr. King. Mr. Chairman, we would have to have a few more 
facts. I understand where you are going.
    Chairman Andrews. What else would you like to know?
    Mr. King. I would like to know what authority they had to 
assign.
    Chairman Andrews. Exactly the authority in the case before 
the Board.
    Mr. King. Exactly what Oakwood had? Rotation under Board 
law, 15-20 percent would be enough if they have the other 
requisite criteria established.
    Chairman Andrews. So if they worked 5 days a week, that 
would be 20 percent. So are they supervisors?
    Mr. King. They may be.
    Chairman Andrews. I think they would be. If you look at 
page 14 of the Oakwood decision, the majority opinion in saying 
that these individuals were not supervisors says the record 
reveals that none of the units involved here have an 
established pattern or predictable schedule for when and how 
often RNs take turns.
    So it strikes me that the roadmap here for an employer that 
wants to define everybody out of the bargaining unit, given the 
facts of Oakwood, is simply to say Monday, Tuesday, Wednesday.
    Ms. Fox, do you agree with that evaluation?
    Ms. Fox. Yes. I think one of the most troubling aspects of 
the decision is how manipulable it is, so that just by 
assigning these relatively minor duties to employees, that you 
can deprive them of their protection.
    Chairman Andrews. If the RESPECT Act--when the RESPECT Act 
becomes law, would the fact pattern I just described to you 
render individuals to be supervisors or not?
    Ms. Fox. No, because of the removal of the 2 factors from 
the 12-factor list, the removal of assignment and responsible 
direction, which are really the only basis on which----
    Chairman Andrews. How would the majority of the time 
provision of the bill before the committee affect the fact 
pattern that I just described to you? Ms. Fox.
    Ms. Fox. It is a little more complicated there because the 
way that the bill is drafted, as I understand it, that it is 
not the amount of time you spend actually exercising these 
duties but the amount of time that you spend possessing them. 
Since she wouldn't be possessing any of the duties----
    Chairman Andrews. Do you think that would help to clarify 
some of the ambiguities that exist in the statute?
    Ms. Fox. Absolutely. It certainly would. In response to Mr. 
King, he seems to be suggesting that because an employer wants 
to assign someone for some even minor point of their time, that 
should override their interest as employees, which I think is 
very hard to justify. Obviously if they are spending more than 
the predominant amount of their time doing supervisory duties, 
that is one thing; but why should an employee who is most of 
the time being a rank-and-file employee not have rights under 
the act?
    Chairman Andrews. I appreciate the questions and answers 
and would go to my friend, Mr. Kline, for 5 minutes.
    Mr. Kline. Thank you, Mr. Chairman. I apologize to the 
witnesses. I know you must think we are crazy up here; we get 
up and walk out and walk back in. As important as this is, 
there are other things going on. So I apologize.
    Ms. Gay, I know that you misspoke there for a second when 
you said that all you did was put patients in bed. I know that 
my wife would be appalled to think that is all you did or all 
she did. If I ever suggested that to her, well, this whole bed 
thing, it would not be good.
    Mr. King, let me get clear on a couple of things here, and 
I apologize if I missed this discussion. We actually have a 
monitor in the other room and I was trying to do
    multitasking, and that is always a little bit risky. Let me 
ask if you would view H.R. 1644, Mr. Andrews' bill, as simply 
overturning the Kentucky River trilogy of cases. And if not, 
can you tell us in what respects this legislation goes further 
than that?
    Mr. King. Congressman Kline, there is no limitation in the 
bill, as introduced, to restrict it just to health care. And as 
we read the bill it would have substantial impact on all 
private-sector employers in the country. There is no limitation 
whatsoever. It is technically I might add, Congressman Kline, 
incorrectly drafted. There is no such phrase as 
``responsibility to direct.'' I am sure that was just a 
drafting error.
    Mr. Kline. Thank you very much.
    Mr. King, I am going to stay with you here for another 
minute. Ms. Gay testified that, quote, ``Every nurse on the 
floor is someone who at some time or another serves as a charge 
nurse and therefore, under the Board's Oakwood decision, every 
one of them is a supervisor.'' is that correct, is that what 
the Board held in Oakwood?
    Mr. King. Absolutely not. In fact, as I mentioned, less 
than 7 percent of the employees in the Kentucky trilogy of 
cases were found to be supervisors and only 12, as I recall, at 
Oakwood. Now, what we are really missing here in this 
discussion is what the person does when she or he is in charge. 
I am sure Ms. Gay is a very experienced, excellent nurse, but I 
spend a lot of time with health care employers. An ICU nurse in 
charge makes life-or-death decisions regarding patients every 
minute. If that is not supervisory, I don't know what is. And 
those nurses that are in supervisory situations assign a 
particular nurse to a particular patient based on the skill, 
ability, and experience.
    Mr. Kline. I am sorry. We had some discussion going back 
there. Maybe you could back up and kind of retrace that, if you 
would be kind enough.
    Mr. King. Certainly. Congressman Kline, an ICU nurse that 
is in charge of a unit will look to see the acuity level, the 
seriousness of the patients in that unit, and ICU is 
traditionally one of the most difficult to staff, very highly 
ill patients. So the nurse in charge of this type of unit, as 
you know from your wife's experience, will make decisions on 
which nurse can be assigned to which patient based on his or 
her skill, ability, and experience and must often make last-
minute decisions or minute-by-minute decisions as to the well-
being of that patient. Those are essential assignment issues 
and are supervisory duties, and I am sure there is not more 
than one charge nurse on any given unit at any one given time. 
At least that is my experience. In talking to counsel for Salt 
Lake Medical Center, that is what he informed me also.
    Mr. Kline. Thank you, Mr. Chairman. Mr. Chairman, I yield 
back.
    Chairman Andrews. Thank you. The gentlelady from New York, 
who is a nurse. I think--is it two nurses in the House?
    Mrs. McCarthy. Actually, three of us now. We are looking 
for more though.
    Chairman Andrews. I know Ms. Pryce is also a nurse. Oh, Ms. 
Capps. I yield 5 minutes to the gentlelady from New York, Ms. 
McCarthy.
    Mrs. McCarthy. Thank you, Mr. Chairman. I appreciate that. 
I spent 33 years as a nurse before I ever came into this job. 
And I worked in the intensive care unit, and I will say to you 
that you really don't know anything about nursing or what is 
going on in a hospital on a day-to-day basis.
    Every single person that works in the hospital, from the 
charge nurse who basically is watching over all of us but she 
