Our Doctors are Joining a Labor Union!

Are physicians going to join a union at your hospital, multi-specialty group, or HMO? Having recently lived through such an experience, the author shares the lessons that he has learned. This article outlines what physician executives need to do to prepare for the increasingly likely eventuality of physicians at their hospitals making a push for unionization. The best way to avoid a union is to manage people fairly, communicate with them constantly, and develop consensus for difficult decisions whenever possible. But if a petition lands on your desk, it is crucial to understand the laws governing union campaigns and the possible outcomes. From how to respond to a petition to election campaign strategies to the negotiation phase, physician executives need to be prepared for the very real possibility of physicians at their organizations deciding to unionize.

KEY CONCEPTS

* Physician Unions

* National Labor Relations Board (NLRB)

* Management-Labor Negotiations

* Collective Bargaining 

* Responding to a Petition

* Election Campaign

* Negotiating

IT IS DECEMBER 20TH. Next year's budget is finally approved. It has been a difficult year; the physician salary plan had to be changed. Reimbursement will not improve in the near future. Still, the medical director's work for the year seems to be winding down. There is some satisfaction in that. Just before day's end, a letter comes from an unusual source--the Regional Director of the National Labor Relations Board (NLRB). It announces that the organization's employed physicians have submitted a petition to have "Metropolitan Alliance of Physicians" recognized as their collective bargaining agent.

This scenario is no longer unthinkable. A recent headline in American Medical News reads: "More Doctors following Trend to Unionize." [1] A National Labor Relations Board ruling in October sustained the union membership of 200 attending physicians at Metropolitan Hospital in New York. [2] A year ago, 800 doctors employed by Los Angeles County voted to join the Union of American Physicians and Dentists, an AFL-CIO affiliated union. [3] In 1999, the AMA established Physicians for Responsible Negotiations (PRN), [4] ostensibly to help doctors in their negotiations with managed care companies; so far, however, they have organized doctors in traditional employment relationships.

Most physician executives have no personal experience with doctor unions. Some may have been union members as trainees; others may have watched their colleagues dealing with unionized nurses, radiographers, and other hospital employees. More is needed than a vague familiarity with the process.

How to respond to a petition

Most physician executives would react incredulously to the letter. After ascertaining that the information is correct, the reaction would probably be anger. "How can they do this to me? I have always been fair with them!" The executive has to get over this phase quickly to be optimally effective. The petitioning doctors may even agree with the self-assessment, but think that "they" or the "power structure" do not allow the medical director to be the physician advocate they wish him or her to be. On the other hand, if the reaction is, "I have always been a father to them," the problem might just have been identified and the medical director may not only be the cause of the discontent, but may prove to be an ongoing irritant to management-physician relations.

Whatever the reaction, physician executives must resist the urge to pick up the telephone to give the signatories a piece of their mind. Petitioning the National Labor Relations Board (NLRB) set in motion mechanisms defined by law that are different from those that we are accustomed to using day by day. There are labor consultants and lawyers in every major community, but few of them have experience with doctors' union campaigns. They should be consulted, but their opinions and advice need to be tested against the realities of medical practice.

The first issue raised may be whether doctors are entitled to have a union. Some have argued that doctors are all inherently supervisors, because their orders have to be carried out by other employees (nurses, technologists, etc.). In the past, this argument prevailed; [5] in two recent high profile cases, it was demolished, possibly forever. [6] Residents have also been deemed to be employees first and trainees second. [7] The next question is how the NLRB will make the decision. One may believe that once there is a petition, there will be an election. That is not necessarily true.

Management may recognize the union as a collective bargaining agent without further ado. This should happen only when there is convincing evidence that the majority of the employees in a given group support the union. If well over 50 percent of the employees signed the petition, it may be better not to go through a disruptive election. Recognition may also happen inadvertently, if management starts substantial negotiations with the union before the NLRB rules on the petition. In such event, it may be successfully claimed that the act of negotiation is the equivalent of recognition and the union is established. Even if management is able to avoid inadvertent recognition, it may be construed during the pre-election campaign as acting in an intimidating or otherwise unfair manner to such an extent that the NLRB will install the union without an election.

