Bureaucratic Procedures Hurt Workers

Bureaucratic procedures hurt workers through the manipulation of rules to reinforce managements rights and powers. This power is manifested through managements ability to drag out issues over long periods of time in order to wear out its opponents. This form of oppression uses mental and physical intimidation to achieve results and it is all perfectly legal. Both bureaucratic procedures and Scientific Management use this intimidation method to achieve their wanted results. The difference between the two is the willingness of workers to accept their inevitable oppression. Although bureaucracy is a necessary evil in modern society it is an implied power rather than a inevitable power. The issue facing workers is not the overthrow of bureaucracy but rather a reevaluation on how we look at how the power effects us and in turn how we allow ourselves to be effected.
Bureaucratic procedures on paper make perfect sense as a way to resolve issues. In practice, however, bureaucracy becomes a tangled web of rules and precedent that favor managements ideology. Management has found that utilizing bureaucratic procedures offers solace to the workers in the beginning while undermining their future options. Workers willingly advocate bureaucracy as a way to solve immediate issues while offering little thought to what future implications will result from their policies. It is not meant to be an insult on the intelligence of the worker. Few people look for negative aspects of a solution if that solution on its face easily solves their current issues.
A major negative implication where bureaucracy works for management's interest is the disciplinary arena. Bureaucratic procedures are carefully and intentionally designed to allow the management to act now and ask questions later. The manager has the ability to demand or fire an employee at will. If an objection is leveed against the manager the employee is still out of a job. Even with a union's assistance the employee has little leverage. The company has the resources, mainly economic, to hire lawyers and drag an issue out over every little detail. The worker consequently has little resources at his/her disposal and must rely on their union for help if they have one. Management under the bureaucratic system is innocent until proven guilty. This results of these bureaucratic procedures produces a mentality that enables corporations to offer a false sense of security to the worker. By offering bureaucratic procedures the workers, in actuality, are sacrificing their options and freedoms.
The beauty in the design of bureaucratic procedures is that it is as hard to understand and master as it is to spell. Management has set up the procedures themselves to favor their interests. This results in management stacking the deck against the worker from the beginning. For example, management will never intensionally set time frames to resolve an issue. By leaving time frames vague and open it enables management an infinite number of options to drag an issue out. Management has an vested interest in organized chaos. By maintaining little to no structure management can constantly change the rules to suit their needs at any specific time. With no governing authority to regulate this issue management maintains a constant and steady upper hand over its workers.
Management's ability to set up road block to slow down and trip up workers in their quest for justice is the mental and physical hurdle that management is looking to create. Its the intension to crush the will and resolve of anybody that attempts to undermine or challenge the unalienable rights and decisions of management. By so doing future workers will choose to keep quiet rather than attempt to fight something so powerful. It uses the David and Goliath mentality. By crushing each opponent few will try such an astounding feat as to force an employer to admit guilt. Mental anguish is probably the best used tool of the cooperation. Mental anguish is achieved through repetitive delays and tactics that cause frustration. Frustration with the system is what management is hoping for. Few people have the resolve and resources to see a particular issue to its conclusion. Management is hoping to wear out the nerves of its opposition, thereby, causing closure without admission of guilt or innocents.
The physical anguish is not necessarily a physical beating by thugs, rather a combination of indirect actions. By dragging issues through bureaucratic procedures fatigue effects lead to mental anguish. As monetary issues arise from bureaucratic procedures physical considerations have to be addressed from dietary decisions to living quarters to standards of living. These decisions make it harder and harder to fight the bureaucratic process. Managements foundation of the process is to make sure the longer it takes the harder it gets. The harder it gets the more physical and emotional drain is leveed on the plaintiff and therefore the plaintiff is more likely to fold from the pressure, thereby, persevering management's perfect world of oppression.
Brody uses an example of an auto plants relief policy for line workers. As ludicrous as it seems that a policy for bathroom breaks could be as complicated as described, management designed it as such to serve a purpose. By complicating the process as management did the process prevents any attempt to fight the process seem futile. A person written up and reprimanded for not following the procedure would feel foolish and embarrassed to fight any such claim. Management's design maintains more workers on the line working by complicating something so seemingly routine as taking time out to go to the bathroom. In theory it is genius on the part of management, in practice it becomes a nightmare for the worker. Managements complication of a simple complaint ensures productivity through confusion.
