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Understanding Collective Bargaining for PhysiciansAn Expert Perspective

With the increase of physician employment, there has been a heightened interest in collective bargaining in medicine. Industry experts, Diamedes Tsitouras, JD, of the American Association of University Professors Biomedical and Health Sciences of New Jersey, and Rebecca Givan, PhD, of the Rutgers Center for Work and Health, join Matthew Gold, MD, AMA OMSS Delegate and Henry Allen, JD, AMA Senior Attorney to examine the risks and benefits of collective bargaining for physicians in today's health care environment.

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Video Transcript

Jason Ranville: [00:00] To get us started, we're going to take just a moment to recognize Matthew Gold, MD, who is a member of the organized medical staff sections Governing Council and Policy Committee to provide some brief introductory remarks. So Dr Gold, please take it away.

Matthew Gold, MD: [00:15] Hello, we're very happy to have you here. We've been excited to get this together. This webinar is sponsored by the Organized Medical Staff Section and developed by staff and the policy committee of which I'm chair.

[00:29] The Organized Medical Staff Section was the first separate section in the AMA and it now has more than a dozen. It started life as a house staff section, but it's evolved to be called the Organized Medical Staff Section. It has evolved its representation for all practicing physicians in any type of practice employed or independent versus the health care systems as well as the hospital. So our calling actually overlaps the interests of all sections, and indeed all doctors.

[01:01] My hope and interest is to stimulate further discussion on this topic, with more involvement of individuals in the section and beyond. And we would invite any to join us if you have the possibility to do so. This may also generate resolutions to guide the AMA, and future actions on behalf of doctors and our patients. We invite discussion here at the end of the presentations, and contact with our staff about your ideas. And we may well be having further webinars in this vein, perhaps taking the unique perspectives of each of our component constituents employed and in private practice, etc. So, take it away. Jason, could you introduce our moderator?

Ranville: [01:54] Thank you, Dr Gold. We'd like to introduce Henry Allen, who will be serving as our moderator for the evening. Henry Allen is a lawyer within the advocacy research center of the AMA where he primarily handles antitrust issues and health care and health insurance markets. Henry's also authored the AMA's issue brief on Collective Bargaining for Physicians and Physicians in Training, which is available on the AMA's website.

[02:17] Prior to joining the AMA, Henry litigated health care antitrust cases in forums ranging from the Superior Court of Alaska to the United States Supreme Court in Jefferson Parish Hospital District No. 2 v. Hyde, which was the landmark exclusive dealing-and-tying case. Henry has also had experience in labor law and health care. For many years, Henry was the adjunct professor of law at Northwestern University School of Law. He has also been an adjunct professor at the Kellogg School of Management at Northwestern University, and at Cornell University, where for two decades he taught health law at the Sloan Institute of Health Services Administration. Henry? Lawyers.

Henry Allen, JD: [02:53] Oh, thank you very much, Jason, and thank you all for joining us this evening. I'm very, very pleased to be able to be a part of this program. You just heard that I have a background in antitrust. And as I look at hospital markets, I see them consolidate to the point where they have market power, not only in the sale of hospital services, but in the purchase of physician services–often as monopsonists.

[03:33] They are negotiating with physicians, under circumstances where the physician is not faced with a level playing field and is in a position to be coerced both by market conditions–no options in the marketplace for employment–but also frequently with covenants not to compete being part of the physicians contract. So physician unions, I think, have a role to play here and I would like to start with with telling you what the AMA policy is in the area of physician unions. AMA supports the right of physicians to engage in collective bargaining. It is also AMA policy to work for expansion of the number of physicians eligible for the right to collectively bargain under federal law.

[04:41] AMA did, however, suffer a setback in this area. In 1999. AMA provided financial support for the establishment of a national labor organization called Physicians for Responsible Negotiation. However, in mid-2004, after spending substantial sums on the venture that signed up few physicians, AMA discontinued financial support of the project.

[05:10] Are there reasons to think that an AMA-supported union might succeed today, when it failed 20 years ago? 20 years ago, the vast majority of physicians were independent contractors. Unions are for employees, not for independent contractors. Today, roughly half of physicians are employees.

[05:35] Also 20 years ago, when the AMA experimented with its union, employee doctors were mostly physicians in training, or employed by HMOs. Many of these physicians lacked the resources to engage in unionization. So, perhaps an AMA experiment with a union could succeed today while it failed in the 1999-2004 timeframe. To help us understand the possibilities, we are fortunate to have with us today two experts from the field of labor relations and the professions with a concentration on medicine.

[06:18] Our first speaker is Diomedes Tsitouras, who is the executive director of a union known as the American Association of University Professors Biomedical and Health Sciences of New Jersey. This is a labor union of 1500 faculty at Rutgers and Rowan universities that teach the next generation of doctors, nurses, scientists, and health professionals. Before holding this position. Dio was the executive director of the American Association of University Professors University of Connecticut Health Center Chapter. His work on behalf of both unions brought more multi-year appointments, higher minimum pay standards, better access to childcare/parental leave, and less gender-based inequity. Mr Tsitouras holds degrees in labor relations and public administration from Cornell University. He also has a law degree from Indiana University.

[07:24] Our second speaker, Rebecca Givan, is an associate professor of labor studies and employment relations in the School of Management and Labor Relations at Rutgers, the state university of New Jersey. She has published widely on employment relations in health care and education, comparative welfare states and labor studies. Her authored and edited books include Strike for the Common Good and Challenge to Change: Reforming Health Care on the Frontline in the United States and the United Kingdom. She is currently the president of Rutgers AAUP-AFT, a union of full-time faculty, grad workers, postdocs, and counselors. So Dio with that introduction, take it away.

