The Definition of "Supervisor" Under the National Labor Relations Act

The Definition of "Supervisor" Under
the National Labor Relations Act
February 1, 2008
Gerald Mayer
Analyst in Public Finance
Domestic Social Policy Division
Jon O. Shimabukuro
Legislative Attorney
American Law Division



The Definition of “Supervisor” Under
the National Labor Relations Act
Summary
The National Labor Relations Act (“NLRA”) establishes certain protections for
private sector employees who want to form or join a labor union. These protections
do not extend to supervisors. Historically, Congress has debated where to draw the
line between employees who have different levels of management responsibility. It
is generally agreed that employees who have significant supervisory duties, such as
hiring and firing, are supervisors. However, disagreement occurs with respect to
employees who have minor supervisory duties.
In 2001, the U.S. Supreme Court ruled that the test administered by the National
Labor Relations Board (“NLRB” or the “Board”) to determine whether an employee
is a supervisor was inconsistent with the NLRA. In response to NLRB v. Kentucky
River Community Care, Inc., the Board issued a September 2006 decision in
Oakwood Healthcare, Inc. in which it established new definitions for three key terms
that are used to identify supervisors for purposes of the NLRA: to “assign” and
“responsibly to direct” employees and to exercise “independent judgment.”
Applying the new definitions, the NLRB concluded that 12 permanent charge
nurses employed by Oakwood Healthcare were supervisors. The Board found that
the nurses exercised independent judgment in assigning employees to patients and
assigning overall tasks to other employees. However, the Board found that none of
the charge nurses at Oakwood Healthcare responsibly directed other employees.
Following the decision in Oakwood Healthcare Inc., Representative Robert
Andrews and Senator Chris Dodd introduced the Re-Empowerment of Skilled and
Professional Employees and Construction Tradesworkers (“RESPECT”) Act (H.R.
1644/S. 969). The RESPECT Act would eliminate “assign” and “responsibly to
direct” from the current definition of supervisor in the NLRA. In addition, the act
would add a limiting phrase to the definition of supervisor. Under the act, employees
would be classified as supervisors if they are engaged in supervisory activities more
than 50% of the time. Currently, an employee may be classified as a supervisor if the
employee acts as a supervisor for at least 10-15% of the employee’s worktime. This
change would reduce the number of employees who are classified as supervisors and,
therefore, increase the number of employees protected by the NLRA.
The RESPECT Act, if it were enacted, may have a significant impact on
foremen. In 1947, the Supreme Court upheld the position that the Board followed
at the time that supervisors were included in the definition of employee. In response,
Congress amended the NLRA to exclude supervisors from the definition of
employee. The new definition was included in the Labor Management Relations Act
of 1947 (P.L. 80-101). Because the RESPECT Act would eliminate “responsibly to
direct” as a supervisory function, foremen and employees with similar duties may no
longer be classified as supervisors. They could, therefore, receive the same
protections as other employees under the NLRA. This report will be updated as
issues and legislative activity warrant.



Contents
The Definition of Employee Under the NLRA...........................1
The Kentucky River Case and Oakwood Healthcare, Inc....................2
Dissent in Oakwood Healthcare, Inc. ..............................6
The RESPECT Act................................................7
Potential Impact of the RESPECT Act.................................8
Foremen .....................................................8
Estimating the Impact of Oakwood Healthcare, Inc. and the RESPECT Act....9



The Definition of “Supervisor” Under
the National Labor Relations Act
The National Labor Relations Act (“NLRA”) establishes certain protections for
private sector employees who want to form or join a labor union. These protections
do not extend to supervisors. Historically, Congress has debated where to draw the
line between employees who have different levels of management responsibility. It
is generally agreed that employees who have significant supervisory duties, such as
hiring and firing, are supervisors. However, disagreement occurs with respect to
employees who have minor supervisory duties.
In 2001, the U.S. Supreme Court ruled that the test administered by the National
Labor Relations Board (hereinafter referred to as the “NLRB” or the “Board”) to
determine whether an employee is a supervisor was inconsistent with the NLRA.1
In response to NLRB v. Kentucky River Community Care, Inc., the Board issued a
decision in September 2006 in Oakwood Healthcare, Inc. in which it established new
definitions for key terms that are used to identify supervisors under the NLRA.
After the NLRB’s 2006 decision, Representative Robert Andrews and Senator
Chris Dodd introduced the Re-Empowerment of Skilled and Professional Employees
and Construction Tradesworkers (“RESPECT”) Act (H.R. 1644/S. 969). The
RESPECT Act would narrow the definition for the term “supervisor” in the NLRA.
This report examines the potential impact of the RESPECT Act in terms of the
NLRB’s decision in Oakwood Healthcare, Inc. The report begins with the
definitions of “employee” and “supervisor” under the NLRA. Next, it examines the
decision in Oakwood Healthcare, Inc. The report then summarizes the RESPECT
Act and examines its potential impact on the number of employees protected by the
NLRA.
The Definition of Employee Under the NLRA
Section 7 of the NLRA identifies the collective bargaining rights of most
employees in the private sector. Section 7 provides, in relevant part:
Employees shall have the right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of their own