Taylor's argument similarly follows the belief that bureaucratic procedures can be used to ensure productiveness of workers. In contrast, however, Taylor over simplifies the process to attain this result. By utilizing Scientific Management any process is broken down to find the one best way. By creating rules and procedures this process is free from bottlenecks. We see this theory in today's real world applications. Models such as ISO and QS certifications are based on finding the best way to do, fix or respond to any issue. Businesses pay large amounts of money in order to obtain these certifications. Scientific Management thesis is to take the thinking out of work. Models such as ISO and QS reinforce Taylor's belief in dumbing down a job. By dumbing down a job there are many results that management favors. By simplifying the steps to menial tasks management can drive supervisors to predetermined decisions. From managements stance this reduces training and allows replacements to easily learn the job. This in turn keeps wages down since little skill is required. The drawbacks to Taylor's arguments are mostly geared toward the worker. Deskilling is the biggest obstacle facing the worker. The act of deskilling a job drives down of wages of the workers. By driving down the wages it creates a consistent fear of losing ones job because the job becomes easy to fill. This fear takes its toll on workers and drives down the willingness to complain. Scientific Management takes all managing out of the supervisors control, thereby making the supervisor nothing but a drone. This enables a corperation to be run by a few at the top and creates a low paid work force that can be easily replaced. This allows for higher profits and security for those at the top. Managements only drawback from Scientific Management is its inability to change quickly. Due to inflexibility the firm adds costs when it needs to reassess and make changes to procedures.
Taylor argued further that by utilizing Scientific Management it spreads the workload more evenly among workers and management thereby fostering harmony. I find this connection a little bit of a stretch. Workers and management have different job functions and by sharing the work defeats the purpose of having workers and management. Furthermore harmony and happy coexistence between worker and management is deeper than a workload.
Both arguments by Taylor and Brody show that the worker is incapable of getting any significant voice. The bureaucratic procedures as a tool for the worker are destined to fail in real world scenarios. In theory the worker gains more authority but in reality there is little realization of this. As a further insult to the worker they find themselves gaining a little while forfeiting their freedoms. The more thorough and specific the bureaucracy becomes the fewer options the worker has. Bureaucratic procedures becomes the double edged sword facing workers. Logically one would be able to see the inevitable problem with this system yet organized labor favors it. Ironic that a group that fights for workers rights would in practice be limiting those very rights.
Weber argues that bureaucracy is a necessary evil that goes hand in hand will the development of society. As society gets larger and larger there becomes a need to organize and maintain equality. Bureaucracy maintains a balance by creating the rules by which government and private entities function. The functionality of the system thereby helps create a balance between the haves and have nots. Bureaucracy becomes the check and balance of which society runs on.
Weber comments that bureaucracy is “inevitable” in “modern mass democracy.” Using bureaucracy as an execution of authority is the most efficient way to run government and private enterprises. Bureaucracy, however, is not exempt from corruption. The implied power of ones position can be manipulated to ones favor. Brody's example of bureaucracy abuse in my earlier example of bathroom policy is a perfect example. Management abuses their authority by purposefully complicating and over regulating a simple issue. The worker allow this abuse to continue because of their contention that the issue is minor or the implied power of management is beyond their control. If the latter is the case it is an example of a weak union.
Weber and Taylor share several views on the practicality of bureaucracy. They both believe that in theory bureaucracy increases the efficiency of an organization. This efficiency is necessary in order to keep up with modern demands. Through superior and subordinate cooperation tasks become easier and predicable utilizing bureaucracy. Although there may be issues with Taylor's Scientific Managements over simplification of skills it becomes a necessity in order to maintain a safe, fair and stable organization.
In conclusion all three of the authors make excellent points on the good, the bad and the ugly aspects of bureaucracy. My personal feelings lean toward that of Weber and Taylor. In today's world economy efficiency is the name of the game. Although bureaucracy encourages the deskilling of workers and may impede on their personal freedoms it has become acceptable. Mr. Brody tended to use worst case scenarios and concentrate on the greed and selfishness of some management types. I like to believe that there is still some compassion, even in the modern workforce. Scientific Management although rigid in its design offers workers the safest and most predictable future. The environment spawned from Taylor's theory allows an organization to stay competitive through efficiency and measurable actions. Weber's assumption of equality through implied authority is a stretch in some instances but is a fact that is overlooked by most people. People that abuse the system and bureaucracy for their own gain are counting on that very notion. This point is most relevant to elected officials but even with private organizations it maintains its relevance. I look at my own job now in a different light and the implied power that people assume or have been legitimately given from superiors. In both cases I see how it is only assumed and is not necessarily an inevitable right.

