1 This article will focus on resistered nurses in the hospital. The plight of LPN's and other hospital workers is beyond the scope of this article. In 1980, the Department of Health and Human Services (DHHS) conducted a national sample survey of registered nurses. From a survey of thirty thousand nurses the DHHS, in 1980, estimated “that there were 1.6 million registered nurses in the United States who hold current licenses to practice. Approximately 76% of them - 1.2 million nurses - are employed in nursing.” Ferguson, , Power, Politics and Policy in Nursing, in POWER, POLITICS AND NURSING 6 (R., Wieczorek ed. 1985)Google Scholar. In 1988, there are 1.9 million registered nurses, the most ever, and 1.5 million are currently working in the profession. Hospitals and nursing homes however, estimate that 150,000 more nurses are needed. N.Y. Times, May 31, 1988, at D2, col. 1.

2 NATIONAL COMM'N ON NURSING, SUMMARY OF PUB. HEARINGS 25 (1981).

3 See generally POWER, POLITICS AND POLICY IN NURSING, supra note 1; K. O'ROURKE & S. BARTON, NURSE POWER: UNIONS AND THE LAW (1981); J. ASHLEY, HOSPITALS, PATERNALISM AND THE ROLE OF THE NURSE (1976).

4 Id.

5 NATIONAL COMM'N ON NURSING, supra note 2, at 25.

6 See Friss, Work Force Policy Perspectives: Registered Nurses, 5 J. HEALTH POL. & L. 696 (1981); see also P. CHESLER & E. GOODMAN, WOMAN, MONEY & POWER (1976). In this book, the authors observed that:

P. CHESLER & E. GOODMAN, supra, at 21 (emphasis in original). The conclusion drawn from this type of reasoning is that women could not possibly need a decent salary because they have made do for so long without one. Id.

7 Hospitals in 1988 will spend $3.1 billion to recruit and train nurses, said Carolyne K. Davis, head of a federal commission that is studying the situation for the Secretary of Health and Human Services, Dr. Otis R. Bowen. Even with this massive expenditure, however, the nursing shortage probably will continue if major changes are not made within the profession. Reports suggest that high school graduates are spurning nursing careers and choosing other fields. For the 1985-86 academic year, nursing enrollments at some private nursing schools offering B.S. degrees declined from 30% to 50%. According to a survey conducted by the AMERICAN JOURNAL OF NURSING, the majority of deans and directors of nursing schools expressed concern and apprehension about the future. Several predicted that many schools might have to close down. Nursing Applications Fall Again: Closures Seen But Some Schools Hold Their Own, 86 AM. J. NURSING 1178 (Oct. 1986)CrossRefGoogle Scholar. Further, the academic criteria for students applying to nursing schools are less stringent. In 1985 the average SAT scores for students intending to be RNs were 381 in verbal and 405 in math. By contrast, the national averages for all high school students were 431 in verbal and 475 in math, 120 points higher. Deans and directors at a cross section of nursing schools said this trend is a warning for the health care system as a whole, not just for the nursing schools. Educators Worried By Decline in SAT Scores For Students Seeking Careers in Nursing, 86 AM. J. NURSING, supra, at 1179Google Scholar.

8 See note 7 and accompanying text.

9 See generally. Nursing Enrollments, Applications Fall Again, supra note 8; Educators Worried By Decline in SAT Scores for Students Seeking Careers in Nursing, 86 AM. J. NURSINGGoogle Scholar, supra note 8.

10 RN Shortages Sprout in Reagan's Backyard, 86 AM. J. NURSING 1285 (Nov. 1986)CrossRefGoogle Scholar; Scarcity of RNs Slows Cancer Research at NIH, 86 AM. J. NURSINGGoogle Scholar, supra, at 1285.

