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"Kentucky River" cases and the breakdown of the system
July 16, 2006 by Ross Runkel at LawMemo
I have harsh words for the President, the Senate, and the NLRB.
The "Kentucky River" cases have been awaiting decision for a long time. Three cases will determine how one decides which workers are classified as "employees" entitled to the protections of the National Labor Relations Act, and which ones are "supervisors."
It was May 2001 when the US Supreme Court decided NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001), and told the NLRB that the Board's test for determining supervisory status was "inconsistent" with the statute. Three pending cases are called "Kentucky River" cases, in honor of that Supreme Court decision.
It's more than five years later, and the Board has not fixed things.
In part, it's because the Board has had lots of vacancies, and for a lot of the time has not been at its full five-Member strength. The Board dislikes issuing "big" decisions without having five voting Members.
The blame for the vacancies rests at the feet of the President and the Senate, who, simply put, have not carried out their responsibilities to appoint and confirm NLRB Members. That has been irresponsible.
The Board must take blame for some of the delay. Although the Board has been at full strength for seven months, and the cases are fully briefed, the cases remain undecided.
Employers and employees deserve better.
For more on these cases, see NLRB - "Kentucky River" Cases.
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