The National Labor Relations Board's Philadelphia office has rejected for a second time a petition by a New Jersey union local seeking to represent physicians in collective bargaining with an HMO.
Last week's ruling followed a 14-day hearing ordered by the NLRB to explore how managed care has changed the relationship between physicians and health plans.
Somers Point, N.J.-based United Food and Commercial Workers Local 56, AFL-CIO, which wants to represent about 650 physicians in New Jersey's Cape May and Atlantic counties in negotiations with AmeriHealth HMO, attempted through testimony to cast the doctors as AmeriHealth employees.
But NLRB Regional Director Dorothy Moore-Duncan reiterated her earlier ruling, issued in January 1998, that the physicians are independent contractors and not entitled to protection by the National Labor Relations Act.
In last week's ruling, Moore-Duncan said the legal issue was not whether collective bargaining would benefit the physicians and patients, or whether the doctors are agents of the HMO in its effort to control costs. "Rather, the issue is whether the physicians, in their work for AmeriHealth, are so integrated with and controlled by AmeriHealth that they meet the statutory definition of employees."
Her answer was a resounding no.
Moore-Duncan rejected union assertions that AmeriHealth "closely monitored and regulated" physician activities and that HMOs in the market control physicians' access to patients. She noted that HMOs have less than 35% of the local insurance market, and that AmeriHealth has less than 10%.
Further, Moore-Duncan said the record did not support the union's position that the physicians don't have an opportunity to negotiate their contract terms, given that AmeriHealth has negotiated "special prices" with at least 10% of physicians.
"While the economics of the industry may be changing, the record shows that the physicians in this case retain wide entrepreneurial discretion in how they run their practices and make profits," she said.
In a written statement, AmeriHealth Chairman and Chief Executive Officer G. Fred DiBona Jr. called the decision "a victory for our subscribers, who would have faced considerably higher costs in the future had the decision gone the other way."
UFCW officials did not return calls last week. The union has until June 7 to request a review of the decision by the five-member NLRB in Washington.