Boston Medical Center Corp.

National Labor Relations Board - Board Decisions

Nov 26, 1999

330 N.L.R.B. 152 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 152
Boston Medical Center Corporation and House Offi-
cers’ Association/Committee of Interns and
Residents, Petitioner. Case 1–RC–20574
November 26, 1999
DECISION ON REVIEW AND DIRECTION OF
ELECTION
BY CHAIRMAN TRUESDALE AND MEMBERS FOX,
LIEBMAN, HURTGEN, AND BRAME
On October 17, 1997, the Regional Director for Re-
gion 1 issued a Decision and Order dismissing a petition
seeking certification of a unit of interns, residents, and
fellows (house officers or house staff) because the house
officers are not employees within the meaning of Section
2(3) of the Act. The Regional Director relied on Cedars-
Sinai Medical Center1 and St. Clare’s Hospital & Health
Center,2 which held that medical interns, residents, and
fellows are primarily students and, therefore, not “em-
ployees” within the meaning of Section 2(3) of the Act.
The Regional Director also found that the Petitioner,
inasmuch as it does not admit individuals into member-
ship other than house officers, is not a labor organization
within the meaning of Section 2(5) of the Act.
Pursuant to Section 102.67 of the National Labor Rela-
tions Board’s Rules and Regulations, the Petitioner and
the Employer each filed a timely request for review of
the Regional Director’s decision. By Order dated De-
cember 8, 1997, the Board granted those requests for
review as they raised substantial issues warranting re-
view.3
The Petitioner, mindful of the Cedars-Sinai and St.
Clare’s Hospital precedent, requests that the Board over-
rule that precedent. Boston Medical Center (BMC or the
Employer) asserts, inter alia, that the Board should ad-
here to that precedent, that, under Cedars-Sinai and St.
Clare’s Hospital, the Petitioner is not a labor organiza-
tion because it is not an organization in which “employ-
ees” participate, and that the unit is inappropriate because
the individuals sought are primarily students rather than
“employees.”
Having carefully reviewed the entire record in this
proceeding, including the briefs of the Employer and the
Petitioner and the briefs of the various amici curiae,4
with respect to the issues under review, the Board has
decided to overrule Cedars-Sinai, St. Clare’s Hospital,
and other decisions following those cases, and to find
that the interns, residents, and fellows employed by
BMC, while they may be students learning their chosen
medical craft, are also “employees” within the meaning
of Section 2(3) of the Act.

1 223 NLRB 251 (1976).
2 229 NLRB 1000 (1977).
3 Motions for oral argument were filed by the Employer and by
amici curiae the Association of American Medical Colleges, the
American Hospital Association, the American Council on Education,
the American Board of Medical Specialties, and the Council of Medical
Specialty Societies. On March 16, 1998, the Board denied these mo-
tions.
4 Amicus status was granted to the following interested organiza-
tions, all of which filed briefs: the American Federation of Labor-
Congress of Industrial Organizations (AFL–CIO) and the American
Nurses Association; the Association of American Medical Colleges, the
American Hospital Association, the American Council on Education,
the American Board of Medical Specialties, and the Council of Medical
Specialty Societies; the American Medical Students Association; the
University of Michigan House Officers Association; the Medical Soci-
ety of the State of New York; the Ad Hoc Committee for House Staff
Rights at University Hospital, Inc. and the Ad Hoc Committee for
House Staff Rights at Prince George’s Hospital Center; the California
Medical Association; the American Medical Association and the Mas-
sachusetts Medical Society; and the American Public Health Associa-
tion. Additionally, the American Medical Women’s Association filed a
position statement.
I. THE FACTS
The Regional Director fully set forth the salient facts
in her Decision and Order (pertinent portions of which
we have attached as an Appendix). We will not attempt
to repeat all of those facts but will highlight those neces-
sary for a cogent understanding of our decision.
BMC operates a 432-bed, nonprofit, acute-care teach-
ing hospital in Boston, Massachusetts. It provides both
inpatient and outpatient services, maintains a 24-hour
emergency care facility, and serves as the primary teach-
ing facility for the Boston University School of Medi-
cine. As such, BMC sponsors some 37 different resi-
dency programs varying in length from 3 to 5 years, with
some lasting longer.5 Fellowships last from 1 to 4 addi-
tional years. There are about 430 house officers in the
unit sought by the Petitioner.