In management circles, the consensus is that the NLRB is stacked in favor of labor. It may come as a surprise that many unions feel exactly the opposite, arguing that the NLRB has allowed management to intimidate employees either on its own, or by hiring "union-busting" consultants during the pre-election campaign. To counteract this, union supporters have lobbied Congress, so far unsuccessfully, to mandate "card-check" to determine whether a union should be established. The card-check process installs a union if it presents cards that have been signed by more than 50 percent of eligible employees. This process is subject to peer pressure and intimidation on the union side; when offered an opportunity to use it, management often declines.

Election campaign strategies

Many consultants specialize in helping management win union elections. If one is engaged, two things must be kept in mind. First, few have experience with doctor unions, and among the ones that do, most have been unsuccessful in preventing the union's election. Second, management will be accused by the union of employing a "notorious union buster," thereby wasting resources that should be going to compensate union members better. Publicity is a favorite weapon of union organizers.

Communicating with internal and external audiences is a key component of a union campaign. The union, which will usually have an outside sponsor, such as the Union of American Physicians and Dentists or Service Employees International Union, will communicate in both directions. For example, if an organization has managed care contracts for a major employer with a unionized labor force, that employer's union may be induced to exert pressure on management to recognize the doctors' union or face cancellation of the managed care contract. More often than not, these will be empty threats, but they serve to unnerve management.

Effective communication by management is more important than ever. It will not sway the "true believers," but may persuade the uncommitted that management is not the uncaring, remote, profit chasing entity painted by the union. Physician executives should address the major issues the physicians raise, give progress reports on the pre-election maneuvering at the NLRB, summarize reactions in the press, and report about routine matters the organization is experiencing in delivering patient care. Consultants or lawyers should review any communications with potential union members.

One more issue before the election: Who is eligible to vote? The definition of the bargaining unit affects the outcome of the vote, and if the union wins, it affects who will pay dues. It is easy to decide that a full-time medical director is a manager who should not vote. Part-time medical directors who have hiring-firing power would also be considered part of management. In a recent campaign, management wanted to exclude locum tenens physicians, who worked sometimes as little as one day a month, and those who already resigned but who were still on the payroll on voting day. The union challenged the right of 20 physicians who had sometimes minuscule administrative responsibility, such as the pediatrician who ran an Attention Deficit Hyperactivity Disorder clinic one afternoon a week.

The negotiation phase

Americans have a sense of fairness that would be violated by a management that does not accept a vote favorable to a union. This has not deterred some from claiming that the election was so flawed that it should not have occurred at all. These challenges seldom prevail, and, in some cases, they have caused ongoing rancor and bitterness with severe damage to the organization. [8] The usual course of action is to swallow hard and accept the decision.

Like the election campaign, the negotiation phase is governed by elaborate rules. Almost invariably, it is best to exclude the top physician executive from the negotiating table, but to include knowledgeable doctor managers to advise the professional negotiator engaged for this purpose.

Collective bargaining involves three types of topics:

1. "Mandatory" subjects are hiring, firing, work hours and location, compensation, benefits, and content of work. These must be subjects of collective bargaining whenever the union demands it. Once a contract is reached that includes these subjects, the terms can only be changed in accordance with procedures outlined therein.

2. "Prohibited" subjects are activities that would be illegal with or without a union contract. For example, union and management cannot agree that, in order to increase revenue and improve compensation, the two should collaborate in illegal price fixing or anti-competitive activity.

3. "Permissive" subjects are anything that is not considered mandatory or prohibited; either party may propose it and if the other party agrees to discuss it, it becomes part of the process, with the same rules of application as the mandatory subjects. Usually, unions will seek to include permissive subjects, thereby increasing their influence over the workplace; management resists inclusion of items that they regard as their prerogatives.

A major topic is who actually belongs to the union? The law establishes a union that is victorious as an exclusive bargaining agent, but does not compel employees to become union members, only to abide by the terms of the contract and reap its benefits, if any. Unions try to minimize the number of "free riders" by negotiating a "union shop," where all eligible employees have to join the union--otherwise they have to quit the job or cannot be hired into it. In union shop situations, the employer may even collect dues on behalf of the union by payroll deduction. Management may try to negotiate for an "open shop," in which membership is voluntary. Unions have difficulty accepting an open shop because they believe that free riders are unethically getting something for nothing; plus the union has to forgo all those dues.

