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Housestaff and unions: the Council of Associates' analysis of the National Labor Relations Board ruling

In November of 1999, the National Labor Relations Board (NLRB) ruled that residents have a legal right to unionize. The case was initiated by housestaff at the Boston Medical Center, who wanted the right to unionize. The College's Council of Associates created the following summary, which contains excerpts of the NLRB decision, reaction from the College and other organizations, and an analysis from the Council. For more information on this topic, see "New ruling on resident unions worries some educators" from the March 2000 issue of ACP Observer.

NLRB Ruling
Reactions and College Position
Council of Associates Analysis

The Boston Medical Center Summary - What Residents Need to Know

Boston Medical Center Corporation and House Officers' Association/Committee of Interns and Residents, Petitioner. Case 1-RC-20574

NLRB Decision

"We are convinced by normal statutory and legal analysis...that the Board reached an erroneous result in Cedars-Sinai. Accordingly, we overrule that decision and its offspring, conclude that house staff are employees as defined by the Act, and find that such individuals are therefore entitled to all the statutory rights and obligations that flow from our conclusion."

On Collective Bargaining

"As a policy matter, we do not believe that the fact that house staff are also students warrants depriving them of collective bargaining rights, or withholding the statutory obligations attendant to those rights. The Employer and Member Brame argue strenuously that by granting employee status to house staff, the Board will improperly permit intrusion by collective bargaining into areas involving academic freedom. This argument puts the proverbial cart before the horse. The contour of collective bargaining is dynamic with new issues frequently arising out of new factual contexts; what can be bargained about, what parties wish to bargain about or concentrate on, and what the parties are free to bargain about or concentrate on, may change. But such problems have not been proven to be insurmountable in the administration of the Act."

Reactions and College Position

Reaction

"While we recognize that a majority of residents work under conditions conducive to an excellent medical education, there are some who work in environments that are not optimal for either education or patient care. For these residents, a labor organization may be the best way to improve patient care and their work environment.

The AMA and AMA-RFS will continue to educate residents on their options for collectively negotiating with teaching institutions, including working through Physicians for Responsible Negotiation (PRN), the AMA-supported labor organization. We also recognize that the formation of a labor organization may be disruptive in a productive environment for medical education at some institutions. For residents at these institutions, the AMA-RFS will continue to assist resident groups in forming professional housestaff associations."

Christopher Cogle, MD, AMA-RFS Chair

"This decision is long overdue. These doctors are concerned about the dramatic changes in health care, and can now turn to CIR as a way to represent their interests and those of their patients. They work from 80 to 100 hours a week, providing critical patient care in Emergency Rooms, Operating Rooms and throughout the hospital and therefore should be afforded the legal rights and protections of employment."

Andrew L. Stern, SEIU President

"The bottom line is that medical education programs should be the responsibility of the faculty and teaching institution, and should be driven by educational considerations rather than the marketplace...Similar to the American Medical Association's decision last summer to create collective bargaining units for physicians, the NLRB decision in the Boston Medical Center case continues to erode to core principle of professionalism in medicine."

Jordan Cohen, AAMC President

"Teaching hospitals and other medical institutions must realize the significance of the Labor Board's Boston Medical Center decision. Now is the time to establish positive, proactive communications within training programs and to encourage meaningful dialogue between hospital administrators and teaching staff. In the words of NLRB Member Brame, the majority's ruling "places in jeopardy the finest system of medical education in the world." To avoid these effects, graduate medical education and medical providers should foster a climate of cooperation and issue resolution.

Presented at the American Health Lawyers Association, Jan 2000
Prepared by Jackson Lewis Schnitzler & Krupman

College Position

Physicians in training should have means available to communicate with their program directors and supervisors to address and resolve concerns about patient care, stipends, hours, and other working conditions. Educational content should remain the purview of the appropriate RRC and program directors, and not subject to negotiation.

Conflict resolution measures must be available for resolving impasses in joint negotiations on behalf of physicians. For residents and fellow, a mutually agreed upon third-party mediator from within academic or organized medicine should be available in the event that agreement cannot be achieved through these mechanisms.

ACP Board of Regents

Council of Associates Analysis

This ruling affects some 90,000 residents working in privately owned institutions nationwide. Residents now have four options for organization following this National Labor Relations Board (NLRB) ruling -

1. Professional House Staff Organization (PHO/IHO) - A body designed to provide house staff education and social functions, but may not address work related issues. Any discussion of work related issues would be considered voluntary recognition of a collective bargaining unit of employees by the institution under current NLRB law. Should conflicts arise in future discussions, the collective bargaining unit would have the ability to appeal to the NLRB for arbitration. Some legal counsels predict that institutions will voluntarily refuse to recognize current and future PHO/IHOs, preferring instead to define terms of negotiation through collective bargaining contracts for liability reasons. Other program directors question whether institutions and residents would take this option seriously. The American Council for Graduate Medical Education (ACGME) accreditation standards require that programs have a grievance system in place for house staff to voice concerns, some program directors argue that this along with their long-standing good relationship with their house staff should override liability concerns.
   
   
2. Collective Bargaining Units - As employees, residents may now register through the NLRB to establish a collective bargaining unit. This organization would establish a dialogue with the respective institution and negotiate a regular contractual term of employment, similar to the frequently mentioned Michigan House Staff Association. All negotiations could again be subject to NLRB review in the event of conflict and appeal.
   
   
3. Physicians for Responsible Negotiations (PRN) - Residents are now eligible for full participation in the new AMA physician union. PRN representatives state that they have no plans to actively recruit house staff, but will provide full services to groups that contact the organization asking for information and help. PRN does not endorse resident strikes as a mechanism of conflict resolution, instead relying on publicity in the lay press and lobbying of state and national legislators as means to settle disputes. A Board of Trustees has now been established, and one professional negotiator has been hired to date.
   
   
4. Traditional Labor Union - The most immediate example is the Committee for Interns and Residents (CIR), a resident run labor union with affiliation to the Services Employees International Union (SEIU). The CIR currently represents 10,000 residents in predominantly inner city programs on the east and west coasts. It has actively engaged in work slow-downs as a negotiating tool, and has staged infrequent resident strikes in the past. Clearly residents are an attractive group for organized labor, and multiple other union groups have also announced plans to target residents for membership.

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