BMC came into existence on July 1, 1996, as a result
of the consolidation of Boston City Hospital (BCH) and
Boston University Medical Center Hospital (known as
University Hospital). BCH was a department of the City
of Boston and a public hospital. BCH and University
Hospital were located a block apart, with the Boston
University School of Medicine situated between them.
Both were affiliated with the Boston University School
of Medicine, and some of their residency programs were
integrated prior to the merger.
As a public sector hospital, BCH was subject to the
Massachusetts public employee collective-bargaining
law, under which the house staff had the right to organ-
ize. Accordingly, the Petitioner had represented a unit of
interns, residents, and fellows at BCH since 1969 and
had negotiated approximately ten successive collective-
bargaining agreements with BCH since 1970. As a con-
dition of the 1996 merger between BCH and University

5 The first year of residency is commonly referred to as an intern-
ship. In a 3-year residency program, for example, second-year resi-
dents are sometimes referred to as junior residents, and third-year resi-
dents are sometimes called senior residents. Interns, residents, and
fellows are also sometimes referred to by their post-graduate year level
(PGY or PL). For example, an intern is a PGY 1, a second-year resi-
dent is a PGY 2, and so on.
330 NLRB No. 30
BOSTON MEDICAL CENTER CORP. 153
Hospital, the Boston City Council required that BMC
recognize the Petitioner as the collective-bargaining rep-
resentative of the 280 former BCH house staff. BMC
signed a recognition agreement in which it further agreed
to a representation election among all house officers at
the merged entity. Ultimately, on August 29, 1996, the
parties held a “card count,” and based on the outcome of
that count, the Petitioner became the representative of the
house staff at BMC. In January 1997, the parties exe-
cuted a revised version of the collective-bargaining
agreement that had been in effect between the Petitioner
and BCH prior to the merger, with effective dates from
July 1, 1994, through June 30, 1997.
BMC’s residency programs are funded, at least in part,
through direct and indirect medical education payments
from Medicare, with those payments being based on the
historic costs of the medical center using a formula that
incorporates the number of interns and residents enrolled
in the medical residency programs at BMC. BMC, like
all institutions sponsoring medical residency programs,
begins its academic year on July 1 of each year. Students
halfway through their fourth year of medical school de-
cide what area of medicine they would like to pursue and
apply to appropriate medical programs. Out of hundreds
or thousands of applications received, a small percentage
of applicants are picked to interview for particular resi-
dency programs at BMC. Thereafter, BMC, like other
teaching hospitals, ranks the individual applicants and
submits its top candidates to a national matching pro-
gram. At about the same time, applicants submit a list of
residency programs that they would like to attend. In
March, the national matching program generates a
“match” list that sets forth which applicants will attend
which residency programs. There is no matching process
for fellowships. Applicants for fellowships are hired
directly by the teaching hospitals.
House officers enter a residency or fellowship program
in order to become certified specialists in their chosen
medical specialty. To become an intern, an individual
must have graduated from medical school and passed
Parts 1 and 2 of the U.S. medical licensing exam. The
appropriate state board of registration in medicine then
issues interns a temporary license, which permits them to
practice only under the aegis of their particular residency
program. The state boards require that in order for medi-
cal school graduates to practice as fully licensed physi-
cians, they must successfully complete the 1-year intern-
ship and then pass part 3 of the U.S. medical licensing
exam. This then allows them to practice outside their
residency program, as well.
Residents who successfully complete their program re-
ceive a diploma from the Boston University School of
Medicine. On approval by the specialty board that certi-
fies physicians in their field, they are then considered to
be “Board-eligible,” i.e., they have successfully com-
pleted their training and are eligible to sit for an exam in
their chosen specialty. After passing a written exam,
these doctors can then hold themselves out as being
“Board-certified” in their field. While it is not necessary
for a doctor to be certified in a specialty to practice
medicine, some medical institutions and practices are
beginning to require certification. Accordingly, a physi-
cian’s failure to be certified in a specialty may limit the
employment opportunities of that physician. Most resi-
dents and fellows leave BMC upon the completion of
their residency or fellowship program to pursue opportu-
nities elsewhere. Only a small percentage remains to
join the faculty.
