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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: 

http://www.gpoaccess.gov/congress/house/education/index.html 

(II)

COMMITTEE ON EDUCATION AND LABOR 

GEORGE MILLER, California, Chairman

Dale E. Kildee, Michigan, Vice Chairman 

Donald M. Payne, New Jersey 

Robert E. Andrews, New Jersey 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Lynn C. Woolsey, California 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Dennis J. Kucinich, Ohio 

David Wu, Oregon 

Rush D. Holt, New Jersey 

Susan A. Davis, California 

Danny K. Davis, Illinois 

Rau ́l M. Grijalva, Arizona 

Timothy H. Bishop, New York 

Linda T. Sa ́nchez, California 

John P. Sarbanes, Maryland 

Joe Sestak, Pennsylvania 

David Loebsack, Iowa 

Mazie Hirono, Hawaii 

Jason Altmire, Pennsylvania 

John A. Yarmuth, Kentucky 

Phil Hare, Illinois 

Yvette D. Clarke, New York 

Joe Courtney, Connecticut 

Carol Shea-Porter, New Hampshire 

Howard P. ‘‘Buck’’ McKeon, California, 

Ranking Minority Member 

Thomas E. Petri, Wisconsin 

Peter Hoekstra, Michigan 

Michael N. Castle, Delaware 

Mark E. Souder, Indiana 

Vernon J. Ehlers, Michigan 

Judy Biggert, Illinois 

Todd Russell Platts, Pennsylvania 

Ric Keller, Florida 

Joe Wilson, South Carolina 

John Kline, Minnesota 

Cathy McMorris Rodgers, Washington 

Kenny Marchant, Texas 

Tom Price, Georgia 

Luis G. Fortun ̃ o, Puerto Rico 

Charles W. Boustany, Jr., Louisiana 

Virginia Foxx, North Carolina 

John R. ‘‘Randy’’ Kuhl, Jr., New York 

Rob Bishop, Utah 

David Davis, Tennessee 

Timothy Walberg, Michigan 

Dean Heller, Nevada

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 

Dale E. Kildee, Michigan 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

David Wu, Oregon 

Rush D. Holt, New Jersey 

Linda T. Sa ́nchez, California 

Joe Sestak, Pennsylvania 

David Loebsack, Iowa 

Phil Hare, Illinois 

Yvette D. Clarke, New York 

Joe Courtney, Connecticut 

John Kline, Minnesota, 

Ranking Minority Member 

Howard P. ‘‘Buck’’ McKeon, California 

Kenny Marchant, Texas 

Charles W. Boustany, Jr., Louisiana 

David Davis, Tennessee 

Peter Hoekstra, Michigan 

Cathy McMorris Rodgers, Washington 

Tom Price, Georgia 

Virginia Foxx, North Carolina 

Timothy Walberg, Michigan 

(III)

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

(1)

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 estabVerDate 0ct 09 2002 10:26 Jan 07, 2008 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 G:\DOCS\110TH\HELP\110-31\34988.TXT HBUD1 PsN: DICK
2

lished 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:]

3

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 

4

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 farreaching 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 

5

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 socalled 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. 

6

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. 

7

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 

8

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:]

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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. 


fox-8.eps
17

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:]

18

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. 

19

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. 

20

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. 

21

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:]

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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 


king-35.eps
57

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 longerterm 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, 

58

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 

59

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? 

60

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. 

61

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 rankand-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. 

62

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 lifeand-death decision making. We don’t have somebody looking over 

our shoulder asking us to make that decision. 

63

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 dayto-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. 

64

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 

65

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. 

66

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. 

67

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. 

68

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 

69

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 

70

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 

71

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, 

72

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 

73

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 

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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:]


epi-1.eps
75


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76


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77

[Letter from the National Association of Waterfront Employers 

(NAWE), submitted by Mr. Kline, follows:]


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78


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79

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

Æ


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