also does bedside nursing when the floors are short, which is 
most of the time, each and every one of us have to make at that 
moment a life-and-death decision making. We don't have somebody 
looking over our shoulder asking us to make that decision.
    So what we have here is a complete misunderstanding of what 
nurses do. And I am really sorry, Ms. Gay, because I have to 
say to you back in the 1960s when, quote, ``I was the charge 
nurse on the night shift,'' I was paid $1 extra a week. I see 
some things have not changed.
    With that being said also, it was mentioned about the 
National Labor Board. I will have to say for all my years that 
I have been sitting on this committee, which is 11 years now, 
the National Labor Board, in my opinion, has certainly not been 
standing up for the worker or the workplace safety, in my 
opinion, when I read in the paper constantly how many people 
are dying on a daily basis because the National Board has not 
done their work nor has OSHA. Those are the things that are 
here that we hopefully will be able to address this coming 
year.
    Also let's even leave the nursing world. Let's just go on a 
day-to-day basis on anyone that works anywhere. I used to work 
in the A&P back then, mainly because nurses didn't get paid 
much. So with that being said, I actually made more money in 
the A&P, part time, than I did as a full-time nurse working in 
the intensive care unit.
    I was assigned, the first woman ever, to work on the night 
shift supervising, quote, ``how to stack shelves.'' now I had 
certainly an older manager there, but under your definition I 
would have been a supervisor, and yet I was only 21 years old.
    So you say 7 percent, as far as you have said, that is what 
people would be considered supervisors. What I don't understand 
is why are you going so far to have the language changed when 
it doesn't even cover the majority of people that work. So I 
don't understand that. Unless the whole intent is just to not 
have people have the right to organize and belong to a union so 
that they can have their rights.
    Some of us up here have life experiences before we come to 
Washington. One thing I found Washington doesn't have, common 
sense doesn't belong in this place. One thing they did do, 
going way, way back, was have nurses be considered 
professionals. All nurses are professionals, and they are 
professionals. So why we are trying to change this at this 
particular time, I have no idea.
    This committee especially is doing everything in its power 
to, number one, get more people to go into the health care 
field, especially nurses, and we finally get there and we don't 
have enough to become professors so they can actually teach 
nurses, so they can teach more nurses. It all comes down to 
what are we going to do about the health care.
    Everyone on this staff knows that I very rarely give long 
speeches. I usually just jump right into a question. But I have 
to tell you since this was passed, number one, it has been an 
insult to everyone in the health care field. It certainly has 
been an insult to those hardworking people out there. Yes, we 
all take on supervisory positions. We don't get paid for it. We 
do it because it is the right thing. And for the Chamber of 
Commerce to take a stand on this, I think you are totally 
wrong. And I hope that we can pass the bill, Mr. Chairman, and 
bring some common sense back to the health care, certainly for 
nurses that do a wonderful job on a daily basis, and still 
don't get paid enough and do save lives on a daily basis.
    With that I yield back the balance of my time.
    Chairman Andrews. Thank the gentlelady.
    The gentleman from New Jersey, Mr. Holt, is recognized for 
5 minutes.
    Mr. Holt. Thank you, Mr. Chairman. I want to join my 
colleague from New York in recognizing the work that the nurses 
do. And just because on maybe Tuesday or Wednesday or Thursday 
they have a day as a charge nurse doesn't somehow mean that 
they have different skill or different experience on those 
other days on the job.
    Ms. Gay, let me follow up on something that you had said; 
that until things change, you say that a nurse would never have 
a clear and direct path to having her or his voice heard. So 
you are saying that if you are classified as a supervisor, you 
don't really get the benefit of being a supervisor, you don't 
get your voice heard in any of those circles, and you don't get 
your voice heard through the union circles or other organized 
circles. Is that your point?
    Ms. Gay. Yes, that is my point. Do you want me to elaborate 
on that?
    Mr. Holt. Let me get at something more along those lines. I 
would like to get at the positive harm that might be done. I 
mean are there things--by being classified as a supervisor, are 
you being forced to do things or prevented from doing things 
that you would not choose to do otherwise and that you would 
not have to do if you hadn't been so classified? For example, 
to take part, as Ms. Fox, said in non-union activities.
    Ms. Gay. Right. Like I said, if we are classified as 
supervisors, therefore we can't be part of the bargaining unit. 
Our hospital where I work, I believe, is using that as an 
advantage to themselves so we cannot organize. Like I said in 
my testimony, that almost every nurse at some point does charge 
duty, and even though it might take 10 or 15 minutes--and 
truly, back to Mr. Kline, I realize that of course I do a lot 
more than just put patients in beds, but that is the point I am 
trying to make. I truly just--if they say to me you have 6 
nurses today and I have 21 patients, you do the math. I mean 
you have to divide up the patients with the nurses that you 
have.
    And, of course, we all know that a new nurse who has only 
been there for a month, you are not going to give them a brand-
new open heart. I mean that is common sense. I don't think that 
takes a lot of independent judgment to figure that out. I mean, 
I think everybody would appreciate if your family member was 
having open heart surgery that we didn't throw in the nurse 
that hasn't finish orientation on that basis. So it is a lot of 
common sense and very simple to assign nurses to patients.
    I just feel that if we were classified supervisors, we 
won't be able to be part of a bargaining unit. Our hospital 
does not listen to us. I am sorry, they do not listen to us. 
And that is why we are trying to have a voice in how we take 
care of patients. And that was our resort, we felt like we had 
to have a bargaining unit so we could sit down at the table 
with management and make decisions and have protected activity.
    Mr. Holt. Thank you. Something that has troubled me a great 
deal is this sense that the anti-organizing, the anti-union 
attitude is that it is a zero sum game; that somehow if workers 
organize, the employer loses. I was struck, Mr. Tambussi, about 
what has happened at Cooper. Was it a fight between the 
employees and the management that came to the realization that 
the nurses didn't need to be classified in this way?
    Mr. Tambussi. Congressman Holt, we dealt with this in a 
practical way. And Congressman Andrews, now Chairman Andrews, 