Issues facing Todays Workers

Labor has seen its most drastic changes in the last 25 years. Some blame corporate reneging on the social contract, some blame globalization others feel that lifetime employment was just a fad and we are know headed back to normal. All are in agreement that things are not as they were and will not go back.
The most dramatic change facing workers is the abandonment of the social contract. Entire generations are now faced with no safety net and unequipped both professionally and personally to change with the times. To cope with this change some journalists like Liza Featherstone search out the scape goat. In Ms. Featherstone's opinion, “Wal-Mart's P.R. War”[1], Wal-Mart is the root of all evil. It is easy to site the biggest and most profitable as the cause for peoples personal short comings, however, analogies and innuendo's only seem to make headlines not change habits. Wal-Mart will continue to grow and influence our buying habits while more people fail to understand the new job market we now face.
This new job market is in part brought on by the way corporate business modeling has changed and views its employees quite differently. In the past corporations invested in employees for a long term return on their investment. This long term investment was the social contract or golden parachute for the employee. There was no threat of layoffs or job loss unless the corporation went horribly wrong. There was a trust. Present day corporations have no incentive to look beyond the next couple of quarters. Wall street has set a pace so fast that in order to meet expectations everything is up for negotiation. Need profits, lay some people off. Liabilities rising, close that plant. Legacy costs creeping up, outsource those positions. Employees have moved from the asset to the liability column.
Companies now have left vertical integrated production to favor concentrating on what they have deemed as “core competencies”. The functions or products that make up a companies “non-core competencies” can be outsourced to the lowest bidder and the problems associated with that function become someone else's issue. This specialization within markets has dramatically changed the way companies are viewed. No longer is bigger considered better but rather focused and efficient are the measuring stick of today. This specialization was first seen in the manufacturing side of the American market and was not considered all to important. Now it has found applications within the white collar middle management “white man” positions. The disposable nature in which managers and “professional” jobs are now treated has scared and worried workers not able or prepared for a life without guarantees.
The guarantees that workers originally enjoyed and taken for granted are now viewed as excessive by companies today. Contingent workers are able to do projects on an as needed basis. This project based process is extremely efficient for a company and its planning. R&D departments available only when you need them takes large overhead off your balance sheets. IT departments when you need them lowers the head count and investment into assets. Manufacturing contracts eliminates asset depreciation. The picture we are left with is an office consisting of a few upper management personnel, low skilled paper pushers and maybe a sales force on the road. Logistics are outsourced from trucking to warehousing. R&D is contracted to develop specific products for specific markets rather than develop a product and find a market.
Employees find themselves scrambling to prove the value to their skills. Presently the work that employees do has in effect been “dumbed down”. Work has become repetitive. Basic computer skills are all that is needed because the positions have in effect been deskilled. Computers in the workplace have taken specialization out of jobs. It has increased productivity to such high levels that automation sets the new corporate models. These new models are in response to globalization.
Globalization is the next natural step of capitalism. From the dawn of modern capitalism brought on by the industrial revolution we see regional manufacturers putting tremendous pressure on small “mom and pop” stores. Quality was not necessarily compromised. Quantity, rather, compromised the prices of the “mom and pop” operations. Quantity drove down prices to unheard of lows and thereby justified any short comings in quality. Fast forward into the 1920's and the growth of the railroads and now national corporations start putting the squeeze on the “mom and pop” regional players. Price once again driving consumers to overlook any long term loyalty in favor of short term rewards. National corporations pushed the economies of scale in the manufacturing sector to unheard of highs. In this era bigger was better. Now as we enter the 21st century history yet again history repeats its self. Now global corporation set new lows for consumer pricing through efficiency and IT developed models. The former national “mom and pop” corporations face the dilemma of change to compete on a world wide basis or go out of business. The nationals will resist by crying “protect American jobs” and “stop foreign dumping in our market.”
The irony of globalization is it is not new. Globalization could have been the term for regionals bullying the “mom and pops”. It could be the nationals bullying the regionals. You can place any industry name today from auto's to banking and get the same results. The fact that corporations are getting bigger is not the problem rather the number of markets that all the manufacturers compete in is less. Workers today find themselves in the middle of a fight within industry. The unfortunate problem faced today is that it is not regional and not a national problem, its global. There is no place to hide, there is no place to relocate to. Workers have no choice but to wait until it all clears. Today's globalization is nothing more complex than Darwin's survival of the fittest.
Within all this turmoil there is always a resistance to change. The AFL-CIO and their fraternal twin the “Change To Win” coalition have entrenched themselves in their belief that if they resist long and hard enough the employment market will return to 1971.
It is important to recognize that workers today have organized labor to thank for their diligent effort in setting legislation to protect everyone from OSHA to minimum wage. Directly and indirectly organized labor has raised the bar within the workplace.
Today, however, workers face a different set of challenges. With corporations changing the model and thinking by which they value their employees. Issues such as portable health care, retirement, and the fear of being laid off in the event of a corporate restructuring are the preeminent concerns. Labor seems to be more contempt with serving their existing interest than adding any additional membership. Organized labor has taken a defensive position rather than taking an offensive stance to entice and gain worker respect and density.
Change To Win sites the need to attract the growing minority worker but states no clear direction for long term sustainability. It seems ironic that the union who shames corporations for lack of planning and foresight in their business plan lacks its own initiative to address the needs and changing roles of its own members. The membership of unions seems to be the anchor preventing any real adaptation of today's unions. The ideas of the “peddlers” seem to conjure up more relevancy in todays changing markets as they did in their pinnacle. Corporations struggle to stay competitive and when the corporation stands to bear all the risk there is little doubt why the is animosity toward the workers belief he is owed security, sufficient pay and benefits. There has to be a migration toward a more equal respect for the risk. Both sides must work together toward the goal whether it be long term or short. Groups like Washtech are a move in the right direction of contingent workers and management working with each other.
[1]Wal-Mart's P.R. War, Liza Featherstone. www.salon.com/news/features/2005/08/02/walmart/print.html. August 8, 2005.

