NLRB Decision Permits Medical Interns, Residents and Fellows To Unionize

By Melvyn B. Ruskin
Chairman, Health Law
and Jeffrey M. Schlossberg
Employment Law

In a recent decision concerning a Massachusetts teaching hospital, the National Labor Relations Board (NLRB) overruled long-standing precedent and concluded that medical interns, residents, and fellows (doctor trainees) are employees for purposes of federal labor law. The NLRB found that doctor trainees were employees because they were involved in a master-servant relationship and provided services for the hospital; received compensation for working in various physician training programs; and received fringe benefits similar to other employees.  This decision is significant because previously unions at non-municipal hospitals lacked the legal status to demand recognition or collective bargaining.

The Decision
A regional director of the NLRB initially denied certification to the union that sought to represent house officers  at Boston Medical Center Corp. (BMC).  The regional director relied on established precedent that doctor trainees were not employees under the National Labor Relations Act (the “Act”) and, therefore, the union was not a qualified labor organization. On review by the NLRB, the union argued that the Board should overrule the long-standing decisions that doctor trainees were primarily students and not employees, and the Board did so in a 91-page opinion.

The union contended that national policies of promoting peaceful collective bargaining and effective graduate medical training programs were best effectuated by recognizing residents as employees entitled to the protections of the Act.  In addition to the doctor trainees’ compensation and fringe benefits, the NLRB stressed that  interns and/or residents order X-rays, consults and treatments; perform critical patient-care procedures; respond to “codes” without attending physicians, and interpret radiology films.  Further, a third year resident testified that she made 80% of patient-care decisions on her own.

BMC, however, argued that graduate medical education involves academic relationships between medical students and teachers and that this relationship does not comport with the economic balance of power contemplated by the Act. BMC argued that graduate medical education will not work with collective treatment of doctor trainees and that the educational process and academic freedom would be undermined by participation from labor organizations in setting standards for evaluation, promotion, discipline and dismissal of student trainees.

Despite BMC’s arguments, the union prevailed and the era of unionization of interns, residents and fellows has arrived . Hospitals and similar healthcare facilities that administer medical internships, residencies, and fellowships must prepare for the inevitable consequences of this decision.
Organizations representing doctor trainees will seek to unionize potential members. Lawful activity could include seeking to have the doctor trainees sign authorization cards, with the goal of having a NLRB supervised election.  The union also could engage in organizational picketing outside the facility.  Should the union become the trainees’ collective bargaining representative, the union and employer will have to bargain over issues such as wages, hours and benefits.

The impact on other issues – such as those impinging on the academic aspects of the doctor trainees’ responsibilities and their relationships to their instructors – is less clear.  The decision indicates that the NLRB will define permissive and mandatory subjects for collective bargaining in doctor training programs on a case-by-case basis and recognizes as valid potential problems regarding a blurring of employer-employee and teacher-student roles. Affected healthcare institutions should consider state law cases addressing circumstances in which academia and employment relationships have clashed.  The NLRB decision suggests that  “if the matter fell ‘clearly’ within the educational sphere,” it would not be within the scope of bargaining. The decision indicates that salary negotiations for doctor trainees would be a permissible bargaining issue, but whether an intern worked in one department versus another because of a disdain for the work in a particular area would be an impermissible collective bargaining issue.
Nothing in the NLRB’s decision or the Act automatically authorizes unionization or compels employers to agree to terms.  Unions must obtain majority support by an election or obtain voluntary recognition to be designated the employees’ exclusive bargaining representative.  To help avoid successful union elections, employers should focus on preventative personnel practices that tend to make non-unionization a more attractive alternative to its doctor trainees.  Of course, even if a union becomes the employees’ representative, the Act’s only requirement is that the employer bargain in good faith – the Act does not compel agreement even on issues such as wages, hours and benefits.
It remains to be seen whether this decision will in fact improve conditions for doctor trainees, what new costs will be incurred by hospitals and medical schools and what will be the impact on programs designed to train interns, residents and fellows.  In the meantime, hospitals should prepare themselves to deal more effectively with doctor trainee concerns or they will invite dramatic changes in the doctor trainee programs they administer.

Melvyn B. Ruskin is a Partner and Chair of the Health Law Regulatory Group.
Jeffrey M. Schlossberg is of counsel to the firm’s Employment Practices Group.