1 NLRA § 2(2), 29 U.S.C. § 152(2). The regulation of hospital labor practices under federal labor legislation has had a rather bizarre history. The National Labor Relations Act of 1935 (Wagner Act), expressly exempted governmental hospitals from its provisions, but made no mention whatsoever of private, non-profit hospitals. A Federal District Court in 1943, in Central Dispensary & Emergency Hospital v. NLRB, 50 NLRB 393 (1943), enforced 145 F.2d 852 (D.C. Cir. 1944), cert, denied 324 U.S. 827 (1945), interpreted the Act's silence in this regard as an indication that NLRB jurisdiction could validly be exercised over such hospitals under the provisions of the 1935 Act. Roughly three years later, however, Congress passed the Labor Management Relations Act (Taft-Hartley Act) which amended the earlier act so as to provide an express exemption for “voluntary” (private, non-profit) hospitals.

A similar exemption was not extended to proprietary hospitals, however, and any questions with respect to the jurisdiction of the NLRB over the labor problems of proprietary hospitals which had gross annual revenues exceeding $250,000 (a criteria used to determine involvement in interstate commerce) was put to rest in 1967 in the NLRB decision entitled Butte Medical Properties, 168 NLRB 52 (1967). In this case the NLRB rejected the argument that a proprietary hospital is not involved in the conduct of interstate commerce (which is the Constitutional and statutory basis of NLRB jurisdiction) and subjected the hospital to the NLRB's jurisdiction.

In 1967 the NLRB, at the request of both the employer and the employees, accepted jurisdiction over the Mayo Clinic, a private, non-profit institution, for the purpose of conducting a representation election among its x-ray technicians. Mayo Clinic (v. Hotel, Hospital, Restaurant and Tavern Employees Union, Local 21 AFL-CIO) 168 NLRB No. 79 (1967).

In the midst of the promulgation of federal legislative proposals to extend NLRA coverage to the non-profit health care field, state legislatures by no means remained inactive. For example, New York (The New York Labor Relations Act, as amended in 1963), Minnesota (The Minnesota Charity Hospital Act), Connecticut (The Connecticut Labor Relations Act) and Michigan (The Michigan Labor Mediation Act) each enacted labor relations statutes covering non-profit hospitals. New York's Labor Relations Act, as amended, for example, provides that New York hospitals are subject to compulsory arbitration of grievances arising under a union contract, and mediation, fact finding, and arbitration in all other disputes.

Typical hospital unions include: The American Nurses Association; the American Federation of Government Employees; The American Federation of State, County and Municipal Employees; the Building Service International Employees Union; and Local 1199, Nat'l Union of Hosp'l and Health Care Employees, a Division of the Retail, Wholesale, and Department Store Union (R.W.D.S.U.). There is no one union representing all hospital workers, but, Local 1199 has probably gained the most notoriety.

2 BNA Daily Labor Report No. 146, July 29, 1974 at A-l.

3 S. 3203 § (b). (PL 93-390 is herein referred to as S. 3203). In Senator Harrison Williams’ view on Congressional intent, S. 3203 defines “health care institution” as including ”… any hospital, convalescent hospital, health maintenance organization, health clinic, nursing home, extended care facility, or other institution devoted to the care of sick, infirm, or aged persons.” BNA Daily Labor Report No. 146, supra note 2, at A-l.

4 Id. Note that the legislation does not apply to employees of municipal, state, and federal health care institutions. Further, the legislative history also reveals that commercially operated health spas, diet clinics, muscle building organizations, or.similar types of facilities that may provide health services for weight loss or body conditioning, outside of any patient care function, do not come within the definition of “health care institutions.” See Guidelines of NLRB General Counsel on Handling of ULP Cases Under Non-Profit Hospital Amendments, BNA Daily Labor Report No. 165 (August 23, 1974) at A-l.

5 Id.

6 Congressman Frank Thompson, Jr. (D-N.J.) introduced HR 1236. This was the original bill and was limited to proposing the elimination of statutory exclusion of hospital employees from the NLRA. This bill went to hearings in the House of Representatives, and the House Committee introduced a new bill (H.R. 13678) which went to the Joint House-Senate Committee for hearings on the Senate proposal, S. 3203.

7 NLRA § 3 creates the NLRB, 29 U.S.C. § 153; NLRA § 7 states the right of employees to organize and select a collective bargaining representative, 29 U.S.C. § 157; NLRA § 8 lists unfair labor practices, 29 U.S.C. § 158; NLRA § 9 states representation case and representation election guidelines, 29 U.S.C. § 159.

8 Id.

9 S. 6932, 120 Cong. Rec. 61 (May 2, 1974). Senator Cranston (D-Cal.) held extensive hearings on July 31, 1973, August 1 & 2, 1973, and October 4, 1973. “Representatives from the Service Employees’ International Union testified that recognition strikes account for about 95% of the strikes in non-profit hospitals. These recognition strikes averaged 32 days and resulted in an average of 3967 man-days idle for each struck facility.”

10 NLRA § 8, 29 U.S.C. § 158.

11 NLRA § 9(c)(l)A, 29 U.S.C. § 159(c)(l)A, provides that a representation petition must be supported by a “substantial number of employees.” The NLRB defines “substantial” to be 30%. See NLRB Rules and Regulations and Statements of Procedure, Series 8, as amended, revised January 1, 1965, § 101.18 (G.P.O., 1965).