will know this; I tend to be more practical in my approach of 
dealing with things. We had a contract to settle. We were going 
to settle this contract. We were going to focus on the issues 
that were practical to Cooper. We knew that these nurses did 
not equate to be supervisors in our model. We were not going to 
push that issue to the point where we held up negotiations and 
delayed getting a contract done. We got our contract done. We 
were the first hospital in New Jersey to have a contract to 
reach an agreement, the Friday before Memorial Day last year.
    We were proud to do that, we were proud to recognize our 
nurses for what they were and the positions that they held, 
with the authority that they held.
    Mr. Holt. Do you think the hospital was the loser----
    Chairman Andrews. The gentleman's time has expired. If you 
would briefly answer.
    Mr. Tambussi. The institution was better for it and it is a 
proud institution and very proud of its nurses.
    Mr. Holt. Thank you, Mr. Chairman.
    Chairman Andrews. The gentlelady from California, Ms. 
Sanchez, is recognized for 5 minutes.
    Ms. Sanchez. Thank you, Mr. Chairman. I would like to begin 
my questioning with Ms. Gay, and I want to say before I start 
that I really salute your service as a nurse. I know it is a 
tough job and I appreciate that you and so many others do that 
job day in and day out.
    I want to jump back--in your testimony you said that there 
was no application process to be a supervisor; that once you 
had worked a year, you would then be expected to be a charge 
nurse at times; is that correct?
    Ms. Gay. Yes, that is correct.
    Ms. Sanchez. In your role--and you are not choosing to be a 
supervisor--let's say they come to you and say we want you to 
direct the nurses to figure out who is going to cover which 
patients. Can you at that point stop and say, I don't want to 
make that decision because I want to remain a nonsupervisory 
employee. Do you have that luxury or that right?
    Ms. Gay. We were told that we didn't have to be a charge 
nurse if we didn't want to be a charge nurse. So I did that 
very thing; I went to Human Resources and said I don't want to 
be a charge nurse, and they told me well, you have to be a 
charge nurse. I said I never applied for the job, I don't have 
a job description.
    Ms. Sanchez. You don't get compensated accordingly.
    Ms. Gay. They said oh, we are trying to work on that. They 
just said you will continue in your charge nurse duties. I 
found it threatening, that you will continue in your charge 
nurse duties.
    Ms. Sanchez. No real option there. I am going to ask two 
questions that my law professor used to ask whenever we read a 
case. Do you think that that is the right decision that you are 
classified as supervisors, and do you think that that is fair?
    Ms. Gay. I think it is terrible classification that I am a 
supervisor and it is not fair.
    Ms. Sanchez. In your testimony you explain that you are 
constantly asked to do more with less and that two-thirds of 
the nursing staff are classified as charge nurses. Do you 
believe that there is some chance that without the RESPECT Act, 
employers like yours might continue to cut back on their 
nursing staff so that all of them eventually perform enough 
direction and assignment duties that they will all be 
classified as supervisory employees?
    Ms. Gay. Well, I can only speak for my hospital but I feel 
that our hospital is just classifying us, like I said before, 
as a supervisor for their advantage. I don't think that they 
will cut back on their supervisory duties. They want control. 
They don't want two-thirds of the nurses making decisions in 
the hospital. It is a select few that make those decisions and 
who are the real supervisors.
    Ms. Sanchez. Thank you.
    Ms. Fox, I really appreciate your time and your testimony 
today. My question actually arises from Mr. King's testimony. 
He noted that supervisors are in large part responsible for an 
employer's compliance with things like OSHA rules and 
regulations, Federal and State protections against sexual and 
other types of harassment, anti-discrimination statutes, 
minimum wage and overtime requirements and, quote, ``a whole 
host of the Federal and State labor and employment statutes.''
    It seems to me that a charge nurse who performs minimal 
supervisory duties, such as directing another nurse to care for 
a particular patient as little as 10 to 15 percent of the time, 
is probably not responsible for the employer's compliance with 
the extensive laws and regulations that Mr. King described for 
us, yet such charge nurses can be classified as supervisory 
employees under existing law.
    Do you agree with Mr. King that the enactment of the 
RESPECT Act would somehow impede employers from successfully 
assembling their supervisor and management teams and complying 
with Federal and State regulations and laws?
    Ms. Fox. No, I don't. I am not sure I understand the 
significance of these other law requirements, because the 
National Labor Relations Act itself never considered anyone to 
be a supervisor except to the extent they supervise other 
employees. The fact that they may have other nonsupervisory 
responsibilities under other Acts, even if those are 
significant responsibilities, really have nothing to do with 
whether for purposes of the National Labor Relations Act, they 
are excluded from coverage.
    Ms. Sanchez. So the fact that they may somewhat contribute 
to compliance with these other laws in your professional 
opinion is not a determining factor in whether or not they, in 
fact, currently are, or in the future, should be classified as 
supervisory employees; is that correct?
    Ms. Fox. Right. I don't really see why somebody has to be 
classified as a supervisor for purposes of the National Labor 
Relations Act in order to assist the employer in complying with 
minimum wage laws or OSHA requirements.
    Ms. Sanchez. Thank you, Ms. Fox. I yield back the balance 
of my time.
    Mr. Andrews. I thank the gentlelady. The Chair recognizes 
the gentleman from Pennsylvania, Mr. Sestak, for 5 minutes.
    Mr. Sestak. Thank you, sir. I'm sorry I was not here for 
the entire proceedings. And from what I gather most of the 
questions that I would have asked were already brought up. But 
if I could maybe just make a comment.
    I had the opportunity, unfortunately, to have to live in a 
hospital having spent 31 years in the military and having a 
young daughter with a brain tumor, 4 years old, after the first 
of three brain operations we moved down into the hospital down 
the road, Children's, and lived in an oncology ward for a few 
months.
    And the first group I went after for support after I 
decided to get into this campaign--into a campaign about a year 
ago, because I was so taken by the health professions, was the 
nurses. Although I am not adding much to just to the discussion 
here, if there is one organization that truly understands 
supervision, it is the military. And I can tell you that this 
change in defining what supervision is and isn't and the 
preponderance of weight placed upon it, is one--this provision 
