NLRB Rules in Kentucky River

In a controversial, long-awaited decision, on October 2nd, the National Labor Relations Board (NLRB) issued a ruling in the lead case in the “Kentucky River” decisions that could potentially be used to reclassify millions of bargaining unit workers as supervisory personnel, thus excluding them from union representation.

In her remarks before the fall meeting of the BAC Executive Council on October 4th, Board member Wilma Liebman (see article page 6), who joined one other Board member in the dissent, described the decision, which broadens the definition of who is a supervisor, as “the most significant of my tenure and the biggest of the decade.” Although the case involves the supervisory status of charge nurses working in a health care setting, according to Liebman, it has “much broader implications and ramifications, including in the construction industry.”

The Board suggested, Liebman said, “that a nurse who has the authority to tell a nursing assistant to clip a patient’s toenails [is] exercising supervisory authority as long as [she/he] is accountable for that direction and as long as [she/he] exercises independent judgment.” She added, “In my mind, a supervisor is someone who truly has managerial prerogative – not someone who is just giving directions to someone to get a task performed.”

In addition, the Board found that even if employees rotate in and out of these types of responsibilities for as little as 10 or 15% of the time, they could still be considered supervisory.

Liebman also pointed out that in the masonry industry, “the journeyman-apprentice relationship or tilesetter-helper relationship” might one day be used to reclassify journey-level craftworkers as supervisory, adding, “Where this is going is anybody’s guess.”