American College of Physicians: Internal Medicine — Doctors for Adults ®

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Physician and unions: a good match

Despite victories for doctors, some worry the profession will suffer

From the July/August 1998 ACP-ASIM Observer, copyright © 1998 by the American College of Physicians-American Society of Internal Medicine.

By Daphne R. Howland

Picket signs are usually held by workers with hard hats, not stethoscopes. As managed care challenges the way physicians practice medicine, however, doctors' general aversion to unionizing appears to be steadily eroding.

Just last month, the physicians at Medalia Health Care in Seattle joined the ranks of organized labor. On June 2, frustrated by what they said were long-standing grievances, physicians at the group voted 104 to 75 to become part of the United Salaried Physicians and Dentists, which is affiliated with the Service Employees International Union.

The physicians at Medalia chose to unionize over issues of money and control. The health system suffered huge financial losses when a state health program failed, leading to turmoil in the physicians' compensation packages. (Physicians say that their pay dropped three times in one year.) In addition, the physicians who unionized said that they felt shut out of the management of the health system.

"Most of us joined Medalia because it was advertised as physician-led," said Steven Konicek, FACP, a member of the union's organizing committee. "After a while, as they hired administrators, it became clear that their management style was management from above."

With the growth of managed care and the corporatization of health care, physicians all around the country have similar complaints. And in an increasing number of cases, physicians feel that their circumstances are so dire that unions are the only answer.

Physicians who decide to unionize, however, often face a difficult path. For one, the laws defining who can and can't unionize sometimes preclude physician unions from receiving government recognition, which is critical when it comes to negotiating with employers. And for those physician unions that get certification, there is stiff resistance from the profession and other physicians, who worry how physician unions—and the implicit threat of physician strikes—will affect the profession's image and patient care.

Nevertheless, for physicians who feel they have nowhere else to turn, the lure of unions is strong. In September 1996, physicians at the Thomas-Davis Medical Clinic in Tucson, Ariz., turned to unionization after it was announced that the clinic would be sold to San Diego-based FPA Medical Management Inc. According to the physicians, FPA reduced physician salaries by as much as 70% and created a set of incentives to encourage patient enrollment and discourage emergency room visits or referrals. Some doctors were fired outright, while others quit in protest.

"FPA took physicians who were in fact managerial, who had had a role in the group, and made them employees with no control at all," said Cornele Overstreet, regional director for the National Labor Relations Board (NLRB) in Phoenix. "They were told what time to be at work, what to do with patients. We found doctors couldn't order swabs. FPA took everything away from them as far as power goes."

Relations were so strained that even after physicians voted 93 to 32 to unionize, FPA refused to bargain with the union, according to Mr. Overstreet. FHP argued that the physicians were supervisors and not entitled to join a union.

To break the impasse between the clinic's management and the physicians—and to get FHP to recognize the physicians' union—the NLRB went to district court. In a dramatic display of just how much unions can help physician members, the judge required FPA to restore physician salaries, malpractice insurance and other terms of employment to the same levels as when the union was formed. The judge also declared that any doctor who had quit had essentially been forced out and could be reinstated, and that doctors who had been fired could return. In addition, management had to reopen a pediatric clinic.

Frustration

While cases like these have been making headlines recently, physician unions are not an entirely new phenomenon. In the early 1970s, there were about 25 physician unions, but most eventually petered out, according to Grace Budrys, a DePaul University sociologist and author of the book "When Doctors Join Unions." Although many of these early unions were formed in reaction to specific problems such as huge malpractice insurance rate hikes, then, as now, the impetus to form most unions came from dramatic changes in working conditions, typically fostered by managed care.

"One of the things that brought satisfaction to physicians during the golden age of medicine was that they had long-standing, satisfying relationships with patients," Ms. Budrys said. "In managed care, they're being denied that."

As co-president of the housestaff union at Boston Medical Center and one of the residents who has testified before the NLRB (see "In Boston, residents fight for the right to unionize," next page), Camilla Graham, ACP Associate, has seen exactly that kind of sentiment expressed by her colleagues. Dr. Graham, who is today doing a fellowship in infectious disease at the medical center, said that as the doctors at the bottom of the totem pole, residents needed the union's power and voice to advocate for patient care. But she predicted that physicians who work for large health plans or hospitals will increasingly have the same sense of powerlessness that residents do-and the same need for a union.

