Stronger Together: The Future of Physician Unions

If you ever want to be depressed, turn to the internet.

This might strike some of you as a truism. Certainly, between the pandemic and the war in Ukraine, it is difficult to open your browser without being smacked in the face by a dismally depressing piece of news. In this par­ticular case, however, I’m thinking about the government.

Again, this might strike some of you as a truism. Years ago, back-slapping was supplanted by back-stabbing in the halls of Congress.

I cut my political teeth on The West Wing, Aaron Sorkin’s paean to the potential of government to do good. Even now, if I try to picture an American president standing with his press secretary, the first image that pops in my head is Martin Sheen and Allison Janney. The television series, which ran from 1999 to 2006, inspired many to enter government service and to try to accomplish some of the inspiring initiatives they saw depicted on the small screen. The West Wing was aspirational, and led a generation to see government as a place where smart, but imperfect, people committed acts of tremendous self-sacrifice to do the right thing.

Apparently, Aaron lied to us.

Recently, I have been following an Instagram account called Dear White Staffers, which serves as an anonymous safe space in which current and prior congressional aides discuss what it is really like to work on Capitol Hill. And it isn’t pretty.

During the last presidential campaign, The New York Times wrote a hit piece on Amy Klobuchar, in which “former aides [said] she was not just demanding but often dehumanizing—not merely a tough boss in a capital full of them but the steward of a work environment colored by volatility, highhandedness and distrust.”¹

Apparently, she wasn’t so bad, comparatively speaking.

This story does have a few heroes—the account singles out some members of Congress who are truly interested and invested in the lives of the young people who work for them. Most of the entries, however, detail dysfunctional teams that drive staffers to require mental health support, or pay so little that the staffers qualify for food stamps.²

The name “Dear White Staffers” is a nod to the origin of the account, which started as a forum for minority staffers to share their struggles working in an overwhelmingly white institution.³ It turns out, however, that employee abuse is colorblind.

A survey conducted by the Con­gressional Progressive Staff Association revealed that 47% of staffers struggled to pay their bills and 68% worked more than 50 hours weekly.⁴

The answer to these issues may be a union. On Feb. 4, the Congressional Workers Union announced, “[W]e strongly believe that to better serve our constituents will require meaningful changes to improve retention, equity, diversity, and inclusion on Capitol Hill. That starts with having a voice in the workplace.”⁵ Efforts to unionize Congressional staffers have already picked up prominent support. Of course, as with everything in government, this will not be straightforward. From a human resources standpoint, Congress is not a single employer. It comprises hundreds of individual employers, each of which has its own budgets and policies. But it’s a start.

Until recently, no one thought it was possible to unionize Congressional staffers. Now, it seems to be happening. This experience does make you wonder: If they can do it, why can’t we?

If you’re at least my age, you’re already rolling your eyes. When I showed up to my first day of work as intern, I was handed a pager and told I could turn it off when I graduated, three years later. For those of us who trained prior to the 80-hour workweek, we were taught that no ask was too great in the name of patient care. Unions mean strikes, and for most of us, going on strike as a physician—and abandoning our patients—is inconceivable.

First, I would point out that this is a vast oversimplification of how unions work. That aside, think back to the last time you complained to your colleagues about work. You probably had similar complaints. Now imagine you had someone to represent your interests and those of your colleagues, and could push for real reform. What would you ask for? Time in your template to complete documentation, so you didn’t have to write your notes after your kids fell asleep? A requirement that you remain completely off your clinic’s computer system when you’re on vacation? Would a union really be all that bad?

The Trouble with Unions

Labor unions arose in response to the 18th century’s Industrial Revolution. In the U.S., labor unions are as old as the nation itself. The first U.S. worker strike was launched in 1768 by tailors in protest of efforts to lower their wages. In 1794, cobblers in Philadelphia formed the Federal Society of Journeymen Cord­wainers, the first American trade union. The eight-hour workday and the minimum wage are both early victories of the American labor movement.⁶

Not surprisingly, physician unions are not a new idea. They just never caught on. In the U.S., interest in physician unions peaked in the 1970s. Currently, fewer than 5% of all American physicians are union members.

In theory, physicians would be a formidable labor force. There are almost a million practicing physicians in the U.S. By way of comparison, the International Brotherhood of Teamsters represents 1.4 million members.⁷

The problem? It’s just not clear that physician unions are legal.

