Unionization by Salaried Physicians and the Managerial-Employee Exclusion: The Need for a Modified Approach by the National Labor Relations Board

See, Meet health care's leaders for the 21st century, Hospitals, May 5, 1986, at 82.

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.

See Starr P , The social transformation of American medicine, 1981, at chap. 4.

See Friedman , Declaration of interdependence, Hospitals, July 1, 1983, at 73.

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.

See Spivey, The relation between hospital management and medical staff under a prospective payment system, New England Journal of Medicine 1984, 310: 984.

Id.

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.

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.

National Labor Relations Act, 29 U.S.C. §161–69, §183 (1976).

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, …”

See Angel, Professionals and unionization, Minnesota Law Review 1982, 66: 383, 387.

Id.: 389.

Id: 392; see also Ross , Labor organization and the labor movement in advanced industrial society, Virginia Law Review 1964, 50: 1359, 1377.

See Angel , supra note 12, at 393.

Packard Motor Car Company, 61 N.L.R.B. 4 (1945), enforced 157 F.2d 80 (6th Cir. 1946).

Packard Motor Car Company v. NLRB, 330 U.S. 485, 493 (1947) (Douglas, J., dissenting).

The Labor Management Relations Act of 1947, 61 Stat. 136.

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.

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.

Under §2(11) of the NLRA, “supervisor” is defined as any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or responsibly to direct them … if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

Under §2(12) of the NLRA, a “professional employee” is.

any employee engaged in work (i) predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical or physical work; (ii) involving the consistent exercise of discretion and judgment in its performance; (iii) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital.

The two sections definitely overlap. For example, supervisors use “independent judgment” in their work, and certain professional employees engage in work “predominantly intellectual” and “involving the consistent exercise of discretion and judgment in its performance.” Both groups are defined by the use of judgment and discretion and the possession of substantial knowledge. Yet the Taft-Hartley Act included one group and excluded the other from NLRA protection. Congress apparently did not consider the ramifications of these conflicting definitions on professional employees. Neither the Taft-Hartley ACT nor its legislative history gives any guidance for dealing with this conflict.

Denver Dry Goods, 74 N.L.R.B. 1167, 1175 (1947).

Swift & Company, 115 N.L.R.B. 752, 753–54 (1956).

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.

416 U.S. 267 (1974).

Id.: 288.

Id.: 274–75.

Id.: 284. The four dissenters in Bell Aerospace sharply disagreed with the majority's interpretation of the legislative history of the Taft-Hartley Act. In dissent, Justice White wrote:

there is no warrant for the assumption that groups of employees, which the statute, or express legislative statements, do not address are to be excluded from the Act; nor is there any legislative debate whatsoever which can reasonably be construed as expressing an authoritative intent to exclude managerial employees as a class.

Id.: 304.

444 U.S. 671 (1980).

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.

Id.: 680.

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.

Id.: 682.

Id.: 684.

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.

Id.: 690.

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).

§§152, 158, 169, 183 (1976).

Id.: §152(2).

S. Rep. No. 766, 93rd Cong., 2d Sess. 6, reprinted in U.S. Code Cong. & Admin. News 1974, 3951.

Id. Emphasis added.

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).

Sutter Community Hospitals, 227 N.L.R.B. 181 (1976).

Id.: 193.

Id.

Id.

See S. Rep. No. 766, supra note 40, at 3950.

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”).

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”).

Montefiore Hospital, 261 N.L.R.B. 569 (1982).

Id.: 572.

Id.: 570.

Id.

Id.: 570–71.

Id.: 572.

FHP, Inc., 274 N.L.R.B. No. 168, 118 LRRM 1525 (1985).

Id.: 1527.

Id.: 1526.

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.

Id.: 1527.

Id.

See id.: 1526.

Id.: 1527.

Id.

Telephone interview with Dr. Marvin Wool, member of the Board of Governors at the Lahey Clinic, Burlington, Massachusetts.

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).

See S. Rep. No. 766, supra note 40 at 3951.

NLRB v. Yeshiva University, 444 U.S. 672, 690 (1980).

See Telephone Interview, supra note 65.

See Hospitals, supra note 1, at 82.

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.

See Comment, supra note 71, at 717.