11 NATIONAL COMM'N ON NURSING, supra note 2, at 25.

12 J. ASHLEY, supra note 3, at 18.

13 Id.

14 See J. ASHLEY, supra note 3, at 16-23.

15 Id.

16 “More than 97 percent of nurses are women.” K. O'Rourke & S. Barton, supra note 3, at 1. The authors characterized nursing as one of the “many job categories termed ‘women's ghettos.’ Librarians, teachers, secretaries, bookkeepers, and bank tellers have many of the same job complaints as nurses. Some of the women's ghetto jobs are traditionally women's, because they are associated with the societal roles approved for females: mothering, caretaking, and nurturing tasks. Other positions are women's jobs because they are dead end streets and women, who often make career decisions late in life, are the only people who will take these jobs - and stay.” Id. at 2.

17 U.S. News and World Report, in its 1982 annual survey of “Who Runs America”, ranked television as the institution third in influence only to the White House and big business. Who Runs America, U.S. News & World Rep. May 10, 1982, at 34, 43. The image of nurses on television as subordinate hand maidens to doctors has had a negative impact on the public's perception of the profession. In a content analysis of personal attributes of television nurses, they scored higher than doctors for obedience, permissiveness, conformity and flexibility and scored lower than television doctors in the categories of intelligence, ambition, sophistication, self-confidence, honesty and adeptness. KALISCH, P. & KALISH, B., IMAGES OF NURSES ON TELEVISION 176, 184, 191 (1983)Google Scholar.

18 Chambers, NOW to Renew Rights Drive in 1987, N.Y. Times, Dec. 3, 1986, at A20, col. 3.

19 For example, in 1985, a federal judge ruled that nurse practitioners (NPs) at the University of Georgia Health Service were not entitled to be paid as much as physician's assistants (PAs) because their skills are not substantially equal. Beall v. Curtis, 603 F. Supp. 1563 (D.C. Ga. 1985). NPs brought suit in 1981, when the University of Georgia Health Service hired a PA at a salary of $15,500 - which was $5,216 more than the highest paid NP. During a six day trial, over 2000 patient charts were presented to the court, detailing how NPs dealt with problems such as pneumonia pyelonephitis, drug overdose and diabetic acidosis. “Dr. Glen Pickard, head of the University of North Carolina's nurse practitioner program testified that he saw no difference in the complexity of the problems handled by NPs and PAs.” U. Georgia NPs Stung By Court's Decision On Pay-Equity Charge, 85 AM. J. NURSING 832 (July 1985Google Scholar)[hereinafter U. Georgia NPs]. District Court Judge Marvin Shoob disagreed, and ruled in favor of the University Health Service. Judge Shoob said that he agreed that NPs had demonstrated equal skills in general medicine, but because NPs had been “educated in a nursing model,” and PA training was in the “medical model,” PAs had greater expertise in medical diagnosis and treatment, especially in the area of trauma. Beall, 603 F. Supp. at 1603. Thus, he concluded, the two positions were “substantially similar in effort and working conditions” but not in “skill and responsibility.” Id. at 1623. See U. Georgia NPs, supra, at 832.

20 See BUREAU OF LAB. STATISTICS, U.S. DEP't OF LAB., EMPLOYMENT AND EARNINGS 210 (Jan. 1985) (detailing relative earnings of union and non-union female and male workers in 1984).

21 For example, the American Journal of Nursing reported in July, 1985, that as a result of State Nursing Associations’ collective bargaining agreements, “5,000 nurses at 21 hospitals and clinics in Northern California are due a 13 percent wage boost over the life of the agreement. Nurses at four Sacramento area hospitals were able to stave off proposed pay cuts.” New SNA Contracts, 85 AM. J. NURSING 831 (July 1985)CrossRefGoogle Scholar. In Chicago, the Illinois Nurses Association bargained for a 3% across the board raise. Further, “in an effort to bring into line escalating duties and responsibilities placed on charge nurses,” id., individual RNs will continue to assume responsibility for their own practice. “[E]mployers may no longer require nurses to be on call during regularly scheduled days off.” Id. In Willingboro, New Jersey, the bargained-for contract called for salary increases averaging 5.8% in the first year and 5.6% in the second. Under the new layoff provision, nurses who risk layoff because of empty beds in one unit will be cross trained in another clinical area. “Layoffs will occur in inverse order of seniority and no agency RNs will be given work while a bargaining unit nurse is laid off.” Id.