Doctors and Union

Is Organized Labor The Medicine Needed To Save Our Doctors?

Doctors find themselves today in a very unique situation. Historically, we think of the town doctor who maintains relationships with his patients over generations. As society came into the end of the 20th century we saw a massive division of labor among doctors. Doctors became specialized with the advent of new technologies and increased awareness of human development. This was a step to a healthier and longer life for all, however, this led to a less personal relationship between doctors and patients. This division between the two parties has made the average person unaware of the issues facing doctors today. For years the stereotype behind doctors has focused on large paychecks, minimal working hours and self dictated fees. While this may have been true in the distant past, today’s reality pits the might of corporate health insurance companies and doctors in a seldom-publicized war against each other.

At stake in this conflict are large profits, patient’s interests and who in the end decides what’s best for the public’s health. Health insurance companies have taken the advantage over doctors by systematically taking autonomy away from the doctors through lawsuits, federal and state regulations and monopolistic tactics. The contention lies in what drives each group. Doctors are driven by quality of care and the Hippocratic oath, whereas health insurance providers are driven solely by profit. An example of the insurance companies mentality is how insurance companies define a patient’s medically necessary service. In most cases it is defined as “the shortest, least expensive or least intense level of treatment, care or service rendered as determined by us [insurance company].”[1]

History
Doctors initially started to organize in 1959 when the doctors employed by the Departments of Health and Welfare of the City of New York secured a 36% wage increase, workman’s compensation, sick leave and many other benefits.[2] The group officially became known as the Doctors Association of the Department of Health in 1961. Today the group is known as the Doctors Council, part of SEIU, and maintains a membership of 17,000[3]. There are two sub organizations that include the Committee of Interns and Residents (CIR) and the United Salaried Physicians and Dentists. Other major unions such as the AFL-CIO are also racing to recruit and organize doctors.

At Issue
The dilemma facing doctors today is their inability to negotiate with health insurance providers over fees, patient care, support staff and working environments. On the surface the issues mirror the standard plight of any worker in the United States today. What is thought to be simple has morphed itself into a complicated web. Doctors are considered “simple-competitors”[4] With this designation it is illegal for them to come together and set prices. To overt this, doctors are taking their individual practices and forming larger practices of multiple doctors. The courts, in turn, view this as “a single economic entity” and therefore the doctors may “negotiate with [Managed Care Plans] MCP’s.”[5] An alternative ability to bargain has been gained through “Economically Integrated Networks”[6]. In order to fall under this umbrella doctors must “share substantial financial risk”[7] with the insurance provider. The complication with this designation is proving the shared financial risk.
Today, physicians find themselves very frustrated and very disenfranchised individually dealing with large managed care organizations on patient care issues. What doctors are now seeking is a collective voice. This collective voice may have more muscle behind it today than in years past because 80% of medical school graduates are taking jobs with H.M.O.’s.[8]
In the United States today, according to the Bureau of Labor Statistics, there are between 300,00-600,000 doctors.[9] (High end includes Physician Assistant’s (P.A.), Chiropractors, Dentists, and other specific doctors not associated with Medical Doctor (M.D.) degree.) Of the 600,000 doctors it is believed that one in seven is “employed.”[10] “Employed” is defined as under a managed care contract or equivalent contract with managed care insurance provider. By being under such a contract these doctors are salaried, therefore, [in theory] eligible for collective bargaining agreements.[11] These one in seven doctors may not limit their time to these individual contracts. As such, many also work in separate private practices to supplement their incomes. It is estimated that 90% of all doctors have at least 1 contract with a health insurance provider.[12] With 90% of doctors under a contract common sense would lead to the logical conclusion that they are employee’s of the health insurance companies and supervised as to the specific duties and obligations they must perform.
The problem comes in as whose definition of employee you use. The Internal Revenue Service (I.R.S.) defines an employee as:

