Unionization of interns, residents and fellows

By Emily W. Boynton, Esq.

In the 1974 Healthcare Amendments, Congress extended the National Labor Relations Board’s (Board) jurisdiction over nonprofit health care facilities. Today, approximately five percent of the nation’s physicians belong to bargaining units. In the wake of the Board’s recent landmark decision reversing 21 years of legal precedent regarding the right of interns and residents to organize, the number of unionized doctors may increase dramatically over the next few years.

In Boston Medical Center Corporation and House Officers Association/Committee of Interns and Residents, 330 NLRB No. 30, the Board concluded that interns, residents and fellows (house staff) qualify as employees under Section 2(3) of the National Labor Relations Act (Act) and thus should be accorded all of the rights and protections granted by the Act including the right to organize.

Prior to this November 26, 1999 decision, the Board held that house staff are not employees and thus may not receive the protections and rights afforded by the Act. The Board reasoned that house staff enter into relationships with hospitals to fulfill educational requirements imposed by state or specialty boards rather than to earn a living like a traditional employee. Furthermore, the Board concluded that the nominal amount of money house staff receives for their services constitutes nothing more than a “living allowance” which, in itself, is insufficient to classify them as hospital employees.

The Board’s decision in Boston Medical Center overruled its prior holdings concluding that house staff are, in fact, employees under the Act. The Board based this conclusion on the following considerations:

• House staff receive compensation in the form of a stipend, in addition to workers’ compensation, paid vacations, sick leave, and bereavement leave, health, dental, and life insurance, as well as malpractice insurance.

• House staff spend up to 80 percent of their time at the hospital engaged in direct patient care.

• House staff do not fall outside the definition of “employee” merely because they receive on the job training. Rather, they are like apprentices learning production trades or professionals who continue to receive training after they are employed in order to maintain their licenses.

• House staff do not have the qualities associated with the traditional concept of “student” in that they do not pay tuition or student fees, nor do they take typical examinations in a classroom setting, receive grades, or register in a traditional fashion.

• Almost every other court, agency and legal analyst when faced with the issue in regard to public hospitals, have determined that house staff are, in fact, employees.

• Extending the Board’s jurisdiction to house staff is consistent with Congress’s overriding purpose for the 1974 Healthcare Amendments by providing a means for resolving recognition and other representation issues without resorting to recognition strikes and picketing.

In determining that house staff are employees under the Act, the Board held that they should be included in the same bargaining unit as physicians. The Board noted that there are eight appropriate bargaining units for acute care hospitals:

• All registered nurses.

• All physicians.

• All professionals except for registered nurses and physicians.

• All technical employees.

• All skilled maintenance employees.

• All business office clerical employees.

• All guards.

• All nonprofessional employees except for technical employees, skilled maintenance employees, business office clerical employees and guards.

The Board refused to create a ninth category for house staff. It reasoned that because house staff perform the same types of job duties as other physicians and possess similar skills, they should be placed in the same unit as physicians. The Board recognized that there were differences between house staff and physicians including the duties performed, and the skill levels possessed. However, the Board reasoned that if it were to create two units it would “unduly fragment a fairly homogeneous grouping of medical professionals.”

However, in finding that house staff are employees, the Board in Boston Medical Center, left several questions unanswered. First, the Board failed to indicate those issues employers must negotiate with their house staff’s bargaining unit. Medical schools may assert that forcing them to bargain over aspects of their educational programs would jeopardize both their academic freedom and educational mission. In the future, the Board may conclude that issues which clearly fall into the “educational sphere” will not be mandatorily bargainable.

Some state courts addressing this issue in regard to public hospitals have used this “educational sphere” analysis. These courts have concluded that, whether house staff must work in a certain department for a particular period of time need not be negotiated because it falls within the educational sphere, whereas, the subject of salary clearly falls outside the educational sphere and thus must be negotiated as a term and condition of employment.

Another issue which the Board did not fully address in Boston Medical Center is how it would deal with house staff employees who simultaneously perform rotations at more than one hospital. When two entities co-determine the essential terms and conditions of employment such as hiring, firing, disciplining, supervision and direction of employees, the two entities are considered joint employers. The Board has previously concluded that employees with joint employers may not be included in a bargaining unit, unless the two employers consent.

Given that many medical students may qualify as employees of joint employers, complex issues regarding bargaining unit membership might arise. These issues could become particularly complicated when one of the joint employers is a private hospital and the other is a public hospital. In such a case, the Board would have to determine whether it has jurisdiction over the employees or whether the proper jurisdiction is with the respective state labor board.

There is little question that the Board’s decision will have an enormous impact on the unionization of teaching hospitals. Commentators have already noted a dramatic increase in organizing among physicians partly as a result of this decision. The National Doctors Alliance of the Service Employees International Union is currently seeking to unionize the University of California system starting with the UC-Davis campus. While the full impact of this case on the structure of residency, internship and fellowship programs has yet to be ascertained, these issues will likely continue to be a focus of medical students, physicians, and teaching hospitals.

Emily W. Boynton, Esq., is a labor law associate at Reed Smith Shaw & McClay in Philadelphia.