22 See K. O'ROURKE & S. BARTON, supra note 3, at 2. The terms “pay equity” and “comparable worth” will be used interchangeably. Both terms refer to equal pay for work of comparable value. For comprehensive discussions of the comparable worth issues, see Weiler, , The Wages of Sex: The Uses and Limits of Comparable Worth, 99 HARV. L. REV. 1728 (1986)CrossRefGoogle Scholar; Rothchild, , Toward Comparable Worth: The Minnesota Experience, 1984 YALE L. & POL'Y REV. 346Google Scholar; Hurd, , Murray, & Shaw, , Comparable Worth: A Legal & Ethical Analysis, 22 AM. BUS. L.J. 407 (1984)Google Scholar; E. LIVERNASH, COMPARABLE WORTH: ISSUES AND ALTERNATIVES (1980).

23 Pierson, A Policy Capturing Application in the Union Setting, in COMPARABLE WORTH AND WAGE DISCRIMINATION (H. Remick ed. 1985).

24 The following are examples of formal and informal comparable worth studies:

In 1986, the Pennsylvania Nurses Association conducted an 18 month study that found that women in the state's workforce earned an average of $3,041 less than men and that entry level RNs are classed two to four pay grades below male entry level professionals. The Nurse I position's maximum starting salary is $19,736 while Fisheries Biologists start at a maximum of $21,477. The maximum for the Nurse II position is $21,477; by contrast, pay for the Revenue Field Auditor II ranges up to $25,624.

The California Nurses Association concluded a study comparing male and female dominated job classes and found an average salary gap of 39%.

In Michigan in 1981, the state office of Women & Work determined that jobs traditionally held by women were paid at a lower rate than comparable jobs traditionally held by men. Each position was evaluated using a Position Analysis Questionnaire with 187 job components and a point factor system. Result showed that an RN level VI scored 500 points while higher paid grounds keepers scored 455 points.

The vice president of the Florida Nurses’ Association bargaining unit at Jackson Memorial Hospital in Miami revealed that nurses at her hospital earned a starting salary of $20,000 while beginning fire fighters in Miami earned $27,000. “When Miami was swept by riots, ‘firemen could and did elect not to go into certain neighborhoods. Nurses were still called into work…. Nurses save lives [yet] you'll not see nursing on your hospital bill. [Nursing is] included with the housekeeping, room and board.” Comp/Worth Debate Heats Up: Supporters See Gains and Losses, 85 AM. J. NURSING 316 (Mar. 1985) [hereinafter Comp/Worth Debate].

25 Former Attorney General William French Smith, in a Washington Post article said that “comparable worth cannot be justified on any ground - legal, economic or policy.” “The chairman of the U.S. Civil Rights Commission was quoted as calling comp/worth ‘the looniest idea since Looney Tunes came on the screen.’ White House economist William Misanen terms it a ‘truly crazy proposal.’ “ Comp/Worth Debate, supra note 24, at 317.

26 American Nurses Ass'n v. State of Ill., 606 F. Supp. 1313 (1985), reversed, 783 F.2d 716 (9th Cir. 1986); see It's Reagan v. ANA in Uphill Comp/Worth Fight, 85 AM. J. NURSING 1170 (Oct. 1985)[hereinafter Reagan v. ANA]; see also Lemons v. City & County of Denver, 620 F.2d 228, cert, denied, 449 U.S. 888 (1980).

27 Comment, The Comparable Worth Dilemma: Are Apples and Oranges Ripe for Comparison?, 37 BAYLOR L. REV. 227 (1985)Google Scholar.

28 See generally 1 U.S. COMM. ON CIV. RTS., COMPARABLE WORTH: ISSUE FOR 80‘s 6-7 (June 1984) [hereinafter COMPARABLE WORTH ].

29 Id.

30 Reagan v. ANA, supra note 26, at 1170.

31 Judge Posner makes an analogous point in American Nurses’ Ass'n v. State of Illinois, 783 F. 2d 716 (9th Cir. 1986). In referring to judicial remedies,Judge Posner said that “if difficulties of remedy, unless completely insurmountable, were a proper reason for throwing out a [case] …, Brown v. Board of Education, 347 U.S. 483 (1964); would have been decided in favor of allowing public schools to continue to segregate the races.” American Nurses', 783 F.2d at 730.