“Anyone who performs services is an employee if you, as an employer, can control what will be done and how it will be done. This is so even when you give the employee freedom of action. What matters is that you have the legal right to control the method and result of the services.”[13]

Not to be limited to such a simple statement the I.R.S. then divides this into 20 common law standards and those do not include exceptions. The I.R.S. however is not the designation used, the Government decided to complicate things and derive several different answers.
The United States sought to answer the question of employee through the enactment of the Fair Labor Standards Act of 1938[14]. Although thought to clarify “employee” status the Supreme Court decided that the law was in itself vague. To simplify the disagreements the Supreme Court devises an “economic realities test” to define specifically what an “employee” is.[15] In laymen’s terms the test takes into account whether the individuals involved in the dispute are economically dependent on the other group for which they are providing their services to. In order to decide a case in the manner it becomes highly fact specific and requires an analysis of the entire employment relationship. The “economic realities test” was applied to organized labor in the case of NLRB v. Hearst Publications, Inc[16]. This case concluded that the test for an “employee” was not confined exclusively to but also to independent contractors. The courts then set up a determination of whether the group at issue is subject, “as a matter of economic fact, to the evils the [NLRA] was designed to eradicate and that the remedies it affords are appropriate for preventing them or curing their harmful effects in a special situation.”[17] The Court further stated that the term “employee” was to be defined broadly under the National Labor Relations Act when “the economic facts of the relation make it more nearly one of employment than of independent business enterprise with respect to the ends sought to be accomplished by the legislation, those characteristics may outweigh technical legal classification for purposes unrelated to the statute’s objectives and bring the relation within its protections.”[18] This statement at the time enabled independent contractors the safety of the NLRA. The act was amended three years later to exclude independent contractors.
So with all the different legislations, amendments and court decisions there is much confusion as to where doctors stand. What became an issue under the managed health care systems is are doctor’s employees and if so are they full time or are they part-time employees under managed care contracts? The health insurance companies argue that the doctors are independent contractors and therefore not covered by the NLRA. A petition brought to the National Labor Relations Board (NLRB) by the United Food and Commercial Workers Union (UFCW) sought to answer this question. In this case the UFCW, representing over 250 doctors in southern New Jersey, argued that the doctors are entitled to collective bargaining because the agreement mandated by Amerihealth (a heath insurance company) “imposes supervisory demands, such as inspecting waiting rooms and medical equipment, as well as reviewing records.”[19] Because of the demands, requirements and mandatory guidelines of the contracts enforced by Amerihealth that the doctors were subject to, it created a situation that controlled and limited the doctor’s actions. The NLRB found that some aspects of the contracts did suggest the doctors are employees. The doctors do have “indefinite length of contract[s]” and “the variety of standards and guidelines to which Amerihealth doctors must adhere insinuate an employee relationship”[20]. The NLRB found that the deciding point against the doctors was their ability to “retain their economic separateness” through their ability to “advertise in their own names; perform their services at their own facilities” while focusing their “interest on their patients and practices, not the interests of Amerihealth enterprise”.[21] So with this ruling Amerihealth has interests in the doctors but (according to the NLRB) the doctors have a non-linear interests in Amerihealth. That is to say, the doctors drive their practices regardless of any standards or requirements constituted by Amerihealth.