House officers are assigned throughout the year to
various rotations, usually about 4 to 6 weeks in length,
which expose them to various types of patients in their
chosen specialty. In some programs the residents per-
form one or more rotations at other institutions with
which BMC has affiliation agreements. House officers
work notoriously long hours, which vary depending on
the specialty and the rotation. They are trained by and
work under the medical direction of attending physicians
who are referred to as “attendings” or faculty. When
house officers are on rotations at other institutions, they
are supervised by attending physicians from those insti-
tutions. Attendings are physicians on the staff of BMC,
99 percent of whom are also faculty members of the Bos-
ton University School of Medicine. The attendings are
technically employed by the Faculty Practice Plan Foun-
dation, Inc., which is an umbrella corporation for the
various subsidiary practice plans in place for each de-
partment within the hospital. BMC and the School of
Medicine are both members of the corporation, and at-
tendings receive support from both the Faculty Practice
Plan and the School of Medicine. They receive their
paychecks from the School of Medicine, which hires
them and acts as the common paymaster for the two enti-
ties.
Residency programs have essentially two elements:
didactic lectures and clinical training. Medical residents
attend didactic lectures on a variety of topics relevant to
their particular residency program. In addition, residents
gain experience in performing direct patient care by
working in teams that include third- and fourth-year
medical students, interns, junior and senior residents, and
attending physicians. Each intern on an inpatient ward is
generally assigned 12 to 15 patients. A more senior resi-
dent is responsible for overseeing the work of the interns,
and the interns oversee the medical students. An attend-
ing physician must be the physician of record for every
patient.
Interns start the day early in the morning by checking
in with the “night float,” i.e., the intern who has been on
duty overnight, to learn of any developments during the
night. Then they “pre-round” or check their patients on
their own. From 7:30 to 9:30 a.m., the team of medical
students, two to three interns, a more senior resident,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 154
and, occasionally, an attending physician do “work
rounds” in which they check on and discuss the status of
each patient at the patient’s bedside. Following that, the
interns order X-rays, consults, and treatments. They start
intravenous lines (IVs) and perform procedures such as
arterial blood gases, which involve drawing blood, and
thorancentesis, paracentesis, and lumbar punctures,
which involve removing fluids. Attending physicians are
rarely present when interns perform these procedures.
Interns also perform critical patient-care procedures, such
as intubating patients who cannot breathe for themselves.
Residents, including interns, respond to “codes,” i.e.,
life-threatening emergencies, without attending physi-
cians. Interns are the primary physicians with whom
patients’ families have contact. Interns write “do not
resuscitate” (DNR) orders for terminally ill patients at
the request of patients and/or their families. Such orders
must, however, be cosigned by an attending physician
within 24 hours.
As noted by the Regional Director, interns are also re-
sponsible for hospital admissions,6 which usually begin
with a call from a physician from the emergency room or
the clinic. When the patient arrives, interns take a his-
tory, perform a physical, draw blood, start an IV, initiate
any necessary immediate treatments, and write admission
orders, including any medication orders. The junior resi-
dent also does a more focused history and physical ex-
amination of the patient. The intern and junior resident
consult with the senior resident on duty, and, together,
they decide what tests or treatments should be per-
formed. Interns are also responsible for writing daily
progress notes on all their patients. On approval of an
attending, they discharge patients, which involves writ-
ing a discharge summary and instructions, filling out
prescription orders, and instructing the patient and/or
caregivers about any necessary care after the hospitaliza-
tion.
As residents progress through the program, they are
given increased responsibility commensurate with their
level of experience. For example, internal medicine in-
terns see patients 80 to 90 percent of the time outside the
presence of an attending physician. Interns do, however,
discuss all patients with attending physicians, who are
primarily responsible for their patients’ care plans and
who see their patients daily. In the emergency room or
urgent care clinic, the interns consult with an attending
physician after examining each patient. The intern on
“night float” operates more independently, as there is not

6 BMC contests the Regional Director’s finding in this regard. It ar-
gues that the record amply demonstrates that attending physicians are
solely responsible for patient admissions. We do not find the two
statements to be mutually exclusive. We read the statement of the
Regional Director to mean that interns do the work necessary to get a
patient admitted once that decision has been made. To be sure, the
record does indicate that no house staff, including interns, have admit-
ting privileges at BMC.
likely to be an attending physician on the inpatient wards
overnight. Two residents and two interns take care of the
entire ward at night, when there are no attendings on
duty except in the emergency room.
A third-year pediatric resident testified that she makes
80 percent of patient-care decisions on her own7 and con-
sults with an attending the balance of the time over deci-
sions such as whether to transfer a patient to the intensive
care unit. She further testified that she has helped fami-
lies make life or death decisions about the level of inter-
vention to be used in the case of critically ill infants and
children. The pediatric residents are the only physicians
present on the pediatric wards for a 12-hour period at
night, although there is always a chief resident and an
attending on call at home. The pediatric resident testified
that she does not frequently call an attending at night,
perhaps twice a month.