32 See, e.g., American Fed. of State, County & Mun. Employees (AFSCME) v. State of Wash., 578 F. Supp. 846 (W.D. Wash. 1983). The district court was sympathetic to the plaintiffs’ Title VII claims and found that because of a discrepancy between job value and wages paid was found, the state had to adjust its wage scales accordingly. The Ninth Circuit reversed, holding that Washington was under no obligation to correct an economic inequality it did not create. American Fed. of State, County & Mun. Employees, AFL-CIO (AFSCME) v. State of Wash., 770 F.2d 1409 (9th Cir. 1985).

33 For example, the AFSCME plaintiffs, after losing in court, eventually won a settlement of their claim through collective bargaining. See Boston Globe, Jan. 1, 1986, at 64, col. 3.

34 See generally supra note 3, at 74.

35 See RUTKOWSKI, A. & RUTKOWSKI, B., LABOR RELATIONS IN HOSPITALS 80 (1984)Google Scholar.

36 Id. at 8.

37 Galligan, Reaching for Power From Within, in POWER, POLITICS AND POLICY IN NURSING, supra note 1, at 98.

38 S. 1178, 79th Cong., 1st Sess., 91 CONG. REC. 6411 (1945).

39 S. 882, 88th Cong., 1st Sess., 109 CONG. REC. 2770 (1963).

40 29 U.S.C. § 206(d)(1) (1963); see Equal Pay Act of 1963: Hearing Before the Subcomm. on Lab. of the Senate Coram, on Lab. and Pub. Wei., 88th Cong., 1st Sess. 2 (1963)(quoting S. 882, 88th Cong., 1st Sess., 109 CONG. REC. 2770 (1963); S. 910, 88th Cong., 1st Sess., 109 CONG. REC. 2886 (1963))[hereinafter Equal Pay Act of 1963].

41 Senator McNamara stated that the purpose of the act was, to ensure that those who perform tasks which are determined to be equal shall be paid equal wages.

109 CONG. REC. 8914 (1963).

42 Representative Goodell remarked to Congress:

109 CONG. REC. 9197-98 (1963).

43 29 U.S.C. § 206(d)(1) (1982). The Equal Pay Act provides:

44 See, e.g., Orr v. Frank R. MacNeill & Son Inc., 511 F.2d 166, 171 (5th Cir. 1975), cert, denied, 423 U.S. 865 (1975); Kohne v. Imco Container Co., 480 F. Supp. 1015, 1038 (W.D. Va. 1979).

45 In 1980, the U.S. Bureau of Statistics reported that 275 occupations are composed of at least 80% female or male workers. Nearly one half of all employed women work in occupations that are at least 80% female. These occupations include nurses, librarians, health technicians, secretaries, typists, data entry operators, child care workers and dental assistants. Further, the Bureau estimated that the ratio of full time women's to men's hourly earnings was .72 in 1983. Based on annual earnings, the ratio between female and male full time workers was 63.6 percent. NAT. RESEARCH COUNCIL, WOMEN's WORK, MEN's WORK: SEX SEGREGATION ON THE JOB (1986); EXECUTIVE SUMMARY OF COMPARABLE WORTH: AN ANALYSIS AND RECOMMENDATIONS, A REPORT OF THE U.S. COMM. ON CIV. RTS. 2355, 2455 (June 1985).

46 Civil Rights Act of 1964, §§ 701-718 (codified as amended at 42 U.S.C. § 2000e-2 (1982)). Title VII provides in relevant part:

(a) It shall be an unlawful employment practice for an employer:

1. (1)

   (1) to fail to refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin; or

2. (2)

   (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex or national origin.

47 S. REP. NO. 872, 88th Cong., 2d Sess., reprinted in 1964 U.S. CODE CONG. & ADMIN. NEWS (78 Stat. 241) 2355, 2362.

48 See Kanowitz, , Sex-Based Discrimination American Law III: Title VII of the 1964 Civil Rights Act and the Equal Pay Act of 1963, 20 HASTINGS L.J. 305 (1968)Google Scholar.