"I have talked to people who've had significant reductions in salary or who work in terrible conditions," Dr. Graham said. "But what is really frustrating to doctors is not being able to properly take care of our patients. If there's a structure where physicians have a lot of say, they don't need a union. But more and more physicians find themselves working where the people making the decisions have other interests that are competing with patient care."

A number of other factors are also contributing to the growth of physician unions. For one, organized labor nationally appears to be gaining strength as the economy grows and the unemployment rate approaches record lows. In addition, the growing public resentment of managed care may be giving more credence to a movement whose goal is to take on corporate interests in medicine.

Even so, relatively few doctors are joining unions. Only about 24,000 physicians belong to unions, and half of those are residents or interns.

Part of the reason for the limited growth of physician unions may have to do with the difficulty physicians sometimes have unionizing. Before it will allow physicians to unionize, the NLRB examines the relationship of the unionizing physicians to the HMO or hospital where they work. Although professionals are legally allowed to unionize, managers are not. Because even salaried physician employees of a staff-model HMO often have managerial duties like hiring and firing other staff, they often find themselves in a gray area where they are considered neither an employee or a manager. And physicians who enter into contracts with health plans or hospitals but still maintain a private practice can also be precluded from unionizing.

In January of this year, for example, the NLRB dismissed a petition by 400 physicians in southern New Jersey to join the United Food and Commercial Workers Local 56. The NLRB denied the petition, ruling that the physicians worked as independent contractors more than as employees.

Even when the NLRB does sanction a group of physicians to vote on whether to form a union, many health plans file appeals, which can slow down the process. That's exactly what happened at the Thomas-Davis Medical Clinic. Although the NLRB decided to allow physicians there to vote on whether to unionize and the majority supported the idea, FPA has filed an appeal in the federal circuit court on the grounds that the physicians supervise certain employees within the plan.

The strike threat

But perhaps the real reason that more physicians aren't choosing to unionize is because of stiff resistance from other physicians. Medical leaders and practitioners alike are concerned about the prospect of physicians joining unions. In particular, they're appalled by the notion of physicians using the ultimate weapon of unionization: a strike.

While he said that he understands the difficult working conditions that some physicians face, ACP-ASIM Executive Vice President Walter J. McDonald, FACP, said that he is uncomfortable with the idea of physician unions, primarily because he doesn't see how a strike could ever benefit patients. "I can't remember one time where we advocated for our members in a fashion that was counterproductive for our patients," Dr. McDonald said. "To me, 99 times out of 100 going on strike is not going to be in the best interest of our patients."

Risa Lavizzo-Mourey, FACP, Chair of ACP-ASIM's Ethics and Human Rights Committee, said that the problem with physician unions is that they put physicians' interests above patients'. Unions imply "that the relationship that is important here is the relationship between the physician and management," she said. "One of the major tactics that unions use is to strike, to withhold services. If our professional ethic dictates that our services are to benefit our patients and we withhold them to get a gain that will benefit us directly, it creates a conflict."

(The "ACP Ethics Manual," published in the April 1 Annals of Internal Medicine, states the following: "Physicians should not participate in a strike that adversely affects access to health care. In general, physicians should individually and collectively find alternatives to strikes to address workplace concerns.")

Unions, however, argue that they're trying to protect patient care by making sure that physicians have enough autonomy to do the right thing. The preamble to the organizing charter of the Union of American Physicians and Dentists (UAPD), for example, says that its purpose is to allow physicians to work "unhindered by extraneous forces, for the welfare of their patients." It also says that one of its goals is to ensure that physicians are reasonably paid.

Alternatives

While organized medicine may cringe at the idea of its rank and file in unions, medical leaders recognize that some physicians need help. As a result, some organizations are beginning to explore how to use some of the tools of collective bargaining without actually endorsing unions.

Last year, for example, the AMA got involved in one dispute and backed physicians' right to collective bargaining while downplaying the role of unions. The AMA announced that it would help physicians at Rockford Health System in Rockford, Ill., form a locally organized alternative to a labor union—and seek standing from the NLRB as a collective-bargaining unit. William Mahood, FACP, an AMA trustee and a gastroenterologist in Abington, Pa., said the AMA has also developed a division to address complaints by doctors from around the country. But, he said, there are limits. "We cannot support going into a traditional trade union," Dr. Manhood said. "Even if they say they will not go on strike, they would be asked to recognize sisters and brothers on the strike line."

And after investigating the possibility of creating a physician union, the Florida Medical Association decided in May to go another route. Instead of giving its physicians the power of collective bargaining, the association plans to create an advocacy center to help patients and physicians resolve their problems with health plans. Officials have said that even when they considered the idea of forming a union, they never planned to give physicians the ability to strike or boycott.