1 NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001).

choosing ... and shall also have the right to refrain from any or all of such2
activities....
Section 2(3) of the act states that an employee “shall include any employee ... but
shall not include any individual ... employed as a supervisor....”3 The term
“supervisor” is further defined to include any individual with the authority to perform
any one of 12 specified functions, if the exercise of such authority requires the use
of independent judgment and is not merely routine or clerical. According to section

2(11):


The term “supervisor” means any individual having authority, in the interest of
the employer, to hire, transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or responsibly to direct them, or
to adjust their grievances, or effectively to recommend such action, if in
connection with the foregoing the exercise of such authority is not of a merely4
routine or clerical nature, but requires the use of independent judgment.
Because the 12 functions and the term “independent judgment” are not further
defined, the NLRB and Supreme Court have sought to provide meaning to this
language.
The Kentucky River Case and
Oakwood Healthcare, Inc.
In NLRB v. Kentucky River Community Care, Inc., the U.S. Supreme Court
considered whether certain nurses should be classified as supervisors for purposes
of the NLRA when their judgment was based on professional or technical training or
experience. Kentucky River Community Care, the operator of a care facility for
individuals with mental retardation and illness, sought to exclude six registered
nurses from a bargaining unit on the grounds that they were supervisors. The NLRB
concluded that the nurses were not supervisors because they failed to exercise
sufficient independent judgment. According to the Board, the nurses used “ordinary
professional or technical judgment” in directing less-skilled employees to deliver
services in accordance with employer-specified standards.5 The U.S. Court of
Appeals for the Sixth Circuit rejected the Board’s position, and the Supreme Court
affirmed the Sixth Circuit’s decision.
The Kentucky River Court understood section 2(11) of the NLRA to set forth a
three-part test for determining supervisory status. Employees will be considered
supervisors if (1) they hold the authority to engage in any one of the 12 supervisory
functions identified in section 2(11); (2) their exercise of authority is not of a “merely
routine or clerical nature, but requires the use of independent judgment,” and (3) their


2 29 U.S.C. § 157.
3 29 U.S.C. § 152(3).
4 29 U.S.C. § 152(11).
5 532 U.S. at 713.

authority is held in the interest of the employer.6 At issue in Kentucky River was the
second part of the test. Although the Court recognized the NLRB’s discretion to
clarify the meaning of the term “independent judgment,” it maintained that it was
inappropriate for the Board to characterize judgment that reflects “ordinary
professional or technical judgment” as failing to be independent judgment.
The Court said that the NLRB’s reference to “ordinary professional or technical
judgment” established a “startling categorical exclusion” that was not suggested by
the statutory text of the NLRA.7 The Court observed:
What supervisory judgment worth exercising, one must wonder, does not rest on
‘professional or technical skill or experience?’ If the Board applied this aspect
of its test to every exercise of a supervisory function, it would virtually eliminate8
‘supervisors’ from the Act.
Moreover, the Court indicated that it was unaware of any NLRB decision that
concluded that a supervisor’s judgment ceased to be independent judgment because
it depended on the supervisor’s professional or technical training or experience.9 The
Court maintained that when an employee exercises one of the functions identified in
section 2(11) with judgment that possesses a sufficient degree of independence, the10
NLRB “invariably finds supervisory status.”
Four justices dissented from the majority’s position on independent judgment.11
The dissent maintained that the NLRB’s interpretation of independent judgment was
fully rational and consistent with the NLRA. The dissent noted: “The term
‘independent judgment’ is indisputably ambiguous, and it is settled law that the
NLRB’s interpretation of ambiguous language in the [NLRA] is entitled to
deference. 12
In September 2006, the NLRB revisited the issue of supervisory status in13
Oakwood Healthcare, Inc. Oakwood Healthcare employed approximately 181
registered nurses (“RNs”) in 10 patient care units at an acute care hospital. Many of
the nurses served as charge nurses who were responsible for overseeing their patient
care units and assigning other RNs, technicians, and medical personnel on their