49 42 U.S.C. § 2000e - 2 (h) (1982). The Senate passed the Bennett Amendment after about three minutes of debate. See 110 CONG. REC. 13,647 (1964).

50 See text accompanying note 43.

51 For the text of the EPA, see supra note 43.

52 See infra note 53.

53 See, e.g., Gunther v. County of Wash., 101 S. Ct. 2242 (1981); International Union Elec. Workers v. Westinghouse Elec. Corp., 631 F.2d 1094 (3d Cir. 1980), cert, denied, 452 U.S. 967 (1981); Brooks v. Ashtabula County Welf. Dep't, 535 F. Supp. 366 (N.D. Ohio), reversed, 717 F.2d 263 (1981); Taylor v. Charley Bros., 25 FEP Cases 602 (W.D. Pa. 1981).

54 “Proof of discrimnatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment.” International Brotherhood Teamsters v. U.S., 431 U.S. 324, 335 n.15 (1977).

55 431 U.S. 324 (1977).

56 Id. at 339-40 n.20 (citations omitted).

57 COMPARABLE WORTH, supra note 28, at 92.

58 See Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971)(a discriminatory motive does not have to be found in order for there to be a violation of Title VII), on remand 6 FEP Cas. (BNA) 7 (M.D., N.C. (1972)).

59 Chief Justice Burger, in a unanimous opinion in Griggs stated:

Griggs, 401 U.S. at 431.

60 The Supreme Court has applied disparate impact analysis to: (i) retirement benefits based on sex segregated annuity tables, Arizona Governing Comm. Tax Deferred Annuity & Deferred Compensation Plans v. Norris, 463 U.S. 1073 (1983); (ii) seniority systems, American Tobbaco Co. v. Patterson, 456 U.S. 63 (1982); (iii) height and weight requirements, Dothard v. Rawlinson, 433 U.S. 321 (1977); and (iv) pregnancy benefits, General Elec. v. Gilbert, 429 U.S. 125 (1976).

61 631 F.2d 1094 (3d. Cir. 1980), cert, denied, 452 U.S. 967 (1981).

62 It was stipulated that the wage rate for the male job with the lowest point rating was greater than the wage rate for the female job with the highest point rating. Point values reflect standard determinations regarding skill, responsibilities, training and job hazards. Id. at 1096.

63 Id. at 1099.

64 Id.

65 Id. The employer's industrial relations manual explicitly justified paying women less than men for jobs that were difFerent, but that required a composite of equal skill, effort, responsibility and working conditions. “Because of the transient characteristics of the service of women, the relative shortness of their activity in industry, the differences in environment required, the extra services that must be required, overtime limitations, and general sociological factors not requiring discussion herein”, women can be paid less than men. Wage Administration, in WESTINGHOUSE INDUSTRIAL RELATIONS MANUAL, cited in Brief for Appellants, at Westinghouse, 631 F.2d 1094 (3d Cir. 1980).

66 Westinghouse, 631 F.2d at 1099.

67 Id. at 1100.

68 Id. at 1105.

69 620 F.2d 228 (1980).

70 Id.

71 Lemons, 17 FEP Cas. (BNA) 906, 906 (D. Colo. 1978).

72 Id. at 907.

73 Id. at 906, 909.

74 Lemons, 620 F.2d at 229.

75 425 U.S. 161 (1981).

76 Id. at 180.

77 Id.

78 Id.

79 Id.

80 Id. at 178-79 (emphasis in original).

81 Id. at 181.

82 Id. at 181, 186.

83 American Fed. of State, County & Mun. Employees (AFSCME) v. State of Wash., 578 F. Supp. 846 (W.D. Wash. 1983), rev'd, 770 F.2d 1401 (9th Cir. 1985); reh'g denied, 813 F.2d 1034 (9th Cir. 1987).

84 Id.

85 Id.

86 Id.

87 Id.

88 Id.

89 The studies found wage disparities and concluded that female employees performing comparable work were paid on average approximately 30% less than men. For example, the studies found that the job of a registered nurse was equal in value to the job of a highway engineer. Nevertheless, nurses were paid 30% less. Level III secretaries were paid 30% less than comparably rated electricians; and laundry workers, who were primarily female, also were paid approximately 30% less than equally rated truck drivers. See USA Today, Sept. 6, 1985, at 6A, col. 3.

