Vanderbilt Law Review


Susan A. Jones

First Page



In order to give approximately 1,400,0001 health care employees the protection enjoyed by employees under the National Labor Relations Act (NLRA), Congress amended the Act in 1974 to make health care institutions "employers. Recognizing the public's dependence upon the unique services provided by health care facilities, Congress was hesitant, however, to extend coverage under the Act to health care employees without providing additional safe-guards. These safeguards are embodied in the following special provisions: (1) the extension of the sixty-day notice requirement for modification of an expiring contract to ninety days; (2) the creation of a thirty-day notice requirement of a dispute when bargaining for an initial contract following certification;5 (3) the imposition of a ten-day notice requirement prior to striking in both expiring and initial contract negotiations;6 (4) the involvement of the Federal Mediation and Conciliation Service (FMCS) early in the proceed-ings;' (5) the delegation of discretion to the director of the FMCS to appoint a board of inquiry;8 and (6) the imposition of a duty on the union to participate in the mediation efforts of the FMCS.

The explicit purpose of these provisions is to facilitate the collective bargaining process in the health care industry.' Implicitly, Congress devised the amendments to achieve two potentially antithetical objectives-to ensure the continuity of patient care"and to furnish employees with an arsenal of economic weapons.'The conflict inherent in the implied objectives is manifested by the health care strike.

Although Congress recognized that strikes would occur' and included in the amendments extraordinary safeguards to regulate all interplay between a health care institution and its employees prior to a strike, it intentionally declined to regulate strikes.' Assuming a strike is confined in scope, such a policy of inaction seems consonant with the basic purpose of the employee protections embodied in the NLRA. If, however, a strike is directed at the only hospital in a large rural community; or at large, highly specialized hospitals providing treatment for very limited types of patients who cannot be adequately cared for at other area facilities; or at one hospital whose services are larger and more extensive than other available services in an area; or at the majority of hospitals in a community because they aided the primary employer, the societal repercussions are greater and the equities may change, thereby necessitating regulation.

This Note will focus on these exceptional strikes, which can be classified as "emergency strikes," and will evaluate alternative proposals for legislative intervention and regulation. To ascertain the source of this legislation, historical and current perspectives on health care industry strikes will be presented, the 1974 amendments to the Act will be summarized and analyzed, and possible sources of regulation under existing state and federal law will be examined.