Diomedes Tsitouras, JD: [08:21] Thank you, Henry, really, really appreciate it. It's good to be with you all tonight. I'm happy to be here, I'm happy to share with you this important topic that I've dedicated my life to. On a personal note, both my parents are in health care, my mom was a nurse for 30 years and my father was a physician in geriatrics and academic medicine. And in my career also I represented federal employees before doing anything with medical faculty. And then when I realized that there was a union for folks like my father, I really jumped at the chance. And that's how I ended up in the Connecticut position. I think being able to provide voice for physicians and medical faculty is really something important because I feel like it's very missing today [sic]. What we're here to talk about tonight is how collective bargaining can be a part of getting the voice back and getting power back for physicians. Becky, do you want to go?

Rebecca Givan, PhD: [09:30] Hi, everyone. Thank you so much for having me. I'm excited to talk to you today. So I'll just mention briefly, I think that those of you here probably have different amounts of familiarity with unions. Some of you may have now or have had family members who were union members. Some of you who are may be unionized–a little bit more likely if you're currently house staff–or you may have been in a union when you were house staff and you no longer are.

[10:06] Just to give the sort of overview and–I see I have a typo here–what do unions do? And we think we can kind of put what unions do into three categories: collective bargaining, political advocacy, and mutual aid and welfare. Collective bargaining is the thing that only unions do, so other kinds of associations and advocacy groups don't do collective bargaining. And we'll come back to that, and I'll say a little bit more about that.

[10:36] Political advocacy is something that lots of kinds of associations do. So, the Audubon Society would do political advocacy around birds and environmental issues, and the AMA would do political advocacy around health care and physician issues.

[10:53] Mutual aid and welfare is the additional function, which I actually find interesting, which could be anything from unions that actually provide traditional insurance benefits to much more informal kinds of mutual aid and support. But we can think of those three things as the categories of things that you need to do, but the one that I would say is sort of special or really defines a union as a union is collective bargaining.

Tsitouras: [11:23] So what is collective bargaining? This is the definition you're going to find on the AFL-CIO website. The AFL-CIO, by the way, is sort of a umbrella organization of many unions in the country, most of the major national unions are members of the AFL-CIO. So I just use it as a very kind of simple straightforward one that I think anyone going to their website could understand:

[11:51] "Collective Bargaining is the process in which working people through their unions negotiate contracts with their employers, to determine their terms of employment pay benefits, leave, job security, safety policies, and more. Collective bargaining is a way to solve workplace problems, also, the best means for raising wages in America. And indeed, through collective bargaining, working people in unions have higher wages, better benefits, and safer workplaces."

[12:15] So a couple of things here. One, there's a whole bunch of different things that you could potentially bargain for through collective bargaining. I've met people who think of certain staple things like pay or maybe health insurance benefit, but there's a lot of different things that you do on a daily basis that potentially you could bargain through a unionized contract.

[12:41] A couple of things I ... I guess... a lot of physicians have individualize employment contracts. And even we–who represent faculty at Rutgers New Jersey Medical School Robert Wood and Rowan University– so everyone has an appointment letter at these particular schools, right? Those appointment letters are subordinate to our union contract. We're sort of cognizant that a lot of physicians and faculty members may have their own individualized bargaining power, because they might be a huge asset to their employer.

[13:24] We tend to negotiate minimums or ranges, so that it doesn't necessarily always inhibit individualized bargaining power. So there's ways of balancing the collective and the individual. You see this also with major league sports, Major League Baseball, where you might have a very valuable player on the team who can still, you cut a very substantial, lucrative deal, but at the same time, the union is making sure that the players get their portion of the revenues coming into Major League Baseball.

[14:03] Those are kind of the analogies and the framework, I'd like to articulate because I know collective bargaining isn't necessarily a concept that physicians have come into play with that often, but it can be very powerful in achieving change in the workplace.

[14:23] Why should physicians engage in collective bargaining? It gives doctors a stronger voice, and just that sometimes... With big health systems these days, you have management that might be across the state or across the country, where there'll be several layers of management between people doing the work on the ground floor so often, a human can actually bridge that gap can actually highlight problems that maybe management didn't even know existed before. And just that alone sometimes can be powerful, because it creates a check on how entities are managed right?

Tsitouras: [15:02] The second bullet point here shifts power back to the doctor, especially economic power. I noticed there was a question in the chat Q&A about how many physicians are employees today. And they believe, about 10 years ago that it shifted in the United States, where a majority of doctors are now employees, as opposed to being partners or independent contractors or sole proprietors, or any of those other kinds of things. "Employee" means you're working basically, for someone else–somebody else is the owner of that organization or you have somebody who's in charge. I like to say that physicians have gone through essentially being the boss or owning their own practices to working for the boss. And that change in ... the economic market change and the consolidation, as Henry said, of health systems has meant that physicians have lost the traditional economic and political power that they've been accustomed to having over the decades.

[16:11] We're arguing that collective bargaining might be one of the tools by which physicians can reclaim some of that power back in their favor. That is largely what happens when you have a collective: you can express usually more power as a united front, as opposed to just one person that they can ignore, or get rid of. It's a lot harder to do that, when you have a lot of folks doing that, especially when you have professionals that people tend to listen to.