Doctor’s Options
The fear that the health insurance companies try to portray is that of strikes. The health insurance companies run a propaganda campaign based on fear. These companies portray a scene of a patient being sick and dying due to the fact that the doctors are all outside the hospital refusing to work. Doctor’s argue that they would never strike. In fact Dr. Palmisano of the AMA (American Medical Association) says ''Physicians must not engage in a strike or any other tactic that interferes with patient care[22].'' Doctors approach the issues around strikes a little differently. Doctors are aware of a little known law in most states that the health insurance companies fail to publicize. The law in most States simply legislate that it is illegal to abandon patients[23]. A coordinated strike by doctors would in effect hold them open to prosecution to this law. Secondly, and most important to doctors is that a strike would conflict with the Hippocratic oath and the ethics that govern the way almost all doctors guide their profession.
A contested issue between doctors and the AMA is that the AMA does not support current organized labor groups. The AMA stance is that doctors should organize independently. The AMA argues that if doctors organized with other hospital workers there is a concern that if the nurses went on strike that the doctors would be forced or pressured to honor the picket lines. Dr. Brian J. Moore is a doctor who supports the organizing efforts currently being pursued through current organized labor, he states ''The way medicine is going right now and the way patients are being treated by managed care is just terrible, and someone has to stand up for proper health care.[24]” He goes on to say, ''I don't see a physicians' union particularly like unions of the past, where we're going to strike and carry placards. It's primarily to get the message out that we have to improve health care.'' With such a noble ideals a major complication arises. How can a group force its message and demands without its biggest weapon, the ability to strike? A struggle without this threat gives the insurance companies the upper hand and allows the doctors only propaganda. With this handicap it equates the doctors bringing a knife to a gunfight.
The AMA has been mute to the subjects of organization until very recently. The AMA maintained a stance for many years of silence and belligerent self-denial. With learned professionals their autonomy and historical self-diluted importance handicapped the AMA from making a significant stance on this important issue. The AMA failed to see the changes facing their profession. This failure has now found the profession largely unorganized and split. Younger doctors today are gripped with massive loans, monstrous liability premiums and no strong organization to assist them in navigating these treacherous conditions. These conglomerate health insurance companies offer positions in company owned and operated hospitals. They entice doctors by covering the doctors liability insurance at the cost of reduced income, regulations and bureaucracy that could rival any government agency. These doctors are forced to accept these conditions out of necessity rather than out of professional choice. Successful efforts by organized labor of doctors offer programs that are specific to their needs of doctors. Doctors seek networks of other doctors who have the experience and knowledge of running practices. The resources to assist doctors in making informed decisions based on comparisons in easy to understand formats. The doctors needs are different than those of an auto worker. Successful organizing attempts of doctors have focused on financial and autonomy issues rather than job security. These new issues facing doctors are radically different from previous organizing boilerplates. It is this diversion from the norm and different thinking that is needed to be successful with doctors.