has to be changed. It needs to be changed because, you know, I 
watched the nurses and they were the best of friends. They came 
to my swearing-in. I mentioned them in my opening comments. And 
to watch them come in and not just work 12-hour shifts but an 
hour before and an hour after to make sure everything was done 
and nothing was dropped between the seams, and one night out of 
``X'' they happened to be the charge nurse.
    I understand the good work they did. But then the next day 
they were right back. And even when they were the charge nurse 
they were basically doing what they needed to do anyway and 
often filling in.
    My own regret is I did not submit this bill. And I am 
sorry, Mr. Chairman, I will turn it over to you. But I did not 
add much to this discussion, but I can't speak highly enough 
about your profession or work hard enough for your rights for 
something that is so ill-defined from my background in the 
military of what a supervisor is. Thank you.
    Mr. Andrews. I thank the gentleman.
    Your little girl is doing very well right now I understand.
    Mr. Sestak. She is and I intend, if we get out early 
enough, to put her to bed tonight.
    Mr. Andrews. We will make sure. The gentlewoman from New 
York City, Ms. Clarke, is recognized for 5 minutes.
    Ms. Clarke. Thank you very much, Mr. Chairman. The Kentucky 
River cases expands the definition of supervisor. That is what 
we have been talking about here. I want to focus in on New York 
City from whence I have come to the Congress.
    In New York alone, 57,201 registered nurses; 24,697 
secretaries; and office general clerks numbering 13,479 have 
been adversely affected by the misclassification of the skills 
and professional employees as supervisors. This is very clearly 
a management sham. It is a management sham. At a time when 
health care is in crisis, this type of manipulation is really I 
think abhorrent, Mr. Chairman.
    Let me say this: Mr. King, in response to Ranking Member 
Kline's question about the definition of the RESPECT Act, you 
felt that it was too broad in scope and that it could possibly 
adversely impact corporate entities outside of the health care 
arena. Let me tell you that this Kentucky River case is a 
slippery slope. And so said, so done.
    The breadth and depth of this precedent is being felt 
already across multiple industries. In my estimation, this has 
left potentially hundreds of thousands of employees vulnerable 
to the interpretations of corporate management regarding their 
rights and privileges gained through collective bargaining.
    In fact, I have personal knowledge of how misclassification 
of employees adversely impacts the rights and privileges of 
workers. For example, the Writers Guild of America East has 
been without a contract since 2005. One of the sticking points 
in their negotiation is the reclassification of employees. The 
Kentucky River decision has been quoted, and it supports 
management's argument for the reclassification of producers as 
supervisors, thereby stripping the producers of union 
protection.
    This is important because producers are on the front lines 
and they are more likely to exercise independent news judgment 
and, in so doing, promoting journalistic integrity. That is 
something that we are all searching for in this day and age. 
Therefore, the right to organize and collectively bargain is 
vital to protecting employees from unfair labor practices.
    We have started something here that can certainly spiral 
without of control. And while we are concerned that we address 
this issue in the health care arena, I am concerned that there 
are those who would look to this and exploit it in determining 
who, in fact, are supervisory personnel and who are not.
    Let me just ask for the panel, the Kentucky River cases 
create the potential for substantial manipulation. I think that 
has certainly been demonstrated in your testimonies here today. 
In your opinion, could this possibly shift the balance at the 
negotiating table towards management thereby creating an uneven 
playing field? Your responses, please?
    Ms. Fox. I think an important point just to reinforce that 
Mr. King said this is not an issue that is limited to health 
care. It does impact workers in every industry where workers, 
because of their skill and experience, often give direction to 
less skilled employees; to professionals who routinely have 
assistants or others underneath them to whom they give 
assistance. As you say, not just in health care, but in many, 
many industries, there is the opportunity for employers to 
manipulate assignments to those workers so as to deprive them 
of rights under the Act.
    Ms. Gay. I also agree that the employer can manipulate the 
assignments to make someone look like they are a supervisor and 
therefore would not be protected under the Act. So I agree with 
Ms. Fox.
    Mr. King. I would not agree. The fact are that only four 
unit clarification petitions to reconfigure bargaining units an 
Kentucky River have been filed with the National Labor 
Relations Board. My experience of 30 years including in health 
care institutions is that employers and unions work this out 
day in, day out. We don't have 25 percent of the cases, as Ms. 
Fox indicated, on this issue. We have much less than that.
    Unions and employers after Kentucky River have put in their 
collective bargaining agreement, as Cooper University hospital 
did, a way to handle this. There is not a case to be made here. 
What the NLRB did in Kentucky River is follow the United States 
Supreme Court dictate. This statute was carefully, thoughtfully 
crafted. There is checks and balances, like, in all legislation 
that this body looks at every day. This is not being 
manipulated. What is being manipulated here are arguments that 
don't stand the light of day. The facts don't support the 
legislation.
    Mr. Tambussi. What we need to do, Congressperson, is we 
need to make the Act clearer, less ambiguous, to remove the 
debate about legal niceties so that we can get down to the 
practical aspect of settling contracts. I believe the RESPECT 
Act helps in that regard.
    Mr. Andrews. Thank you very much to the gentlewoman. The 
bell means that we have a vote in a little less than 15 
minutes. What I propose to do is go to Mr. Kildee's questions 
and then Mr. Kline, and I can wrap up and thank the witnesses.
    The gentleman is recognized for 5 minutes.
    Mr. Kildee. Thank you, Mr. Chairman. I associate myself 
with the very good remarks of the gentlewoman from New York, 
Mrs. McCarthy and for that reason I am cosponsor of H.R. 1644 
and very proud to be so. Thank you very much, Mr. Chairman.
    Mr. Andrews. I thank the gentleman. The gentleman from 
Minnesota have any follow-up questions?
    Mr. Kline. No, thank you very much, Mr. Chairman. I would 
like to thank the witnesses again, I haven't seen this many 
nurses in one room since our last house party. Nice to see you 
here.
    I would like to ask unanimous consent, Mr. Chairman, to 
include this letter from the American Hospital Association.
    [Two letters from the American Hospital Association 
follow:]