90 Id.

91 American Fed. of State, County & Mun. Employees, AFL-CIO (AFSCME) v. State of Wash., 770 F.2d 1401 (9th Cir. 1985), reh'g denied, 813 F.2d 1034 (9th Cir. 1987).

92 Id. at 1407.

93 Id. at 1408.

94 See Boston Globe, Jan. 1, 1986, at 64, col. 3. The State of Washington was not the only municipality to reach a settlement agreement through collective bargaining. For example, the City of Los Angeles agreed, after collectively bargaining with city workers, to increase salaries by twelve million dollars in certain city workers’ jobs, mostly dominated by women. See Current Developments, Daily Lab. Rep. 110. 91, at A2, Lab. Rel. Rep. (BNA)(May 10, 1985). Furthermore, Ohio recently agreed, through collective bargaining, to spend approximately four and a half million dollars annually to eliminate gender bias from state job classifications. See Pay Equity in Ohio's State Jobs, 121 Lab. Rel. Rep. 242 (Apr. 7, 1986).

95 See American Nurses’ Ass'n v. Illinois, 606 F. Supp. 1313 (N.D. Ill. 1985), reversed, 783 F.2d 716 (9th Cir. 1986).

96 Id.

97 American Nurses, 783 F.2d at 719.

98 Id.

99 See id. at 730. Judge Posner, writing for the majority, further stated:

Id. at 720.

100 Id. at 730.

101 See id. at 720 (citing American Fed. of State, County and Mun. Employees AFL-CIO (AFSCME) v. State of Wash., 770 F.2d 1401 (9th Cir. 1985); Spaulding v. University of Wash., 740 F.2d 686, 706-07 (9th Cir.), cert, denied, 469 U.S. 1036 (1984); Lemons v. City of Denver, 620 F.2d 228 (10th Cir. 1980); Christensen v. Iowa, 563 F.2d 353 (8th Cir. 1977)).

102 Id. at 722.

103 Job evaluation studies use objective criteria which give the results of such studies greater uniformity and objectivity.

104 American Nurses, 783 F.2d at 720.

105 For example, in 1980, Alaska added specific comparable worth language to its fair employment practices law. ALASKA STAT. § 18.80.220(1) (1980). In California, the state legislature established comparable worth as a policy for state workers, requiring annual reports. California further prohibits local government ordinances or policies which preclude consideration of comparable worth. CAL. LAB. CODE § 12940 (West 1980), amended by 1980 CAL. STAT. 992 § 4. In 1981, the Connecticut legislature approved a full job evaluation study for state workers. CONN. GEN. STAT. § 46a-60(a)(1) (1981). In Illinois, the legislature required a pilot comparable worth study for civil service workers. ILL. REV. STAT. Ch. 48, para. 1004(4)(6) (1981). In 1983, the Massachusetts legislature appropriated seventy-five thousand dollars for a job evaluation study for civil service workers. MASS. GEN. L. ch. 149, § 105A(195), amended by MASS. GEN. L. ch. 131, § 6 (1980).

106 The NLRA emerged in 1947, “from the economic hypothesis that unions would prevent employers from cutting the wages of workers; that this would result in higher worker incomes; that spending would then increase; and that this additional spending would allow the country to pull out of the depression …. The National Labor Relations Board (NLRB), created by the NLRA, was empowered to investigate and initiate administrative proceedings against those employers who violated the law. If NLRB administrative actions did not succeed in curtailing illegal acts, court action was pursued.” W., WERTHER & C., LOCKHART LABOR RELATIONS IN THE HEALTH PROFESSIONS 6 (1976)Google Scholar.

