Navigation Top
AGO Logo Graphic
AGO Header Image
File a Complaint
Contact the AGO
AGO 1958 No. 198 - June 05, 1958
AGO Opinion Header Image
John J. O'Connell | 1957-1968 | Attorney General of Washington

ARBITRATION AND AWARD ‑- POWER OF LEGISLATURE TO REQUIRE COMPULSORY ARBITRATION OF LABOR DISPUTES IN HOSPITALS.

HOSPITALS ‑- STRIKES ‑- ARBITRATION ‑- POWER OF LEGISLATURE.

LABOR ‑- COMPULSORY ARBITRATION ‑- POWER OF LEGISLATURE TO REQUIRE BINDING ARBITRATION OF LABOR DISPUTES IN HOSPITALS.

LABOR ‑- POWER OF LEGISLATURE TO PROHIBIT OR RESTRICT RIGHT OF HOSPITAL EMPLOYEES TO STRIKE.

PUBLIC INSTITUTIONS ‑- ARBITRATION ‑- LABOR DISPUTES ‑- STRIKES ‑- POWER OF LEGISLATURE.

1. The legislature has the power to prohibit or restrict the right of employees of private hospitals to strike if a substitute such as compulsory arbitration or mediation is provided to meet the requirement of due process.

2. Employees of hospitals operated by the state, its political subdivisions or municipal corporations, absent express legislation to the contrary, do not have the right to strike.

3. The legislature has the power to compel hospitals and hospital employees to submit their labor disputes to arbitration, the award of the arbitrators being binding on both parties, provided that sufficient standards are provided to govern the arbitrators in determining such disputes.

                                                                  - - - - - - - - - - - - -

                                                                    June 5, 1958

Senator R. R. Greive, Chairman
Subcommittee on Commerce, Industry
Trades and Professions
Legislative Building
Olympia, Washington                                                                               Cite as:  AGO 57-58 No. 198

Dear Sir:

            By letter dated April 9, 1958, previously acknowledged, you have requested the opinion of this office on several questions relating to labor disputes in  [[Orig. Op. Page 2]] hospitals.  We paraphrase your questions as follows:

            1. Has the legislature the power to prohibit hospital employees, as a class, from striking if a substitute method of achieving due process such as a system of compulsory arbitration or mediation is provided?

            2. Has the legislature the power to compel hospitals and hospital employees to submit their labor disputes to arbitration, the award of the arbitrators being binding on both parties?

            3. For the purposes of questions one and two, does it make a difference whether the hospitals are:

            a. State hospitals
           b. Local government hospitals such as county, city or district hospitals
           c. Private hospitals?

            We answer your first two questions in the affirmative.  The answer to the third question appears in the analysis following.

                                                                     ANALYSIS

            Although the right to strike has been rightly regarded as a fundamental human liberty (Kimbel v. Lumber and Saw Mill Workers Union, 189 Wash. 416, 65 P. (2d) 1066 (1937);Stapleton v. Mitchell, 60 F. Supp. 51 (1945)), it has not been considered an absolute one.  As Justice Brandeis once said:

            ". . . Neither the common law, nor the Fourteenth Amendment, confers the absolute right to strike. . . . "Dorchy v. Kansas, 272 U.S. 306, 71 L.Ed. 248, 47 S.Ct. 86, 87 (1926).

            Nevertheless, even though not considered absolute, the right to strike may not be abridged in an arbitrary manner except in the presence of a grave or immediate danger to the community.  Stapleton v. Mitchell, supraFairview Hospital Assn. v. Public Bldg. Serv., Etc., 241 Minn. 523, 64 N.W. (2d) 16 (1954).  The conclusion that a strike in a hospital produces a "grave" or "immediate danger" has been adopted in states other than Washington.  Western Penn. Hospital v. Lichliter, 340 Pa. 382, 17 A. (2d) 206, (1941).  InSociety of New York Hospital v. Hanson, 185 Misc. 937, 59 N.Y.S. (2d) 91, 96 (1945), the court said:

             [[Orig. Op. Page 3]]