     The American Organization of Nurse Executives,
                             American Hospital Association,
                                                      May 21, 2007.
Hon. John P. Kline, Ranking Member,
Subcommittee on Health, Education, Labor and Pensions, Committee on 
        Education and Labor, Washington, DC.
    Dear Representative Kline: The American Hospital Association (AHA), 
on behalf of our nearly 5,000 member hospitals, health systems and 
other health care organizations, and our 37,000 individual members, and 
the American Organization of Nurse Executives (AONE), representing 
professional nurses in executive practice, would like to take this 
opportunity to clarify any concerns that National Labor Relations Board 
(NLRB) decisions have not provided sufficient clarity for hospitals to 
determine when charge nurses function as supervisors. We believe that 
existing NLRB guidance provides clear, practical assistance to 
hospitals for determining whether the role and function of their charge 
nurses meet the criteria for supervisory status. Legislation to clarify 
the essential characteristics of supervisory status is unnecessary, and 
we therefore oppose H.R. 1644, which would amend the National Labor 
Relations Act (NLRA) to reverse the existing NLRB guidance in this 
area.
    Charge nurses assess the acuity of a patient's illness, as well as 
which staff have the skill sets to best care for the patient. When 
serving in that role, the charge nurse acts on behalf of the hospital, 
providing a management/leadership voice to patients, families and other 
employees. Existing NLRB guidance correctly recognizes that charge 
nurses exercise significant independence and discretion in making 
critical judgments about patient care. The NLRB has clearly established 
that hospital charge nurses who regularly assign nursing personnel to 
specific patients and make the assignments based upon ``the skill, 
experience, and temperament of other nursing personnel, and on the 
acuity of the patients'' meet the test for supervisor.
    NLRB guidance defines each of the terms characterizing such 
supervisory status--``assign,'' ``responsibly directs'' and 
``independent judgment''--and then applies them in the health care 
context using fact patterns as illustrations.
     To ``assign'' refers to the act of designating an employee 
to a place (such as location, department or wing), appointing an 
employee to a time (such as a shift or overtime period), or giving 
significant overall duties (tasks) to an employee.
     ``Responsibly to direct'' means that the employee 
overseeing another employee is accountable for the other employee's 
performance of the task.
     ``Independent judgment'' involves the exercise of 
significant discretion in making decisions that are not routine or 
clerical in nature.
    In the health care setting, the NLRB specifically interpreted the 
term ``assign'' to encompass the charge nurse's responsibility to 
assign nurses and aides to particular patients. NLRB guidance 
distinguishes between a charge nurse's designation of significant 
overall duties to an employee (e.g., designating a licensed practical 
nurse (LPN) to regularly administer medication to a patient or group of 
patients) and an ad hoc instruction that the employee perform a 
discrete task (e.g., ordering an LPN to immediately give a sedative to 
a particular patient). Permanent charge nurses in a hospital who assign 
nursing personnel to the specific patients for whom they would provide 
care during their shift, and who make the assignments based upon ``the 
skill, experience, and temperament of other nursing personnel, and on 
the acuity of the patients,'' meet the test for supervisor. In 
contrast, permanent charge nurses who assign employees to particular 
locations within the emergency department, rather than to particular 
patients, are not supervisors.
    Under the NLRB's interpretation of ``responsibly to direct,'' there 
must be some adverse consequence for the supervising employee if the 
task performed was not performed properly. This means that the charge 
nurse must be subject to lower performance evaluations or disciplinary 
action if the other staff members fail to adequately perform their 
assigned tasks.
    In considering whether charge nurses exercise sufficient discretion 
to meet the test for ``independent judgment,'' the NLRB responded 
specifically to the Supreme Court's criticism of its previous 
interpretation of independent judgment. The NLRB's response focused on 
the degree of discretion exercised by the charge nurse, recognizing 
that the unique needs of each patient must be taken into account and 
that matching a nurse with a patient may have significant consequences 
for the health of the patient. The NLRB distinguished assignment 
decisions implementing detailed instructions (e.g., a staffing decision 
based on a fixed nurse-to-patient ratio, or pursuant to a bargaining 
agreement requiring that seniority be followed) from company policies 
that allow for discretionary choice (e.g., a policy that details how a 
charge nurse should respond in an emergency, but the charge nurse 
determines when an emergency actually exists or may deviate from that 
policy based on his or her assessment that a significant change is 
needed).
    The NLRB guidance strikes a reasonable balance for hospitals in 
setting the criteria for when charge nurses function as supervisors. A 
charge nurse who rotates into the role on a regular basis, for example, 
may qualify as a supervisor, but will not meet the NLRB criteria for 
designation as a supervisor in the absence of an established pattern or 
predictable schedule. Additionally, charge nurses who delegate the 
performance of certain tasks to other nursing staff may meet the test 
for ``responsible direction,'' but only if they have accountability for 
the way the task is carried out. Criticisms that the NLRB guidance is 
unclear seemingly are more about dissatisfaction with this reasonable 
balance that the NLRB guidance has struck than any lack of clarity in 
the NLRB's criteria for determining when charge nurses function as 
supervisors.
    We urge members of the committee to reject H.R. 1644.
            Sincerely,
                                              Rick Pollack,
        Executive Vice President, Chief Executive Officer AHA AONE.

