The National Labor Relations Board has decided it's time to examine the relationship between physicians and health plans in the era of managed care.
Last week the agency's regional office in Philadelphia began taking testimony on a petition that challenges a federal ban on collective bargaining by independent physicians.
United Food and Commercial Workers Union Local 56, based in Somers Point, N.J., is attempting to prove that physicians who contract with AmeriHealth HMO are de facto employees and, thus, entitled to unionize. Unionized workers are exempt from federal antitrust laws.
The union is seeking to represent specialty and primary-care physicians in New Jersey's Cape May and Atlantic counties (Nov. 3, 1997, p. 33). According to NLRB documents, the union claims there are 200 physicians under contract with AmeriHealth, while AmeriHealth, a subsidiary of Philadelphia-based Independence Blue Cross, claims the number is nearly 600.
In August the NLRB in Washington ruled that its regional administrator in Philadelphia, Dorothy Moore-Duncan, erred earlier this year when she dismissed the union's petition without a hearing. It ordered Moore-Duncan to conduct a hearing and render another verdict.
In her earlier decision, Moore-Duncan determined that evidence showing that physicians are competing independent contractors outweighed evidence showing that they are employees (See box).
In its 2-1 decision to send the case back, the board agreed with the union's argument that a hearing is necessary to determine the extent of HMO control over medical care and physician dependency on HMOs for access to patients.
Federal law bans independent contractors from banding together to set prices, but employees are entitled to bargain collectively under the National Labor Relations Act.
Union organizers say a victory could prompt widespread organizing of doctors. They have attacked AmeriHealth, which covers 145,000 New Jersey residents in its HMOs, for compromising quality.
AmeriHealth defends its quality and predicts it will prevail.
"The doctors are contractors and independent businesspeople who are responsible for their own profit and loss, responsible for their own tax status and working for other insurers. They're clearly not employees (under the act)," AmeriHealth spokesman Jim Panyard said.
In its decision to remand the case, the NLRB said the involvement of HMOs "calls into question the historical understanding of the status of physicians who maintain their own practices." It called for a hearing to "provide a more complete picture of the day-to-day interaction between the physicians and the HMOs and the impact of the HMOs on the physicians' access to and care of patients."
However, a decision favoring the union appears far from likely.
Mark Levy, executive director of the Committee of Interns and Residents, a New York-based union, said although the reasoning is sound, the case is weak because the doctors derive a relatively small portion of their incomes from AmeriHealth.
"I don't think the facts are there to support a case for a union," Levy said.
In his dissent, NLRB member J. Robert Brame III said a hearing would constitute a "gross waste" of agency resources and a "postponement of a sure and certain dismissal" of the union's petition.
Eleven hearing days have been scheduled through Nov. 20, but the case could extend into December, said John Breese, assistant to Moore-Duncan. "This is a new area. It's possible that the parties will have numerous disputes," Breese said.
Testimony is being heard by an NLRB hearing officer, who may subpoena additional testimony and witnesses. A written record of the evidence will then be reviewed by Moore-Duncan, whose decision could be appealed to the NLRB in Washington and later to federal court.