Strength in numbers: Could doctor unions be the answer?

September 1, 1998

Pharmaceutical Representative

Unhappy physicians are turning to labor unions to reclaim their profession.

Like millions of other workers, George Makol belongs to a labor union. He's not a truck driver, though, or a welder or a longshoreman. He's a doctor.

"It felt weird," says Makol, who is employed by Thomas-Davis Medical Centers in Tucson. "I'm a longtime conservative Republican, and here I am - a card-carrying member of the Federation of Physicians and Dentists. I joined because unions are giving doctors a voice."

Over the past year, that voice has grown noticeably louder. Hospital-employed physicians are itching to form collective-bargaining units so they can have more say about compensation and patient care. Independent practitioners have turned to blue-collar unions such as the United Food and Commercial Workers to help them stand up to dictatorial insurers. And bleary-eyed residents at private hospitals seek the right to collectively bargain for better working conditions.

That's not to say that doctor unions are a new concept. The physician-union movement reached a high-water mark of some 55,000 doctors in 1974 when physicians were reeling from a malpractice crisis, heavier government regulations and talk of national health insurance. Today, unionized M.D.s and D.O.s number only 14,000 to 20,000, according to the American Medical Association, but increasingly disaffected doctors are poised to swell those ranks. "We've been inundated with requests for help from all over the country," says pediatrician Barry Liebowitz, president of Doctors Council, a New York City-based union of 34,000 doctors employed primarily by public hospitals.

Are salaried doctors supervisors?

Physicians may be calling their local union organizer in moments of pique, but the bad news is that, legally, only employed doctors can collectively bargain. And even they face obstacles. Several employers have tried to quash union activity in their clinics by arguing that doctors are supervisors - not rank-and-file employees. Supervisors don't have the right to unionize. "The idea is that employers should have the full loyalty of their managers," says Grace Budrys, a professor of sociology at DePaul University and author of "When Doctors join Unions," which charts the history of the Union of American Physicians and Dentists.

The owners of Thomas-Davis Medical Centers took that tack, but it didn't work. The National Labor Relations Board ruled that the salaried doctors there were non-supervisory and, therefore, free to organize. A similar scenario played out recently in Seattle at Medalia HealthCare. Complaining that they lack a voice on decisions affecting patient care and physician pay, Medalia physicians appealed to the NLRB - which has to sanctify all union organizing - to allow them to join the United Salaried Physicians and Dentists (an affiliate of the 1.1 million-member Service Employees International Union.) Again, the NLRB gave doctors the green light to join a union as employees if a majority of the doctors vote to do so.

Doctors working for the Rockford (IL) Health System went down the same road last year when they petitioned the NLRB for certification as a collective-bargaining unit. The health system, they claimed, had cut costs at the expense of patient care and linked compensation to unrealistic performance goals with scant physician input. And they labeled the argument that doctors are supervisors "specious." As Rockford ophthalmologist Doug Kaplan put it: "I'm not a supervisor. I don't hire or fire anyone. I don't set their wages. If I need new equipment, I have to go through the office manager."

Before the NLRB could issue a verdict on whether the doctors could unionize, Rockford Health System defused the situation by meeting the physicians' demand for a greater say in how their practices are run. RHS, for example, created the post of chief operating officer, to be held by a physician, and granted doctors the right to approve the selection of department heads. Satisfied that they had spurred RHS to make these reforms, the pro-union doctors in May withdrew their petition for an election.

"There was strong sentiment among physicians to give the health system time to fulfill its promises," says Kaplan. "If it fails to do so, we'll resubmit our petition to the NLRB."

Will doctors win bargaining rights?

Private practitioners aren't excluded from joining their employed brethren in unions, though many say there isn't much point to it. Unions can't represent the independent doctors in collective bargaining with an insurer because the doctors don't qualify as employees.

Some 300 independent physicians in southern New Jersey challenged that stipulation last year. They asked the NLRB to let the United Food and Commercial Workers represent them in negotiations with AmeriHealth HMO. The union argued that AmeriHealth had so much day-to-day sway over the practices of network physicians that the doctors were de facto employees.