                          Pamela A. Thompson, MS, RN, FAAN.
                                 ______
                                 
     The American Organization of Nurse Executives,
                             American Hospital Association,
                                                       May 4, 2007.
    Dear Representative: On behalf of the American Hospital 
Association's (AHA) nearly 5,000 member hospitals, health systems and 
other health care organizations, and our 37,000 individual members, and 
our subsidiary, the American Organization of Nurse Executives (AONE), 
which represents professional nurses in executive practice, we are 
writing to express our opposition to H.R. 1644. The legislation would 
amend the National Labor Relations Act (NLRA) to reverse the National 
Labor Relations Board (NLRB) guidance used to determine the essential 
characteristics of supervisory status. For hospitals, the issue affects 
primarily whether our charge nurses are classified as supervisors. This 
issue is critical to the safety of our patients and the management of 
the patient care environment.
    Specifically, the legislation removes from the NLRA two necessary 
functions that classify a charge nurse as a supervisor: ``assigning'' 
and ``directing'' other staff. Charge nurses are often the most visible 
people ``in charge'' of a specific hospital unit, and their judgment 
and discretion are essential. NLRB guidance recognizes that charge 
nurses exercise independence and discretion in making critical 
judgments about patient care. A charge nurse assesses the acuity of a 
patient's illness, as well as which staff have the skill sets to best 
care for the patient. When serving in that role, the charge nurse acts 
on behalf of the hospital, providing a management/leadership voice to 
patients, families and other employees.
    Hospitals never know who or how many patients will walk through 
their doors on any given day. The women and men who work in hospitals 
stand ready to treat everything from flu outbreaks to highway accidents 
and scores of other sudden emergencies. It is essential that charge 
nurses be recognized for the leadership role they play in this 
challenging and complex environment. We oppose the legislation because 
it fails to recognize this important and unique role.
    The legislation is entirely unnecessary; existing NLRB guidance 
strikes a reasonable balance in setting the criteria for when charge 
nurses function as supervisors. The NLRB has found that hospital charge 
nurses who regularly assign nursing personnel to specific patients and 
make the assignments based upon ``the skill, experience, and 
temperament of other nursing personnel, and on the acuity of the 
patients,'' meet the test for supervisor. H.R. 1644 does not recognize 
the distinction.
    We ask that you join us in opposing this legislation.
            Sincerely,
                                              Rick Pollack,
        Executive Vice President, Chief Executive Officer AHA AONE.

