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May 1998
Volume 62 |
Number 5
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PRACTICE MANAGEMENT
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| When Nurse Anesthetists
Unionize |
Karin Bierstein,
Practice Management Coordinator
The "Practice Management" column in the March
issue of the ASA NEWSLETTER examined some of the issues
relating to physician unions. The biggest obstacle to the formation
of such unions is the independent contractor status of most physicians.
Only employees are guaranteed the right to bargain collectively
through labor unions (with a few exceptions noted in the March
column).
Unlike anesthesiologists, many nurse anesthetists are
employees. If a majority of nurses working for a common employer
such as an anesthesiology practice or a hospital elects to be
represented by a collective bargaining agent, the employer must
negotiate the nurses' working terms and conditions with that agent.
Two groups of nurse anesthetists working for anesthesiologists
recently joined or formed unions. Both appear to have been motivated
by the insecurity attendant upon anesthesiology practice mergers
and consolidations.
In Metairie, Louisiana, two-thirds of the nurse anesthetists
employed by a group of a dozen anesthesiologists voted several
months ago to form an independent union. They had begun organizing
when they learned of the group's plans to merge with three other
groups in the area. Although the four anesthesiology groups eventually
called off the merger, concerns for job security led the nurses
to go through with the election. If the union is certified by
the National Labor Relations Board (NLRB), which is the likely
next stage in the process, the anesthesiologists will be obligated
to enter into good faith contract negotiations with the union.
Another group, this one in the mid-Atlantic region, has
already entered into a contract with nurse anesthetists newly
represented by a local of the Teamsters union. The one-year contract
was the culmination of nine months of bargaining in 1997, resulting
in a compensation increase for the nurses of less than 4 percent,
according to one of the members of the group. As in the Louisiana
case, the prospect of a merger triggered the organizational activity
(the three groups here, working at three hospitals, completed
the merger). The contract did not, however, significantly enhance
the nurse anesthetists' job security or opportunities; the group
can use either independent nurse anesthetists, who are outside
the union because they work on a per diem basis, or anesthesiologists
to perform bargaining work.
Indeed, none of the parties to this collective bargaining
agreement seems to have accomplished their objectives. The anesthetists'
terms and conditions of employment have not changed markedly.
The Teamsters worked very hard to win the election and now represent
a unit of just 16 employees. There were 36 who voted, two-thirds
of them in favor of the union, but 20 nurse anesthetists have
either left the practice or been excluded from the bargaining
unit by the NLRB's definition of eligibility. Only half of those
in the union, as of the date of this writing, had signed the papers
required by the union, which would ultimately have no choice but
to drop the nurses if the signatures are not forthcoming.
The 25 shareholder anesthesiologists have faced considerable
legal and management expenses, and they are finding the ongoing
management costs onerous. Most importantly, and unfortunately,
the organizational campaign undermined the trust between the two
groups of nurses and physicians.
A third group, the anesthesiologists at Fairfax Hospital
in Falls Church, Virginia, has worked with an independent nurse
anesthetist union since 1980 and is now into its seventh or eighth
contract. Day to day, the labor contract is not an impediment
to the smooth functioning of the department or to the relationships
between anesthesiologists and nurse anesthetists. The anesthetists
are responsible for their own scheduling, within the parameters
of contract provisions ensuring adequate coverage. The contract
preserves the group's right to hire and utilize part-time nurse
anesthetists. The other management rights reserved to the anesthesiologists
include the right to establish and administer policies related
to patient care, education, training and operations; the right
to discipline or terminate employees for just cause; and the right
to determine the number needed and the qualifications of employees.
The anesthesiologists have found that there are advantages in
being able to negotiate compensation, benefits and other employment
conditions with a single representative rather than with each
individual employee during the three-year life of the contract.
Contract negotiations for the Fairfax group, however,
inevitably have been more adversarial than the professional relationships.
At one point, the union complained to the NLRB that the group
was not bargaining in good faith, evidently because salary demands
were rejected. A hearing resulted, and the charge was dismissed.
(Note that the certification of a union does not impose a duty
to agree on any particular terms. It merely imposes the duty to
sit down at the table and attempt in good faith to reach agreement.)
Rejected demands can generate ill will, but the group has tried
to contain, outside the workplace, the hostility that may surround
bargaining.
If a nurse anesthetist union appears on the horizon, anesthesiologists
would be well-advised to retain experienced labor counsel right
away. The president of Fairfax Anesthesiology Associates, Robert
Barth, M.D., is very clear on this point, as was the spokesperson
for the group whose nurse anesthetists were organized by the Teamsters.
ASA members seeking guidance from a colleague who is an expert in
this area are welcome to contact Dr. Barth at (703) 698-2630 or
<robert_barth@fanes.org>.
The box accompanying this column contains some of the applicable
basic labor law principles.
What Does Labor Law Require or Prohibit When Employees Join a Union?
Before an organizational campaign begins: Employers
who understand their employees' grievances and who address them
satisfactorily may avert any union activity. In the context of
nurse anesthetists, where job security and professionalism may
be the biggest issues, it may be enough to create a contractual
process for preserving jobs or to establish an internal dispute
resolution mechanism.