            ". . . The right to strike has proven to be of such proper potency to labor in our industrial history that this court would not curtail it in any respect except for the most impelling of reasons.  But there are some contravening considerations which can be of even greater importance to the public interests as a whole.  It is difficult to conceive of a public service of greater value than the maintenance of hospitals for the care of the sick and the injured.  It is almost impossible to conceive of such hospitals functioning properly if they are subject to interference with their activities by strikes or otherwise.  Obviously ministration to the sick cannot be delayed.  Surgical operations, as well as the routine care of those requiring medical attention, must be permitted to proceed at all times. . . . The frantic immediacy which is required for the treatment of emergency cases, cannot be suspended while awaiting the outcome of parleys between the hospital management and its employees over terms of labor.  These elements imperatively command that the generally broad right to strike be enjoined or otherwise limited in such cases."

            At least one court has determined that if the right to strike in certain enterprises directly affecting the public welfare may be prohibited by legislative enactment, some adequate substitute (such as compulsory arbitration) must be provided for the right thus withdrawn if the enactment is to meet the requirements of due process.  Fairview Hospital Assn. v. Public Bldg. Serv. Etc., supra; See Minn. Stat. Secs. 179.35 to 179.39 (1953).  However, employees of a hospital have been enjoined from striking with no substitute being provided.  Beth-El Hospital v. Robbins, 186 Misc. 506, 60 N.Y.S. (2d) 798 (1946); Society of New York Hospital v. Hanson, supra.  See also 39 Minn. Law. Rev. 322-326 (1955) [[39 Minn. L. Rev. 322]], and 22 A.L.R. (2d) 894.

            Although there is apparently no Washington law on the subject, in view of the weight of authority and reasoning of the courts in other jurisdictions, as expressed in the cases and statutes cited and analyzed, we conclude that our legislature would have the power to prohibit hospital employees of private hospitals, as a class, from striking.  In view of the rationale of the Fairview Hospital Assn. case, we believe that a prohibition on the right to strike in private hospitals must be accompanied by a substitute in order to insure to such employees the due process of law guaranteed by our state and federal constitutions.

             [[Orig. Op. Page 4]]

            A recent decision of the Washington supreme court has made it clear that, absent legislation to the contrary, employees of hospitals operated by the state, a subdivision of the state, or a municipal corporation, do not have the power to strike.  Port of Seattle v. International Longshoremen's Union, 152 Wash. Dec. 267 (1958) [[52 Wn. 2d 317]].  Accordingly, it would not be necessary to provide a substitute such as compulsory arbitration to such state or municipal employees unless, of course, the legislature exercising its inherent discretion deems such action desirable.

            During the post-war period immediately following World War II a number of compulsory arbitration states were enacted by our sister states.  Generally the constitutionality of such statutes has been sustained by the courts if the legislative enactment is applicable only to industries affected with a public interest, and their provisions meet the constitutional test traditionally applied to legislation providing for administrative regulation and determination of private rights and duties.  See 55 A.L.R. (2d) 444.  Thus, compulsory arbitration statutes have been held not to violate due process,Wisconsin Employment Relations Bd. v. Amalgamated Assn., 257 Wis. 43, 42 N.W. (2d) 471 (1950), reversed on other grounds, 340 U.S. 383, 95 L. Ed. 364, (1951);Fairview Hospital Assn. v. Public Bldg. Service & Hospital & Institutional Employees, supra; nor to constitute involuntary servitude,Wisconsin Employment Relations Bd. v. Amalgamated Assn., supra.  Although generally limited to public utilities, (See Fla. Stat. Ann. Secs. 453.01 to 453.18 (1952); Ind. Ann. Stat. Secs. 40-2401 to 40-2415 (Burns 1952)), at least three state statutes apply to hospitals.  (See Mass. Ann. Laws c 150 B, Secs. 1 to 7 (1949); Mich. Comp. Laws Sec. 423.13 (Supp. 1952); Minn. Stat. Secs. 179.35 to 179.39 (1953).)  Earlier compulsory arbitration statutes had been found unconstitutional as violative of the Fourteenth Amendment to the United States Constitution where it was found by the court that the industry involved was not sufficiently connected with vital public interest, health or safety.  Chas. Wolff Packing Co. v. Court of Industrial Relations, 262 U.S. 522, 67 L.Ed. 1103, 27 A.L.R. 1280 (1923) (meat packing industry); Dorchy v. Kansas, 264 U.S. 286, 68 L.Ed. 686 (1924) (coal mining).