A vertical agreement takes place between two businesses that occupy different levels of the supply chain, such as a manufacturer and a distributor. A horizontal agreement takes place between two businesses that occupy the same level of the supply chain and would, therefore, compete for work.

The Sherman Antitrust Act of 1890 prohibits horizontal agreements that unreasonably restrict competition in the marketplace. This includes activities such as fixing prices, rigging bids, restricting output to drive up prices, and agreements not to compete for customers in specific geographic areas.⁸

Although not spelled out in the relevant legislation, the courts would likely see physicians as independent contractors who should be competing for business. Therefore, if asked, the courts would probably see physician unions as a violation of antitrust law.

The U.S. Supreme Court said as much in 1982.

The Maricopa Foundation for Medical Care was organized in 1969 to create an alternative to local insurance plans. The Foundation created a fee-for-service model in which patients paid their physicians up front for medical care. In exchange, the Foundation set limits on what physicians could charge patients insured by pre-approved plans. The Pima Foundation for Medical Care served a similar function for its members. Together, the two foundations represented 86% of all practitioners in Maricopa County—enough for the state of Arizona to take notice.

In Arizona v. Maricopa County Medical Society, the U.S. Supreme Court decreed that the Maricopa Foundation was a horizontal agreement that violated the Sherman Antitrust Act because it “provided the same economic rewards to all practitioners, regardless of their skill, experience, training, or willingness to employ innovative and difficult procedures in individual cases.”⁹ In other words, the Maricopa County Medical Society’s plan was illegal because it stifled competition among physicians by removing the motivation to compete.

Interestingly, the Supreme Court noted that the two foundations actually saved money for the residents of Maricopa County. Almost all practitioners in Maricopa County routinely charged more than the prices set by the foundations. Arguably, patients benefited from this horizontal agreement. The Supreme Court decided, however, that the benefit did not mitigate the antitrust violation.

There’s another problem with physician unions.

American labor unions are governed by the National Labor Relations Act of 1935, which creates a framework for collective bargaining. Excluded from this framework are managers and supervisors. Unfortun­ately, this excludes many of us. Supervisors and managers are both defined as employees who exert independent judgment to direct other employees in the interest of the employer. Labor law sees managers and employees as having opposite interests, and some argue that physicians are too wrapped up in their organization to be considered employees.

In the past, the Supreme Court has ruled that nurse supervisors cannot form unions; although it’s not clear that these rulings apply to physicians, it doesn’t look good for us.

Unionized Trainees

The one group of physicians not excluded by the National Labor Relations Act is physicians-in-training. In 1999, the National Labor Relations Board held that Boston Medical Center house officers are employees, not students, and are therefore entitled to form unions and bargain collectively.

The Committee of Interns and Resi­dents (CIR) is the largest medical trainee union in the country, representing more than 20,000 interns, residents and fellows in California, Florida, Massachusetts, New Jersey, New Mexico, New York and Washington, D.C. The CIR demonstrates what a physician union could achieve; it has played an active role in shaping duty hour reform, maternity leave for trainees and access to care for the uninsured.¹⁰

It is difficult to document whether housestaff unions improve wellness. Anecdotally, the benefits can be substantial. One resident offered the following account:¹¹

I was at a unionized internship and am now in a non-unionized residency. In my experience, the union was fantastic. I made more as an intern than I did as a PGY 2. We had a fridge fully stocked of food to eat on call … when the cafeteria was closed you had something to eat. Call room condition was much better (i.e., not a room in a major hallway). As part of the union, I had a $2000/year education stipend plus they paid for step 3. … Overall at the unionized internship there was a feeling of open communication between the residents and the administrators. At my current residency, there is a very hierarchical structure and residents are basically viewed as work horses without any respect for our desires/negotiating power. That said, my current program does respect ACGME rules—it’s just not a feeling of being on an even playing field like my internship.

In 2021, Brajchich et al. administered a survey of 5,000 surgical residents from 285 training programs who were taking the American Board of Surgery In-Training Examination; 12% of the respondents were from a unionized training program. Residents at programs with unions had more vacation time and were more likely to be offered housing stipends. There was, however, no difference in burnout, suicidality, job satisfaction, duty hour violations, mistreatment, salary or training environment.¹²

What’s Next?

