Labor Unions in Healthcare
LABOR UNIONS IN HEALTHCARE•••
The relationship between unions, employers, and employees in healthcare raises a wide range of ethical issues at the levels of policy, strategy, and practice. From initial attempts at employee organization, through union elections, contractual negotiations, and interactions over the life of the contract, to strikes, lockouts and union decertification activities, all have an ethical dimension. But the ethical stance taken at the level of policy, strategy and practice depends upon the way three fundamental questions are answered: Do employees have a right to self-organization; and, if so, what does that right mean? Do healthcare employees have a right to strike? Do healthcare employees through their self-organization have broader social responsibilities?
The term self-organization refers to the shared means employees establish to have a voice in the terms and conditions of their employment. It includes joining a union, forming a union, and developing other types of concerted effort.
In addressing the ethical dimensions of self-organization in healthcare, two points need to be made. First, self-organization in healthcare and other human service organizations is different from self-organization in other forms of employment not because it is completely distinct but because it adds the further component of responsibility to the public served. Second, in considering employee self-organization as a right from an ethical perspective, it is important also to look at that right from a legal perspective. Within the United States, labor law is based on a specific ethical understanding of that right; and often little distinction is made between ethics and law, with the legal being accepted as the ethical.
Self-Organization as a Right
HISTORICAL BACKGROUND. At the beginning of the twenty-first century, the right of employees to organize is widely accepted. Even libertarians acknowledge the right of individuals to choose what groups they wish to join. But getting that right accepted was difficult and costly in human suffering. The experience in the United States is instructive. While the U.S. Constitution guarantees "the right of the people peaceably to assemble," the courts found early attempts by employees to establish permanent organizations to achieve improvements in wages and working conditions through concerted action to be criminal conspiracies in constraint of trade. Later judges granted injunctions against strikes and picketing. Following World War I, unions were branded as un-American and Bolshevic. Employers used intimidation and violence to break up unionizing efforts and strikes.
In 1935 President Roosevelt signed the National Labor Relations Act (Wagner Act) which recognized employees's right to organize. According to Section 7 of the Act, "Employees shall have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection." Two years later, in National Labor Relations Board v. Jones & Laughlin Steel Corp., the U.S. Supreme Court termed this right a fundamental right, stating that labor unions grew "out of the necessities of the situation; that a single employee was helpless in dealing with an employer; … that union was essential to give laborers opportunity to deal on an equality with their employer" (p. 33).
In 1947 in the face of problems in labor-management relations following World War II, Congress passed the Taft-Hartley Act which restricted union powers, adding to the employee rights set out in the Wagner Act the right to refrain from self-organization and concerted activities. While the Taft-Hartley Act exempted not-for-profit hospitals, denying those employees the right to organize, this exemption was lifted in 1974. Employees of public hospitals cannot organize under the National Labor Relations Act. In 1987 the National Labor Relations Board (NLRB) established the number of separate bargaining units within a healthcare institution as eight (Lichtenstein).
CIVIL RIGHT. Terming self-organization a right within the United States generally means interpreting it in light of the rights set out in the U.S. Bill of Rights. Those rights, known as civil rights, which include freedom of speech and freedom of assembly, focus on the individual and emphasize freedom. They allow the individual freely to pursue self-interest, protecting the individual against external coercions. While legally the rights contained in the Bill of Rights pertain only to the relation of the individual to the government, an ethic embodying this perspective views the protections of individual freedom broadly.
From the perspective of self-organization as a civil right, the right of the individual to choose freely is a primary focus. This focus has played an important role in addressing the racism and sexism which have marked the history of unions in the United States, upholding the right of each and all to join unions regardless of gender or race. But emphasizing individual choice also has implications for the effectiveness and even the future of unions. The right to choose includes the right to forego. As a result, interpreting the right to self-organization from a civil rights perspective often leads to the conclusion that individuals not only should have a say on whether a unit within a healthcare facility is unionized but also should have a right to refuse to join a union. This has led to so-called right to work legislation which supports such a refusal. But, bargaining collectively and engaging in concerted action require a cohesiveness that can be undercut by individual free choice. Allowing an individual to exercise a right of refusal with regard to union membership also opens the possibility that the individual will enjoy the benefits from union activity while bearing none of the costs.
