AMA Endorses Physicians' Union

LABOR UNIONS FOR DOCTORS – A CURE FOR DOCTORS’
FRUSTRATIONS WITH MANAGED CARE SYSTEMS??

by Richard H. Wessels, Esq.

"AMA endorses Physicians’ Union." This was page one news recently as the American Medical Association voted to support union organizing for doctors.

But, is this really going to amount to anything? The AMA announcement is reminiscent of the hype back in the late 1960’s of union organizing of pharmacists. Back then, unions were jumping all over themselves trying to get into what they thought to be a new frontier for union organizing. Petitions were filed all over the country by various labor unions seeking to represent pharmacists, primarily in the big retail drug store chains. Thirty years later, things are pretty much the same as they where when the "red-hot" press releases were issued. Unions found out that there were some substantial hurdles to get over. They were never able to achieve what they promised.

Similar hurdles face the AMA or any of the traditional labor unions that embark on such an effort. Here are a few of the real-world issues that go beyond the rhetoric.

• Most doctors do not have an employer-employee relationship with managed care providers. Without a change in our country’s labor laws, independent contractors cannot be involved in union elections. Indeed, in the most recent case on this issue, the NLRB regional office in Philadelphia held that doctors were independent contractors, and, thus, excluded from coverage under the National Labor Relations Act. The Union petition was dismissed. That case involved HMO physicians in New Jersey.
  
• Organizing of doctors also faces a significant hurdle on the issue of "supervisory" status or "managerial" status. Both categories are excluded from National Labor Relations Act coverage. Naturally, issues such as this are very fact sensitive. But, it is highly likely that many doctors fit one of these categories. 
  
• What voting unit would be appropriate for a National Labor Relations Board election? Significant issues will be raised here, especially with large, multi-location organizations. Health care employers can be expected to launch substantial challenges to union petitions on issues such as the geographic scope of a unit.
  
• Conflict of interest issues. Back during the spate of organizing of pharmacists, issues were raised around the country concerning "guilds" or other types of associations that sought representation rights. These "guilds" frequently included non-employee members (sometimes competing business owners). Substantial challenges as to conflict of interest were raised. Similar issues might be raised with respect to representation of doctors, particularly if a non-traditional union entity comes into the picture.
  
• Even if there is an election, can these unions win? NLRB statistics show that unions win only about half of the elections in which they participate. The likelihood is that even if unions are successful in getting an election, they will win only about half the time.
  
• Even if the union wins, can they get what they want? Perhaps the most serious hurdle facing the unions is that the concerns being raised focus on what are normally seen as fundamental management rights. Health care employers are unlikely to yield on these core issues. Thus, irreconcilable differences may quickly arise. The alternative of a strike may well be distasteful to doctors.

While the AMA’s highly publicized vote in favor of doctors’ unions is unquestionably newsworthy, it is unlikely to have a major impact. Far more likely is that this union organizing will go the way of the pharmacists’ organizing thirty years ago.

Posted 7/2/99