Compromise positions may be either a union shop that applies to new hires only or an "agency shop," where employees who decline to be members still owe the union a representation fee. This fee will be less than membership, because the union has to exclude the cost of all political and other activities not directly related to representing the particular employee group. Naturally, this determination is subject to interpretation and is viewed by non-members with suspicion.

Negotiations do not occur only at specific times, in specific locations. Unions are expert at creating situations out of the negotiating room, designed to induce management to come to terms. It is not uncommon for public allegations to be made about supposed compromise of quality of care; for top managers to be personally harassed; for the press to appear at the organization's doorstep to investigate allegedly questionable employment practices. These, and similar tactics are designed to inflict difficulties that will resolve immediately if a contract on the union's terms is agreed upon.

In the past, management in some industries also engaged in blatantly intimidating workers. This is prohibited, the penalty being potentially the imposition of the union by the NIRB without a vote. However, management sometimes feels that time is on its side, because if no agreement is reached in 12 months, the union may face a vote of decertification by its bargaining group. Also, if there is no progress in negotiations, management can declare an "impasse" and implement whatever measures it deems necessary for the conduct of its business.

Are our doctors going to strike?

The AMA-sponsored PRN is the only union that has vowed never to resort to strike. [4] Despite the other unions' resolve to retain the threat of strike as a bargaining weapon, American physicians will not use a tactic that they feel will harm their patients unless they feel truly desperate. Prudence dictates a contingency plan for a walkout, but the likelihood of it occurring is low. Rather, the union will resort to other tactics common to the labor movement: publicity and the solidarity of other unions.

In most situations, management and the union will come to agreement, either because their negotiators will find a formula that will take the negotiation to a level where both parties find it beneficial to collaborate or because one side will back off. The challenge to both parties is to find a way to collaborate or risk resentment and continuing strife.

Negotiating is a learned skill most physician executives have not acquired. The process requires extensive preparation in addition to knowledge and common sense; the negotiator has to be clear about where the parties are in the process and what is required for a successful outcome. Although formal education in successful negotiating is available, it is difficult to acquire the knowledge once the negotiations are imminent. The principles of negotiations found in Getting to Yes, 2nd Ed., (New York: Penguin Books, 1991) and The Mind and Heart of the Negotiator (Upper Saddle River, NJ: Prentice-Hall, 1998) are invaluable. [9,10]

Is there an alternative to accepting a union?

Most physician executives prefer a workplace without labor unions. The best way to avoid a union is to manage people fairly, communicate with them constantly, and develop consensus for difficult decisions whenever possible. Employed physicians are not ignorant of the economic forces buffeting health care, even if they are somewhat protected from the market. If they feel that they have a significant voice in their workplace's governance and if they trust management not to be arbitrary, they will not be receptive to a union. A union drive among physicians that rises to the level of a formal campaign is a sign of management failure. However, it is not an irretrievable situation.

Inserting a third party between physicians and management will actually complicate future communications. Most physicians are not cognizant of labor relations rules that are invoked as soon as a petition to organize is submitted and that become even more restrictive once a contract is signed. Many topics can be discussed only through a union intermediary. This will often be a local member of the union, but the sponsoring union will have full access to the transaction and may from time to time intervene. Unions may also enforce their rules by levying fines or other punishment on members who do not observe them. Highlighting these facts to employed doctors, many of whom will be naturally skeptical of the union, may be an effective tactic to persuade them to vote against a union. If the union does not win the election, it is prohibited from submitting a new petition for 12 months.

Even if the union wins, there is no assurance that it will endure. Management has to negotiate in good faith for a contract, but there may be many reasons why an impasse in the negotiations will occur. If there is no contract and no progress after 12 months, members of the bargaining unit may petition the NLRB for a "decertification election." If the NLRB concurs, a new election will be held. Unions will usually oppose the petition, alleging that management solicited it and, therefore, it is an unfair labor practice. If they can demonstrate such solicitation, they may prevent the election. Still, decertification petitions have been successfully submitted and not long ago a group of house officers in California voted their union out. [11] Management actions that are aimed at decertifying a union run the risk of censure from the NLRB and should be undertaken only with great care and with expert advice.