Monopolies Against Doctors
Monopolies where officially made illegal in the United States by the Sherman Act of 1890. To summarize, this act makes it illegal to restrain trade, prohibits mergers and acquisitions that lessen competition and prohibits unfair methods of competition. Doctors find themselves today being dictated to for the fees for their services, what factors are involved with these services and who can receive these services. This regulation of doctors is not brought on by a Government regulatory agency, nor by any peer group of doctors, rather it is dictated by private insurance corporations.
When the Sherman Act became law in 1890, it was intended to be a check against the power of large holding companies, cartels and trusts. In reality, some argue, the law became ammunition in the hands of the enemies of the developing labor movement, who used it to persuade courts to command and dictate to the young unions. The argument behind the detractors of the labor movement was that in some sense organized labor does precisely what the antitrust laws are designed to prevent. These antagonists argued that an organization of people whose members agree on the price at which they would sell their services is in fact a monopoly.
As the 20th Century began Congress bolstered the antitrust law to attack the restraints on commerce. This was done to protect the labor movement from the misuse of the existing laws. Congress decreed that the "Labor of a human being is not a commodity or article of commerce" in what became section 6 of the Clayton Act, and stated that “nothing in the antitrust laws should censor or obstruct the permanence or sanctioned activities of labor organizations created for the assistance of the common worker”.[25] Section 20 of the Clayton Act prohibited courts from issuing injunctions in disputes concerning terms or conditions of employment.[26]
During this time many groups were distrustful of the growing influence that organized labor was gaining. These groups lobbied and asserted their own personal agendas to put down and set back the gains that organized labor was attaining. In the Norris-LaGuardia Act of 1932,[27] and again, in the Wagner Act of 1937[28] the government sided with organized labor by giving additional ways in which the common laborer could vent their issues and demands. Activities such as picketing were allowed and the government stance was declared that the national interests favored the collective bargaining process. This affirmed the rights of union organization. With the basic framework of laws and court rulings the distinction had to be drawn between what the United States national labor policy would be, where the limitations of competition in wages, hours and working conditions for unionized employees were pitted against the national antitrust policy, which would maintain fair competition for manufacturers and their ability to compete.
There were two distinct issues that the Supreme Court resolved forthwith when addressing the differences between antitrust issues and legitimate union organizing activity related to the provision of services. First, the groups practicing the "learned professions," like law, medicine and engineering, fall under the antitrust laws to the same extent as any other. An accession among competing professionals on a minimum fee schedule is a violation of the antitrust laws. This case was decided by Golfarb vs. Virginia State Bar.[29] This case explained that a minimum fee schedule published by the county bar association and enforced by state bar violated the Sherman Act. There is no statutory, and no implied exemption from the antitrust laws for independently practicing professionals as there is for labor organizations and their members. This is the critical stumbling block facing doctors today. The wording directly names doctors as learned professionals. At a time when this was written teachers and professors where apparently not thought of as learned professionals. Would a doctorate in mathematics be deemed less learned than a doctor of medicine?
The second case involved calling an association of individuals who practice independently a union doesn't make it one. The Supreme Court has dealt with this issue on a number of occasions, for our present purposes we can use one case in particular that involves physicians.
In American Medical Association v. United States[30], the American Medical Association (AMA) and the Medical Society of Washington, D.C. were sued for violations of section 3 of the Sherman Act. Section 3 of the Sherman Act prevents unreasonable restraints of trade in the same manner as section 1, but deals specifically to commerce in the District of Columbia[31]. The government charged that the AMA and the Medical Society along with physicians, had defied the antitrust laws by contriving to "hinder and obstruct the operations of Group Health Association, a nonprofit corporation organized by Government employees to provide medical care and hospitalization on a risk-sharing prepayment basis.[32]"
In particular, the government charged that the defendants conspired to pressure and intimidate physicians who were members of the defendant organizations from accepting employment under Group Health. The government further explained that the AMA prevented physicians from consulting with Group Health physicians, and to persuade hospitals from providing care for Group Health patients. The AMA argued that they were exempt from the relevance of the antitrust laws because they were engaged in a labor dispute to which the antitrust laws did not apply under the Clayton Act and the Norris-La Guardia Act[33].
The Arguments of the AMA failed in the eyes of the Supreme Court. The Court decided the AMA and Medical Society were an organization composed of professionals who operated their businesses independently. The Court also said that the physicians involved were not employees of anyone, even if some of the members had contracts with Group Health. The interests that the AMA and its physicians tried to attain was to prevent Group Health from operating its business profitably, not to pursue better terms and conditions of employment of it members through collective bargaining.
This was a major set back for doctors when the court determined that the doctors were not employees of the health insurance provider, even if the doctors had contracts with Group Health. This case is repeatedly cited when any doctors group attempts to seek restitution and bargaining power against the heath insurance providers.
To substantiate this claim the Supreme Court relied on Columbia River Packers Association v. Hinton.[34] Hinton involved alleged antitrust violations against the Pacific Coast Fishermen's Union. This case involved parties who processed and sold fish. The Union was mostly an association of fishermen who owned or leased fishing boats, and who were independent entrepreneurs. The Union acted as the bargaining unit for its members (the fisherman) in order to sell the fish to the process companies. Members were prohibited by the Union by-laws from delivering fish outside of the Union agreed upon vendors. The Union further required the approved buyers of the Union fish to buy only from its members. The plaintiffs in the case were two fish processors and sellers who refused to adhere to the agreement, and because of their refusal to abide by these stipulations were denied access to Union fish.
The Court found that the Union practices were not exempt from the antitrust laws by reason of labor policy. The Court concluded that the labor laws (in particular, the Norris-LaGuardia Act) focus upon "disputes affecting the employer-employee relationship", and that they were not intended to have "application to disputes over the sale of commodities."[35] The court essentially explains that the dispute was between sellers of fish and buyers of fish. Like the doctors in the AMA case, and like many of the physicians in today's proposed unions, the fishermen were not and did not want to be anyone's employees. Rather, they wanted more bargaining power in the sale of the product they were marketing. But the court decided that this is not a justification for an agreement on price among competitors. So even with the cited case, the health insurance companies are exempt from negotiating with members on price with or without the title of employee. With this said, if we reverse the situations and make the insurance companies the union and the doctors the fish processors the same outcome is not reached.
In a 2003 report the Department of Justice and the Federal Trade Commission put out a report entitled “Improving Healthcare: A Dose of Competition.” This 361-page report was the culmination of 2 years of research and 27 joint committee hearings. The report states, “allowing physicians to bargain collectively will harm consumers financially and is unlikely to result in quality improvements.” Instead the report goes on to make recommendations “that antitrust enforcement to prevent unlawful acquisitions or excise of monopoly power by insurers is a better solution[36]”. As these corporations become bigger and bigger the expectation would be that the Federal Trade Commission would step in and look at the industry. In reality the government has taken a blind eye to these restraints in trade and according to Robert F. Lienluft, former Assistant Director for the Federal Trade Commission. He states that the FTC “had rarely, if ever, challenged an HMO merger”[37]. He further states that “Between 1994 and 1999, the nation’s largest health care insurance providers consolidated from 18 to 6.”[38]
Six insurance companies may seem like a lot. You would think that competition would drive and control costs. The fallacy behind this argument is that health insurance companies are national but most companies in the United States are regional. By concentrating on these regional restrictions of patients and doctors there leaves little room for competition. Patients cannot with any ease travel long distances in search of low cost quality health care. This is unreasonable and cost prohibitive. The result can be clearly seen in the Philadelphia region of Pennsylvania where two insurance companies control 76% of the insured market.[39] With this power the insurance companies offer a “take-it or leave-it” policy on their entire programs to doctors. Some doctors who have attempted to negotiate their fees with health insurance companies have been threatened with a lock out. The health insurance company will terminate all current contracts if any doctor attempts to negotiate fees on an organized basis[40].

