Physicians and Unions

 By Ronald Turner

Unionization and collective bargaining by and on behalf of physicians are interesting developments and issues in the field of federal labor law, as doctors who perceive unfair treatment by managed care organizations increasingly turn to and seek representation by organized labor. (Approximately 756,710 physicians practice medicine in the United States; of that number, roughly 42,000 (including 6,000 to 9,000 residents working at hospitals) are members of labor unions. SeeCounsel for AMA tell Health Lawyers of Union Drives by Self-Employed Doctors, BNA Daily Labor Report at p. C-1 (July 9, 1998)).

Examples of doctors seeking union representation include a 1997 election conducted by the National Labor Relations Board ("NLRB") in which physicians employed by Thomas-Davis Medical Centers in Tucson, Arizona voted for the Federation of Physicians and Dentists as their exclusive bargaining representative. According to the union's executive director, the principal issues in the election included "the doctor's right to practice medicine and not be overruled on decisions affecting patient care" and staffing policies. SeeDoctors at Tucson Medical Clinic Vote to Join AFSCME Union Affiliate, BNA Health Care Daily (Jan. 27, 1997). Thomas-Davis has refused to bargain and is challenging the NLRB's order in a pending appeal filed in the United States Court of Appeals for the District of Columbia Circuit.

More recently, in a June 1998 representation election conducted by the NLRB, physicians working at Medalia Healthcare Clinics selected the United Salaries Physicians and Dentists union to represent them for purposes of collective bargaining with their employer. The union, an affiliate of the Service Employees International Union ("SEIU"), now represents physicians employed by Medalia at a number of clinics in Seattle and Tacoma, Washington. According to the union, the Medalia bargaining unit is the largest private-sector physician group in the nation. And a representation election petition has been filed with the NLRB in New Jersey by Local 56 of the United Food and Commercial Workers seeking a unit of doctors working for AmeriHealth HMO. In addition, the SEIU, the American Federation of State, County, and Municipal Employees, and the Office and Professional Employees International Union are actively engaged in organizing physicians.

The legal relationship between a physician and a health care entity is critical to union efforts to organize and bargain for doctors. The National Labor Relations Act ("NLRA") protects and provides organizational rights to employees but not to independent contractors. Thus, unlike the employee-physicians in the Thomas-Davis and Medalia elections noted above, self-employed physicians who are independent contractors are not covered by and cannot organize under the NLRA and, because they are not statutory employees, cannot lawfully engage in collective bargaining under the antitrust law's labor exemption.

Physician-only collective bargaining units are one of eight presumptively appropriate units for acute health care facilities (excluding psychiatric hospitals and nursing homes) under a 1989 substantive rule issued by the NLRB. In American Hospital Association v. NLRB, 499 U.S. 606 (1991), the Supreme Court upheld the NLRB's bargaining-unit rule for hospitals and the agency's determination that (with certain specified exceptions) the following organizational units are presumptively appropriate: (1) physicians; (2) registered nurses; (3) all professional employees (except for registered nurses and physicians); (4) technical employees; (5) business office clerical employees; (6) skilled maintenance employees; (7) guards; and (8) all other non-professional employees.

08/17/98