By Christopher Guadagnino, Ph.D.

Published December 1997

OTHER COVERAGE OF PHYSICIAN UNIONS

• Physician unions take root in Pa.

• Physicians seek antitrust waiver

• Surgeons fight Blue Cross rate cuts

• Medical society explores regionalization and MD unions

• Legal issues of physician unionization

• AMA collective bargaining program

• A Pennsylvania physician guild

• Building a physician union in the Delaware Valley

• The legalities of physician unions

• Prospect of physician unions in Pa.

• React to this article in the Discussion Forum.

Physician unionization efforts are in full advance, despite being viewed by many as inconsequential anomalies or as radical paths leading to the destruction of medicine’s professional identity. While the debate continues over whether it is prudent for physicians to join unions, recent developments indicate that a growing number of physicians are choosing to muster down that path with the hope of protecting their professional autonomy from policy dictates of hospital networks and health insurance companies.

A group of 400 family and specialty physicians in private practice in south Jersey are currently seeking collective bargaining recognition under the National Labor Relations Act. The group petitioned the regional National Labor Relations Board (NLRB) to be represented by the United Food and Commercial Workers Local 56 (UFCW) in the hope of redressing purportedly abusive practices by AmeriHealth HMO. A ruling is expected in early December which could set a precedent for granting non-salaried physicians federally protected collective bargaining rights. The UFCW contends that AmeriHealth is a de facto employer of the physicians because it supervises, inspects, sets working conditions and prices for, and limits patient care options of those physicians. NLRB recognition requires employers to bargain with the units and gives the units protection from employer recrimination.

A proposed Pennsylvania Physicians Guild would permit employed physicians in Pennsylvania to seek to collectively bargain with NLRB clout. The effort is currently being spearheaded by Robert B. Sklaroff, M.D., president of the Pennsylvania Society of Internal Medicine. The Guild would represent employed physicians and be governed by a consortium of statewide medical specialty societies. Sklaroff’s plan calls for the Guild, as an independent organization, to choose which entity it would hire to help local doctors bargain collectively. One option, says Sklaroff, is to use the AMA’s resources for counsel and have the operation staffed by the PMS, which would receive part of the union dues. An alternative is to link the Guild with unions such as the Office and Professional Employees International Union (OPEIU) or the Pennsylvania Nurses Association.

Meanwhile, other local efforts continue. Gabriel DeTolla, M.D., is coordinating a group of some 50 south Philadelphia physicians in private practice who have joined a chapter of the Federation of Physician and Dentists. The group does not have NLRB collective bargaining recognition, but draws upon the Federation’s resources for contract negotiating expertise and other services, says Jack Seddon, executive director of the Federation. The FPD is also affiliated with the American Federation of State, County and Municipal Employees (AFSCME) and the AFL-CIO.

President of the First National Guild for Health Care of the Lower Extremities, John Mattiacci, D.P.M., a podiatrist in Philadelphia, continues to court podiatrists and other health care members. His group is affiliated with the OPEIU National Guild of Medical Providers, which boasts a membership of 20,000 medical providers. The Guild also accepts physicians who join through medical societies, offering them advocacy before state legislatures, and patients who are union members, according to Joanne Finley, M.D., M.P.H., consultant to the Guild and former New Jersey health commissioner.

At the national level, the AMA itself—while decrying the notion of physician unions—has acknowledged the legitimacy of collective bargaining protected under the National Labor Relations Act. In July of this year, the AMA unveiled a Division of Representation designed to help preserve physicians’ clinical decision making strength. One its four priorities, states an AMA memo is, "Through local medical societies, assisting employed physicians seeking to collectively bargain with their employers, including, if requested, assisting in forming a recognized collective bargaining unit."

The Division is currently providing legal and professional assistance to a group of employed physicians in Illinois to petition the National Labor Relations Board (NLRB) for eligibility as a collective bargaining unit. The Division agreed to assist the group only if the physicians agreed not to strike, explains Ed Hirshfeld, Esq., AMA’s vice president for health law. AMA membership dues cover the Division’s services.