But can collective bargaining without the threat of a strike work? Union loyalists, who view the ability to strike as one of their most effective tools, scoff at the idea that physicians can effectively organize without unionizing. "The AMA position is an attempt to have it both ways, to cotton up to management and to deprive doctors of the ultimate tool of a union," said Robert L. Weinmann, MD, a San Jose neurologist and president of the UAPD. "The AMA can only negotiate with people who want to negotiate, in which case you don't need a union."

But even union supporters like Dr. Weinmann, who defend physicians' right to strike, acknowledge that going on strike is rarely necessary. Full-blown strikes by physicians have been rare; the UAPD has authorized only two strikes, and neither ever materialized.

In some cases, it may be that corporate medicine is just as concerned about a physician strike as are medical leaders. At Rockford Health System in Illinois, for example, the mere threat by physicians to organize a collective-bargaining unit seems to have moved administrators to act. According to news reports, management has begun to address complaints about access to medical charts and lab results and reportedly hired a consultant to talk to physicians about their concerns. Physicians at Rockford have decided to postpone a vote on whether to organize as a collective-bargaining unit. They have instead decided to try working with the administrators.

That, say supporters of unions, is the real power of collective bargaining, "Sometimes the HMOs overreach so badly that it doesn't take much to make them back off," Weinmann said. "Many times you can stop short of a strike." n

Daphne Howland is a freelance writer based in Portland, Maine.


In Boston, residents fight for the right to unionize

A group of Boston residents is challenging more than two decades of labor case law by trying to persuade the National Labor Relations Board (NLRB) to recognize housestaff unions at private hospitals. If the group wins its argument, interns and residents at privately owned organizations could enjoy a whole new set of labor rights.

The status of the residents' union, the House Officers' Association (HOA), first came into question when Boston City Hospital merged with Boston University Hospital to create the Boston Medical Center in 1996. Before the merger, the union, which had been negotiating as a collective-bargaining unit for residents since 1969, was based out of Boston City Hospital, a public facility. As a result, it was recognized and governed by state labor laws. (Residents at Boston University Hospital were not represented by any union.)

Because of the merger, however, the residents now work for Boston Medical Center, a private institution. While their union is no longer covered by state public employee labor laws, it is also not recognized by the NLRB. The NLRB has ruled that because interns and residents work primarily for the benefit of their education, not for the benefit of hospitals and patients, they are not employees.

Initially, the HOA was fighting for recognition from its new employer. During the merger process, Boston Medical Center announced that it would recognize all unions except the HOA. After a year and a half of protest and negotiation, the medical center finally agreed to voluntarily recognize the HOA. (Officials at Boston Medical Center declined to comment for this story.)

Despite its victory in getting recognition from the medical center, the residents were not satisfied. They now want to get the NLRB to reverse existing case law so housestaff at all private hospitals, not just Boston Medical Center, can unionize.

The HOA is arguing that interns and residents are acting as direct caregivers now more than ever and that they should be viewed as both employees and students. The NLRB regional office has already dismissed the group's claim, but the housestaff have appealed to the national level of the NLRB. A decision is expected sometime this summer.

"We're the doctors who work the front lines," said Jodi Wenger, MD, chief pediatric resident. "A lot of what we do is advocate for good patient care."

Even though Boston Medical Center has voluntarily recognized the HOA, it has argued before the NLRB that that its interns and residents are both "managers" and "students" but not employees. Other organizations like the American Association of Medical Colleges (AAMC) agree and have adamantly opposed treating interns and residents as anything but students. The AAMC submitted an amicus brief supporting the medical center because it fears that housestaff unions will harm medical education.

"I don't think it's in the interns' and residents' interest—or the patients' interest—that learners have power," said Joseph Keyes, JD, AAMC senior vice president and general counsel. "The purpose and intent of the relationship is educational. There is a mentor/student relationship that is inherently unequal."

Nonetheless, Mr. Keyes said that the Boston case is a "wake-up call" for medical educators, adding that the AAMC is urging its members to be attentive to the concerns of housestaff. In February, the AAMC published recommendations on how to improve relations with interns and residents, including how to deal with them during mergers and acquisitions.

Residents like Dr. Wenger, however, find little merit in the AAMC argument. "Half of physicians now are employed and salaried," she said. "With the direction of health care, with managed care and for-profit medicine, we as doctors need to speak up more about what we think patient care should be."

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