Before the election: When an employer
begins to suspect that an organizational campaign is under way,
it must immediately refrain from activities that could be interpreted
as:
- Threats - promising or warning of job loss or other
adverse consequences should the union prevail. The employer
cannot tell the employees that bargaining through a union would
be fruitless.
- Intimidation - creating an insecure environment without
making direct threats. Polling employees as to their intentions
is dangerous. In an insular department, anesthesiologists may
need to be careful about what they say to anesthetists in a
social context, because anything vaguely anti-union is apt to
be repeated and misinterpreted.
- Promises - there can be no quid pro quos, even implied,
for an anti-union vote. The anesthesiologists generally will
know the major employee grievances before a campaign starts.
They should not attempt to fix these grievances once the union
has appeared. Conversely, they cannot withhold any promised
improvement in terms or conditions of employment.
- may present their views and provide certain information,
for example, regarding the advantages of nonunion status, even
while an election is pending, but they need to be very careful.
The limits of what is lawful vary between federal courts, and
it is imperative to clear any proposed statements with counsel.
If the union wins: the parties are required to
bargain in good faith. This involves listening to each other and
attempting to reach agreement. It does not mean that either side
must concede on any given point. Some major issues to bear in
mind are:
- The union does have important tools to support its demands.
The threat of a picket line may inspire the hospital
to put some pressure on the anesthesiologists; the hospital
will probably have a fair number of unionized employees of its
own who would refuse to cross a picket line. If there is a strike
over the failure to reach a labor agreement, the anesthesiology
group is free to hire permanent replacements.
- The contract will inevitably restrict some of management's
prerogatives. It is important to preserve management rights
in such areas as patient care and staffing and coverage decisions.
The group should think through some worst-case scenarios, in
terms of nurse anesthetists' shift and vacation scheduling and
make sure that management maintains sufficient flexibility to
meet foreseeable needs.
- Another provision to draft imaginatively relates to employee
termination. Since any arbitrator before whom an employee
challenges his or her firing will read into the contract a requirement
that there be "just cause," the group should define the conduct
that will lead to termination. A system of progressive discipline
should be included.
Hospitals May Not Ask You for Kickbacks - But Some Do
If a hospital asks its anesthesiologists to pay rent, to waive
fees or to provide uncompensated on-call services, it may be violating
federal antikickback law. This statute makes it illegal to offer,
pay, solicit or receive remuneration for referring patients or
for recommending or initiating the ordering of any service payable
by Medicare or Medicaid.
In the August 1996 issue of the ASA NEWSLETTER,
this column drew readers' attention to a Management Advisory Report
(MAR) issued in 1991 by the Office of the Inspector General (OIG)
of the Department of Health and Human Services. The MAR, titled
"Financial Arrangements Between Hospitals and Hospital-Based Physicians,"
provided numerous examples of arrangements that appeared to violate
the law.
Although many hospitals knew of the rules and specifically
of the MAR, some of them were not shy about asking anesthesiologists,
radiologists and pathologists to contribute to the hospitals'
bottom line because the OIG never signaled any intent to enforce
the law.
The environment appears to be changing, however. In February,
the OIG published its "Compliance Program Guidance for Hospitals,"
listing a number of "risk areas" for which it recommended that
"individual policies and procedures be coordinated with the appropriate
training and educational programs." Among the risk areas were
"financial arrangements between hospitals and hospital-based physicians."
The OIG explained:
"Another OIG concern with respect to the antikickback statute
is hospital financial arrangements with hospital-based physicians
that compensate physicians for less than the fair market value
of services they provide to hospitals or require physicians to
pay more than market value for services provided by the hospital.
See OIG Management Advisory Report: Financial Arrangements
Between Hospitals and Hospital-Based Physicians. OEI-09-89-0030,
October 1991. Examples of such arrangements that may violate the
antikickback statute are token or no payment for Part A supervision
and management services; requirements to donate equipment to hospitals;
and excessive charges for billing services."
You thus have renewed support from the OIG in the event that
your hospital seeks to make you purchase equipment or practice
management services at more than fair market value or seeks to
cut a stipend for medical director services to a below-market
level (these are some examples that members have given to the
ASA Washington Office). Remember that it is illegal to give as
well as to solicit a kickback, so you should make sure that you
have a written opinion from counsel (preferably the hospital's
counsel) before you agree to any financial arrangement of this
nature.
The OIG's Compliance Program Guidance for Hospitals can be found
on its Web site: <http://www.dhhs.gov/progorg/oig/>.
CSA Publishes Monograph on Economic Issues
Managed care contracting and payment, legal issues, academic
practice and the role of the anesthesiologist are among the topics
covered in a monograph published by the California Society of
Anesthesiologists (CSA). Active and resident members of CSA were
previously sent one complimentary copy. The monograph is available
for purchase by nonmembers for $95.
To order "Current Economic Issues for Practicing Anesthesiologists,"
contact: CSA, 1065 E. Hillside Blvd., Suite 410, Foster City,
CA 94404-1615; telephone (650) 345-3020; or fax (650) 345-3269.
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