The Division does not currently plan to engage in collective bargaining on behalf of physicians, but its future functions will be discussed at the AMA’s December House of Delegates meeting, says AMA Trustee Donald J. Palmisano, M.D.

The Pennsylvania Medical Society (PMS) House of Delegates adopted a resolution in October to form a Division of Representation of its own, modeled after the AMA’s. PMS Executive Vice President Roger Mecum said he plans to meet with the AMA in early December to explore specific activities of the Division, and will report to the PMS Board of Trustees at their meeting in January.

Physician union activity in other parts of the country has captured news headlines in recent months.

In September, a federal judge ordered the Thomas-Davis Medical Centers—a Tucson, AZ multispecialty clinic—to recognize the AFL-CIO-affiliated Federation of Physicians and Dentists (FPD) as the bargaining representative of a 142-member physician group, which joined the union several months earlier. The group includes the only known private-sector employed physicians in the country, according to FPD Executive Director Jack Seddon. The physicians unionized because of grievances against a new management firm to whom the clinic had been sold, according to American Medical News.

Residents at the Boston Medical Center enlisted the help of the Committee of Interns and Residents, an affiliate of the Service Employees International Union, to push for NLRB recognition as a collective bargaining unit. A regional board dismissed their petition in October, viewing them as students and not employees; the group is bringing the petition before the full NLRB. The AMA had intended to file an amicus brief on behalf of the residents, but withdrew the plan under pressure from the Association of American Medical Colleges, reported American Medical News.

The Union of American Physicians and Dentists (UAPD), operational for 25 years with several collective bargaining units in California, joined AFSCME in August. The partnership linked UAPD’s 5000 physician members with 3000 physician members of the AFL-CIO’s second largest affiliate, providing office spaces to expand the union more readily in other cities and establishing a permanent lobbying presence in Washington, D.C., for issues such as preventing the eligibility age of Medicare from rising to 67, says UAPD President Robert Weinmann, M.D.

Why Unions?

Physicians join unions to obtain negotiating expertise and clout they believe to be unavailable elsewhere. Out of 430 actively practicing physicians in New Jersey’s Atlantic and Cape May counties, about 240 have signed a petition to join Local 56 of the UFCW, notes Arthur Nahas, D.O., a primary care sports medicine practitioner who is looking to join. Nahas contends that the AMA and other medical societies have failed to uphold physician interests with respect to declining reimbursement and managed care encroachment.

Nahas says he was embarrassed by the approach taken by AMA representatives who attended a recent Atlantic County Medical Society meeting to discuss ways in which physicians could protect their interests in the face of intrusive control by HMOs, and specifically, AmeriHealth. Says Nahas, "Basically all they said was we should be putting in more PAC money to lobby. They really looked bad."

"If you were an HMO, you wouldn’t want to sit across the table from me," says UFCW Local 56 President Anthony Cinaglia, comparing his union’s professional negotiating abilities to the limited labor law experience of civil or malpractice attorneys who typically represent physicians in such negotiations. "Doctors want somebody who is going to understand the businessman’s language and fight for them."

The south Jersey physicians selected the AFL-CIO-affiliated UFCW to represent them because of the size of its membership and because its Local 56 was operating nearby, says Nahas. Otherwise, they were ready to pick virtually any local affiliate of the AFL-CIO from the yellow pages that was willing to represent physicians, he notes.

If the regional NLRB certifies Local 56 as the physicians’ representative, Nahas explains, physicians would pay $500 in annual dues in return for union negotiators who respond to needs delineated by a physician steering committee.

Nahas identifies key areas for which he hopes union negotiators can level the playing field when bargaining with HMOs: removing delays in treatment authorization for patients or barriers to treatments, freeing the practice of medicine from protocol lists and securing HMO participation for any physician who is credentialed by his or her state medical board, subject to retrospective review. Longer-term goals include defining reasonable and fair medical and hospital fees, and refining patient care protocols with criteria generated by physicians—including subspecialists—rather than relying upon insurer-driven actuarial criteria.

