Union organizing: no quick fix

By Russ Newman, PhD, JD
APA Executive Director for Practice

Much has been said recently about health-care professionals and unions, some of it informative, but much of it confusing. The bottom line, of course, is the question of whether increased use of union organizing in health care can help remedy the tremendous imbalance of bargaining power enjoyed by the insurance and managed-care industries.

Perhaps the most publicized of recent related developments is the American Medical Association's (AMA) decision to form a collective bargaining unit comprised of eligible members. The expressed purpose of AMA's decision is to counteract the power of managed-care organizations (MCOs). AMA officials were quick to explain that strikes and work stoppages--historically two key negotiating tactics for a union's collective bargaining unit--never would be used by its physicians. Rather, the hope is that collective bargaining units of physicians will enable better-negotiated deals with MCOs on issues such as drug formularies, referrals and medical necessity.

Without additional developments, however, AMA's decision to form a national umbrella for a series of union-like organizations is unlikely to bring about the desired result. Currently, only employed physicians in nonsupervisory salaried positions, about 20 percent of the country's 600,000-plus physicians, would be eligible to engage in collective bargaining. Doctors so employed always have been eligible to join unions. Yet, self-employed physicians--those in most need of additional bargaining power in the current health-care system--would be barred by antitrust law from participating in the AMA's collective bargaining.

In deciding to form collective bargaining units, AMA seems to be counting on Congress to enact the "Quality Heath Care Coalition Act of 1999." This legislative proposal is intended to provide a broad antitrust waiver for all health-care professionals who wish to collectively bargain, including the self-employed majority of AMA members. The bill attempts to equalize bargaining power between health-care professionals and third-party payors to "ensure and foster patient safety and quality of care."

Both the Federal Trade Commission (FTC) and the Justice Department's Antitrust Division oppose the legislation. In the House of Representatives, the number of bill co-sponsors has reached 141. Despite this and AMA's support, it will be an uphill battle to pass this legislation. Interestingly, it is not clear that the bill, if enacted, would allow unionizing or only collective bargaining activity in nonunion forms. From psychology's vantage point, the legislation poses a double-edged sword.

While presumably enabling some badly needed increased bargaining power vis-á-vis MCOs and third-party payors, according to FTC Chairman Pitofsky, the legislation would also enable physicians to collectively bargain to the disadvantage of nonphysicians. There is nothing in the legislation to prevent physicians from collectively deciding that the only contractual terms they will accept are those that provide exclusive control or access while eliminating competition from nonphysician health-care professionals.

Another significant union-related development is the ongoing battle between the National Labor Relations Board (NLRB) and a New Jersey union local seeking to represent independent contractor physicians in collective bargaining with an HMO. The AFL-CIO local has petitioned the NLRB for a certified bargaining unit of over 600 physicians to negotiate with AmeriHealth HMO. The union is arguing, in a nutshell, that given the control the HMO exerts over its panel providers, the latter are more like employees than independent contractors and should have the collective bargaining benefits of employees. So far, the NLRB does not buy this argument and refuses to certify the independent contractor physicians as a collective bargaining unit.

The jury is still out on whether union collective bargaining in health care can remedy the problems created by market-driven health care. Efforts to reduce the lopsided bargaining power that exists theoretically should be helpful. Of the developments described above, getting the NLRB to understand that the current marketplace does not really allow for "independent contractors" ultimately could prove most useful.

Whether statutorily authorized collective bargaining can be helpful might be demonstrated by the new Texas law allowing independent contractor physicians, under certain specified circumstances, to collectively bargain. Further, the New York State Psychological Association (NYSPA) is about to engage in an "experimental" affiliation with the New York State United Teachers Union and the American Federation of Teachers. While no collective bargaining is possible in a union affiliation model, NYSPA is hoping to make use of the union's political and organizing muscle to further develop its membership and move its agenda.

In the final analysis, union organizing and collective bargaining may afford some relief for problems with the present health-care system. They will not, however, provide the elusive silver bullet.



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