Fellows in the cardiology program may perform cer-
tain noninvasive procedures on their own, but more risky
procedures must be done in the presence of an attending
physician. In an emergency situation, cardiology fellows
may perform such procedures as CPR, defibrillation, and
transthoracic echocardiograms without an attending phy-
sician being present, but those matters must be reviewed
with an attending as soon as possible thereafter.
Residents in the radiology program draft a preliminary
report for each film, but an attending physician must sign
off on every final report. A radiology resident is on duty
in the emergency room 24 hours per day. After 9 p.m.,
when there are no attending physicians in radiology pre-
sent, radiology residents interpret films alone, and an
attending signs off on them the following day.
Residents in the pathology program make a prelimi-
nary diagnosis with respect to each slide of tissue that
they examine and discuss each diagnosis with a faculty
physician. In those cases where a pathologist is required
7 BMC challenges this testimony and asserts that residents are su-
pervised to a much greater degree than this testimony would suggest.
BMC cites evidence, not directly contradicting this testimony, however,
that pathology residents are not allowed to make patient diagnoses
independently from an attending and than all autopsy work must be
presented to an attending. Obviously, what is the rule in pathology is
not necessarily the rule in pediatrics. BMC also cites testimony to the
effect that residents formulate their patient care plans through a variety
of interactive meetings with attending physicians and that attending
physicians critique, review, and modify residents’ patient care deci-
sions. BMC points out that while interns may often make patient care
decisions, those decisions are really not done independently from an
attending physician, and attending physicians maintain constant super-
vision over all of the patients for whom they have ultimate responsibil-
ity. The Board recognizes that while the interns and residents are in
many instances making patient care decisions, they have learned much
from the attendings. The Board construes the 80-percent figure as an
estimate of the instances where a patient care decision was made with-
out direct input from an attending as to that specific decision regarding
that particular patient, albeit, perhaps, in the past an attending had been
involved in such a decision and therefore the resident, having “learned”
from this past instance, can now comfortably make the same decision
for another patient.
BOSTON MEDICAL CENTER CORP. 155
to make a diagnosis while a patient is undergoing sur-
gery, pathology residents are not permitted to give a di-
agnosis to the surgeons without prior review by faculty.
Pathology residents must present each autopsy report to
an attending, who is legally responsible for the report.
Residents in the various surgical residency programs
spend 8 to 10 hours a day in the operating room on those
days that they perform surgery. They are permitted to
perform increasingly more complicated surgery as their
experience increases. An attending physician must be
“scrubbed in” for the significant or critical portion of
each operation. A chief orthopedic resident testified that
in the case of a knee arthroscopy, one of the most com-
mon procedures performed by orthopedic surgeons, the
entire procedure takes about 2 hours, out of which time
an attending would be present for 30 minutes to an hour.
This same resident testified that she does complicated
procedures in the emergency room on her own, such as
fracture manipulations or immobilizing a pelvic fracture.8
In addition to their time spent in direct patient care,
house staff also attend so-called “didactic” conferences.
In some residencies, such conferences take place at noon
and cover various topics. Residents spend varying
amounts of time in conferences, ranging in some esti-
mates from 5 to 8 hours per week. House staff also en-
gage in rounds, a 1-hour “morning report” conference (6
days a week), clinic talks, and the like.9

8 BMC argues that unless there is an emergency, no surgery is per-
formed without an attending present and that even if there is an emer-
gency situation, a resident’s work is reviewed immediately following
the procedure. Again, there is no real factual dispute here. The evi-
dence indicates that under emergency conditions, certain procedures are
undertaken by residents (in the absence of an attending) that would not
otherwise be performed under normal (nonemergency) conditions
without an attending being present. BMC also points out that no opera-
tions are conducted by residents in the surgery program without an
attending being present, and that the mark of a good teacher is to super-
vise the residents in such a manner so as to allow them to feel as though
they are in control of a case, when in fact the attending physician never
loses full control of the case. The corollary finding to this is that the
evidence indicates that the residents do a sufficient amount of the work
for them to feel that they are “in control” of the case.
