No CrossRef data available.
Article contents
Unionization by Salaried Physicians and the Managerial-Employee Exclusion: The Need for a Modified Approach by the National Labor Relations Board
Published online by Cambridge University Press: 28 April 2021
Extract
The increased concern with cost-containment and the cost-efficient delivery of medical services has led to fundamental changes in the management of health care institutions over the past few decades. Health care is becoming concentrated in large facilities, since they are perceived to have the resources to plan cost-efficient allocation and utilization of medical services. In the past, physicians provided most of the executive and administrative leadership in American health care facilities and used them primarily for the private practice of medicine. Today, professional administrators and bureaucrats run these institutions as large corporate entities. Moreover, more and more physicians are taking salaried positions, due in large part to the oversupply of doctors that developed during the 1970s and 1980s. In fact, some observers believe that in the near future, the majority of physicians will be “employees” of some kind.
- Type
- Article
- Information
- Copyright
- Copyright © American Society of Law, Medicine and Ethics 1987
References
Comment, The American Medical Association: Power, purpose and politics in organized medicine, Yale Law Journal 1954, 63: 938. See Craver, , The application of labor and antitrust laws to physicians unions: The need for a re-evaluation of traditional concepts in a radically changing field, Hastings Law Journal 1975, 27: 55, 55–56. See Comment, The hospital and the staff physician—An expanding duty of care, Creighton Law Review 1974, 7: 249, 250-51.Google Scholar
In a recent survey of fifty-one health care executives, all of them forecasted that more and more physicians will become employees of health care delivery systems in the next decade. See Hospitals, supra note 1.Google Scholar
See Spivey, , The relation between hospital management and medical staff under a prospective payment system, New England Journal of Medicine 1984, 310: 984.Google Scholar
For example, salaried physicians in the Capital Alliance of Physicians recently mounted a strike against the Group Health Association HMO system in Washington, D.C., to protest management's requirement that they see one patient every six minutes. See, Washington Post, May 3, 1986, at 3.Google Scholar
At present, membership in physicians' unions is estimated to exceed 50,000. There are two large national organizations: The American Federation of Physicians and Dentists, based in Springfield, Missouri, with affiliated unions in seventeen states and a membership of 12,000; and the Union of American Physicians and Dentists, based in Oakland, California, with affiliated organizations in sixteen states and a membership of about 38,000. Sec Ahmann, , Potential benefits of physicians' unions subject of controversy, Internal Medicine News 1985, 18: 48, 49; see also Sandrick, , Doctors turn to unions, Private Practice 1985, 17:39. In addition to these large national unions with mixed membership (both salaried and self-employed physicians), various smaller, local physicians' unions exist throughout the nation. Some, like the Doctor's Council in New York City, serve physicians in discrete geographical areas, while others, such as Capital Alliance of Physicians, a 160-member physicians' union at the Group Health Association HMO facilities in the Washington, D.C. area, represent physicians at specific health care institutions. Telephone interviews with Dr. Leibowitz of the Doctor's Council and Dr. Mitchell of the Capital Alliance of Physicians.Google Scholar
National Labor Relations Act, 29 U.S.C. §161–69, §183 (1976).Google Scholar
H.R. Rep. No. 245, 80th Cong., 1st Sess. (1947). §2(3) of the NLRA defines an “employee” as follows: “The term ‘employee’ shall include any employee, …”Google Scholar
Id.: 389.Google Scholar
Id: 392; see also Ross, , Labor organization and the labor movement in advanced industrial society, Virginia Law Review 1964, 50: 1359, 1377.Google Scholar
Packard Motor Car Company, 61 N.L.R.B. 4 (1945), enforced 157 F.2d 80 (6th Cir. 1946).Google Scholar
Packard Motor Car Company v. NLRB, 330 U.S. 485, 493 (1947) (Douglas, J., dissenting).Google Scholar
The Labor Management Relations Act of 1947, 61 Stat. 136.Google Scholar
Labor Relations Management An §2(11), 29 U.S.C. §152(11) (1976). The legislative history of the act indicates two main congressional concerns behind the exclusion of super visors under §2(11). First, Congress sought to protect rank-and-file workers from the undue influence of supervisors who might decide to seek union membership. Second, there was a desire to ensure that employers had the undivided loyalty of their supervisory representatives, who might otherwise feel allegiance to their fellow union members. This legislative history is described in NLRB v. Yeshiva University, 444 U.S. at 694–95 (Brennan, J., dissenting). These reasons are of particular interest, because the Supreme Court used similar reasoning in NLRB v. Bell Aerospace to justify the judicially created managerial-employee exclusion from the NLRA.Google Scholar
In Ford Motor Company, 66 N.L.R.B. 1317 (1946), the board ruled that managerial employees could not be included in bargaining units with rank-and-file workers, but it did not consider whether managerial employees were totally excluded from organizing their own units. See Angel, supra note 12, at 417.Google Scholar
