The Doctor Is In…A Union? NLRB Orders Union Election for Physicians

A regional director of the US National Labor Relations Board recently ordered an election for physicians to vote on whether they want to unionize. The votes showed that a determinative majority of ballots had been cast overwhelmingly in favor of the union—of 43 eligible voters, 29 voted for the union, three voted against, and three ballots were challenged and not counted. On March 15, the National Labor Relations Board certified the union as the bargaining representative.

THE PETITION

The union’s petition sought to represent Piedmont Health Services Inc.’s community health center medical providers—defined as physicians, nurse practitioners, certified nurse-midwives, and physician assistants (Providers).

THE COMPANY’S POSITION

Piedmont Health Services Inc. argued that the petition should be dismissed for two reasons:

• Piedmont contended that the physicians were “supervisors” under the National Labor Relations Act (NLRA), primarily based on their authority to responsibly direct other employees.
• Piedmont argued that the bargaining unit was inappropriate because physicians did not share a sufficient community of interest with the Providers.

THE REGIONAL DIRECTOR’S DECISION

The Regional Director disagreed with both arguments by the company and found that:

• although the physicians communicated patient care needs to medical assistants, these instructions did not rise to the level of responsible direction because the physicians were not held accountable by the company for mistakes made by medical assistants who were working with their patients;
• while physicians did not interchange with the other Providers due to licensing requirements, many other factors supported a community of interest finding, including that all Providers are organized in the same department, are functionally integrated, share frequent contact with one another, and share common supervision; and
• even with physicians having more extensive training, the Providers used many of the same skills on a day-to-day basis as they care for patients, regardless of a specific degree or job title, and all Providers’ work was similar to evaluate patients, devise plans for treatment, prescribe medications, and maintain patient charts.

The decision is a reminder to healthcare employers that physicians may have a right as employees to organize under the NLRA. Employers in the healthcare industry should consider reviewing their physicians’ authority to supervise other patient-care staff, as well as how the employer directs and manages physicians as compared to other staff.  

CONTACTS

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Century City
Harry I. Johnson, III

Chicago
Philip A. Miscimarra

Los Angeles
Nicole A. Buffalano
Douglas R. Hart

Philadelphia
Joseph C. Ragaglia
Steven R. Wall

Washington, DC
Daniel P. Bordoni
David R. Broderdorf
Jonathan C. Fritts