[16:47] Collective bargain also focuses on the needs of the doctor as the employee, and again, that change or acknowledgement that thinking of the physician as the employee, that's very important, because I don't think we've necessarily developed the policies or the support, or even the mutual aid that Becky was talking about earlier, around that that concept. So collective bargaining could sort of help in in advancing the doctor as the employee.

[17:16] And then of course there is burnout or, as we call it, moral injury. I think a lot of burnout is not– is basically...victim shaming, so sometimes they call it that. Because, really, people are passionate about wanting to do their job well, and to execute very excellent kind of patient care, and then they get sort of stymied by the system. That's why I think we have a lot of the burnout that we have today. By reclaiming some of the voice or reclaiming some of the power... we think, theoretically, that we can be an antidote to some of the burnout and the turnover in the profession that we see.

[18:01] The last thing is membership. I know that depending on where you are in the United States, the AMA has lost members and certain localities. Could collective bargaining be something where it's an opportunity to grow the membership, where, where it once was lost? These are all questions, all places where collective bargaining can be very useful to bettering the work lives of physicians everywhere.

Givan: [18:37] I just wanted to mention, I think a lot of the times if you ask people for an image of a union member, or one you've known, or maybe previous generations in your family, who were union members. With the exception of teachers, you get a lot of heavy industrial workers. People think of auto workers, steel workers, miners, and often from another era, not necessarily now. So just a few examples of other sort of highly educated white collar professionals that are unionized and benefit from collective bargaining faculty, which obviously would include physician faculty, but all kinds of faculty like myself.

[19:21] I like the example of the Boeing engineers. I like them because they're self-identified as nerds and their unofficial slogan is "No nerds, no birds," because the plane is kept in the in the air by their by their great nerd expertise. Many, many federal employees so lawyers, analysts, all kinds of technical government workers, legal aid lawyers, a lot of nonprofit employees, I mean, all kinds of nonprofits–and that's been ... a small but rapidly growing area. And then the entertainment unions most of TV and film is organized and works under collective bargaining agreements, that includes directors and most other folks who work in film and that aspect of entertainment. That is just to show that there are many, many highly educated, highly credentialed folks that are organized and that are bargaining collectively.

Allen: [20:23] This is a little bit about our organization. We're the AAAUP-BHSNJ. Our union is about 50 years old, we used to be a basically a separate university called the University of Medicine and Dentistry in New Jersey, and the faculty organized about 1970 or 1971, around that time, because they thought that the university was too top down, and public sector collective bargaining was new in New Jersey at the time, and they took advantage of that. And that's kind of how we were founded.

[20:54] Then in 2012, UMDNJ, got merged into Rutgers and we remained as the union for the faculty on the Rutgers Health side, both at both medical schools, as I said earlier, the New Jersey Medical School, and with Johnson Medical School. We represent other faculty there that are not just physicians. We have some nursing faculty, some dental faculty, and other PhDs. Then down at Rowan University, we also have the school of osteopathic medicine.

[21:24] Some of the things that we've accomplished through collective bargaining, and to give you sort of a flavor of what you can do if you have a union contract, we negotiate minimum pay best standards–this is actually in our latest Rutgers contract–the American Association of Medical Colleges does an annual survey of medical faculty salary by rank–assistant, professor, associate–and by specialty. We use those standards–the lowest standard, I believe, is 25th percentile on there–as minimum pay standards and our collective bargaining agreement to keep our pay competitive. That's just an example of something that's possible: to create a sort of universal minimum, if you well. we also use other data–MGMA, for example–for clinical incentive plans and different kinds of bonuses.

[22:15] There's other things on here: we're bargaining actually, right now. We've opened negotiations with the university. Some of these issues, like childcare and parental leave, are going to be front and center. Both where I was at University of Connecticut and at the union here in New Jersey, we negotiated longer appointment periods for faculty appointment letters.

[22:35] Another big issue that's come up more and more is inequity in pay, especially based on gender. You see this all throughout the country. In the wake of the #MeToo movement, you saw an organization called TIME'S UP Healthcare, which was a lot of medical faculty around the country that was focused on the pay gender gap, so much so that the AMC is actually published now, in addition to their normal benchmarks, the benchmarks that you see between men and women, which is very interesting. That kind of issue, we're actually tackling it through collective bargaining, where we do have a procedure in our collective bargaining agreement where people can bring equity pay adjustments. Actually Becky here, the language is borrowed from her contract, and the legacy, non-health science faculty led the way in that and we were able to benefit on the coattails of that in our contract.

[23:31] There's still a lot of work to be done because these gaps still exist and universities are very slow, unfortunately, to put the systems in place in order to truly close them. But we're a lot better off, I can tell you, at Rutgers having this than not having it. If we didn't have it, and we had to resort to a faculty council or university senate for these changes, we probably wouldn't even have any process for faculty right now. So that gives you just a flavor of what we can we bargained and accomplished through collective bargaining.

Givan: [24:04] I will say that we're presented some descriptive numbers about how many physicians are in unions, but it's a little bit hard to measure. The AMA has done some of its own estimations. There's census data available from the current population survey, but that's just a representative sample, which gets dicey as you get into occupational groups. But the number of physicians in unions has certainly been growing. And if you look at sort of, the number 7.2% in the US from 2019–this data takes a while to work its way through–that is pretty similar to the entire unionization rate in the population, although the rate is much higher in the public sector than in the private sector for all workers unionization. And that's, I believe, also true for physicians.

[25:05] There are a good amount of physicians organized–relatively speaking, it's still a minority of all physicians–but in the federal sector and in the public sector: safety, net hospitals, public health, correctional health, places like that. It's small, but I would suggest significantly increasing.

