A Critical Analysis of the Kentucky River Trilogy: the Folly of Taking Away Collective Bargaining Rights from Skilled Employees

Source: Dustin Thacker, University of Louisville Law Review, Volume 47, Number 4, Summer 2009

The United States workplace is a dynamic and changing arena. No job is immune from the influence of globalization, immigration, or technology. However, the change in American labor laws is lagging behind. The United States seems to have divorced its commitment to ensuring employee bargaining rights. This is a commitment that began more than seventy years ago in this country’s most challenging times.

Enacted in 1935, the National Labor Relations Act (NLRA or the Act) promised for the first time in United States history to give employees the right to self-organize, join labor unions, bargain collectively through representatives of their own choosing, and engage in activities for collective bargaining purposes. Subsequent amendments to the NLRA, as well as politically motivated appointments to the National Labor Relations Board (NLRB or the Board), have continually crippled the Act’s potential.

The NLRA’s most recent disappointment, and the focus of this Note, stems from a highly publicized joint effort of the 2001 Supreme Court and the 2006 NLRB. Through a series of rulings commonly known as the “Kentucky River Trilogy,” the Court and the Board have threatened to remove millions of workers from the NLRA’s protection by classifying them as “supervisors.” When an employee is deemed a supervisor under the NLRA, that employee becomes excluded from the Act. This is significant because an employer can fire an employee excluded from the NLRA for participating in any union activity. Further, an employer can legally refuse to engage in collective bargaining with employees excluded from the NLRA’s protection. Possibly most disconcerting, employers can fire supervisors for not participating in the employer’s own anti-union activity. Simply put, once an employee is labeled a supervisor, that employee loses the right to join unions and to bargain collectively.

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