Among other things, the union stated, AmeriHealth controlled access to patients, inspected doctors' offices down to the number of waiting room chairs, dictated compensation terms and services to be offered, and restricted doctors' medical judgment by requiring preauthorization for specialty referrals. The union likened the doctors to owner-operators of trucks and limos, whom the NLRB has recognized in the past as virtual employees.

But the NLRB didn't buy the agreement. Physicians "make the fundamental decisions that determine the profitability of their practices," wrote Dorothy Moore-Duncan, a regional director of the NLRB. That is, they decide whether or not to contract with an HMO, how many hours to work and how much overhead to carry. And AmeriHealth, which had only a 10% share of the local HMO market, accounted for a minor portion of physicians' income.

United Food and Commercial Workers has appealed the decision, but leaders of competing physician unions doubt the next ruling will be any different. They call the UFCW's legal brief weak and hastily submitted. "The UFCW could have strengthened its argument by targeting a health plan that accounted for 30% to 40% of the doctors' business," says Jack Seddon, executive director of the Foundation of Physicians and Dentists.

There may be a glimmer of hope on the horizon for independent doctors: Rep. Tom Campbell (R-CA) plans to introduce a bill that would allow any group of health care professionals that is negotiating with payers to enjoy the same exemption from antitrust laws now enjoyed by unions. In other words, independent doctors wouldn't necessarily have to form or join a union to collectively bargain.

Unions offer doctors their coattails

Although they can't represent independent doctors in collective bargaining, unions are talking up services they can offer. The Tallahassee, FL-based Federation of Physicians and Dentists, for example, functions as a messenger that relays information between an individual doctor and an insurer. Presumably, the messenger has better negotiating skills than a physician and can save him or her time, but running these errands is dicey and can easily cross over into illegal bargaining.

Unions are also pitching themselves as all-purpose advocates. The Union of American Physicians and Dentists says it helps doctors collect fees from stingy third-party payers, opposes heavy-handed actions by state medical boards and lobbies against legislation hostile to doctors. If push comes to shove, the UAPD will go to court.

Still, physicians are hardly lining up for these services. The UAPD's membership has remained at 5,000 since 1995. But now that the union has joined the 1.2 million-member American Federation of State, County and Municipal Employees, it is trying to lure doctors with a more enticing hook - patients. Simply put, union members are encouraged to frequent union doctors. "We've already gotten calls from AFSCME locals saying they'd like to switch to our doctors," says union president Robert Weinmann, a neurologist.

The "buy union" angle explains why 1,000 physicians in northern New Jersey have joined the International Association of Machinists and Aerospace Workers. That union carries a lot of weight in deciding what health plans are offered to its members, says general surgeon Anthony Turzola, interim president of the Physicians Union of New Jersey, an affiliate. The IAMAW has said that it will encourage its members to select plans offered by insurers that recognize independent doctors as employees and bargain with them accordingly. "Union members might prefer an HMO that works with union doctors," says IAMAW organizer Steve McLoughlin.

Doctors joining unions simply to curry favor with union patients isn't as strange as it sounds, says Anthony Tonzola. He notes that doctors and blue-collar workers are natural allies because both groups resent the profit motive of managed care. "Why shouldn't we be together with people who are hammered by HMOs?" asks Tonzola.

Just don't use the u-word

Tonzola's talk of union solidarity is a hard sell for many physicians. The word "union," with all its baggage, hurts the ear as much as the word "taxes."

"I come across misconceptions over and over when I talk to doctors," says Jeffrey Rugg, an organizer for the United Salaried Physicians and Dentists in New York. "A union to them means some old guy smoking a cigar in a back room with the Mafia, or sailing in a yacht bought with dues money."

Doctors who support collective bargaining often substitute the word "guild" for union. Or they say they are not forming a "traditional" union, a clear reference to the AFL-CIO.

Chalk up some of this antipathy to politics. AFL-CIO unions generally back Democratic candidates and initiatives. Medicine, on the other hand, abounds with conservative Republicans like Tucson's George Makol. But on a deeper level, physicians view unions as unprofessional. Unions, after all, go on strike.