12 Supervisors are excluded from the statutory definition of employees and thus are not included in the collective bargaining unit, NLRA § 2(3). See NLRA § 2(11), 29 U.S.C. § 152(3) & (11), for definition of the word “supervisor“; employees who are non-supervisory but who deal with confidential labor relations material are not expressly excluded by the NLRA, but the NLRB has ruled that their exclusion from the collective bargaining unit is necessary in order to make the Act function, B.F. Goodrich, 115 NLRB 722 (1956); casual or temporary employees are those who lack sufficient community of interest with regular employees to be included in the bargaining unit, Mission Packing Co., 127 NLRB 1097 (1960); however, regular part-time employees are included in the unit, NLRB v. George Groh & Sons, 329 F.2d 265 (10th Cir., 1964).

13 NLRA § 9, 29 U.S.C. § 159. In resolving the unit issue,.”… the Board's primary concern is to group together only those employees who have substantial mutual interest in wages, hours, and other conditions of employment [community of interests].” 15 NLRB Ann. Rep. 39 (1950). The NLRA suggests the appropriateness of aggregating employees by “employer unit, craft unit, plant unit, or subdivision thereof.” § 9(b), 29 U.S.C. § 159(b). The Board has asserted the presumptive appropriateness of the single plant unit, Frisch's Big Boy, Inc., 147 NLRB 551 (1964). Community of interest is determined by the following factors: extent of union organization, NLRA § 9(c)(5), 29 U.S.C. § 159(c)(5); desires of employees, see Globe Machine & Stamping Co., 3 NLRB 294 (1937); collective bargaining history, see Tool Craftsmen v. Leedom, 276 F.2d 514 (D.C. Cir., 1960); and employer's organizational structure, Douglas Aircraft, 49 NLRB 819 (1943).

14 S. 3203 § (d).

15 S. 3203 § (e).

16 Id.

17 Id.

18 The author has been advised by officials at the FMCS that presently a case-by-casc investigatory method is being implemented in determining the meaning of “substantially interrupt the delivery of health care” that takes into consideration alternative hospitals in the precise geographic area and the current workload of the hospital involved in the dispute. One of the problems raised by the FMCS officials is that the determination must be made in advance of the strike, which to a certain degree requires the FMCS investigator to make his best guess at what the situation will be at the time of the strike. The FMCS has not issued formalized regulations in this regard, apparently feeling that it is best to decide these matters for the present on a case-by-case basis. Ultimately, however, the FMCS is likely to promulgate regulations designed to define the meaning of this statutory phrase.

19 Legal Legislative Reporter, News Bulletin, (International Foundation of Employee Benefit Plans) (August, 1974) at 4-5.

20 Id.

21 Id.

22 S. 3203 § (e). Where the parties are negotiating an initial agreement following certification or recognition, the Act provides that the union cannot give the required 10-day strike notice before the expiration of the 30-day notice of existence of a dispute.

23 It is noteworthy that violation of the advance notice of strike intention constitutes an unfair labor practice. The legislative history indicates that Congress intended unfair labor practices arising under these amendments to receive special attention and priority by the NLRB. S. Rep. No. 6-7; H.R. Rep. No. 8; 119 Cong. Rec. 7, 311 (Daily Edition, May 17, 1974). See also Guidelines of NLRH General Counsel, infra note 30. This means that unfair labor practice charges under this legislation will receive the same priority that attaches to recognitional picketing and secondary boycotts under the NLRA. Nevertheless, this priority is likely to be of dubious practical advantage to health care institutions.

24 S. 3203 § (c).

25 S. Rep. No. 93-766. Because the Act passed embodies most of the concepts contained in the original S. 3203 and because the Joint Conference report contains little explanation of the final bill, many observers consider the Senate report to be the best representation oi Congressional intent.

26 350 U.S. 270 (1956).

27 Id

28 See the remarks of Senator Taft arid Representative Ashbrook in 120 Cong. Rec. 63 [H-73I0] (1974) and 120 Cong. Rec. 66, [H-4589] (1974), respectively.

29 120 Cong. Rec. 102 [S-12104] (1974).

30 Guidelines of NLRB General Counsel on the Handling of Unfair Labor Practice Cases Under Non-Profit Hospital Amendments, BNA Daily Labor Report No. 165 (August 23, 1974), at D-5 [hereinafter cited as Guidelines of NLRB General Counsel].

31 Cf NLRB v. Knight Morcly Corp., 251 F.2d 753 (6th Cir., 1957), cert, denied, 357 U.S. 927 (1958). Note, the 60-day provision is not applicable where the strike is in protest of dangerous working conditions.

32 S. Rep. No. 93-766, subheading “Ten-Day Notice,” ¶ 4.

33 Id., ¶ 5 .

34 Id.

35 Guidelines of NLRB General Counsel, supra note 30, at D-5. NLRB General Counsel goes on to state that relevant circumstances would include the number of replacements being interviewed and/or hired, the relevancy of the replacements, the number and type of supplies being ordered, the nature of patients’ illnesses, and the willingness of the union to permit the passage of supplies and personnel through its picket lines [once the strike started at the appointed time].“

36 See, e.g., Douds v. Metropolitan Federation of Architects, Local 231, 74 F. Supp. 672 (S.D.N.Y., 1940); NLRB v. Business Machines Local 459, 228 F.2d 5 53 (2d Cir., 1955); Laundry, Dry Cleaning, and Dye House Workers Local Union 259, 164 N.L.R.B. 426 (1967).

37 Guidelines of General Counsel supra note 30, at D-9.

38 S. Rep. No. 93-766.

39 Guidelines of General Counsel supra note 30, at D-9.

40 Id.

41 Id.