Unions are a vehicle by which to achieve these goals, Nahas believes, by virtue of the far-reaching pocketbook pressure they bring to the negotiating table, since they also represent a large number of the workers enrolled in the HMOs. For the physician organization effort alone, the local union chapter was allotted $250,000—with up to $1 million set aside by the national UFCW headquarters in reserve—to support a campaign of television, radio and billboard advertising, says Nahas.

Striking—a weapon of last resort used by unions—was discussed by the steering committee group, says Nahas. Instead of a care strike, doctors could engage in a financial strike if all other means were exhausted in negotiations with an HMO, Nahas explains.

The doctors would not deny care to patients, but would refuse to accept their insurance, working out private payment arrangements as necessary, he adds, noting that the cost of a typical office visit is nominal, free care at emergency rooms still would exist for patients who could not pay and costs of hospitalizations could be covered through hospital reimbursement mechanisms.

Cinaglia notes that the south Jersey group would be the first physicians to join his union, which represents 13,500 members in Pennsylvania, Delaware, Maryland and New York. In addition to collective bargaining on the physicians’ behalf, says Cinaglia, the union would monitor contractual compliance of HMOs on matters such as paying physician bills within specified periods and redress any grievances the physicians might have. The union would provide other services, such as lobbying, health and welfare benefits, malpractice insurance, prepaid legal representation, pension plans.

The south Jersey physician unionization effort faces a difficult review by the NLRB, as the private practice physicians fall outside the traditional definition of employees as recognized by the National Labor Relations Act, notes Philip H. Lebowitz, Esq., of Pepper, Hamilton & Scheetz in Philadelphia.

Cinaglia says the union will try to convince the NLRB board to recognize the south Jersey physicians as de facto employees of AmeriHealth by citing illustrations of HMO intrusiveness on physician practices, such as dictating fees, use of drugs, diagnostics and procedures and having the power to deselect physicians at any time. To the objection that the doctors could simply turn to patients covered by HMOs other than AmeriHealth, Cinaglia replies that he had originally intended to target all six HMOs in the region for the same behaviors. "We targeted AmeriHealth because they’re owned by the Blues, which has a lot of union business," and because the case could be expedited by targeting only one HMO, Cinaglia adds.

The Boston University residents face a similar obstacle to unionization when their employee status changed after the private Boston Medical Center was created out of a merger of a public and a private hospital in July, 1996. Now associated with a private-sector hospital, they were regarded by the regional NLRB as students rather than as employees and were no longer protected under the National Labor Relations Act (NLRA) to collectively bargaining through their union of 27 years, the Committee of Interns and Residents (CIR).

CIR Associate Director Mark Levy notes that only the full NLRB has the authority to apply national criteria to change policy and asserts that their case was designed to overturn national policy. The national level of NLRB review takes into account petitions occurring throughout the country and looks for sufficient distinctions among them to justify apparent inconsistencies in rulings, says Lebowitz. CIR plans to appeal the regional NLRB denial by arguing that the original statute is outdated, that the problems it was intended to prevent—housestaff organizations striking frequently and interfering with academic decision making—have not been borne out in 40 years of CIR’s existence, says Levy.

The Boston Medical Center agreed voluntarily to recognize the residents’ bargaining rights, but it took a massive lobbying campaign to obtain that recognition, and it can be taken away at any time, notes Camilla Graham, M.D., who was co-president of the Boston Medical Center resident’s CIR chapter last year. Only NLRA protection guarantees bargaining and unfair labor practice procedures with which the employer must comply.

The AMA is developing a template to assist residents in forming collective negotiating organizations of their own, and hopes to induce medical schools to bargain with those organizations as a unit by making that a condition of accreditation, says Hirshfeld.

Graham maintains that only a union is going to look after residents’ employment interests. It would be a conflict of interest, she asserts, to expect residents to approach medical school administration—those who evaluate their educational performance—with job and employment grievances.

CIR’s 9000 members enjoy collective bargaining agreements covering salaries, number of work hours, health insurance benefits, malpractice coverage, on-call rooms, vacations and leave time, allowances for books, equipment and conferences, parking and CIR representation at disciplinary hearings, Levy notes. Among the benefits CIR helped obtain for Boston Medical Center’s residents, Graham adds, is putting a limit on the number of blood draws and EKGs residents are required to perform, defining rotation duties and providing interpreters for foreign patients.

