Recognition of collective-bargaining units for employed physicians is proliferating. Union recruits are signing on in droves. Proposed legislation to include nonsalaried doctors in the movement is cropping up in Congress and state legislatures across the country.
Truth or hype?
Of the roughly 600,000 doctors now treating patients in the U.S., about one in seven practicing physicians is employed, according to the American Medical Association.
The definition of "employed," however, is being challenged by some unions that contend managed-care contracts are the equivalent of employment agreements. One union, the New York-based Doctors Council, claims that means about half, or 300,000 doctors, are salaried employees and should be eligible for collective bargaining.
The union also estimates that more than 40,000 doctors, or 13% of those they consider eligible to negotiate, have joined unions, not counting organized interns and residents, who were deemed employees in a ruling last November by the National Labor Relations Board.
Despite their low enrollment numbers, physician unions, both old and new, have generated a fair bit of attention in the past year, especially since the AMA's creation last June of its own labor organization, Physicians for Responsible Negotiation.
But what workplace and patient-care quality issues are physician unions actually addressing? How is collective bargaining affecting the healthcare systems where unionized doctors practice?
Small but growing. Richard Wade, senior vice president for communications at the American Hospital Association, says that physician unions are still a tiny force in the healthcare universe. They tend to crop up in places where institutions are in crisis.
On the whole, union impact on hospitals to date has been minimal, Wade says. With 60% of hospitals experiencing tight economic times, most doctors recognize that it is in no one's interest to erode the financial stability of their organizations, Wade says.
But the leader of the country's oldest union of attending physicians and dentists sees it differently.
"The state of the unions in healthcare is excellent," exclaims Barry Liebowitz, M.D., president of the Doctors Council, which represents 16,000 physicians nationally. That union is part of the National Doctors Alliance, an umbrella organization that includes two other unions, the Committee of Interns and Residents (CIR) and United Salaried Physicians and Dentists.
The National Doctors Alliance was formed in March 1999, when the three unions affiliated with the Service Employees International Union. Between the Doctors Council and the CIR, the group has added 2,500 members in less than a year and represents about 18,000 physicians nationwide.
"The best part is when we work with management in a collaborative manner," says Liebowitz, who is also president of the alliance. "There is no room for an adversarial environment when some hospitals in New York are working at just a 1% to 2% profit margin."
Liebowitz cites as an example St. Barnabas Hospital, a voluntary facility that provides doctors to several New York hospitals under an affiliation agreement with New York City Health and Hospitals Corp., the municipal healthcare system.
Last March, 250 doctors at 330-bed Lincoln Medical and Mental Health Center in the Bronx, who were employed by St. Barnabas, decided to unionize. Their first choice for representation was United Salaried Physicians and Dentists. But Ronald Gade, M.D., president of St. Barnabas, opposed that group.
Gade says that because both the USPD and the Committee of Interns and Residents are affiliated with the SEIU and are in effect advised by the same people, he was concerned that the attending physicians and the interns and residents that they supervise would essentially be in the same union.
This issue of who is considered a supervisor or manager is often a sticking point in early labor negotiations, especially among physicians. The National Labor Relations Act defines a supervisor as an employee with the ability to hire, fire, transfer or discipline other workers, or effectively recommend that such actions take place.
Roger King, a labor attorney with the Columbus, Ohio, firm of Jones, Day, Reavis & Pogue, says that as a general rule, supervisors can't vote in the election to form a union and aren't involved in organizing activities. If they do get overly involved, it can taint the election or even result in the nullification of its results.
It's a tough spot for physicians who want to collectively bargain, King says, because many doctors naturally gravitate toward supervisory positions that may disqualify them from taking part in a bargaining unit. King says that generally, the determination of who is a supervisor is worked out between labor and management before the election, or if it is not, the NLRB makes a ruling.
The situation at Lincoln was becoming increasingly contentious, Gade says.
"When we went to discipline a bad doctor, the residents, who previously had agreed that he was bad, suddenly decided he was the next Louis Pasteur," Gade says. "We weren't contesting their right to organize, but who could do so?"
Although the Doctors Council also had joined SEIU, Liebowitz was able to persuade management that the council was an independent, autonomous unit.
"Dr. Liebowitz has not lost his roots as a physician," Gade says. "Doctors Council won't condone the practice of bad medicine. There is nothing wrong with giving doctors job security, benefits and fair pay as long as they practice good medicine."