107 There are five unfair labor practices (ULP) in which employers under the NLRA are prohibited from engaging:

1. (1)

   (1) “Interference” under § 8(a)(1). This is the most recurrent management violation and occurs whenever employers or their agents “interfere with, restrain or coerce employees in the exercise of rights guaranteed in section 7.“

2. (2)

   (2) “Domination” under § 8(a)(2). “It shall be an unfair labor practice for an employer to dominate or interfere with the formation or administration of any labor organization or contribute financial or any other support to it ….“

3. (3)

   (3) “Discrimination” under § 8(a)(3). “It is an unfair labor practice for an employer by discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.“

4. (4)

   (4) “Discrimination for testimony” under § 8(a)(4). “It is an ULP for an employer to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this act.“

5. (5)

   (5) “Refusal to bargain” under § 8(a)(5). “It is an unfair labor practice for an employer to refuse to bargain collectively with the representatives of his employees.” 29 U.S.C. § 158(a)(1)-(5).

108 Due to (he unique role of nonprofit health institutions and considerable lobbying by employer representatives, this exemption remained on the books for over twenty-seven years. Vernon, , Labor Relations in the Health Care Field Under the 1974 Amendments to the National Labor Relations Act - An Overview and Analysis, 70 Nw. U.L. REV. 202, 203 (1975)Google Scholar.

109 At present, the health care industry is one of the largest industries in the United States, employing close to five million people. These health care workers exceed, by approximately one million, all workers producing planes, cars and ships. Health care expenses account for about 10% of the gross national product. Horvitz & Moffett, The FMCS and the Peaceful Resolution of Disputes, in HEALTH CARE LAB. L. (I. Shepard & A. Doudera eds. 1981).

110 H.R. 13,678, 93rd Cong., 1st Sess., 120 CONG. REC. 16,899 (1974). The Non-profit Health Care Amendments to the Taft-Hartley Act, Pub. L. No. 93-360 (1974), became effective on August 25, 1974. Section 7 of the NLRA enumerates federally protected rights that employers and labor organizers must honor. It provides:

Id.

111 Id.

112 Section 8(g) of the NLRA provides:

113 See H.R. 13,678, supra note 107.

114 For the purpose of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representatives of the employees to meet at reasonable times and confer in good faith with respect to wages, hours and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party …. 29 U.S.C. § 158(d) (1976).

115 NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956).

116 “Collective bargaining is carried on by unions which represent the employees grouped in what is called the ‘appropriate bargaining unit’ …. This unit may be the employer unit, craft unit, plant unit or subdivision thereof.” 1 Lab. L. Rep. (CCH) ¶ 2601 (Aug. 14, 1987)(citing NLRA, § 9(b)).

117 There has been considerable disagreement between the NLRB and the circuit courts, and to a more limited degree among the circuit courts themselves, as to the intent of Congress concerning the determination of bargaining units in the field of health care. In Mercy Hospitals of Sacramento, Inc., involving a private hospital, the NLRB found that registered nurses evidenced a greater degree of separateness than that possessed by other employees in view of their particular role and responsibilities in the health care industry. 217 N.L.R.B. (CCH) No. 131, at 15,702 (1975). While the ANA is interested in units strictly limited to nurses, the American Federation of Government Employees and the National Federation of Federal Employees usually prefer the larger, all-professional or hospital-wide units. Seidman, , Nurses and Collective Bargaining, 23 INDUS. & LAB. REL. REV. 335, 337 (1969)CrossRefGoogle Scholar.

118 In making unit determinations, the NLRB traditionally has looked to such factors as employees’ duties, skills, working conditions, wages, hours, supervision and interchangeability with other employees, to decide whether the employees involved share a sufficient community of interest to warrant their combined representation in the proposed unit. W. WERTHER & C. LOCKHART, supra note 103, at 78.

119 See, e.g., In re Consolidated Vultee Aircraft Corp., 198 N.L.R.B. (CCH) No. 591 (Apr. 24, 1984) (NLRB held registered nurses were a well denned group with a community of interests and therefore were an appropriate bargaining unit); but see Valley Hospital, 220 N.L.R.B. (CCH) No. 216 at 16,476 (1975)(head nurses included in bargaining units along with staff nurses because the exercise of professional judgment was predominantly incidental to the performance of their duties of caring for patients).

