Respect ACT overview and applications

RESPECT Act: An Overview of Pending Labor Legislation

The RESPECT Act (Re-Empowerment of Skilled and Professional Employees and Construction Trades Workers) is a pending piece of labor-related legislation, introduced by Representative Rob Andrews, (D-NJ) and Senator Chris Dodd (D-CT) in the 110th Congress (H.R. 1644 / S.969). It has yet to be introduced in the 111th Congress, but would fundamentally change the definitions of management and supervisory positions set forth by the National Labor Relations Act (RESPECT, 2009, Foster Swift). The National Labor Relations Act (NLRA) of 1935 was a radical and sweeping protective act of federal legislation that gave employees the right to unionize and engage in collective bargaining. The Act specifically defined what constituted an 'employee' and a 'supervisor.'

According to Section 1(3) of the NLRA an 'employee' in a labor dispute is an "individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment" with the exclusion of agricultural and domestic service workers, independent contractors, family employees, any individual employed by an employer subject to the Railway Labor Act and "any individual employed as a supervisor." The question of who and what constitutes a supervisor is what the RESPECT Act strives to change.

Section 2(11) of NLRA defines a supervisor as "any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment." The reason that the NLRA created a clear division between the positions of employees and supervisors ('labor' versus 'management') and prohibits supervisors from joining unions or unionizing is to protect shareholder interests. Supervisors are "members of the company that they help to run. Consequently, they cannot join unions because, if the company is to be run effectively, shareholders need managers with undivided loyalty" (Sherk & O'Donnell 2009).

However, the RESPECT Act would change the definition of supervisor to a person who spends "more than 50% of their weekly time hiring, firing, and disciplining" (RESPECT, 2009, Foster Swift). It also removes the word 'assign' and "responsibly to direct" employees from the NLRA's original definition of a supervisor (Sherk & O'Donnell 2009). Opponents of the Act state that it would give unions and unfair advantage because it removes current "supervisors…from the management team and makes them eligible for possible unionization" and violates the original spirit of the NLRA (RESPECT, 2009, Foster Swift). The new definition, critics contend, is nonsensical as "it would be highly unusual for any employee, even a Vice President of Human Resources, to spend more than 50% of his or her weekly time doing hiring, firing and disciplining employees" and direction forms the bulk of most supervisor's job responsibilities (RESPECT, 2009, Foster Swift). Approximately 8 million current workers would be declassified from their current supervisory status (RESPECT, 2009, Foster Swift).

In other words, a very large proportion of what would once be considered white collar 'management-level' persons would now be eligible for unionization. "Under current law, a supervisor is considered an agent of management and owes a duty of undivided loyalty to the employer in labor-management relations, such as during union organizing campaigns, grievances, picketing and strikes. That duty would be compromised by the RESPECT Act" (RESPECT, 2009, Foster Swift). The supervisors would have dual loyalty, between labor and managerial interests, given their own potential 'stake' in the unionizing process.