6 Id (quoting 29 U.S.C. § 152(11)).
7 532 U.S. at 714.
8 532 U.S. at 715.
9 532 U.S. at 716.
10 Id.
11 Justice Stevens filed an opinion, joined by Justices Souter, Ginsburg, and Breyer, that
dissented from the majority opinion on the question of independent judgment. However,
Justice Stevens’ opinion concurred with the majority opinion on the question of which party
bears the burden of proving or disproving an employee’s supervisory status in an unfair
labor practice proceeding.
12 532 U.S. at 725-726.
13 348 NLRB No. 37 (2006).

shifts. Some of the RNs worked permanently as charge nurses, while others rotated
into the charge nurse position. Oakwood Healthcare sought to exclude both the
permanent and the rotating charge nurses from a proposed bargaining unit on the
grounds that the nurses were supervisors within the meaning of section 2(11).
Oakwood Healthcare maintained that the charge nurses were supervisors because
they “used independent judgment in assigning and responsibly directing
employees.”14
The NLRB viewed Oakwood Healthcare, Inc. as an opportunity to define the
terms “assign,” “responsibly to direct,” and “independent judgment” as those terms
are used in section 2(11) of the NLRA.15 For each term, the NLRB considered the
language used by Congress, as well as the NLRA’s legislative history, applicable
policy considerations, and Supreme Court precedent.16 The NLRB concluded that
the term “assign” should be construed to refer to the act of designating an employee
to a place (such as a location or department), appointing an employee to a time, or
giving significant overall duties or tasks to an employee.17 The NLRB noted that in
the health care setting, the term “encompasses the charge nurses’ responsibility to
assign nurses and aides to particular patients.”18 The term would not apply, however,
to an individual who simply chooses the order in which an employee will perform
discrete tasks within an assignment.
Citing the legislative history of section 2(11), the NLRB interpreted the term
“responsibly to direct” to apply to individuals who not only oversee the work being
performed, but are held responsible if the work is done poorly or not at all. The
NLRB observed:
... for direction to be ‘responsible,’ the person directing and performing the
oversight of the employee must be accountable for the performance of the task
by the other, such that some adverse consequence may befall the one providing
the oversight if the tasks performed by the employee are not performed properly.
This interpretation of ‘responsibly to direct’ is consistent with post-Kentucky
River Board decisions that considered an accountability element for ‘responsibly19
to direct.’
According to the Board, to establish accountability for purposes of responsible
direction, it must be shown that the employer delegated to the putative supervisor the


14 Id. at 2.
15 348 NLRB at 3 (“Thus, exercising our discretion to interpret ambiguous language in the
Act, and consistent with the Supreme Court’s instructions in Kentucky River, we herein
adopt definitions for the terms ‘assign,’ ‘responsibly to direct,’ and ‘independent judgment’
as those terms are used in Section 2(11) of the Act.”).
16 See 348 NLRB at 4.
17 Id.
18 Id.
19 348 NLRB at 8.

