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Ross Runkel

The New Paradigm of Physician Collective Action

By David M. Kight  Bio   email
Shughart Thomson & Kilroy

As employees, healthcare organizations, and insurance plans battle for voice, and control, one group of stakeholders remained silent.  Until now.  Across the country, physicians are banding together, frustrated over the power of managed care and HMOs.  For some, the answer is to join unions; for others, the answer is a push toward forming their own associations.  In many states, physician bargaining bills are the new cause celebre.

Labor unions have embraced the move of physicians to collective action and are successfully marketing to physicians in all areas and sectors, and proof of that can be found no further than the cover story of the February 28, 2000 issue of Modern Healthcare.  That cover story  was devoted to state of physicians and unionization. A look at the major white-collar unions and their affiliations with physicians lends credence to the importance of physicians to the labor movement.

One union, Office Professional Employees International Union (OPEIU) has formed its own internal group, the National Guild of Medical Professionals, to reach out to physicians.  OPEIU’s 20,000 member National Guild seeks to form local "guilds" of physicians and provide them political and other support in their efforts to increase their voice in the healthcare arena.  While unable to collectively bargain for independent physicians, that is in the long term plans for the National Guild.

Another white-collar union looking to build a bridge to physicians is the American Federation of State, County and Municipal Employees (AFSCME).  AFSCME has two separate physician affiliates  among its membership: the Union of American Physicians and Dentists (UAPD), with some 6,000 members, and the Federation of Physicians and Dentists (FPD), with some 8,500 members.  Both the UAPD and the FPD maintain separate identities as unions, but both offer collective bargaining services.  

The largest white-collar union, the Service Employees International Union (SEIU), has formed the National Doctor’s Alliance.  Formed in March, 1999, the National Doctor’s Alliance serves as the umbrella organization for three separate physician unions: Doctor’s Council, with 16,000 members, the Committee of Interns and Residents, with 10,000 members, and the United Salaried Physicians and Dentists with 1,500 members.

The AMA, in the wake of the drive to unionize physicians, has begun its own unionization effort with its Physicians for Responsible Negotiation.   Notably, the Physicians for Responsible Negotiation has made it clear that its physicians would not go on strike for ethical reasons.  Many other labor unions  have attacked PRN for this decision, and have used this decision to question whether PRN is a true union.

Traditionally, physicians were not seen as organizing targets by labor unions.  Anti-trust concerns were a primary concern, as were the provisions in the National Labor Relations Act restricting unionization and collective bargaining to those defined as “employees,” a problem for many independent physicians.

But, the wall faced by physicians may be crumbling.  For many, the best answer is to join independent practice associations, which are large groupings of physicians who come together as one group practice.  The association then bargains with HMOs.

Rep. Tom Campbell (R-Calif.) has proposed legislation, the “Quality Healthcare Coalition Act” (H.R. 1304), which would strengthen the hand of physicians in bargaining.  The HR 1304 would grant an anti-trust waiver to physicians when negotiating with health plans.  The bill is expected to receive a favorable vote in the House Judiciary Committee, and then will be put to a floor vote.  The AMA, long an opponent of physician unionization, made an about-face on the issue and has pushed for passage of HR 1304 as one of its legislative priorities.  OPEIU’s National Guild of Medical Professionals has also made the passage of HR 1304 a priority.  Health plans, led by the Antitrust Coalition for Consumer Choice in Healthcare, along with consumer groups have joined the U.S. Department of Justice and the Federal Trade Commission in opposing HR 1304, citing concerns of restraint of trade and provider cartels likely to push up prices.

Many states are also looking at the bargaining issue.  It has been reported that at least five states, and the District of Columbia, have introduced physician bargaining bills, and the number is expected to rise.  The bills are patterned after a Texas bill (S.B. 1468) passed in 1999, and signed into law by Governor George W. Bush (R).  That law uses the state action doctrine, which would allow a state to pre-empt federal antitrust law if state regulators actively supervise an industry.  In effect, the U.S. Department of Justice and the Federal Trade Commission would cede jurisdiction to Texas for regulation of physicians in Texas.

The National Labor Relations Board (NLRB) is also re-examining its position toward physicians.  In what some see as a precursor to a move to amend the National Labor Relations Act, medical interns, residents, and fellows were recently given the right to organize.  In November 1999, the National Labor Relations Board in a 3-2 decision overturned 23 years of established law and precedent and ruled that interns, residents and fellows have a protected right to unionize.  Boston Medical Center; 330 NLRB No. 30, (11/26/1999).

Since 1976, the NLRB had ruled that interns, residents and fellows were to be excluded from a protected right to organize.  The rationale had been that the student-teacher relationship of a teaching hospital did not comport with desire by Congress for equality of bargaining between employees and employers.

In reversing itself, the NLRB held that a broad reading of the National Labor Relations Act did not preclude a view that interns and residents were employees, especially when combined with judicial rulings in other forums that interns and residents are employees.  It further reasoned that the fact that one was a student did not compel a finding that one was not entitled to protection under the NLRA.

The fractious relationship between physicians and HMOs may well be inalterably changed as physicians assert themselves collectively.  To be sure, the debate over whether physicians need collective bargaining has ended.

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