The Prospects for Continued Protection for Professionals Under the NLRA: Reaction to the Kentucky River Decision and the Expanding Notion of the Supervisor
Jeffrey M. Smith | 2003 U. Ill. L. Rev. 571
The National Labor Relations Act (NLRA) provides employees a number of protections. The statutory definition of “employee,” however, excludes some classes of workers, such as supervisors. At the same time, the term “professional” has been interpreted to fall within the protective scope of the NLRA. The exclusion of supervisors from the protections of the NLRA, coupled with the inclusion of professionals, has created a growing tension that has threatened the protections afforded to professionals. Two recent Supreme Court decisions, NLRB v. Health Care & Retirement Corp. of America and NLRB v. Kentucky River Community Care, Inc., have increased these tensions.
This note argues that employers, Congress, or the National Labor Rela-tions Board (NLRB) can resolve the tension created by the NLRA and the recent restrictions on the rights of professionals. The author contends that employers, potentially the most responsive group, will utilize tests set forth in the Kentucky River decision to further restrict the ability of pro-fessionals to organize under the NLRA. Similarly, Congress, although capable of taking decisive action, will continue to remain inactive. Therefore, the author argues that the most likely source of relief for pro-fessionals will be the NLRB. This note concludes, however, that the NLRB will address the issue through adjudication rather than rulemaking so that a definitive resolution will not be achieved.