authority to direct the work and the authority to take corrective action.20 The
possibility of adverse consequences for the putative supervisor must also be
established.
With regard to the term “independent judgment,” the NLRB maintained that at
a minimum an individual must act or effectively recommend action that is “free of
the control of others and form an opinion or evaluation by discerning and comparing
data.”21 The Board further elaborated that a judgment is not independent if it is
dictated or controlled by detailed instructions in company policies, the verbal
instructions of a higher authority, or the provisions of a collective bargaining
agreement.22 The NLRB sought to interpret the term “independent judgment” in light
of the phrase “not of a merely routine or clerical nature,” which appears before
“independent judgment” in section 2(11). The NLRB stated:
If there is only one obvious and self-evident choice ... or if the assignment is
made solely on the basis of equalizing workloads, then the assignment is routine23
or clerical in nature and does not implicate independent judgment....
Applying the new definitions for the terms “assign,” “responsibly to direct,” and
“independent judgment,” the NLRB concluded that 12 permanent charge nurses
employed in 5 of 10 patient care units at Oakwood Healthcare were supervisors for
purposes of the NLRA.24 Within the new meaning of the terms:
!Assign. The Board found that 12 charge nurses assigned employees
to patients and assigned overall tasks to other employees.
!Responsibly to Direct. The Board did not find that any of the charge
nurses at Oakwood Healthcare responsibly directed other employees.
The Board concluded that the charge nurses were not subject to
discipline or lower evaluations if employees they directed failed to
adequately perform their tasks.
!Independent Judgment. Finally, the Board found that the 12 charge
nurses exercised independent judgment in assigning other staff. The
charge nurses made assignments in light of the skills of employees
and the nursing time that would be required during a given shift.


20 Id.
21 348 NLRB at 9.
22 348 NLRB at 10. The NLRB did indicate, however, that the mere existence of company
policies would not eliminate independent judgment from decision-making if the policies
allow for discretionary choices.
23 348 NLRB at 8-9.
24 In two other decisions issued on the same day as Oakwood Healthcare, Inc., the NLRB
applied its new definitions and concluded that charge nurses at a nursing home in Hibbing,
Minnesota and so-called “lead persons” at a manufacturing facility in McComb, Mississippi
were not supervisors. See Beverly Enterprises-Minnesota, Inc., d/b/a/ Golden Crest
Healthcare Center, 348 NLRB No. 39 (2006); Croft Metals, Inc., 348 NLRB No. 38 (2006).

The NLRB noted that the “process of equalizing work loads at the
hospital involves independent judgment.”25 Although Oakwood
Healthcare maintained a written policy for assigning nursing
personnel to deliver care to patients, the Board observed that charge
nurses were given considerable latitude in making decisions on how
to assign nursing personnel. The Board concluded that when a
charge nurse makes an assignment based on the skill, experience,
and temperament of nursing personnel and the patients, that nurse
has “exercised the requisite discretion to make the assignment a
supervisory function ‘requir[ing] the use of independent
judgment’.”26
In addition, the Board found that, because the 12 charge nurses served in that
capacity on every shift that they worked, they spent a “regular and substantial”
portion of their work time performing supervisory functions.
The Board also found that charge nurses in the emergency room were not
supervisors. The Board concluded that the nurses did not exercise independent
judgment in assigning employees to places within the emergency room.
Finally, the Board found that none of the rotating charge nurses was a
supervisor.
Dissent in Oakwood Healthcare, Inc.
The dissent in Oakwood Healthcare, Inc. maintained that the definitions
established by the NLRB would have the effect of removing collective bargaining
rights from many employees with only minor supervisory responsibilities. The
dissent noted that the language of the NLRA, its structure, and its legislative history
“all point to significantly narrower interpretations of the ambiguous statutory terms
‘assign ... other employees’ and ‘responsibly to direct them’ than the majority
adopts.”27
The dissent was especially critical of the majority’s definition of the term
“assign.” By defining the term to include the assignment of tasks, the dissent said
that the majority disregarded the syntax of section 2(11), which states, in relevant
part: “The term ‘supervisor’ means any individual having authority, in the interest of
the employer, to ... assign ... other employees....” Citing Kentucky River, the dissent
noted that the word “employees” serves as the grammatical object of the verbs
identifying supervisory functions in section 2(11). The dissent stated simply: “In
short, it must be the employees who are being assigned, not the tasks.”28


25 348 NLRB at 16.
26 Id.
27 348 NLRB at 20.
28 348 NLRB at 24.

