Comment by Cathy Schatz Glaser
Since its enactment in 1935, the National Labor Relations Act (NLRA) has governed the labor relations among millions of workers in our country. The Wagner Act, the first of the series of enactments that constitute the NLRA, covered both for-profit and nonprofit health care institutions. In 1947, the Taft-Hartley Amendments to the Wagner Act included a provision that exempted nonprofit health care facilities from the Act's coverage. This exclusion was justified on two grounds: Health care institutions had only a nominal impact on interstate commerce and many of the nonprofit hospitals were experiencing financial problems. As a result, for over twenty-seven years 1,427,012 employees—over 56% of all hospital workers in our country—were excluded from the protections that the NLRA afforded employees of other industries.
Between 1947 and the early 1970s a number of developments led to the reconsideration and eventual repeal of the nonprofit hospital exemption. These developments included large increases both in the number of low wage-earners and in the rate of employee turnover in health care, as well as an expansion of governmental and private insurance programs for financing health care services. Furthermore, our country experienced a surge of trade-union activity in other industries, and consequently the National Labor Relations Board (NLRB) asserted jurisdiction over a host of other charitable, religious, and educational institutions. During the 1960s, several states enacted legislation covering nonprofit hospitals. By the time the 92d Congress convened in 1971, a willingness to reexamine the Taft-Hartley exemption led to a series of congressional hearings and the introduction of a bill to eliminate the nonprofit hospital exemption.
Following the introduction of the bill, the House Special Subcommittee on Labor conducted hearings in which the major unions in the industry presented testimony in support of the bill and introduced other recommendations for legislative changes to the Labor Act. The Senate hearings in the 93d Congress, in contrast to those of the previous year, were dominated by the hospital industry. Intense negotiations between labor and management took place during 1973 and 1974; the result was not just a simple piece of legislation removing the nonprofit hospital exemption, but a series of amendments, introduced and supported during negotiations by the American Hospital Association, regulating all phases of labor relations in the health care field. In July of 1974, both the Senate and House passed the measure by large majorities, and on July 26, 1974, President Nixon signed Public Law 93-360, to become effective August 25, 1974.
A study of the legislative history of the health care amendments reveals that the amendments' framers had two diverse views concerning the purpose of the legislation. One group felt that the differences between the health care industry and other industries within the Act's purview were substantial enough to warrant not only a distinctive interpretation of the Act's provisions for health care facilities, but also the creation of special provisions applicable solely to those institutions. The rationale underlying this approach was that the public's interest in the continuity of patient care, rather than the relative economic strengths of the employer and employee, should be the determinative factor in the resolution of disputes in the health care industry. The other view was that it is both unnecessary and undesirable to give health care institutions and their employees any special treatment under the Act. During the congressional debates on the amendments, Senator Taft put the matter succinctly: "The bill under consideration . . . extends the protections of the act to [nonprofit health care] employees to the same extent as currently applicable to employees of nursing homes and proprietary hospitals [already under the Act's jurisdiction]. . . . This bill will eliminate the disparity of treatment."
The purpose here is to examine how labor relations issues in the health care industry have been resolved by both the NLRB and the courts. Preamendment jurisprudence applicable to proprietary health care facilities is discussed and contrasted with postamendment treatment of the health care profession. In particular, this comment analyzes the effect of the above defined perspectives on the various areas of the labor-management relationship: jurisdictional standards, bargaining units, union solicitation and distribution rules during organizational campaigns, and picket and strike notice provisions applicable to the health care industry.
About the Author
Cathy Schatz Glaser.
Citation
54 Tul. L. Rev. 416 (1980)