Labor Organizing at Harvard Hospitals

The latest chapter in the long and arduous relationship between Harvard's teaching hospitals and a local service employees union this past summer ended in a rare victory for the union.

The Supreme Court in late June ruled in a unanimous decision the National Labor Relations Board (NLRB) had correctly ordered Beth Israel, a Harvard-affiliated teaching hospital, to allow distribution of union literature and solicitation for union membership in the hospital cafeteria and coffee shop. The ruling is especially significant because it is the first case of its kind to come before the Supreme Court in the relatively new field of hospital labor law, created when Congress included hospitals under the National Labor Relations Act (NLRA) in 1974.

The decision ended a four-year process of appeals by the University to the NLRB ruling, and also marks one more dispute between Harvard and Local 880, the Services Employees International Union. Local 880 members are nurses' aides, technicians, maintenance workers, secretarial and kitchen workers.

For five years, Local 880 has unsuccessfully tried to persuade the employees of Harvard's teaching hospitals that their interests would be better served if they voted to join the union.

Local 880's organizing efforts began in 1974, when Beth Israel's service employees voted, 325-122, not to join the union. The union conducted another organizing campaign at the Boston Hospital for Women in 1976, and again the workers voted against the union. However, after the election the staff director for the union, Gerald M. Shea, filed a complaint with the NLRB alleging that the hospital had intimidated and coerced its workers, and in one incident, attempted bribery. Shea says the Board ruled in the winter of 1977 that the hospital was guilty of illegal practices in the election of October 1976, and offered the union the chance to call another election. The union opted not to ask for another election, says Shea, because "we felt the atmosphere had already been poisoned enough against us."

Further allegations of unfair practice surfaced in the union's organizing campaign at Beth Israel which resulted in another union defeat, 593-294. The hospital charged Shea with assault and battery after an altercation with a hospital guard. Shea filed counter charges, and in December 1976 a court threw out the case. In addition, a state rate-setting commission ruled that Beth Israel had to return $19,000 in funds used to hire a Chicago management consulting firm which advised on ways to defeat the union.

Many observers believe that the union defeats result from extremely well-organized and well-staffed information campaigns mounted by the teaching hospitals against the union. These campaigns, which belittled the union's accomplishments as a successful negotiator, pointed out that Harvard offered many benefits that unions generally guarantee to their members. These campaigns persuaded many of the employees that joining a union would present no tangible benefits, and some possible disadvantages, for some employees interviewed at the time did not want to associate themselves with what they viewed as the stigma of blue-collar workers.

The Beth Israel's case against Local 880 reached the Supreme Court in a climate of intense hostility and suspicion engendered by this series of events. In October 1974, Dr. Mitchell T. Rabkin '51, director of Beth Israel, ordered a technical employee, Anne Schunior, to stop distributing a union pamphlet in the hospital cafeteria, to which patients and visitors have access. At this time, Beth Israel's rules forbade the distribution of union literature in the cafeteria, although it allowed one-to-one union solicitation by employees of other employees during non-working hours in the cafeteria. The hospital did permit leaflet distribution in the employee locker rooms, which are sexually segregated and have room for only 600 of the 2000 employees.

Rabkin then followed up his verbal warning with a letter telling Schunior she would be fired if the incident was repeated. Schunior says she was careful to ask when handing out the pamphlets whether the recipient was a patient or an employee. After this incident, Local 880 filed a grievance with the NLRB charging an unfair labor practice that violated Section 7 of the NLRA. Section 7 guarantees employees the right to choose whether or not they want to join a union. After the complaint was filed, the hospital changed its rule to forbid one-to-one solicitation in the cafeteria in order to force the NLRB to define the rights of a non-proprietary hospital, the hospital's court brief says.

In April 1975, the NLRB heard the case and ruled in favor of the union. The hospital appealed the case to the U.S. First Circuit Court of Appeals, which supported the board's decision, and then Beth Israel appealed the case to the Supreme Court, which held oral hearings in late April 1978.

Shea and Rabkin disagree over the hospital's motives for carrying through the long appeal process. Shea says "Beth Israel was using legal procedure to delay and harass us--the issue was decided against them at every step." He adds the history of hostility between the hospital and the union shows a hospital bias against unions and a willingness to use any tactic to prevent hospital workers from joining unions. By appealing the case, Shea says, the hospital effectively prevented any distribution of union literature for four years.