The dissent also challenged the majority’s definition of the term “responsibly
to direct.” Citing the legislative history of the term, the dissent maintained that the
term refers to the “general supervisory authority delegated to foremen overseeing an
operational department and the accountability that goes with it, in contrast to the kind
of one-on-one task direction” that would be given to an employee.29 The dissent
noted that the majority’s definition failed to recognize the “scope and scale of
supervisory function that ‘responsibly to direct’ was intended to capture.”30
The RESPECT Act
Following the decision in Oakwood Healthcare Inc., Representative Robert
Andrews and Senator Chris Dodd introduced the Re-Empowerment of Skilled and
Professional Employees and Construction Tradesworkers (“RESPECT”) Act (H.R.
1644/S. 969). The RESPECT Act would create a narrower definition of supervisor
than exists under current law. Supporters of the legislation argue that the RESPECT
Act would ensure that only true supervisors are excluded from protection under the31
NLRA. Opponents maintain that the legislation would change the definition of
supervisor that has been in place for 60 years.32
The RESPECT Act would amend the NLRA’s definition of “supervisor” by
removing two supervisory functions from the existing 12 functions and by adding a
limiting phrase. The legislation would eliminate “assign” and “responsibly to direct”33
from the current supervisory functions. In addition, the act would add (immediately
after “in the interest of the employer”) the phrase “and for a majority of the
individual’s worktime.” This addition would seem to respond to the NLRB’s
decision in Oakwood Healthcare, Inc. In its decision, the Board maintained:
Where an individual is engaged part time as a supervisor and the rest of the time
as a unit employee, the legal standard for a supervisory determination is whether
the individual spends a regular and substantial portion of his/her work time


29 348 NLRB at 28.
30 Id.
31 Honorable George Miller, Markup of H.R. 1644, The Re-Empowerment of Skilled and
Professional Employees and Construction Tradesworkers (RESPECT) Act, opening
statement, September 19, 2007, p. 2.
32 Honorable Howard P. “Buck” McKeon, Markup of H.R. 1644, Re-Empowerment of
Skilled and Professional Employees and Construction Tradesworkers (RESPECT) Act, press
release, September 19, 2007, p. 1.
33 As introduced, H.R. 1644 provided for the elimination of the clause “responsibility to
direct them” from the NLRA’s definition of the term “supervisor.” During consideration
of H.R. 1644 by the House Committee on Education and Labor, the language was corrected
to provide for the elimination of the clause “responsibly to direct . . .” See Sara Lubbes, Bill
Would Clarify Supervisors’ Rights to Join a Union, available at
[http://www.cq.com/display.do? dockey=/cqonline/p r o d / d a ta/docs/html/committees/110/c
ommittees110-2007091900237930.html @c o mmittees&metapub=CQ-
COMMIT T EEMARK UPS&s earchIndex=0&seqNum=1].

performing supervisory functions. Under the Board’s standard, “regular” means
according to a pattern or schedule, as opposed to sporadic substitution. The
Board has not adopted a strict numerical definition of substantial and has found
supervisory status where the individuals have served in a supervisory role for at
least 10-15 percent of their total work time. We find no reason to depart from34
this established precedent.
Under the RESPECT Act, an employee would be classified as a supervisor if he or
she was engaged in supervisory activities at least 50% of the time.
The RESPECT Act would not apply to railroad or airline employees. Workers
in both industries are covered by the Railway Labor Act. Nor would the legislation
apply to most federal employees, who are covered by the Civil Service Reform Act.
On May 8, 2007, the House Education and Labor Subcommittee on Health,
Employment, Labor, and Pensions held a hearing on the RESPECT Act. On
September 19, 2007, the full Committee approved the measure by a vote of 26 to 20.
To date, the Senate has not taken action on the legislation.
Potential Impact of the RESPECT Act
The RESPECT Act would create a more restrictive definition of supervisor than
exists since the decision in Oakwood Healthcare, Inc. The measure would reduce
the number of supervisory functions from 12 to 10. For a larger employer, many of
the remaining functions (e.g., hiring, firing, or transferring) may be performed by a
human resource department. Because the act would eliminate “responsibly to direct”
as a supervisory function, foremen and employees with similar duties may no longer
be classified as supervisors.
Under current law, an employee may be classified as a supervisor if the
employee performs supervisory functions at least 10-15% of the employee’s
worktime. The RESPECT Act would raise this threshold to anything more than 50%.
Even if the functions “assign” and “responsibly to direct” were not removed from the
current definition of supervisor, this change would reduce the number of employees
who are classified as supervisors. Because they would be included in the definition
of employee, they would receive the protections provided by the NLRA.
Foremen
The RESPECT Act may have a significant effect on foremen and employees
with similar duties. In 1947, the Supreme Court upheld the position that the Board
followed at the time that supervisors were included in the definition of employee.
In response, Congress amended the NLRA to exclude supervisors from the definition
of employee. The new definition was included in the Labor Management Relations
Act of 1947 (P.L. 80-101), commonly called the Taft-Hartley Act after its main
sponsors Robert Taft and Fred Hartley Jr.


