[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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______
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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.]