Rabkin, however, says the real issue is not delaying the unions, but rather the quality of the health care Beth Israel can give to its patients. "It cost a hell of a lot of money and time to go through the appeals process, and we wouldn't do it for the purpose of delaying," he says. The hospital argued in its brief to the Court that patients' health could suffer if they heard violent arguments about unions, or if they read what he terms "scurrilous" pamphlets questioning the quality of Beth Israel's health care.

"We were concerned about the principle whether patients have a right to be freed from scurrilous literature," Rabkin says. He adds the pamphlets were "not only untrue, but irresponsible literature--unlike the unions, we can only say what is true during a union campaign." Rabkin and the hospital's lawyer, Robert Chandler, argue that the NLRB was outside its area of expertise in trying to rule on whether or not patients would suffer adverse health effects from reading literature criticizing the hospital.

The NLRB and the union, in their briefs to the court, however, remain skeptical of this argument. They point out that according to a survey of cafeteria use, less than 2 per cent of users of the cafeteria were the patients at Beth Israel, while at least 77 per cent of the users were employees. They also argued in their briefs that the cafeteria was physically removed by a corridor from the main lobby of the hospital, and that the hospital administration often used the cafeteria to distribute literature of its own, including the employee newsletter, which represented the management point of view against union organization.

The union also argued that the locker rooms provided inadequate room for employees to congregate and to distribute literature. Rabkin believes although "there could be more space in the locker rooms, there is plenty of informal access to the employees the union can have--that's just part of union rhetoric."

Besides the mutual display of hostility evidenced in the disputes, the Supreme Court case presented important legal issues in the untested field of hospital labor law. Since Congress's inclusion of the hospitals under the NLRA in the 1974 Health Care Act Amendments, any legal battle has helped to set precedents by which to judge hospital labor disputes. One legal issue centered around the intent of Congress in including hospitals under the NLRA. The hospital argued that Congress, because it enacted special strike provisions for hospital employees and evidenced concern for the special health care function of hospitals, other labor precedents set by the NLRB did not apply. The Board, however, while agreeing that hospitals are special cases, believed the burden of proof rested on the hospital to demonstrate special circumstances surrounding a labor dispute that would invalidate settled labor rights and practices.

Another issue centered on the so-called St. John's rule, a case decided by the NLRB which stated that in other than immediate patient care areas, the hospitals should allow union solicitation and distribution of literature. However, as the Tenth Circuit Appeals Court of St. Louis reversed this NLRB decision, the hospital challenged the Board's rationale.

The Supreme Court decision concurred on most counts with the union. The decision was unanimous, but two justices voiced stronger opinions directed at the importance of union organizing. Justices Blackmun, Burger and Powell agreed with the NLRB opinion in this specific case, but objected to the reasoning behind the other Justices' opinion. Justice Brennan states in the majority opinion, "Freedom of employees effectively to communicate with one another regarding self-organization on the job is essential." In his opinion, Brennan says that the Board's decision was consistent with the Congressional intent of the legislation, for Congress did not specifically make any provisions prohibiting solicitation and distribution. Brennan dismissed the hospital's argument of the Board's lack of expertise in health matters, saying the Board's expertise lay in labor relations and Congress gave the NLRB authority to administer hospital disputes.

The main reasoning behind the Justices' opinion seems to be the fact that comparatively few patients visit the Beth Israel cafeteria, and that the locker room area provides inadequate space for communication between employees about the union organization efforts. The opinion also stated the hospital "was unable to show any evidence" that distribution or solicitation had caused actual harm.

Justices Blackmun, Powell and Burger, however, stressed in their opinion that they believed hospitals should receive more consideration from the Board to protect the quality of patient care. For this reason, the union and the hospital disagree over how broad a precedent the case poses. "It's the first Supreme Court decision of this kind, and it is certainly clear in the case of Beth Israel, though there will probably be a lot more cases," says Shea. Chandler, lawyer for the hospital, says, "I don't think there's any question that this is not a broad decision, and does not set any precedents." Chandler adds he disagrees with the Court's finding of facts, because "hospital calculations show that at least 60,000 patients visit the cafeteria a year, and we don't find that an insubstantial number."

Although the union has won this round, service workers at Harvard's teaching hospitals remain unorganized into unions, and the prospect of future union organization looks bleak at best. Shea says Local 880 will concentrate its organizing efforts on non-Harvard local hospitals, such as St. Elizabeth's in Brighton. Chandler, for his part, says he expects other legal decisions in the future to corroborate Beth Israel's view that hospitals merit special consideration from NLRB because their primary function is non-profit patient care.