34 348 NLRB at 11.

The House report on legislation approved in the House said that the legislation
excluded “foremen and other supervisory personnel from the definition of
‘employee’....” In the Senate, Senator Ralph Flanders offered an amendment to add
“responsibly to direct” to a list of 11 supervisory functions that were in the Senate
bill. Senator Flanders said:
The definition of “supervisor” in this act seems to cover adequately everything
except the basic act of supervising. Many of the activities described in [section
2(11)] are transferred in modern practice to a personnel manager or
department.... In fact, under some modern management methods, the supervisor
might be deprived of authority for most of the functions enumerated.... He is
charged with the responsible direction of his department and the men under him.
He determines under general orders what job shall be undertaken next and who
shall do it. He gives instructions for its proper performance.
The Senate report on its version of the Labor Management Relations Act said
that the amended definition of employee distinguishes “between straw bosses,
leadmen, set-up men, and other minor supervisory employees, on the one hand, and
the supervisor vested with such genuine management prerogatives as the right to hire
or fire, discipline, or make effective recommendations with respect to such action.”
The Report went on to say that, without the change in definition, “management
would be deprived of the undivided loyalty of its foremen.”35
By eliminating the function “responsibly to direct” employees from the
definition of supervisor, the RESPECT Act may increase the number of employees
protected by the NLRA.
Estimating the Impact of Oakwood Healthcare, Inc.
and the RESPECT Act
Regardless of how the decision in Oakwood Healthcare, Inc. is applied, it is
difficult to estimate how many employees may be affected. Similarly, it is difficult
to estimate how many employees may be affected by the RESPECT Act, if it were
enacted. Data from household and employer surveys that are often used to estimate
the potential impact of policy changes may not include enough information to
identify whether an employee is a supervisor under the NLRA. For example, a
person’s occupation or job title may not be sufficient to determine whether an
employee should be classified as a supervisor. Equally important, surveys usually
do not ask respondents how much time they spend on different tasks — information
that would be needed to determine the percentage of time that an employee spends
on supervisory activities.
Nevertheless, removing the phrase “responsibly to direct” from the definition
of supervisor may result in many foremen and similar workers being reclassified as
employees for purposes of collective bargaining. A 2002 report by the Government


35 National Labor Relations Board, Legislative History of the Labor Management Relations
Act, 1947, Washington: U.S. Govt. Print. Off., 1985, pp. 304, 410-411, 1303.

Accountability Office (“GAO”) estimated that, in February 2001, there were an
estimated 8.6 million full-time foremen in the private sector who were not covered
by the NLRA.36
According to an estimate by the Economic Policy Institute, if Oakwood
Healthcare’s interpretation of the definition of supervisor were to stand (i.e., applying
the definition of supervisor to all charge nurses, including rotating charge nurses), 8
million workers would no longer be protected by the NLRA.37 In the Oakwood
Healthcare, Inc. decision, however, the NLRB concluded that 12 permanent charge
nurses were supervisors and that none of the rotating charge nurses was a supervisor.
In the two other decisions announced on the same day, the Board concluded that, in
Croft Metals, none of approximately 25-35 lead persons were supervisors.38 And in
Golden Crest Healthcare, the Board decided that none of 19 nurses was a supervisor.


36 In the GAO report, foremen are called “first-line” supervisors, who are employees who
direct staff in face-to-face meetings (instead of through an intermediate supervisor) and who
do not have as their principal duty the same work as their subordinates. U.S. Government
Accountability Office, Collective Bargaining Rights: Information on the Number of
Workers With and Without Bargaining Rights, GAO-02-835, September 2002, pp. 12, 30-31.
37 Ross Eisenbrey and Lawrence Mishel, Supervisor in Name Only: Union Rights of Eight
Million Workers at Stake in Labor Board Ruling, Issue Brief 225, July 12, 2006, available
at [http://www.epinet.org/issuebriefs/225/ib225.pdf], pp. 1-2.
38 See note 24.