Allen: [25:28] This is a list of some of the major national unions that have a significant amount of physicians right now under different local collective bargaining agreements around the country. The largest one probably is SEIU, you can see here. One of their sort of local affiliates, is a committee of interns and residents, which have done a significant amount of organizing in the last six months. A number of hospitals around the country have been organizing and we're going to go over a few of those examples in a second.

[26:02] In order to form a union, you don't necessarily need to link up with a national brand, or organization, or whatever you would like to call it. It does help because they have the expertise, the knowledge, and resources. That's why most times you see a successful drive, you do see one of these names attached to it. But there are examples– You can see through what Amazon, Starbucks, and other examples where workers are not necessarily going through a national union to do that.

Givan: [26:40] What we're seeing lately–and we'll present a few examples–is physicians who are very clear–and you guys can speak to this better than we can about it, especially those of you that have been working for some time–about the changing circumstances of your work. There is a really clear shift to those doing this work. From the ability to actually exercise your own professional medical judgment, to feeling that your judgment is completely unwelcome, and is subordinate to the judgment of the insurance company, health care organization, etc. Patient care is not being determined by those who know most about patient care, but by other factors, often in the pursuit of profit. This complex set of institutional factors that take away from medical professional judgment. That combined with the fact that legally more doctors have become employees, which makes it more straightforward to unionize. That's really that's really spurred this, this fairly recent significant uptick.

[27:51] We just have a few very recent examples. Some of you might have heard about Stanford Health Care: the house staff organized with the committee of interns and residents. That's the major national union representing house staff. It's kind of concentrated in a few regions like New York and California, but it also represents Florida and New Mexico, Illinois–a decent size group there.

[28:18] I don't know if folks heard about this, but there was a huge issue where sort of wealthy VIPs were put ahead of the house staff in line for vaccines when COVID vaccines became available. So the house staff that were truly on the front line treating patients with COVID everyday didn't yet have access to this limited supply of vaccines, but wealthy VIPs, who were really not at particularly high risk were. That is, I think, pretty much the precipitating event. An 81% vote is obviously decisive. Many of these organizing drives are met by pretty vicious anti-union campaigns. Often, even if the campaign starts off with a lot of the physicians saying they want to organize, it'll end up being quite a close vote. So this was pretty much a landslide by these house staff who are obviously in perhaps one of the most prestigious residencies in the entire country. But, as we say in labor studies: you can't eat prestige, you can't live on status alone. You need to have some respect and voice on the job, and they realized they didn't have it. So they organized.

[29:35] On the next slide, there's an example of what's going on now. This is sort of an interesting case: These workers are affiliated with AFT. Even though that's the American Federation of Teachers, in name, it actually has a massive health care section and represents many nurses and a growing number of physicians. What's kind of interesting about these physicians who have organized for all the reasons that I think many of you are facing, like staff shortages, overwork, the inability to provide the standard of patient care that they feel is crucial. These physicians organized with a group of professionals in their medical group. It isn't just physicians, which is fairly unusual. So their physicians, PAs, nurse practitioners, RNs, etc. They took a different approach. And they've kind of organized as all of the professionals within within that employer rather than just limiting it to physicians.

Allen: [30:38] What is the applicable law that enables collective bargaining? This is a rather important point, because who your employer is determines what legal collective bargaining rights either apply or don't apply to you. For us, for example–again, we're union of faculty at Rutgers and Rowan University–Rutgers and Rowan are public institutions so they're state employees, anyone who works for Rutgers or Rowan is a state employee. Therefore, New Jersey Employee-Employer Relations Act is what governs.

[31:15] The second bullet point is the state statutes and so for that reason there's no question that our members have collective bargaining rights, they've had them for essentially 50 years. And also, while we don't represent supervisors, or people in supervisory positions, under New Jersey law, you can have a supervisors Union, that's permitted.

[31:43] Bullet points three and four, you're not going to see as much with physicians. There are some physicians in the VA health system that may have a particular collective bargaining unit applied to them. I doubt if there's anything in the railroad or airline workers.

[32:00] The first bullet point here, the private sector employees, that's what we're going to talk about a little bit, just because it probably has the broadest sweeps in the broadest amount of potential employees. National Labor Relations Act, the federal law that was passed, I believe, it was 1935. Before that there was no real collective bargaining law at all. There were actually things to stop unions, where federal judges were, back in the early part of the century, granting injunctions to stop unions. Then in 1935, was about the Great Depression and kind of reclaiming certain policies for workers. We got overtime and fair wage laws at the same time and we got the National Labor Relations Act, which was supposed to allow a right enshrined in law to collective bargaining.

[32:53] That creates a whole process, essentially, for both the both concerted activity–when workers come together to do something in terms of petitioning or acting upon their employer–and also the formation of the union and bargaining with that particular organization called the union.

[33:12] The second bullet point is what I sort of mentioned there no formal union required for certain NLRA protections. When I say concerted activity: if five employed physicians that are covered by the act go to their employer with a petition and say "We want to change this kind of thing," that's a concerted action and that's protected, even though no union has been formed or certified or anything like that. The idea is it's trying to protect collective action. And probably one of the reasons for that in the law is that you need to be able to do some of that stuff when you're forming a union, so we can't put those protections on people once they've formed it, because you've kind of limited it in a way that was not enough be helpful.