Denver Dry Goods, 74 N.L.R.B. 1167, 1175 (1947).Google Scholar
Swift & Company, 115 N.L.R.B. 752, 753–54 (1956).Google Scholar
North Arkansas Electrical Cooperative, Inc., 185 N.L.R.B. 550 (1970). In that case, the NLRB held that managerial employees were entitled to NLRA protection, with the limited exception of situations where there was “an inconsistency or conflict of interest between [the employee's] performance of his job and the implementation of his right to engage in or refrain from engaging in concerted activity.” Id.: 551.Google Scholar
416 U.S. 267 (1974).Google Scholar
Id.: 288.Google Scholar
Id.: 274–75.Google Scholar
444 U.S. 672 (1980).Google Scholar
The procedural history of Yeshiva is as follows: The university opposed the union's representation petition, arguing that the faculty members were managerial employees and thus excluded from the coverage of the NLRA. The NLRB granted the union's petition and ordered an election, which the union won. When the university refused to bargain, the NLRB sought enforcement of its order in the Court of Appeals for the Second Circuit. The Second Circuit denied the NLRB's petition, ruling that the faculty members were properly classified as managerial employees. After granting certiorari, the Supreme Court affirmed. Id.: 678–79.Google Scholar
Id.: 680.Google Scholar
The Court noted that faculty committees at Yeshiva dealt with many areas of the university's educational and academic policy, such as curriculum, grading systems, and admissions, and that the overwhelming majority of their recommendations to the deans concerning personnel were implemented. Id.: 677.Google Scholar
Id.: 682.Google Scholar
Id.: 684.Google Scholar
Id.: 688. While the Court stated that both the faculty and the administration are primarily concerned with academic excellence and institutional distinction, it failed to consider the possibility that more immediate, short-range goals might cause divergences between the two parties. In dissent, Justice Brennen noted that members of the faculty were primarily concerned with academics and professional reputation, while the university administration had many economic and fiduciary concerns that could conflict with these faculty interests. Id.: 701. Nonetheless, the Court majority stated that the university's reliance on the faculty's professional expertise in formulating and implementing academic policy heightened the concern with divided loyalty. Id.: 690. Brennan strongly disagreed with this reasoning, noting that “faculty members are judged by their employer on the quality of their teaching and scholarship, not on the compatibility of their advice with administrative policy.” Id.: 700.Google Scholar
Id.: 690.Google Scholar
See, e.g., FHP, Inc., 274 N.L.R.B. No. 168, 118 LRRM 1525 (1985) (salaried physicians who participate on staff committees in a collegially structured HMO held to be managerial employees).Google ScholarGoogle Scholar
Id.: §152(2).Google Scholar
S. Rep. No. 766, 93rd Cong., 2d Sess. 6, reprinted in U.S. Code Cong. & Admin. News 1974, 3951.Google Scholar
Id. Emphasis added.Google Scholar
During Senate debates over the 1974 Health Care Amendments, Sen. Harrison Williams of New Jersey, one of the sponsors of the amendments, stated that “the Committee never passed upon, much less intended to approve the recent Supreme Court decision, NLRB v. Bell Aerospace Company.” 120 Cong. Rec. 22, 575 (1974).Google Scholar
Sutter Community Hospitals, 227 N.L.R.B. 181 (1976).Google Scholar
Id.: 193.Google Scholar
See S. Rep. No. 766, supra note 40, at 3950.Google Scholar
See, Mercy Hospitals of Sacramento, 217 N.L.R.B. 765, 766 (1975) (“portions of the legislative history indicate that Congress, in the final analysis, left the matter of the determination of appropriate units to the Board”).Google Scholar
See, e.g., Mon Valley United Health Services, 238 N.L.R.B. 916, 918 (1978) (“physicians possess a separate and distinct community of interest apart from that of other professionals”); Ohio Valley Hospital Association, 230 N.L.R.B. 604, 605 (1977) (“doctors have at least as separate a community of interest as nurses”).Google Scholar
Montefiore Hospital, 261 N.L.R.B. 569 (1982).Google Scholar
Id.: 572.Google Scholar
Id.: 570.Google Scholar
Id.: 570–71.Google Scholar
Id.: 572.Google Scholar
FHP, Inc., 274 N.L.R.B. No. 168, 118 LRRM 1525 (1985).Google Scholar
Id.: 1527.Google Scholar
Id.: 1526.Google Scholar
During the year before the representation hearing, 39 of the approximately 70 full-time physicians and dentists at FHP served on those committees. More than half of the physicians employed in 1985 had served on a committee within the previous five years. See id.Google Scholar
Id.: 1527.Google Scholar
See id.: 1526.Google Scholar
Id.: 1527.Google Scholar
Telephone interview with Dr. Marvin Wool, member of the Board of Governors at the Lahey Clinic, Burlington, Massachusetts.Google Scholar
See NLRB v. Yeshiva University, 444 U.S. 672, 700 (1980) (Brennan, J., dissenting) (noting that the gravitation toward unionization among the faculty members at Yeshiva evidenced their non-alignment with management).Google Scholar
See S. Rep. No. 766, supra note 40 at 3951.Google Scholar
See Telephone Interview, supra note 65.Google Scholar
See Hospitals, supra note 1, at 82.Google Scholar
See Comment, Reexamining the managerial employee exclusion, New York University Law Review 1981, 56: 694, 716–20; see also Angel, supra note 12, at 399–405.Google Scholar
See Comment, supra note 71, at 717.Google Scholar