CIR has also created a parallel, independent structure for post-residency physicians who go on to salaried positions—the United Salaried Physicians and Dentists (USPD). The 1000-member union shares resources with CIR. Further, CIR recently voted to affiliate with SEIU, which has 1.1 million members, some 475,000 who work in health care institutions.

Other unions represent private practice physicians in ways other than collective bargaining. The Federation of Physicians and Dentists does represent 2000 physicians nationally for collective bargaining and declares as its ultimate goal to amend the NLRA to permit some form of collective bargaining rights for all physicians. But it also serves 5000-5500 more fee-for-service physicians who are restricted by the Sherman Antitrust Act from forming collective bargaining units. Among those physicians are a group of 40-50 physicians in south Philadelphia and all orthopedic surgeons in Delaware.

FPD attorneys drafted a protocol that specifies what the union can do for such physicians without violating antitrust law, explains FPD’s Executive Director Jack Seddon. On an individual or integrated group basis, FPD reviews and provides consultation on insurance company contracts offered to physicians, notes Seddon. "Just like any collective bargaining agreement, we will then draft a counterproposal for the doctor" and see that it meets his or her needs, says Seddon. Typical contract issues are absence of a grievance arbitration process, and the insurer’s ability unilaterally to change the conditions of a contract—which could involve reimbursement rates—and terminate the agreement if the physician rejects the amendment. "We draft language that counterbalances that," Seddon declares.

FPD also offers physicians the option to deal with insurance companies using a union-appointed third party messenger who represents the physician’s interests, adds Seddon. The insurance company can then accept, reject or modify the physician’s proposals, after which the message is brought back to the physician for resolution. The practice does not violate antitrust law because the negotiations are done strictly on an individual or integrated group basis, unassociated with negotiations involving other physicians or groups, Seddon points out.

What the union can also do is survey a given area to discover customary charges for key medical procedures and reimbursement rates of the major insurers in that area. FPD then publishes the high, low, mean and median charges and reimbursement rates—both percentage and dollar figures—for those procedures and explains the data to physicians in a meeting, notes Seddon.

Collective bargaining rights for physicians still remains FPD’s ultimate objective, says Seddon, who sees the AMA’s recent Division of Representation mandate to help physicians set up bargaining units as a collaborative opportunity "to either amend the National Labor Relations Act or draft new legislation which would provide for collective bargaining rights for physicians."

The UAPD also offers non-salaried physicians the services of a third party messenger, as well as its own nonprofit IPA, says Weinmann, which was formed in 1993 to compete with for-profit IPAs and HMOs. The union-funded IPA is comprised of about 1000 doctors, has 12 contracts and 3 million PPO and workers comp lives, Weinmann indicates.

Weinman believes that, for employed physicians, the ability to strike is an important last-resort tool for effective bargaining, even if it is never used. In its 25 years, the UAPD has twice authorized its physicians to strike, but their county employers ultimately caved in, obviating the need to proceed with the strikes, says Weinmann. He explains that a strike means that the union has not succeeded at negotiations, and the UAPD will only authorize a strike if doctors convince its board that they have bargained in good faith and are stymied by a recalcitrant employer who refuses to negotiate with reasonable offers. "We reserve striking as a last-ditch resort for those cases where employers have to know we mean business. But we will never impose a strike on our members—the bargaining unit will have to ask us for a strike sanction," Weinmann adds.

The AMA is opposed to physicians striking, and requires bargaining units to hold patient care as its principal focus, says Hirshfeld. "It can’t just be about negotiating for pay, because the public interest is a stake and the physicians’ mission with the public is at stake," he says.

To physicians who find striking to conflict with patient advocacy, Weinmann responds, "In your career you’ve refused a few patients because they couldn’t afford your fee. How does that differ from going on a strike?" Both cases involve refusal to provide a professional service for economic reasons. UAPD has also recommended alternatives to physician striking, Weinmann notes, such as providing care, but omitting information that the hospital would need to send out its own bills. Hirshfeld says the AMA endorses such job actions that do not endanger patients.