Allen: [33:57] The other part of this is physicians who are supervisors are not protected by the National Labor Relations Act. So there's National Labor Relations Act has a specific definition of who is an employee. We think of somebody who's employed, but they're not exercising any supervisory duty. For that reason, sometimes physicians can be classified as managers or supervisors. And when that happens, they're either taken out of the entity which is trying to certify to be a union or they may all not be eligible for collective bargaining.

[34:35] It's something to be mindful of, if you are in a particular organization, whether that you would fall into that category. There are probably threshold questions way before you get to the legal part if you want to form union: Is there enough support for it? Are there issues? All those other things I think are far more important. Then if you have some legal issues, I'm sure there's an attorney could help you sort through those. But you should look at... those other more important issues as to what's necessary for a successful organizing drive first, and then go to the more technical things as to who qualifies to be a part of the bargaining agent.

[35:25] I think this is a good place. Also, for me to comment since this is the medical staff section, I'm sure the question will come up: Can medical staffs also be unions? You already have an organization, that would be logical, right? The answer to that is: I think it's possible if the medical staff wears a different hat. In other words, they changed their name for the purpose of organizing or bargaining or something like that. But you can still use the same, email list or something of that nature, I'm sure, for the organizing.

[35:57] The reason why you have to change the hats is because I think, in most jurisdictions, medical staffs are recognized as their own legal personality, if you will. They have certain functions– for example, peer review, and credentialing and all those all those different kinds of functions that a medical staff does the, quote, certain quality standards, of course. And then of course, when you're taking privileges away from somebody, for example, you have certain immunities that attach to that, if you are doing it through the peer review procedure. All of those different functions that are traditional medical staff functions, I would say, would probably have to stay separate. Of course, supervisors could be members of medical staffs, where they can't–at least in NLRA–be a member of the union. So for that reason, you could probably use the medical staff as your vehicle, but you just probably have to create some separations, change hats, that kind of thing, in order to be successful in that effort.

[36:59] Of course, the individuals in the medical staff would also have to be employees of the hospital. Because a lot of medical staffs also have, for example, community doctors that may have their own practice, but they have privileges at the hospital, so they're not employees of the hospital per se. Again, it could be a vehicle, but there has to be so sort of these issues that have to be worked through.

[37:23] How are unions formed and contracts negotiated? This is just a very quick explanation of that: Usually, when a group of employees, if you take this, for example, Starbucks, which you can kind of visualize: You might have 10 employees in that store. The way they would go about it is they would collect cards from all the employees that not supervisors are qualified to be employees in the unit, and they petition the National Labor Relations Board with these cards, saying, "We want to form a union where we have an exclusive representative that bargains over our terms and conditions of employment."

Allen: [38:05] You don't want to... even though you could probably petition, I think it's with 30 or 40% of cards, nobody ever does that. Because as Becky had said earlier, there's always this anti-union drive. So you want to overwhelming support. If you have a store 10 People you want nine people wanting the union because when the anti-union campaign gets started later on that support might erode, right? That first step is you get your cards, you petitioned the National Labor Relations Board, and then the National Labor Relations Board will conduct an election. In that election, people vote up or down as to whether they want an exclusive representative to represent them on those conditions, work terms and conditions of employment.

[38:53] If the vote is successful–and there's also, of course, a lot of opportunities for legal challenges, a lot of technicality here but for the sake of simplicity, if that vote is successful–your union is then certified and you can begin bargaining with Starbucks, right as to what you want to change, whether that be paid benefits, noncompete clauses, whatever it is.

[39:13] That's the rough process. This process could take a long time, depending on how much delay there is in elections, or in the anti-union portion, before the election, that's when the employer usually tries to convince people that unions aren't a good idea. There's a lot that has to go on through to get from through the first bullet point here to the last bullet point. That sort of fills in, I think, a little bit of the process of how you get from A to B in this whole sort of scheme, if you will.

Givan: [39:48] I think this is a question that has been coming up in the Q&A, and I think it's critical. Does being in a union or having collective bargaining mean you have to strike and the answer is: no, absolutely not. Strikes don't happen very often. Even though you might have seen some of the press around "Striketober" last year, and there were some high profile strikes at Nabisco, John Deere, places like that. Journalists would call me and asked me to comment on Striketober. I said, "Well, it's kind of a blip or an uptick. It's not, on the grand scale of things, a large number of strikes."

[40:24] Strikes are really rare among employees in general, and doctors and in particular, and I think the important thing about collective bargaining and unionizing is thinking about collective voice and collective power. And there are so many ways to do it. And just as... some of you likely work side by side with unionized nurses, and may be familiar with some of the ways that nurses work to build community support, support from the other people working in the hospital, or in their workplace, and patients support, and striking is really just one of them. You'll see the ways in which, as a contract campaign may be getting a little bit more intensive, other actions are possible.

[41:08] CIR, with the house stuff, they are very big on what they call a "Solidarity Break," which is 15 minutes walking outside. And for all the house staff–I don't know if any of you guys have experienced that from the attending side, or from when you were house staff, but that's significant, right? If all the house staff vanish for 15 minutes that's going to have an impact. Patients and other staff are going to notice it, but they're not going to do it if it's going to put anybody at risk. So coordinate action can sort of show our work is important, you need us here doing this. But it's not likely to be a strike and it's not necessary.

[41:46] If members decided that they wanted to strike, for example, because they're having a lot of trouble achieving a contract, they would take a strike vote. Unions don't even get close to striking unless, I guess a super-super majority, over 90%, want to strike. And even then that's often the sort of game of brinksmanship to get you over the finish line and bargaining your contract. And patient safety is always obviously paramount. So strikes are not likely and anything that you would do collectively would be democratically decided. Unions all legally have to have bylaws and they're majority rule. Whether we're talking about what goes into your contract, who the president of your union is, or what kind of action you want to take, there's democratic procedures in place that really determine that.