            Compulsory arbitration statutes are frequently attacked on the grounds that the legislation empowering arbitrators or boards of arbitration to make decisions binding on employer and employee involves an unconstitutional delegation of legislative power to an administrative tribunal.  SeeState v. Traffic Telephone Workers' Federation, 2 N.J. 335, 66 A. (2d) 616, 9 A.L.R. (2d) 854 (1949), where it was determined that insufficient legislative standards had  [[Orig. Op. Page 5]] been prescribed to govern the action of the board of arbitration.  However, the New Jersey legislature amended the arbitration statute enumerating several factors which the arbitration board was required to take into consideration in determining disputes.  In a subsequent court test, the amended statute was determined to be constitutional.  New Jersey Bell T. Co. v. Communications, W., Etc., 5 N.J. 354, 75 A. (2d) 721 (1950).  See 55 A.L.R. (2d) 432.

            As a general principle there is no objection to the delegation of limited legislative or administrative power to an administrative agency, provided that the legislative body prescribes standards which must be followed by the administrators in exercising this power.  The court inUnited Gas C. & C. Wkrs. v. Wisconsin Employ. Rel. Bd., 255 Wis. 154, 38 N.W. (2d) 692, 694 (1949), quoting State v. Whitman, 196 Wis. 472, 220 N.W. 929, 941 (1928), succinctly states the rule as follows:

            "'. . . The power to declare whether or not there shall be a law; to determine the general purpose or policy to be achieved by the law; to fix the limits within which the law shall operate ‑-is a power which is vested by our Constitution in the Legislature and may not be delegated.  When, however, the Legislature has laid down these fundamentals of a law, it may delegate to administrative agencies the authority to exercise such legislative power as is necessary to carry into effect the general legislative purpose; . . .'"

            See alsoKeeting v. P.U.D. No. 1, 49 Wn. (2d) 761, 306 P. (2d) 762 (1957), andSenior Citizens League v. Dept. of Soc. Sec., 38 Wn. (2d) 142, 228 P. (2d) 478 (1951).

            We have no hesitancy in concluding that the hospitalization of the sick, aged and infirm is sufficiently related to vital public interest, health and safety to meet the constitutional objections which were raised in theWolff Packing Co. andDorchy cases, supra.  Likewise, in view of the familiar administrative law principles, illustrated by the cases cited in the preceding paragraph, we would conclude that the legislature has the power to require private hospitals and their employees to submit labor disputes to compulsory arbitration, provided that the legislation provides sufficient standards to govern the arbitrators in determining such disputes.

            In examining the legislative power to extend compulsory arbitration to state and local governmental hospitals, we must closely consider State ex rel. Everett Fire Fighters v. Johnson, 46 Wn. (2d) 114, 278 P. (2d) 662 (1955).

             [[Orig. Op. Page 6]]

            In this case our supreme court held unconstitutional, as an unlawful delegation of legislative authority, a municipal charter provision, adopted pursuant to an initiative passed by the voters, for the submission to a board of arbitrators of disputes arising between the firemen and the city as to working conditions, wages and pensions.  Analyzing this case, we note: (1) That no standards were prescribed to direct the board of arbitrators in its determination, and (2) there was no statutory authority granted to municipal corporations allowing them to delegate to arbitration boards the ultimate decision as to working conditions, wages and pensions.

            The creation of municipal corporations and providing their functions, powers and duties is distinctly a function of the legislature under Amendment Seven of our Constitution.  SeePaine v. Port of Seattle, 70 Wash. 294, 126 Pac. 628, 127 Pac. 580 (1912).  Likewise, it is so fundamental that citations to authority are unnecessary, that county governments are subdivisions of the state and state institutions are created and governed by legislative enactment.

            Accordingly, it is our conclusion that the legislature may require state and local governmental hospitals and hospital employees to submit their labor disputes to compulsory arbitration, provided, again, that sufficient legislative standards are provided to govern the deliberations and decisions of the arbitrators.

            We trust that the foregoing will be of some assistance to you, the members of the Legislative Council, and its staff.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

OLIVER J. NEIBEL, JR.
Assistant Attorney General

Content Bottom Graphic
AGO Logo