Conclusion

Despite the missteps of some physician unions, the question of whether to form a union will at least arise among employed physicians. Educated physician executives will be able to deal with this complicated and stressful situation more effectively.

Derick P. Pasternak, MD, MBA, FACPE, is a Clinical Professor at the University of Washington School of Public Health in Seattle and a health care consultant.

References

(1.) Albert, T. More Doctors Following Trend to Unionize. American Medical News. November 17, 2000, P. 1.

(2.) Albert, T. Union can Stay at N.Y Hospital. American Medical News. November 20, 2000, p. 10.

(3.) Riccardi, N. LA county Doctors vote Decisively to Unionize. Los Angeles Times. May 29, 1999, p. 1.

(4.) PRN 2000. comparison Physicians for Responsible Negotiations (PRN) vs. Traditional Labor Organizations with Physician Membersbip, www.4prn.org/union tb.html.

(5.) Budrys, Grace. When Doctors Join Unions. Ithaca, New York: ILR Press, 1997.

(6.) FPA Medical Management, Inc. 331 NLRB No. 117 (2000); 2000WL 113173 (NLRB).

(7.) Greene, J. Residents are Employees, NLRB Rules. American Medical News. December 20, 1999.

(8.) Havinghurst, C. A Union Answer. American Medical News. January 1, 1999.

(9.) Fischer, R., Ury, W., Patton, B. Getting to Yes, 2nd Ed. New York, New York: Penguin Books, 1991.

(10.) Thompson, L. The Mind and Heart of the Negotiator, Upper Saddle River, New Jersey: Prentice-Hall, 1998.

(11.) Moran, M. Residents Regret Signing on with Union, Seek to Disaffiliate. American Medical News. January 19, 1998.

Where Can Physician Executives Get Help?

There are many labor relations experts. Engaging a labor lawyer with experience and wisdom is one of management's first tasks when faced with a union drive. There are also two kinds of consultants: The aggressive ones in business for the short term to help management win an election and those who also work to create an environment in which employees do not feel the need for a union. Only a few have had experience with physicians. Some may draw on their experience with nurses and other health professionals, but they may be less effective than those who have worked with individualistic bargaining unit members, such as university faculty or even actors.

Finally, there is a body of literature, but much of it is difficult for physicians to read because it is intended for lawyers. Two books that I recommend are Getting to Yes, 2nd Ed., (New York: Penguin Books, 1991) and The Mind and Heart of the Negotiator; (Upper Saddle River, New Jersey: Prentice-Hall, 1998). Another helpful book geared to physicians is The Successful Physician Negotiator: How to Get What You Deserve by Steven Babitsky, JD, and James J. Mangraviti, Jr., JD, (Seak Inc., 1999).

ACPE's Courses on Negotiation

Principles of Power Negotiation

Roger Dawson

This interactive session allows physician executives to gain an understanding of the negotiation process. Participants learn how to build trust into relationships and discover the traits that may be hindering their negotiation success.

The Physician in Management Seminar II

Charles Dwyer PhD, Rick Brinkman, Roger Dawson, Paul Tiffany, and Leland Kaiser, PhD

This second in the Physician in Management series is designed to equip physician executives with the skills to lead today's health care organization. Highlights include:

* The shifting sources of power and influence among you, your colleagues, and your organization.

* Negotiation: identifying what you want and then getting it.

Turn Conflict into Cooperation

Charles E. Dwyer PhD, and Carol A. Aschenbrener, MD

Conflict can cripple a health care organization. It can pit physicians against administrators, and cause infighting among staff. Building cooperation isn't easy. It demands the skills to influence people to work toward a common goal. Highlights of this course include:

* How to acquire both power and influence, including step-by-step actions you can take.

* Managing conflict and achieving cooperation: at home and at work; among your peers; between superiors and subordinates; among groups, departments, and professions.

* The role of alternative dispute resolution (ADR) and negotiation techniques: when to negotiate, when to mediate, when to arbitrate.

Essentials of Health Law

Susan Lapenta, JD, and Henry Casale, JD

This course gives physician executives a basic understanding of laws pertaining to health care organizations. Participants discuss the hot legal issues of today, such as equal opportunity in the workplace, and learn how to negotiate the best contracts for their organization.