[42:38] On the next slide, you'll see what challenges physicians would face. For sure, there are challenges, we've talked a little bit about anti-union campaigns. Labor law is not great, especially in the private sector, and varies widely in the public sector. If you work for state, local, state or local government, you'd be covered by the law in your state. If you work for federal government, it's federal law, but it's a different law from the private sector law. It can take some time. It's also a lot of work just to organize with your fellow doctors, to talk to them. People really lack familiarity with unions, so you often have to start from a fairly fundamental starting point, dispel some myths around unions, and also understand how this is affected by individual contract provisions.

[43:29] As Dio mentioned, it's the same as professional athletes or movie stars, in most cases, where we're going to be talking about a baseline are minimum, and so different physicians would then be able to negotiate something above that, but the baseline is secured. And some of those procedures–whether we're talking about the right to due process, equity provisions, professional development funds, things like that–would potentially be consistent. Education and empowerment are really the first step. And I would also say just talking to your coworkers, breaking some of those taboos about having conversations where you say, do you feel you're able to exercise your professional judgment in the workplace? Do you feel like the physicians are calling the shots or the bean counters are calling the shots? Just having those conversations with the people you work with can be critical. Going on next slide.

Allen: [44:25] Is collective bargaining appropriate for all physicians? Not always, as I explained before, you might be a supervisor or high-level manager, you might be just a few doctors in a practice or still have your own practice and you want to sell it the health system, and then you're going to retire in a year or two or something. There are all these different situations where collective bargaining might not be sort of the answer for that particular workplace. It's not supposed to be a one size fits all for anything, but it's something where we think that physicians should engage a lot more in this space and with this powerful tool to again reclaim a lot of the economic, political, and other power and terms of the practice of medicine, and the strengthening of the profession.

[45:23] Just a few, few final points here. How can the AMA engage with collective bargaining and support the physician employee? One idea here at a very basic level before you even do collective bargaining, just thinking of the physician as the employee. What can local AMA chapters do? What can you do as national level? And some ideas are "Know Your Rights" type trainings, or a seminar on how to read your employment contract, or how to be safe at work, or these basic things that every physician who's an employee should know? How to avoid sexual harassment, you get all that training, but sometimes when those things actually happen, people panic. They don't know what to do and they're in a very delicate position. Having those tools and supports available to doctors, as employees, I think is a good first step.

[46:18] What else can they may do? Could they adopt, let's say, a model that the that some nursing associations have. The Ohio Nurses Association is a dual affiliate: they're an affiliate of the American Nursing Association and they're an affiliate of the American Federation of Teachers. They perform the both objectives. They do their traditional Nursing Association trade, the continuing medical education, and the programs for nurses–you probably have similar things at the AMA. Then they also have a wing that does the collective bargaining, and negotiates contracts, and organizes new hospital units and that kind of thing.

[47:08] New York Nurses Association was like that for many years. In 2012, they just started doing that collective bargaining part. Now, the affiliated American Nursing Association is a separate entity, but they were just like Ohio for several decades, actually.

[47:27] So can a State Chapter of the AMA, who wants to do collective bargaining wants to put let's say, a pilot program together something do that? That might be an interesting thing to explore. Not all organizing drives need to be large, you might want to start with just the small group–one of our slides that had the hospitals from Oregon and I think that was 20 or 25 hospitals in that example, that was written up in, in the New York Times. So it doesn't have to be hundreds of thousands of people you're organizing, could be just something small that you're doing for a very committed group of doctors.

[48:05] One other thought here is that, could you start doing this more, let's say, with medical schools. Both the AMA and the American Association of Medical Colleges have a unique role in accrediting schools and fostering good employment environments in a lot of that is usually focused on making sure supports are in place for medical students, but you can extend a lot of that those kinds of things to residents and physicians and making sure there's certain protections in place where doctors want to freely form a union, that that's respected. Could you play a role through medical education and having this become more normal in a particular medical school?

[48:47] These are all just, potential avenues of where they could engage in collective bargaining. Some, of course, might be harder than others, but it's there to give you sort of food for thought on what's the next step? If people are excited, as I am, of getting every doctor who can get a union to have one.

[49:11] With that I think we will close and open questions.

Allen: [49:14] You know, Becky, that was just enormously helpful. You guys are a wealth of information and advice and experience.

Givan: [49:28] Thank you.

Ranville: [49:30] We have several questions. I'll start with: Are there types of positions or kinds of positions that would not have collective bargaining options under the law that you can identify?

Allen: [49:47] Definitely, a CEO or chief medical officer or somebody who's clearly a manager. Somebody who's an independent contractor and doesn't actually have an employment relationship. Obviously, if you are self employed, so it's really based on that idea of employment. But yeah, that's the answer to that.

Givan: [50:13] A couple pieces on this that crossed my mind. I don't know if this affects anyone who's on this call, but I know that a lot of hospitals and health care systems have been changing and exploring new staffing arrangements. In particular, things like outsourced employment to a staffing agency–InVision is one of the big ones–many of them are owned by private equity, which is, the the deeper you dig in, the more worrying, it gets, I would say. But if you're an employee, whether your paycheck is signed by the hospital, where you physically work, or by InVision, you're still an employee, and you could still unionize.