120 Wall St. J., September 1, 1988, at 44, col. 2.

121 Nurses are professionals as defined by the NLRA and the American Nurses Association. NLRB, 29 U.S.C. § 152(12) (1976).

(12) The term ‘professional employee’ means:

Id.

Historically, the American labor movement has responded to the needs of professionals. The nature of registered nurses’ work, position, salary and expectations as professionals affects nurses’ frame of reference and desire to be different from nonprofessionals. Since nonprofessionals outnumber professionals, this results in a diminution of nurses’ power to influence the goals and objectives of a union. See Gellens, Determining Supervisory Status and Bargaining Unit Composition In the Nursing Profession, 33 LAB. L.J. 352 (June 1982).

122 Presently, only one out of seven RNs is a union member. The union of choice usually is a state nurses’ association. The Massachusetts and Minnesota state nurses’ associations have two of the most successful collective bargaining programs in the country. The Massachusetts Nurses’ Association represents almost all the state's organized RNs - 15% of all nurses licensed in the state. Also, the Massachusetts Nurses’ Association paves the way for other unions in the state regarding contract language and salaries.

123 See K. O'ROURKE & S. BARTON, supra note 3, at 145, 146.

124 Id. at 144.

125 Beletz, , Collective Bargaining and Organized Nurses: Correlation of Support and Participation, 32 INT'L NURSING REV. 112 (July/Aug. 1985)Google Scholar.

126 See K. O'ROURKE & S. BARTON, supra note 3, at 1.

127 See id. at 2.

128 While figures for unionized versus nonunionized workers vary, the overall conclusion is consistent. Both professionals and nonprofessionals, earn more money and benefits when there is a union representing them. Ballman, Union Busters, 85 AM. J. NURSING 964, 962, 964 (Sept. 1985); N.Y. Times, Feb. 10, 1985, (Magazine). Pam Ames, Director of the American Nurses’ Association's Economic and General Welfare Program, stated emphatically that salaries for nurses are lower in non-union facilities. See Ballman, supra, at 964.

129 K. O'ROURKE & S. BARTON, supra note 3, at 144.

130 See B. MELOSH, THE PHYSICIAN's HAND - WORK, CULTURE AND CONFLICT IN AMERICAN NURSING (1982).

131 Id. at 201-02.

132 In her book, IN A DIFFERENT VOICE, Carol Gilligan observes that moral judgments of women differ from those of men because women's judgments are tied to feelings of empathy and compassion. This empathy could, in part, be impeding nurses and other female workers from achieving their goal of pay equity. C. GILLIGAN, IN A DIFFERENT VOICE (1982).

133 See B. MELOSH, supra note 128, at 201, 202.

134 K. O'ROURKE & S. BARTON, supra note 3, at 12.

135 Administrators cited escalating health care costs as justification for opposing unions. Between 1970 and 1980, however, while hospital expenses increased 67%, only 5% could be attributed to costs associated with the unionization of health care workers. See generally W. CHANEY & T. BEECH, THE UNION EPIDEMIC: A PRESCRIPTION FOR SUPERVISORS (1976).

136 See K. O'ROURKE & S. BARTON, supra note 3, at 11.

137 Id.; but see supra note 133.

138 K. O'ROURKE & S. BARTON, supra note 3, at 11. See National Labor Relations Act, Title I, §§ 1-16, 49 Stat. 449 (1935).

139 K. O'ROURKE & S. BARTON, supra note 3, at 11.

140 K. O'ROURKE & S. BARTON, supra note 3, at 13.

141 Id.

142 Aiken, , Blendon, & Rogers, , The Shortage of Hospital Workers: A New Perspective, 95 ANNALS OF INTERNAL MED. 365 (1981)CrossRefGoogle Scholar.

143 Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-18 (1975) (quoting United States v. N.L. Indus., Inc. 479 F.2d 354, 379 (8th Cir. 1973)), quoted in Moskowitz, , Pay Equity and American Nurses: A Legal Analysis, 27 ST. LOUIS U.L.J. 801 (1981)Google Scholar.

144 U.S. BUREAU OF LAB. STATISTICS, EARNINGS AND OTHER CHARACTERISTICS OF ORGANIZED WORKERS (May 1980).