Doctors Council negotiated the first collective-bargaining agreement with St. Barnabas on behalf of the Lincoln Hospital doctors last September. The one-year contract assured physicians the right to fair and impartial hearings and established specific grievance and disciplinary procedures. It also included a 2.5% wage increase, longevity payments of $1,000 and $2,000 for doctors who have worked at the hospital for five or 10 years, and additional health insurance benefits, such as dental and optical service plans. The contract will expire June 30, at the same time St. Barnabas' affiliation agreement with Lincoln ends.
On Feb. 3 St. Barnabas voluntarily recognized (without a vote) the Doctors Council as the exclusive collective- bargaining representative for 170 doctors who work at the Rikers Island and Manhattan Detention Center prison health facilities, adding to the swelling ranks of the National Doctors Alliance.
"It was almost a pro forma decision," Gade says. "There was no element of controversy whatsoever." He notes that almost all of the nonphysician staff of St. Barnabas is "heavily unionized."
Liebowitz says the union movement needs more organizers to forge links with local medical societies, many of which are losing members. He hopes voluntary recognition of doctors' unions will increase in the future. He also believes that unions and institutions can work together to find new efficiencies and implement new programs.
AMA union under way. Doctors who work for the Wellness Plan, a Detroit HMO that provides care for 120,000 Medicaid recipients, may soon be the first group to organize under the AMA's Physicians for Responsible Negotiation.
Ross Rubin, executive director of the AMA union, says Wellness Plan management would not speak with the doctors as a group and wouldn't include them in decisionmaking. Physician salaries were not an issue, Rubin says.
The PRN filed a petition with the NLRB in December to represent the 36 doctors employed by Wellness Plan, 75% of whom signed the petition to unionize.
The HMO challenged the proposed negotiating unit, claiming at NLRB hearings in January that all of its physicians are supervisors, while the PRN said only five or six hold supervisory positions. Also, Wellness Plan pushed for optometrists and physician assistants to be included in the bargaining unit, Rubin says. The PRN argued that only physicians should be included.
"Doctors have their own interests that need to be considered uniquely," Rubin says. "Other professionals may have interests that run contrary to medical ethics."
The NLRB's regional director in Detroit, William Schaub Jr., decided on Feb. 11 that an election could be held to allow the physicians to vote for representation by the PRN. He also decided in favor of the PRN with regard to its request for a physician-only unit and against Wellness Plan's claim that all of the physicians are supervisors.
The PRN has asked Wellness Plan to voluntarily recognize it as the bargaining unit. If the insurer doesn't comply, the physicians will vote March 9.
Wellness Plan officials would not comment on their concerns about the negotiating unit. Spokesman Don Drew would only say that Wellness Plan was reviewing the NLRB decision with legal counsel.
Since its inception, the AMA's union has pledged that, for ethical reasons, its members will not strike or withhold services. Some traditional union leadership questions whether PRN is a "real" union if it does not provide its members with this critical bargaining tool.
"PRN is an employers' union where the so-called union is already in bed with the employers," says Robert Weinmann, M.D., president of the Oakland, Calif.-based Union of American Physicians and Dentists. "It will not have to have real labor lawyers because they won't have to know how to deal with strikes."
Weinmann says it is undemocratic not to allow the members of a union to vote for the option to strike. Rubin doesn't see it that way.
"Doctors shouldn't strike, so they won't strike," he says. "I don't think it puts us at a disadvantage at all. We'll be negotiating from a professional platform."
Other criticism leveled at PRN by officials of the more traditional unions is that the union's advisers lack enough labor experience.
Rubin says PRN's chief counsel, Mark Flaherty, a labor attorney with the Kansas City, Mo., office of Sonnenshein, Nath & Rosenthal, is a seasoned organizer who has worked on both sides of the table for 23 years. Flaherty represented the United Brotherhood of Carpenters before the Supreme Court last year.
While Flaherty acknowledges that he hadn't represented a healthcare union prior to his work for PRN, he says he has benefited from the wisdom of his firm, which has a large practice of representing doctors, from single-physician practices to large medical groups.
Student unions. Last November, the NLRB made the decision to recognize medical interns and residents as employees, not just students. The board acted in a case brought in 1997 by the CIR, which had been requested to represent the house staff at 432-bed Boston Medical Center. With 10,000 members, the CIR is the largest union of house staff physicians and receives $1 million annually from the SEIU for recruitment and organizing efforts (March 8, 1999, p. 17).
The case was not as significant for Boston Medical Center, says Edward Christiansen, general counsel for the medical center, where management had already recognized the residents' bargaining unit. But it sets a precedent that many expect will have a deeper impact on other teaching hospitals.