[50:53] To go off of that, I saw a question maybe in the Q&A about it wasn't put in terms of bargaining units, but who would you organize with? Is it just your hospital? Is it your whole system? Is it the whole country if it's a national company? Dio could probably speak at length on this, but the National Labor Relations Act has ways of defining what an appropriate bargaining unit is, and just because you work, for example, for a national health care company, you wouldn't have to organize nationally. So that's what we see at Starbucks right now, where they're organizing store by store.

Tsitouras: [51:25] Yes, that's correct. It depends on sort of where the control is exercised. Sometimes you might have... I mean Starbucks is not, I don't believe, a of a franchise system the same way other entities are. So, sometimes you can have sort of three stores under a common owner, depending on those kinds of fast food businesses, and that's how you define the unit. Sometimes you define it more narrowly, but you don't have to. The Starbucks workers don't have to get every majority of all employees country in order to form a union, that would be nearly impossible. There's ways of defining the unit, and usually it's just for the purposes of knowing who, once the union is certified who it bargains with. It shouldn't be a hindrance to a local effort to form a union, it just might might mean, if you have several locations, you might have to do several elections as opposed to one election.

Ranville: [52:37] Great. We have a couple questions from people wanting to know about either alternatives or pathways for independent physicians in collective action and collective bargaining, and if you are familiar with any examples of that, or if you can think of any implications for how to present this issue for that type of physician.

[53:05] I can't think of examples of independent physicians–attendings or something like that–although there's overlap in the case of academic medicine. People have talked about under or over 50% of your employment, so there may be ways to look at that. But if we look at people that are really independent, working together, I'm hesitant to say too much in the present in the presence of an antitrust expert.

[53:32] Collective action is certainly possible. Maybe not around negotiating fees, but in terms of advocating for patient care advocating against decision making that might be detrimental to patients, whether we're talking about lack of access to care and rural hospitals, and to my mind, organizing with your coworkers is generally beneficial, and it doesn't need to be organizing a union.

[54:00] It might be getting together and talking about what... one example would be a lot of health care systems are pretty callous when it comes to suing people over them over their unpaid medical bills. Could you get together and advocate and essentially speak in one voice. So there are ways of organizing together that may speak more narrowly to your employment relationship, or lack thereof, or more broadly to your fight for sort of access to health care and making sure patients have the care they need. So there's a lot of different ways to organize and organizing to the point of collective bargaining is just one.

Ranville: [54:46] Here's a question to kind of relate into payment models: Given that health care and medicine is incredibly complicated and contract terms of insurers and the government can have a significant impact on how people are paid, are there examples of a physician union that could operationalizes that type of market?

Allen: [55:05] What type of markets? Say that part again?

Ranville: [55:08] I think the question they're asking here is about how to reconcile the different types of payment models and contract terms that physicians have now with various insurers, and what the impact of that would be on forming some sort of collective bargaining?

Allen: [55:23] If it's bargaining with the insurer, that's sort of a different type of collective bargaining, and that's more of what Henry was explaining what was trying to happen in the late 90s, with the different plans and that kind of thing. Depending on where antitrust law is now, there might be opportunities or not with that. But this is suited for more of an employment context, as opposed to figuring out how physicians could use collective power to get better rates, for example, in insurance contracts and that kind of thing.

[56:13] Unfortunately, the Justice Department antitrust division has seen... understands physician collective bargaining where there is cartel like behavior, price fixing behavior, so for physicians to jointly negotiate fees with health insurance, that physicians would have to be in some kind of joint venture where they share risks and profits and are essentially a new firm competing in the marketplace. So the short answer is, you don't want to appear to be jointly negotiating fees without being a firm like organization.

Ranville: [57:11] So pivoting slightly, as I'm sure you guys are familiar with, most organized medical staffs will have organizing documents, such as medical staff bylaws, or terms and conditions of employment, that are that are already in place within the medical staff. A question here is about the common areas of overlap between those different types of agreements. Given that, can you address any of the issues that things like the rules and the regulations and the common areas of overlap about medical staff bylaws and terms and conditions of employment could address? Can you list these?

Allen: [57:46] I think the idea is: Can... better terms and conditions of employment route changes to our medical staff bylaws? And I say yeah... you could try that. I mean, there's certain thing I don't know that any medical staff I've seen, for example, usually address most terms and conditions of employment through their medical staff bylaws, you could attempt to do that. But usually the medical staff bylaws that you mostly see are almost always aimed at sort of patient care quality and those kinds of issues and admitting who has privileges in the hospital. I mean, medical staff was, I think, originally created as an early way of sort of policing the profession.

[58:39] Today, you have tons of stuff, you have all these accreditations, you have licensing and all that, when medical staff was first to created, I think, was over 100 years ago. And these are the first times that every hospital to kind of police who can actually practice in this hospital and that kind of thing. So that's where the origin comes from. And that's where the purpose has always been in mind, there hasn't been really an employment kind of thought behind medical staff. There are sort of due processes for if you need to, let's say, remove somebody's privileges, there's certain due process that's in every single medical staff bylaws.

[59:17] But that's not the same necessarily as firing somebody, you could keep your privileges and fire somebody or you can fire somebody and keep their privileges. So the employer relationship may be different from the privileging relationship. It's always had a different kind of objective in mind, but it doesn't mean that you couldn't creatively if you've got enough members of medical staff to to want to address a particular issue to pass it in a medical staff bylaws.

[59:50] Now, a lot of medical staff bylaws... Those amendments sometimes also have to be approved by the hospital board of directors. So even if you approve something, that was step one. And I don't know if it would mean that it would be final until the hospital board also voted on it. But it's an interesting sort of experiment if someone were to try it.

