[Congressional Record (Bound Edition), Volume 153 (2007), Part 5]
[Extensions of Remarks]
[Pages 7554-7555]
[From the U.S. Government Publishing Office, www.gpo.gov]




   INTRODUCTION OF THE ``RE-EMPOWERMENT OF SKILLED AND PROFESSIONAL 
     EMPLOYEES AND CONSTRUCTION AND TRADES WORKERS (RESPECT) ACT.''

                                 ______
                                 

                         HON. ROBERT E. ANDREWS

                             of new jersey

                    in the house of representatives

                        Thursday, March 22, 2007

  Mr. ANDREWS. Madam Speaker, today I rise to fight for middle class 
Americans by introducing the ``Re-empowerment of Skilled and 
Professional Employees and Construction and Tradesworkers (RESPECT) 
Act.'' Day after day, middle class families are struggling to survive 
as their real incomes decline and the costs of basic necessities 
increase. 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. These decisions have operated to strip millions of 
workers entirely of their freedom to organize. 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 National Labor Relations Act (NLRA) on one 
aspect of the fundamental question of coverage: who is an employee and 
who is a supervisor.
  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 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 framers 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.
  In the workplace, people know who the supervisor is. A supervisor has 
the power to discipline, reward, promote, hire, and/or fire employees. 
The legislative history of the NLRA reflects these common sense 
understandings of who is or is not a supervisor. Congress drafted the 
NLRA to exclude from its protections only genuine supervisors with true 
management prerogatives, not minor supervisory employees, 
professionals, or skilled workers.
  Yet the NLRB ignored common sense and legislative history in the 
Kentucky River decisions. For professional and skilled employees, who 
often provide direction to other employees, the NLRB's action is 
devastating. A nurse who directs another person to conduct a single, 
discrete task, such as clipping a patient's toenails, would be 
considered to have supervisory authority under these recent decisions. 
So would a nurse who assigns a patient to a nurse for a single shift.
  A carpenter who tells an apprentice how to form a joint would also be 
considered to have supervisory authority. These skilled and 
professional workers have no power to promote, discipline, reward, 
hire, or fire--and yet they would be supervisors, according to the 
NLRB, even if they only held the authority to ``direct'' a person on 
single, discrete tasks just 10 percent of the time. Having been 
classified as a supervisor without realizing it, these employees may be 
subject to lawful discipline for trying to organize a union when they 
thought they were employees with every right to organize.
  Because of these decisions, over 8 million American workers are 
denied their fundamental freedom of association today. As the dissent 
pointed out in one of the decisions, 34 million Americans may fall into 
this category of workers stripped of their statutory rights by 2012.
  The impact of the Kentucky River decisions is already being felt, 
particularly in the health care industry, where respect for workers' 
rights is critical to efficient health care delivery and high quality 
patient care. In a case in Utah, an NLRB Regional Director, applying 
the NLRB's new definition of ``supervisor,'' found that virtually all 
of the registered nurses in a potential bargaining unit, 64 out of 88, 
were designated as supervisors, with the remaining 24 nurses excluded 
only because they had less than one year's service. Those remaining 
nurses will likely qualify as supervisors after they have completed 
their first year of nursing. Absurd decisions breed absurd results. As 
the

[[Page 7555]]

New York Times explained in an October 7, 2006 editorial: 
``[R]esponsibilities like making out a schedule do not amount to 
management. If they did, interns would be the only non-managers in many 
of today's workplaces.''
  The Kentucky River decisions are not an anomaly for the current 
Board. In the last five years, the Board has repeatedly ruled to deny 
or restrict the fundamental rights of entire categories of workers. 
These include 45,000 disabled workers who lost their right to organize; 
51,000 teaching and research assistants who lost their right to 
organize; and 2 million temporary workers who have had their right to 
organize severely curtailed.
  The RESPECT Act will make two simple and clarifying changes to the 
definition of supervisor under the NLRA. It will: (1) eliminate the 
terms ``assign'' and ``responsibility to direct'' from the list of 
supervisory duties; and (2) require that employees possess supervisory 
duties during a majority of their work time in order to be excluded 
from coverage under the Act as a supervisor. Eliminating ``assign'' and 
``responsibility to direct'' from the supervisor definition will 
effectuate Congress' intent to define supervisors as only those 
individuals who have genuine management prerogatives and the real 
authority to affect employees' terms of employment. As the NLRB has 
proven, these terms are open to abuse and misinterpretation, far afield 
from their common-sense and originally intended meanings, by those 
seeking to roll back workers' freedoms.
  Requiring that employees possess supervisory duties for a majority of 
their work time will create a fair, bright-line rule when determining 
whether an individual is a supervisor. Someone who possesses a modicum 
of supervisory authority a minority of the time should not be denied 
their fundamental rights.
  Madam Speaker, the NLRA guarantees the freedom to organize and 
collectively bargain for America's private sector workforce. That 
freedom is a fundamental human right and a proven key to a strong 
middle class. It is unconscionable that the rights of an estimated 8 
million Americans--and many more in coming years--be put at risk by 
such deeply flawed decisionmaking as we have seen in the Kentucky River 
line of cases. The RESPECT Act does nothing more than clarify the law 
to ensure it is not misinterpreted or undermined on a fundamental 
question of coverage. All workers, including skilled and professional 
workers, have the right to organize. The RESPECT Act does not allow 
true supervisors to engage in organizing or collective bargaining. But 
it ensures that those individuals who are excluded from the NLRA's 
protections due to their supervisory status do indeed carry the genuine 
prerogatives of management. I urge all of my colleagues to stand with 
me as we fight to return these fundamental protections to millions 
workers who deserve the chance to win livable wages, fair benefits, 
decent working conditions, and a brighter future for their families.

                          ____________________