The Fine Print
So how do insurance companies get away with dictating to doctors like this? The current situation is attributable to the McCarran-Ferguson Act of 1945. This act allows an exemption for insurance companies to cooperate with competitors on insurance rates, coverage and statistics. The problem with this act is it “does not define the specific activities within the business of insurance that where exempted.”[41] This act gives free rein for insurance companies to collude on pricing and methodically drive down the fees paid to doctors and dictate what procedures are best for patient based on statistical models over the doctors judgment. To add to the doctor’s dilemma there is a second barrier in the way called “State Action Doctrine and the Noerr-Pennington Doctrine”.[42]
The state action doctrine allows for anticompetitive conduct provided that
the conduct is both (a) part of a clearly articulated policy by a state to displace
competition in a regulated area and (b) actively supervised by state regulators with
statutory authority to review the conduct. The Noerr-Pennington Doctrine provides
immunity for certain joint efforts by competitors to petition the government. Both of
these immunities may be applicable to insurance.[43]

Between the three previous laws it enables insurance companies free rein to set prices. These specific legislations handicap the doctors in their fight to create a level playing field to compete and bargain in. Specifically the McCarran-Ferguson Act puts the power of regulating insurance in the hands of the individual states. Although the act does not prevent the federal government from stepping in and creating some order, the government has consciously decided to stay out. The result is fifty different states with fifty different loopholes, restraints and confusion facing organized labor and their efforts to help the doctors.
Perhaps the divide in legislation might be brought on by monetary influence. The AMA in 2008 reported contributions to political groups of a little over 1.2 million[44], while insurance companies during the same time contributed over 38 million.[45] There seems to be little separation among both Republicans and Democrats. From both Clinton administrations through both Bush administrations the health insurance companies have been able to lobby and influence the prevention of any changes to anti-trust laws both for and against them.

Results
The struggle between doctors and insurance companies is not an easy fix. Doctors want to offer the best medical care to their patients. In order to do so they have to have the power to do what is medically necessary along with the ability to discuss all options with their patients without fear of reprisals from the insurance companies. Doctors need the ability to have exemption from antitrust laws that allows them to collectively bargain to regain control over their principals and clinical decisions. Political initiative and federal regulation is required. The current laws that doctor’s face and that govern health insurance companies were instituted for a simpler time. The massive size and influence that health insurance companies now possess mirror the railroad companies in the mid 19th century. There is some hope on the horizon. Currently there is an act before the house called the Quality Health-Care Coalition Act of 2007. This act would “Treat health care professionals negotiating with health plans as collective bargaining units for purposes of antitrust laws.”[46] Although currently stalled it is some hope for the new administration to push for this act to allow quality health care for patients and doctors.
The legislative issues are the most poiniant issue at large facing doctors. Simply the current set of laws, court decisions and exemptions are misleading, counter intuitive and just a plain mess. Jack Seddon, executive director of the Federation of Physicians and Dentists said ‘‘here you have an antitrust law that was passed to control Rockefellers and Carnegies, but is being used against doctors trying to hold onto their practices.''[47]
Some would argue that the entire system is at fault and perhaps a socialistic approach is the only real way to guarantee health care to all. Doctors argue that universal government instituted healthcare is not a solution, instead it moves one bureaucracy to another. Allowing the government to control all healthcare when they cannot control Medicare and Medicaid is a disaster that could cost people their lives. Instead give doctors the autonomy to decide on a case-by-case basis what is best for the individual patient. Current insurance companies, when you simplify everything, make millions by denying patients care. Doctors seek to allow their opinion to be the decisive decision rather than base patient care on a statistical model as health insurance companies do. We must also let the doctors be doctors. The organization of doctors would enable a small group of specialized doctors to ensure the rights and interests of not only the doctors but also the patients they serve.
Because doctors have agreed to bypass their right to strike and instead rely on propaganda, they are at the mercy of public opinion. The public may understand the plight of the doctors and may even support the cause, the problem lies in the fact that the average person cannot switch providers. You cannot ignore your illness and not go to the doctor. Boycotting becomes a mute point. The health insurance companies maintain free rein to drive their profits ever higher. Health insurance companies and their fees drive the bottom line of every company in the United States. In the United States 15% of the GDP is spent on healthcare[48]. The doctor’s cause is not just theirs, the outcome of their fight will affect all of us. Doctors and organized labor hope that an alliance between them is the vision that will benefit everyone. Are these doctors visionaries? Only time will tell. It is wise to remember that some say a visionary is a fool whose crazy idea worked out.






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