As employees, house staff in private hospitals now have the legal right to bargain collectively. House staff who are public employees, however, are unaffected by the NLRB ruling. State law governs whether those employees have the right to bargain collectively and to strike.
Jordan Cohen, M.D., president of the Association of American Medical Colleges, objects to collective bargaining among interns and residents. He claims that other, better mechanisms already exist and are being continually monitored and strengthened to assure recognition of resident and intern concerns.
"Unions are marvelous devices to leverage benefits that otherwise would not be granted," Cohen says. "But that's not the kind of adversarial relationship that is in keeping with good educational relationships."
Cohen says the Accreditation Council of Graduate Medical Education has a series of institutional requirements regarding the working conditions for house staff. Bringing problems to the attention of the council, he says, would be a more appropriate avenue for house staff when they have concerns about patient care or their educational environment.
Cohen says additional expenditures would not be required to communicate these alternatives.
In an editorial in the Feb. 10 issue of the New England Journal of Medicine, Cohen reiterated these sentiments.
"Residents are not powerless. They may be unaware of their power, or of how to exercise it, but residents do have the power to improve the conditions in which they learn," Cohen wrote.
The AAMC plans to publish a primer on labor law for its member institutions "to understand the do's and don't's when a unionizing effort begins." Cohen says he is dubious of the assertions some physician unions have made about not using strikes or withholding services. Eventually, if not sooner, unions will evoke their primary tools, he says.
Non-monetary issues. Most physician unions claim improved patient care as their reason for being, and they seek to place doctors back at the top of the patient-care decisionmaking hierarchy. The CIR has been perhaps the most visible in doing just that.
Using a unique bargaining tactic, CIR members in more than 12 hospitals have negotiated for special patient-care trust funds that allow resident physicians to make purchases they deem necessary for better patient care.
The most recent use of this new tool was in January, when the Alameda County Hospital Authority in Northern California signed an agreement with CIR members at 247-bed Alameda County Medical Center-Highland Campus to dedicate $75,000 of negotiated increases to create a patient-care fund at the Oakland hospital.
CIR President Ladi Haroona, M.D., says that interns and residents are exceptional patient advocates, especially for uninsured and indigent populations. Because the CIR has more membership in large teaching and public hospitals, where these patients are often treated, residents have a unique perspective on community health needs, he says. The patient-care trust funds, Haroona contends, are one example of how physician unions can address traditional wage and benefit issues and patient-care concerns simultaneously.
CIR affiliates have negotiated similar funds in Boston; Cambridge, Mass.; Los Angeles; and New York. According to Haroona, more than $4 million in New York and California has been set aside for patient funds. The money has been earmarked to purchase equipment and materials, ranging from portable OB/GYN ultrasound machines to community domestic violence materials.
Labor vs. labor. An unusual situation cropped up in December when physicians at the only union-owned hospital in the country, Philadelphia's 141-bed John F. Kennedy Memorial Hospital, formed a collective-bargaining unit represented by the Federation of Physicians and Dentists. The hospital is owned by AFSCME District Council 33, which represents Philadelphia's 10,000 municipal workers, and with which the FPD is affiliated.
Herman "Pete" Matthews, who doubles as union president and Kennedy Memorial's board chairman, says the administration initially balked at recognizing the bargaining unit, primarily because of a lack of understanding of the election procedures. But the hospital reversed its stance shortly before the NLRB certified the agreement on Dec. 27.
Robert Sklaroff, M.D., the FPD's regional coordinator, says the union has completed a draft contract for negotiations scheduled to begin Feb. 24. One of the doctors' concerns, Sklaroff says, is access to the hospital's patient list, so that physicians know exactly which patients they're responsible for.
Kennedy Memorial's labor lawyer, Samuel Spear, of the Philadelphia firm Spear, Wilderman, Borish, Endy, Spear & Runckel, says the hospital board members, all of whom are also union members, intend to reach a contract agreement with the FPD physicians. But if they're looking for wage increases, Spear says that's wishful thinking.
Kennedy Memorial had losses of $450,000 on total revenue of $61 million in 1998, according to figures provided by HCIA, a Baltimore-based healthcare information company.
Matthews notes that Kennedy Memorial has already reduced its number of staffed inpatient beds by 15 from 156. The hospital is looking to heal its ailing finances by expanding into mental health and assisted living and enhancing its existing drug- and alcohol-abuse treatment services. The doctors' union could help solve some of the problems, Matthews says.