Equally important from a civil rights perspective is the right of freedom of speech. As this right relates to and impacts employees's right to self-organization, there are ethical concerns about what limits, if any, should be placed on the right to free speech of the various parties with an interest in the self-organization process. In the years immediately following the Wagner Act, the NLRB took the position that employers should remain neutral while employees were determining their form of self-organization. By 1941, however, employers's free-speech right to voice their opinion and take sides on employees's self-organization was recognized. In exercising that right, employers, according to the National Labor Relations Act, were not allowed to "interfere with, restrain, or coerce employees in the exercise of their right" to self-organization. That raises questions about what counts as interference, restraint, and coercion. The greater the emphasis on freedom of speech, the greater the latitude employers have to express through word and deed their negative reaction to unionization. Allowing employers to voice their opinion about unionization recognizes their right to free speech; but it can also have the effect of shifting the focus of the exercise of the right to self-organization from the efforts of employees to the interaction between union and employer. The self-organization process can move from one of deliberation among employees to one of antagonism between employer and union.
As the right to free speech of employees, employers and unions comes more to the fore, the danger is that the differentials of power existing between employers and individual employees will be lost to sight, and employers and employees will be treated simply as individuals with different and competing interests, each struggling to achieve their own ends. The right to self-organization then becomes primarily a matter of self-determination. Employees can choose to exercise or not exercise this right; and, even after exercising it, they can retreat from their decision through decertification of the union.
Employees's ability to deal with an employer from a position of equality is especially important in healthcare. In addition to their proper concern about wages and working conditions, healthcare employees have a responsibility as advocates for their patients. Without the power from collective bargaining and concerted action made possible by self-organization, healthcare employees's ability to carry out that responsibility can be severely restricted (White).
SOCIAL RIGHT. Employee self-organization, however, can also be viewed as a social right. Unlike civil rights, which protect the individual against external intrusions and coercions, particularly by the government, social rights set out the basic elements each individual requires to participate within society. Participation here means more than just not being hindered from voting, assembling or speaking one's mind. Its focus are the basic resources needed to take one's place within society and interact substantively with one's fellow citizens to achieve personal and communal good. Social rights include the right to food, housing, education, and healthcare.
Self-organization can be understood as a social right. Then, the right to self-organization, just like the right to food, education, housing, and healthcare, is not treated as a right in conflict with civil rights. It is a basic need that must be met to achieve and ensure social participation for individuals, to establish the foundation needed for exercising civil rights. For example, from this perspective, to say that a person who is homeless or without an education has the right of freedom of expression is formalistic and empty.
Understood as a social right, employees's right to self-organization is not in competition with an employer's right to self-expression. Employees need to exercise their right to self-organization in order to make use of their right of freedom of expression with regard to their working conditions and, in the case of healthcare, with regard to their responsibility for patient care. Thus, in 1999, the American Medical Association (AMA) announced its intention to develop an affiliated national labor organization to represent employed physicians to help them advocate more effectively on behalf of their patients.
Clearly employers have an interest in the results of employees's self-organization; but employees also have an interest in their employer's self-organization. Employees of course are free to make comments about an employer's self-organization. But, because of the power differentials between employers and employees, those comments have neither the power nor the possibility of interference and hindrance that an employer's words have during employees's self-organization.
Viewing employees's right of self-organization from the perspective of social rather than civil rights also has implications for employees's exercise of individual freedom. An approach emphasizing civil rights focuses on the individual as the fundamental element within society and the exercise of freedom as a primary defining factor for the individual. An approach emphasizing social rights looks to the community as the basic building block of society and emphasizes participation as a primary defining activity of the individual. From the latter perspective, freedom is mainly concerned with the way an individual participates, not whether one participates. Applying that to employees's right to self-organization understood as a social right, employees's exercise of freedom goes toward determining the form of their self-organization, not whether there will be some form of self-organization. Loss of a union election does not remove the discussion of employee self-organization from the table; it simply moves the discussion to other possible forms that self-organization might take. Underlying this is an understanding that, given the differentials of power between employees and employer and given the right and responsibility of healthcare employees to advocate for their patients, healthcare employees can exercise freedom only through self-organization (Hirschl).
