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Legislation Aims to Reverse NLRB ‘Kentucky River’ Decision

When the National Labor Relations Board issued three decisions last September that could strip union membership from eight million workers, including construction foremen and team leaders, by classifying them as “supervisors,” organized labor was ready to fight.

Now, labor has a weapon to help repair some of the damage of the NLRB’s decisions, which are commonly labeled “Kentucky River,” after a prior Supreme Court decision in NLRB vs. Kentucky River Community Care. A bill in Congress called the “Re-Empowerment of Skilled and Professional Employees and Construction Tradesworkers” (RESPECT Act) would narrow the definition of “supervisor” back to what its sponsors, Rep. Robert Andrews (D-N.J.) and Sens. Chris Dodd (D-Conn.) and Dick Durbin (D-Ill.), say Congress intended in 1947, when it passed the Taft-Hartley Act, which expressly excluded supervisors from coverage under the National Labor Relations Act.

Under the proposal, workers who have supervisory authority for at least 50 percent of their time at work could be excluded from bargaining units.           

“We are fortunate to have leaders in Congress who understand that both labor and management lose when union members who are leaders and mentors on their jobs are denied the rights and responsibilities of union membership,” said President Edwin D. Hill. The NLRB’s decision would have a devastating impact on organizing campaigns, says Hill, giving anti-union employers leverage by reducing the scope of bargaining units.

The RESPECT Act would also delete the words “assign” and “responsibly to direct” from the definition of a supervisor, preserving those functions for union members who exercise such responsibilities.

Several states, including Connecticut, Hawaii, Illinois, Maine and Nevada already have narrow definitions of supervisor. The Federal Labor Relations Act also provides that nurses and firefighters are only supervisors when they devote a majority of their employment time to exercising that authority.

September’s NLRB decision was accompanied by a dissenting opinion by the minority, who said that the labor board was threatening to “create a new class of workers … who have neither the genuine prerogatives of management nor the statutory rights of ordinary employees.”

In May, workers packed a congressional committee hearing held on the RESPECT Act, listening to the testimony of Lori Gray, a member of the United American Nurses union in Salt Lake City, Utah, who was stripped of her collective bargaining rights by the Kentucky River decision. “At the end of the day, I don’t see myself as a supervisor, and neither do my colleagues … management doesn’t see us as supervisors either,” Gray said. “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 (hard) to make a democratic choice to form a union.”