"We don't support the concept of the traditional union where the ultimate threat is a strike," says GP Thomas Reardon, AMA board of trustees chairman. "We're unalterably opposed to withholding patient care."

U.S. doctors need to catch up to the rest of the world and change their attitudes about unions, counters author Grace Budrys. "Doctors in continental Europe have belonged to unions since the 1800s," she says. "The British Medical Association became a union in 1974, but it has collectively bargained with the government since 1900."

Budrys also challenges the notion that strikes automatically violate medical ethics. When doctors in industrialized countries outside of the United States have walked off their jobs, she says, they've typically provided emergency care in keeping with their Hippocratic oath. Unionized physicians have gone on strike in Canada, Denmark, Germany, Israel and Sweden. (U.S. physicians have struck, too, but not in conjunction with unions.)

The Union of American Physicians and Dentists regard strikes as it would nuclear bombs - a weapon of last resort. The group has authorized two strikes in history, but didn't have to follow through on them. "It's worked for us both times," says Robert Weinmann, "but you use this tactic judiciously."

Will doctor unions fizzle again?

Union advocates talk as if their organizations are the only hope for physicians who feel powerless in today's health care market. But doctors, of course, can find strength in numbers by merging into groups. Likewise, federal law allows independent physicians to bargain collectively with insurers if they share significant financial risk or seriously integrate their practices. So unions aren't the only - or necessarily the best - alternative.

That said, do physician unions represent a long-term option, or will they fade like a summer tan? A lot rides on doctors making a commitment beyond signing a petition. "Are they willing to endure the grief that comes with organizing a bargaining unit?" asks Tom Curry, executive director of the Washington State Medical Association. "Employers can make life hell when they're trying to break a union."

Some of the most vocal union activists at Tucson's Thomas-Davis Medical Centers have left. "Despite what we've accomplished, I don't want to be a part of [FPA Medical Management, which owns Thomas-Davis] anymore," says pediatrician Keith Dveirin, a former member of the union's bargaining committee, who's about to take a new job. George Makol, who's staying on, says other Thomas-Davis doctors are accepting the leadership baton, but admits that the departures have cost the union some of its strength.

Sociologist Grace Budrys notes that physician unions of the 1970s fizzled because they could not build on their members' anger. "Someone has to take control and develop an organization that offers services worth paying dues for," she says.

But which organization? Fragmentation could be the movement's Achilles' heel. Right now, at least seven unions are attempting to sign up physicians. The Union of American Physicians and Dentists and the Federation of Physicians and Dentists already have squabbled over who's entitled to organize where. "It won't happen overnight, but we need to put aside our egos and create one group," says FPD's Jack Seddon.

The future of physician unions depends in large measure on whether the nation's more than 96,000 interns and residents win the right to form collective-bargaining units. They can do so at government-owned hospitals, but at private hospitals they come under the jurisdiction of National Labor Relations Board, which classifies them as students, not employees. As a result, private hospitals can legally prevent them from unionizing.

A union called the Committee on Interns and Residents, though, is challenging the status quo at the 432-bed Boston Medical Center. The CIR, affiliated with the Service Employees International Union, wants an organizing election so it can become a union for house staff at this private institution (which resulted from the merger of Boston City Hospital and Boston University Hospital). A regional NLRB director dismissed its election petition, holding to the resident-as-student line, but the CIR is appealing the decision to the National Labor Relations Board.

If the CIR triumphs, tens of thousands of brand-new doctors could begin their career in union camp, presumably primed to join other physician unions once they enter private practice. "It's important to have residents organized," says FPD president Art Hall. "They need proper education on the function of labor in our society."

For her part, Grace Budrys says more and more doctors will take unions seriously as managed care tightens its grip on medicine. "What form physician unions will take is hard to predict - it depends on the courts and legislature," she says. "But I don't think we'll repeat the fizzle of the 1970s. The impetus for these unions - managed care - won't disappear. There's no turning back." PR

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