Ultimately, these two categories, the right to employee self-organization as a civil right and as a social right, are points on either end of a continuum. Where one comes down on the continuum affects the policies, strategies and actions of the parties involved. For example, as already noted, the stronger the emphasis on self-organization as a civil right, the greater the stress on employer freedom of self-expression and on employee individualism; the stronger the emphasis on self-organization as a social right, the greater the stress on seeing employees's self-organization activity as fundamental for, and thus a prelude to, their exercise of freedom of speech. Regardless of where one is on the continuum, it is important not to lose sight of the fact that the employees are the center focus. When union organizing efforts are underway, events can easily escalate to what can best be described as a war where the focus shifts from the employees's attempts at self-organization to antagonism between the employer and the union. It is also important not to forget the differentials of power that exist between employees and employer.
Right to Strike
A second issue, closely related to the right to self-organization, is whether healthcare employees can strike. Those replying in the negative often base their response on the adverse effect such an action would have on the community at large, taking away a basic resource, and/or on the patients at the healthcare facility, depriving them of needed immediate care. Those replying in the positive often add a qualifier, indicating that in any strike action healthcare employees have a responsibility to ensure that immediate, emergent care is available.
Differences between human service organizations such as healthcare facilities and other organizations involving employees, while they exist, should not be exaggerated, because doing so often leads to the conclusion that healthcare employees should be denied the right to strike. In healthcare, as in other organizations, employee interests differ from, and at times clash with, employer interests in all areas, including patient or resident care. In healthcare, as in other organizations, a power differential exists between employees and employer that always has the potential of hindering employees from pressing their case for proper benefits and working conditions and (in healthcare) proper patient care. The power to strike is essential in light of that power differential.
While a strike can have a negative effect on patient care and the availability of medical care to the community, this result can be the consequence of employer as well as employee action. If, for example, the managers of a healthcare facility have developed policies that result in less than proper benefits, working conditions, or patient care and refuse to bargain fairly with employees, their responsibility for a strike cannot be overlooked. Actions must be evaluated in light of the totality of the circumstances. In addition, during a strike, managers share with employees responsibility for ensuring that basic healthcare resources continue to be available.
Employees's right to strike should not be undercut by the hiring of permanent replacement workers. Such action takes away from managers any incentive to address the concerns employees have about benefits, working conditions and patient care (Gibson; Lauer; Muyskens, 1982a, 1982b; Priest; Weber).
Social Responsibility of Unions
Third, the right to self-organization carries with it social responsibilities. This is especially true when the right to self-organization is seen as a social right. But even civil rights, which, although not created by society, require social promotion and protection, must be exercised in a socially responsible manner and at times give way to the good of the whole. The social responsibilities attendant to healthcare employees's exercise of their right of self-organization require that they take into account the effects their actions (seeking greater benefits, demanding better working conditions, striking) have on the care of patients and the ability of the community to access healthcare. At the same time, employee action in this regard should not be termed self-interest and placed in opposition to the common good of the community. Adequate salary and benefits, proper working conditions, and a voice in one's work are all as much social rights as is access to healthcare. At issue is appropriately allotting the resources of society so that each and all can meet their needs and participate in society. Moreover, the responsibility for working to provide access to healthcare to the community rests with management as well as employees.
Finally, healthcare employees have a duty to use the power they achieve through self-organization to actively advocate for better and broader access to healthcare. The dedication of healthcare employees to care for the injured and diseased should not stop with their ministrations to those seeking help at their facility. Through the power self-organization gives healthcare employees, they should be a voice for those lacking adequate healthcare and work to address the stark inequities in the United States where the only access to healthcare for too many is through emergency departments or through healthcare providers willing to offer charity care as well as to address the stark inequities worldwide with so many people lacking access (Muyskens, 1986).
thomas f. schindler
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