Understandably, interest in physician unions increased during the pandemic. During the last few years, many of us have been asked to work beyond our work scope; some have likely been asked more forcefully than others. When your super­visor is also beholden to your hospital, it is natural to wonder whether your interests are truly being protected. These questions have become even more relevant as many of us have become employees of large medical institutions. Some have started to see unions as a way of reclaiming autonomy and preserving patient care.¹³

In 1972, Sanford A. Marcus, MD, formed the Union of American Physicians and Dentists (UAPD). When asked why he thought physicians needed a union, he replied, “Hospital administrators easily manipulated physicians, treating them as if they were hired hands. Insurance com­panies were dealing with them as if they were employees. Government programs … controlled key aspects of doctors’ work, told them how much they would be paid, and what procedures they would be paid for.”¹⁴

That said, the benefits of unionizing physicians extend well beyond your paycheck. Eric J. Topol, MD, the Gary & Mary West Endowed Chair of Innovative Medicine at Scripps Research, La Jolla, Calif., shares an expansive view of the potential of physician unions:¹³

It’s possible to imagine a new organization of doctors that has nothing to do with the business of medicine and everything to do with promoting the health of patients and adroitly confronting the trans­formational challenges that lie ahead for the medical profession. Such an organization wouldn’t be a trade guild protecting the interests of doctors. It would be a doctors’ organization devoted to patients. Its top priority might be restoring the human factor—the essence of medicine—which has slipped away, taking with it the patient-doctor relationship. It might oppose anti-vaxxers; challenge drug pricing and direct-to-consumer advertisements; denounce predatory, unregulated stem-cell clinics; promote awareness of the health hazards of climate change; and call out the false health claims for products advocated by celebrities… . Such an organization could also address the profound changes that are on the horizon for the medical profession… . Keyboard liberation … by synthesizing patient data … could speed chart review; it could allow for automated diagnoses of common conditions such as urinary-tract infections, ear infections in children, or skin rashes; it could help patients self-manage high blood pressure or diabetes. All this outsourcing and off-loading could alleviate the burden on doctors and pave the way for a revitalized connection with patients.

A nationwide physician union might have the heft to force meaningful reform of pharmacy benefit managers, step therapy and other impediments to good patient care. As a voting bloc, a nationwide physician union would be formidable.

The American Medical Association, the American College of Physicians and the American Society of Internal Medicine all now support physician unions and collective bargaining as means to protect both physicians and patients. In April 2021, President Joseph Biden signed the executive order on Worker Organizing and Empowerment, which established a task force to determine how the federal government can use its authority to make it easier to form unions.¹⁵ Perhaps the time for physicians to join unions has finally come.

Philip Seo, MD, MHS, is an associate professor of medicine at the Johns Hopkins University School of Medicine, Baltimore. He is director of both the Johns Hopkins Vasculitis Center and the Johns Hopkins Rheumatology Fellowship Program.

References

1. Flegenheimer M, Ember S. How Amy Klobuchar treats her staff. The New York Times. 2019 Feb 22; .
2. Tully-McManus K, Vu N, Mueller E, Bustillo X. ‘Ground up and spit out’: Inside the Hill staffer Instagram rebellion. 2022 Feb 4. Politco. .
3. Segers G. Overworked, underpaid, traumatized, and too white. The Soapbox. 2022 Feb 9. .
4. Briefing: Congressional working conditions survey. Congressional Progressive Staff Association. (n.d.) .
5. Congressional staffers. Congressional Workers Union announces organizing launch [press release]. 2022 Feb 4.
6. Sandroff R. The history of unions in the United States. Investopedia. 2022 Feb 16. .
7. Teamsters structure. International Brotherhood of Teamsters
8. The antitrust laws. Federal Trade Commission. (n.d.).
9. Arizona v. Maricopa County Med. Soc’y. 457 U.S. 332 (1982).
10. Committee of Interns and Residents/SEIU Healthcare. 2019.
11. Unionized residents—what’s that like? Reddit.
12. Brajcich BC, Chung JW, Wood DE, et al. National evaluation of the association between resident labor union participation and surgical resident well-being. JAMA Network Open. 2021 Sep 1. .
13. Topol E. Why doctors should organize. The New Yorker. 2019 Aug 5.
14. Medpage Today. Opinion: It’s time for doctors to unionize. HealthLeaders. 2018 Feb 23.
15. Executive Order on Worker Organizing and Empowerment. The White House. 2021 Apr 26.