                          Pamela A. Thompson, MS, RN, FAAN.
                                 ______
                                 
    Mr. Andrews. Without objection.
    Mr. Kline. And again, thank you to the witnesses.
    Mr. Andrews. And I would ask unanimous consent that a 
statement from Senator Dodd be entered into record.
    [The prepared statement of Senator Dodd follows:]

Prepared Statement of Hon. Christopher J. Dodd, a U.S. Senator From the 
                          State of Connecticut

    Thank you, Chairman Andrews and Ranking Member Kline, for offering 
me the chance to convey my views today to the Health, Employment, 
Labor, and Pensions Subcommittee. And I would like to thank the entire 
Subcommittee for today's hearing on an issue so central to American 
workers' right to organize.
    I want to express my strong support for a piece of legislation that 
I introduced in the Senate, and which has been championed by Chairman 
Andrews in the House: the Re-empowerment of Skilled and Professional 
Employees and Construction Tradeworkers Act, or RESPECT Act
    The RESPECT Act would make vital changes to the National Labor 
Relations Act's definition of supervisor, ensuring that no employee is 
unjustly denied his or her right to join a labor union. This is a very 
simple bill--just four lines of text making a few definitional changes. 
Yet the livelihoods of thousands, possibly millions, of workers are at 
stake in those few lines. Workers designated as supervisors may not 
join a union or engage in collective bargaining. As AFL-CIO president 
John Sweeney has argued, unfair classification ``welcomes employers to 
strip millions of woerkers of their right to have a union.'' 
Unfortunately, President Bush's appointees on the National Labor 
Relations Board (NLRB) have upheld these ``classifications in name 
only.''
    The NLRB has struggled for years with the definition of supervisor. 
Twice in the last ten years, its attempts to define supervisory status 
have been reviewed and rejected by the Supreme Court. But despite this, 
the NLRB refused to hear oral arguments for the three decisions it 
handed down last October--Oakwood Healthcare, Inc., Golden Crest 
Healthcare Center, and Croft Metals, Inc. These decisions are known 
collectively as the Kentucky River decisions, after the 2001 Supreme 
Court case of NLRB v. Kentucky River.
    The NLRB ruled that many charge nurses are supervisors, even though 
they have no authority to hire, fire, or discipline other employees. In 
the course of their responsibilities to provide the best care possible 
to their patients, many rank-and-file nurses occasionally rotate 
through a limited oversight role, such as assigning other nurses to 
patients based on workload or a nurse's particular specialty. But on a 
pretext as slim as that, employers would keep their workers from 
unionizing altogether.
    In the Oakwood decision, the hospital argued that 127 of its 181 
nurses were supervisors. Though the NLRB found that only 12 were in 
fact supervisors, its decision left the door open for widespread abuse. 
Under its ruling, only 10 percent of a worker's time in a supervisory 
capacity is enough to lock him or her out of a union.
    Following that precedent, another hospital declared a ludicrous 
number of its registered nurses to be supervisors--and an NLRB Regional 
Director agreed. Seventeen of 20 registered nurses in the Intensive 
Care Unit were declared supervisors; 6 of 7 in the Medical Unit; 9 of 
11 in Neonatal Intensive Care; and in the Inpatient Rehabilitation 
Unit--all 7. Fictitious classifications like these show just how far 
some will go to keep workers from bargaining fairly, and just how far 
the NLRB will go to act as enabler.
    Though recent NLRB decisions have targeted nurses, the dangerous 
precedent they set threatens the rights of workers in countless 
industries. The NLRB has opened a Pandora's box: Laborers who sometimes 
work with assistants, or skilled craftsmen who take apprentices, can be 
barred from unions by the same false logic that prevents nurses from 
organizing.
    The dissenting opinion of the NLRB's two Democrats put it bluntly: 
The Kentucky River decisions threaten ``to create a new class of 
workers under federal labor law: workers who have neither the genuine 
prerogatives of management, nor the statutory rights of ordinary 
employees.''
    Mr. President, these decisions are written on more than paper. 
They're written on real lives, on workers in the thousands and 
millions, on the dignity of their labor, the health of their children, 
and the security of their old age. For them, legal fiction becomes 
painful fact: Without their fair seat at the table, workers will 
possibly see lower wages, longer hours, more dangerous working 
conditions, and threats to their healthcare and retirement.
    The services they provide will suffer as well. Take the case of 
nurses: Many fear retribution if they speak out on their own about 
unsafe practices that could endanger patients' lives. Instead, many 
rely on their unions to provide a strong, unified voice for improved 
patient care. It's in our interest to keep that voice strong--just one 
example of how healthy unions benefit us all.
    The RESPECT Act offers a commonsense step to protect workers' 
rights. It deletes the terms ``assign'' and ``responsibly to direct'' 
from the definition of supervisor--terms that the NLRB drastically 
expanded to justify its rulings. The bill also would require that, to 
be classified as a supervisor, an employee must actually be one by 
specifying that an employee must spend the majority of his or her 
worktime in a supervisory capacity.
    That's hardly a radical innovation--in fact, it returns us to 
Congress's original intent. In 1947, the Senate Committee Report on 
amendments to the National Labor Relations Act stated that:

          the committee has not been unmindful of the fact that certain 
        employees with minor supervisory duties have problems which may 
        justify their inclusion in that act. It has therefore 
        distinguished between straw bosses, leadmen, set-up men, and 
        other minor supervisory employees, on the one hand, and the 
        supervisor vested with * * * genuine management prerogatives.

