[Congressional Record Volume 153, Number 50 (Thursday, March 22, 2007)]
[Senate]
[Pages S3615-S3616]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DODD (for himself, Mr. Durbin, and Mr. Kennedy):
  S. 969. A bill to amend the National Labor Relations Act to modify 
the definition of supervisor; to the Committee on Health, Education, 
Labor, and Pensions.
  Mr. DODD. Mr. President, I rise today to introduce the Re-empowerment 
of Skilled and Professional Employees and Construction Tradeworkers 
Act, or RESPECT Act, a bill to amend the National Labor Relations Act 
to modify the definition of supervisor. I am pleased to be joined by 
Senators Durbin and Kennedy as original cosponsors and would like to 
acknowledge Congressman Andrews for championing this legislation in the 
House of Representatives.
  The RESPECT Act would make vital changes to the definition of 
supervisor to ensure 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 to the National Labor 
Relations Act (NLRA). 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 a result, some employers have sought to deny many 
workers their right to organize by unfairly classifying them as 
supervisors. And unfortunately, President Bush's appointees on the 
National Labor Relations Board (NLRB) have upheld these unfair 
classifications.
  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. 17 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, sadly, they demonstrate 
just how far the NLRB will go to facilitate these false and unfair 
classifications.
  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.
  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 bill introduced today, 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

[[Page S3616]]

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.
  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 greatly contributed to the strengthening 
of the American middle class.
  Organized labor 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 my colleagues 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 my colleagues to support this bill.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 969

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Re-empowerment of Skilled 
     and Professional Employees and Construction Tradesworkers 
     Act'' or the ``RESPECT Act''.

     SEC. 2. AMENDMENT OF THE NATIONAL LABOR RELATIONS ACT.

       Section 2(11) of the National Labor Relations Act (29 
     U.S.C. 152(11)) is amended--
       (1) by inserting ``and for a majority of the individual's 
     worktime'' after ``interest of the employer'';
       (2) by striking ``assign,''; and
       (3) by striking ``or responsibly to direct them,''.

  Mr. DURBIN. Mr. President, I come to the floor to join Senator Dodd 
and Senator Kennedy in introducing the Re-empowerment of Skilled 
Professional Employees and Construction Tradesworkers Act, also known 
as the RESPECT Act.
  This legislation will amend the National Labor Relations Act to 
modify the definition of ``supervisor.'' It is necessary because of 
recent rulings by the National Labor Relations Board, which has 
determined that millions of workers do not fall within the definition 
of ``supervisor.'' An employee who is deemed a ``supervisor'' under the 
National Labor Relations Act does not have collective bargaining rights 
or other labor protections.
  The NLRB rulings in these so-called Kentucky River cases have an 
enormous impact on nurses. According to the amicus brief filed by the 
American Nurses Association and United American Nurses, AFL-CIO, in 
these cases, ``[o]f the more than 2.1 million people working as 
registered nurses in the United States in the year 2002, 15.6 per cent 
were union members. Registered nurses covered by a collective 
bargaining agreement can earn approximately 11 per cent more per week 
than non-unionized nurses. . . .''
  There are 800,000 nurses in this country--40,000 nurses in my home 
State of Illinois alone. We owe it to these nurses to find a workable 
definition of the term ``supervisor'' so that they and other 
professional employees and construction tradesworkers receive the labor 
protections that Congress intended.
  The supervisor exclusion was created in 1947 when Congress adopted 
the Taft-Hartley amendments to the National Labor Relations Act. The 
Act defines ``supervisor'' as:

       [A]ny individual having authority, in the interest of the 
     employer, to hire, transfer, suspend, lay off, recall, 
     promote, discharge, assign, reward, or discipline other 
     employees, or responsibly to direct them, or to adjust their 
     grievances, or effectively to recommend such action, if in 
     connection with the foregoing the exercise of such authority 
     is not of a merely routine or clerical nature, but requires 
     the use of independent judgment.

  The interpretation and application of this definition has resulted in 
years of litigation before the NLRB and courts of appeals. The United 
States Supreme Court last spoke on the issue in 2001. In NLRB v. 
Kentucky River Community Care, Inc., 532 U.S. 706 (2001), it reviewed 
the Board's test for determining supervisory status and rejected the 
Board's interpretation. The Supreme Court's decision left open the 
interpretation of the term ``supervisor'' and three cases were filed 
before the National Labor Relations Board to address this issue: 
Oakwood Healthcare, Inc., Case 7-CA-22141, Golden Crest Healthcare 
Center, Cases 18-RC-16415 and 18-RC-16416, and Croft Metals, Inc., Case 
15-RC-8393.
  The NLRB refused to hear oral argument in these cases despite the 
fact that its attempt to define supervisory status had been reviewed 
and rejected by the Supreme Court and it has been more than 5 years 
since the Court's decision in Kentucky River. In July, I joined Senator 
Kennedy and other Democrats in a letter to the Chairman of the NLRB to 
urge that the Board reconsider its decision not to allow oral arguments 
in these cases. The NLRB refused.
  In October 2006, the Board issued its rulings and expanded the 
meaning of the definition of ``supervisor'' by expanding the meaning of 
the terms ``assign'' and ``responsibly to direct.'' The NLRB rulings 
override the intent of Congress not to exclude minor supervisory 
officials, professionals, skilled craftpersons, and nurses from labor 
protections.
  Last December, I noted that several States are suffering from nursing 
shortages. This legislation is necessary to alleviate the nursing 
crisis. More than 72 percent of hospitals experience nursing shortages, 
and 1.2 million nursing positions need to be filled within the next 
decade. By denying nurses the right to collectively bargain, pay will 
surely decrease and the working environment of these nurses will 
deteriorate, thereby driving even more nurses out of the profession and 
discouraging individuals from entering the field.
  I urge my colleagues to join Senators Dodd, Kennedy, and I in 
supporting the RESPECT Act--an important effort to help American 
nurses, other skilled professional employees, and construction 
tradesworkers.
                                 ______