Ranville: [1:00:13] Moving to another one, do both of you have thoughts? If you're if you're consulting with physicians who are considering some sort of collective bargaining structure and know that they want to look at one of the existing unions that are out there, are there thoughts that you would have to advise them about how they would evaluate which of those unions would be conducive to be a part of?

Givan: [1:00:36] I think that's a great question, and I think you guys are all extremely well, networked, right? You're probably quite tightly bonded with folks you went to medical school with and you did your residency is with and you've all found out and gone to different employers. As Dio mentioned, there's a small handful of national unions that have experience representing physicians. I think in general, it's a good idea to go with a union that's experienced, but they'll be eager to represent you and you should talk to them and ask them the hard questions. Ask them if you can talk to the other folks that they represent.

[1:01:17] Often, I think geographic strength matters, you'll have some regional union staff on your side, if you look at who else might represent positions in the area. I think, unions would be eager unions that are representing physicians are certainly eager to organize and represent more physicians. And you can ask them "What's your approach?"

[1:01:39] Ask them the hard questions. I think that, maybe you're in an area with very, very low union membership, and people aren't familiar, maybe there's something where you're reacting to something so egregious that you think people are ready to go, and if you can just put some resources into things in the short term. Really talking to people talking to other physicians, and then asking those questions directly to the main unions that especially if there are any, representing physicians locally, and finding out what it would look like, and seeing what the answer is and seeing if you feel that they really understand what you and your coworkers are looking for, and what's motivating you to get to get organized.

Ranville: [1:02:26] One of these is mentioning that, in some time previously, there have been federal court cases that determined that physicians were management rather than employees. The question is, is that still sort of an active finding, or an active holding? Have there been pending cases that are relevant to the challenge that consideration? What thoughts you guys have? Or what information you have?

Tsitouras: [1:02:47] I'm not aware of any case that across the board bans that right. All the cases are going to be on a case by case basis on the facts that are presented: What does the particular employee do? Whether they're a physician or nurse or whatever they are. The question is, does that –in this case–physician occupy a supervisory duty?

[1:02:52] There was a Supreme Court case called Kentucky River for some number of years ago, which dealt with nurses. It basically said that if you do any one of 12 duties with independent judgment, you can be a supervisor. So you could do 11 out of the 12, and not do them at all, and you could do one and you still are now a supervisor. So it's very easy for any employee to qualify as a supervisor. That's probably why whatever case got litigated out there that you might know of why it probably was not successful.

[1:03:51] There are definitely physician unions all across the country, in the private sector, what are the ones we've highlighted here? The first one in Oregon, hospitalists, I mean, they were they were successful. So usually a definitely physicians that are more engaged in kind of shift work, hospitalists, maybe ER doctors, they're probably better candidates, because I don't see how they're advisory category. It's a case by case approach and even if there was an unsuccessful one in particular case that got appealed to a federal court or whatever, they really have to look at the facts as they are for that particular person.

Allen: [1:04:37] We address in our issue brief that Jason, have you sent around the issue brief to participants?

Ranville: [1:04:45] Yup, you can all find the link to that in the chat if you scroll up to the top.

Allen: [1:04:49] Okay. We discuss the physician supervisor, issue in the issue group and I suggest that question or take a look at that.

Ranville: [1:05:07] Here's a very important question that everybody wants to know about: Generally speaking, what is the trend in unionization regarding salaries? Are they more or less than non unionized?

Givan: [1:05:20] I'll address that question and another question I saw about sort of clinical outcomes. We don't have good data on physicians, the kinds of physicians that are currently unionized don't really represent the typical doctor. It's mostly either residents or public sector, safety net, or federal sector doctors. That's not the typical doctor, so there's not good research or data on that.

[1:05:44] But we know, I would suggest maybe nurses are similar, but just across the unionized workforce, there is what we call a pay premium or a significant increase overall, for all workers about 20% more if you're unionized than if you're not unionized. And similarly, with clinical outcomes, I have seen and I've looked: no good data on the different clinical outcomes for unionized physician patients have unionized physicians versus non unionized. But there's some really great rigorous work on nurses showing that unionized nurses, the unionization of nurses leads to better clinical outcomes along a number of measures. It's really solid data, it's not cherry picking, on a number of really good clearly measurable criteria.

[1:06:35] So the data is lacking, but I think there will be more data as more physicians unionize so you can get properly representative analysis going. But for both pay and clinical outcomes, I would say more to come. But given everything that we know, it's sort of positive on both counts.

Ranville: [1:06:57] One final question for you, then we'll wrap up: Are there... Do you guys have any recommendations about literature regarding patient safety outcomes, physician retention, financial benefits, basically all the things that we're talking about, as they pertain to collective bargaining that you can recommend to the listeners?

[1:07:14] Yeah, I'm actually going to put in the chat, I can put it so everyone can see. This is from National Nurses United, which is a big umbrella nurses union, they have a compilation of studies, which are primarily about nurses and nurse unions, but not entirely. And these are some of these are published in the top nursing, economics, other journals. And you can you can dig into that I think most most of those links on that page go to PDF, so you can read the whole article, look at what data they're using, look at what measures so using that I think that's a good starting point.

Ranville: [1:07:57] So I'll turn back over to you to close this out.

Allen: [1:08:00] Okay. Well, thank you. Thank you very much for attending our session, and I look forward to more dialogue on this very important issue. Thank you, Jason.

Ranville: [1:08:16] Thank you, everybody. Thank you for attending. Appreciate your time. Thank you.


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