    Clearly, Congress did not intend to deny the right to organize to 
those workers whose jobs require only occasional and minor supervisory 
duties. The RESPECT Act restores that sensible precedent.
    Mr. President, it's not by chance that the rise of the labor 
movement coincided with the rise of the largest and strongest middle 
class the world has ever seen. The achievements of the labor unions 
have made it possible for many working men and women to send their 
children to college, to store up savings for sickness, injury, and old 
age--to move from deprivation to dignity. The labor movement 
contributed greatly to the strengthening of the American middle class.
    Its progress was opposed at every step--sometimes by intimidation, 
sometimes by violence, sometimes by propaganda. Today it is opposed by 
specious reasoning and twisted definitions of a kind I've rarely seen 
in public life. I hope the distinguished members of this Subcommittee 
will be moved to support this bill out of their respect for honesty 
alone. But add the fact that the security and dignity of so many of 
their constituents depend on the right to organize and bargain, and the 
case becomes as clear as day. I urge you to support this bill.
    Thank you again, Chairman Andrews and Ranking Member Kline, for the 
opportunity to submit this statement.
                                 ______
                                 
    Without objection.
    I would like to thank the witnesses for very edifying 
thoughtful testimony. I would like to thank the audience 
participation for their enthusiasm and interest in the issue. 
The committee will be debating this issue and regarding the 
arguments both for and against it. I thank the witnesses for 
helping us to develop what I think is a comprehensive record on 
which the Members of the House can make a judgment as to what 
they ought to do. I certainly hope that they support the 
legislation.
    But I would like to thank all of those who expressed all 
different points of view today. And the committee stands 
adjourned.
    [The prepared statement of AFSCME, submitted by Mr. 
Andrews, follows:]

  Prepared Statement of the American Federation of State, County and 
                 Municipal Employees, AFL-CIO (AFSCME)

    On behalf of the 1.4 million members of the American Federation of 
State, County, and Municipal Employees (AFSCME), I am pleased to submit 
this statement for the official record of the House Health, Employment, 
Labor and Pensions Subcommittee of the Education and Labor Committee's 
Hearing on the RESPECT Act, H.R. 1644.
    Whether a worker is classified as a supervisor or an employee under 
the National Labor Relations Act (NLRA) has enormous consequences for 
tens of thousands of AFSCME workers as well as millions of other health 
care, building and construction trades, and manufacturing workers. The 
collective bargaining rights of millions of professionals who routinely 
direct the work of other professionals and less-skilled employees is at 
stake.
    The recent decisions by the National Labor Relations Board (NLRB), 
collectively known as the Oakwood Trilogy, radically broadened the 
decades-old interpretation of the term ``supervisor'' under federal 
labor law. If these decisions are permitted to stand, employers will be 
able to strip federal labor law protection from millions of workers who 
are clearly not part of management. As the dissenting opinion in 
Oakwood argues, the decision ``threatens to exclude almost all hospital 
nurses--as well as countless professionals and others who oversee less-
skilled coworkers--from the protection of the Act.''
    An examination of the legislative debates conducted at the time 
that the National Labor Relations and the Taft Hartley Acts were 
approved clearly show that Congress did not intend to deny federal 
labor law protection to ``minor supervisory employees''. The NLRA, 
passed in 1935, did not distinguish between employees and supervisors 
while the Taft Hartley Act, passed in 1947, and excluded 
``supervisors'' from the protection of the NLRA. Without NLRA 
protection, ``supervisors'' can be legally fired for union activity. 
However, the Taft Hartley Act itself expressly included both 
``professional employees'' and employees in ``craft units'' within the 
protection of the NLRA and the legislative record shows that in passing 
the Taft Hartley Act, Congress intended nurses to be considered 
``professional employees.''
    Furthermore, the record shows that Congress was aware that most 
professionals, and many skilled employees such as craft workers, 
routinely assign tasks to, and direct the work of, less-skilled or 
less-experienced workers, but did not intend for this routine 
assignment and direction to result in their exclusion from NLRA 
protection.
    It is urgent that the Congress pass The RESPECT Act, H.R. 1644 and 
S. 969, to restore the original intent of the NLRA. The RESPECT Act 
would eliminate the tension between ambiguous statutory language, which 
has proven exceedingly difficult to circumscribe, and the clear intent 
of Congress not to exclude professional and other employees with minor 
supervisory duties, but who may routinely assign tasks and provide 
direction to other employees from NLRA protection. The RESPECT Act 
would do so by (1) excising the terms ``assign'' and ``responsibly to 
direct'' from the NLRA definition of ``supervisor,'' and (2) providing 
that ``supervisors'' must possess supervisory authority for a majority 
of their work time.
    These changes would respect the original intent of Congress and 
have the additional valuable benefit of avoiding many more years of 
unnecessary litigation. And most importantly, workers who are not 
genuine supervisors would continue to have the protections that were 
awarded to them over 70 years ago by the NLRA.
    AFSCME strongly supports The RESPECT Act and urges the Congress to 
pass this important legislation.
                                 ______
                                 
    [A July 12, 2006, Economic Policy Institute (EPI) Issue 
Brief, submitted by Mr. Andrews, follows:]









                                ------                                

    [Letter from the National Association of Waterfront 
Employers (NAWE), submitted by Mr. Kline, follows:]





                                ------                                

    [Whereupon, at 3:45 p.m., the subcommittee was adjourned.]

                                 
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