Resident Unionization
Current Status as of December 7, 1999
A case involving the request by the Committee of Interns
and Residents (CIR) to be recognized as the collective bargaining
agent of the residents of Boston Medical Center is currently
before the National Labor Relations Board (NLRB). On November
26, 1999, the MLRB issued a decision, finding "that the
interns, residents, and fellows employed by BMC, while they
may be students learning their chosen medical craft, are also
"employees" within the meaning of Section 2(3) of
the Act."
Background
In early 1997 the Committee of Interns and Residents, which
represents housestaff unions at several teaching hospitals,
sought recognition as the collective bargaining agent of the
residents and fellows of Boston Medical Center, a private
institution resulting from the merger of Boston City Hospital
(a public teaching hospital) and Boston University Medical
Center (a private hospital). Residents at Boston City Hospital
were authorized to collectively bargain under Massachusetts'
Public Employee Relations Act and had been unionized by CIR.
Although Boston Medical Center agreed to have all residents
at the merged institution represented by CIR, the union felt
it should utilize this opportunity to test whether residents
at a private institution like Boston Medical Center, which
is governed by the National Labor Relations Act (NLRA), are
primarily "students" in a professional education
program or whether they should be considered "employees."
Analysis
An analysis of the NLRB's decision will be posted shortly.
AAMC concerns about the impact with the decision include the
following.
(1) Because discharge policies are a mandatory subject of
collective bargaining under the NLRA, resident evaluation
criteria and criteria for promotion to the next level of training
would become negotiable.
(2) Rotating residents between clinical, emergency and outpatient
services and assigning residents to teaching and research
responsibilities would be subject to negotiation, since transfers
and work assignments are mandatory subjects of bargaining.
(3) Testing would become a mandatory subject of bargaining.
The union could bargain with the hospital to determine the
contents of tests and the manner in which residents would
be tested.
(4) The hours and months residents spend at hospitals and
educational sites and program directors' prerogative to determine
the hours necessary for educational purposes, would be subject
to collective bargaining, and the length of training would
be negotiable.
Overall, application of the NLRA would make issues that are
traditionally and fundamentally educational in nature subject
to arbitration. The "Essentials"
of the Accreditation Council for Graduate Medical Education
(ACGME), which accredits allopathic residency training programs,
specify that the decision to reappoint a resident is to be
made by the program director, based on evaluation of the resident's
performance and potential for future growth. A program director's
determination that a resident should not be reappointed would
be subject to the grievance process and a final, binding determination
by an "impartial" arbitrator as to whether the resident
was "discharged for cause" or in violation of the
collective bargaining agreement.
NLRB Actions/Activity
The case was initially brought before the Region I Regional
Director of the NLRB in August 1997. In October 1997, the
Regional Director dismissed the petition filed by the House
Officers' Association/CIR following the NLRB's decision in
the Cedars-Sinai case that residents and fellows at private
sector hospitals are primarily students, not employees entitled
to organize into unions. Subsequently, the parties filed a
request for review of the decision with the NLRB in Washington.
On January 30, the American Hospital Association (AHA), the
American Council on Education (ACE), the American Board of
Medical Specialties (ABMS), the Council of Medical Specialty
Societies (CMSS), and the AAMC submitted an amicus curiae
("friend of the court") brief to the NLRB, expressing
their opposition to resident unionization at Boston Medical
Center. The American Medical Association (AMA) filed a letter
supporting the residents' right to collectively bargain, but
arguing that residents should not have the right to strike
and suggesting that the ACGME, not the NLRB, retain jurisdiction
over educational matters. The NLRB has not made a decision
on the case to date.
AAMC Action
In the autumn of 1997 the AAMC filed an amicus curiae brief
with the Regional Director of the NLRB that reiterated the
views articulated by the Association in its brief filed in
1975 in the Cedars Sinai case, which corroborated the NLRB's
1976 decision in this case. On January 30, the AAMC together
with AHA, ABMS, CMSS and ACE submitted an amicus brief to
the NLRB, expressing their opposition to resident unionization
at Boston Medical Center.
In February 1998, the AAMC Executive Council endorsed a set
of "AAMC Principles Regarding Commitments, Obligations
and Employment' Issues Between Residents and Teaching Institutions"
that were developed in response to the concerns highlighted
by the Boston Medical Center case and that articulates desirable
systems to protect residents' interests and the educational
quality of residency training programs at member institutions.
In addition, the AAMC, together with the other four parent
organizations of the ACGME (AHA, AMA, ABMS, and CMSS), has
asked the ACGME to review its policies, especially its "Institutional
Requirements," to assure that residents' interests
are safeguarded in light of residency program resizing, mergers
and consolidations and other profound changes in the market.
Contacts
Ivy Baer, Director & Regulatory Counsel
AAMC Health Care Affairs
ibaer@aamc.orc
(202) 828-0490
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