9 The Regional Director, recognizing that there is a “learning” aspect
to the house staff’s being at BMC, pointed out that in addition to the
time spent in direct patient care (which is of course, as BMC points out,
by and large how the house staff learn their craft), residents spend
many hours each week attending various “didactic” conferences. She
attempted to list some of these including “attending rounds,” noon time
1-hour conferences, “grand rounds,” and “journal club.” BMC faults
the Regional Director for not listing all of them and further asserts that
the Regional Director failed to “adequately address other didactic ses-
sions that . . . offer no direct benefit to BMC, and that are not even
directly related to the treatment of current patients.” It makes this
criticism even though the Regional Director did point out in her deci-
sion that “in some conferences residents review slides or X-rays of
individuals who are no longer or never were patients of BMC, in order
to learn diagnostic skills.” It would appear from the briefs that the
Petitioner would want us to believe that a minimum amount of time is
spent by the house staff in such “didactic” sessions, and the Employer
would have us believe that “residents dedicate a significant portion of
their time at BMC not performing services, but attending and
participating in classes, conferences, rounds and other purely didactic
activities.” Rather, the reality lies somewhere in the middle.
Residents in each program are required to take an an-
nual “in-training” exam offered by their specialty board,
which is used to make comparisons with other programs
throughout the country, to identify the residents’ aca-
demic strengths and weaknesses, and to indicate the like-
lihood that they will pass the Boards. The Program Di-
rector for the general surgical residency program testified
that those residents who score below the 25th percentile
on the in-training exam are put on academic probation.
Those who fall below that level for a second year could
be held back a year in the program. However, according
to a 1995 memorandum put into evidence by the Em-
ployer regarding the internal medicine in-training exam
at BCH, the examination is not used to make decisions
concerning acceptance, continuation, or advancement in
residency or fellowship training positions. In addition to
the in-training exam, residents in the surgery residency
program take weekly or biweekly exams and are con-
stantly quizzed by attendings using the Socratic method.
In the otolaryngology program, residents take a written
exam at the end of each lecture series on a given topic,
every 2 to 3 months. In the pediatric program, residents
are required to take a Pediatric Advanced Life Support
(PALS) and a Neonatal Advanced Life Support (NALS)
course, each of which culminate in a written exam.
Moreover, at the end of each rotation, the faculty
member who has worked most closely with each resident
fills out an evaluation form which rates him or her with
respect to various factors, including medical knowledge,
technical skills, clinical judgment, and humanistic quali-
ties. (At the same time, the residents submit an evalua-
tion form in which they rate the attendings and their edu-
cational experience during the rotation.) In the case of
residents who fail to meet the programs’ standards for
medical knowledge or clinical competence, department
chairpersons and/or program director may put them on
probation, require them to fulfill additional time in train-
ing prior to advancing to the next level, terminate them
from the residency program, decline to renew their con-
tract, or decline to give them the certification of satisfac-

ties.” Rather, the reality lies somewhere in the middle. Moreover, as
noted by the Regional Director in her decision, according to the “Essen-
tials of Accredited Residencies in Graduate Medical Education: Institu-
tional and Program Requirements,” commonly referred to as “the Es-
sentials,” the “training of residents relies primarily on learning acquired
through the process of their providing patient care under supervision
. . . .” As noted by the Regional Director, this document sets forth the
standards for sponsoring institutions and for each type of residency
program. It is the product of the Accreditation Council for Graduate
Medical Education (ACGME). The ACGME has five sponsors, each of
which appoints members to the council: the American Medical Asso-
ciation; the American Association of Medical Colleges; the American
Board of Medical Specialties; the Council on Medical Subspecialties;
and the American Hospital Association. Accordingly, it would seem
that whatever time is spent by residents in so-called purely “didactic”
sessions, that time is substantially less than the time they spend in pro-
viding patient care.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 156
tory performance needed to sit for the Board exam.
These steps have, in fact, been taken with some residents.
After their internship year, when they have a full or
permanent physician license, some residents “moon-
light,” i.e., work part-time as doctors elsewhere to make
extra money. (Interns cannot moonlight because, as
noted above, their limited license permits them to
practice only within the residency program.) The Re-
gional Director noted that two residents testified that they
perform the same work when they moonlight at local
clinics and a local community hospital as they do at
BMC, without having to attend ward rounds, grand
rounds, or conferences. She also noted that they are paid
much more for their moonlighting work than for their
work at BMC, but that they remain at BMC because they
want the training necessary to become Board-certified in
their respective specialties.10 Also in regard to
“moonlighting,” the chief orthopedics resident testified
that she occasionally serves as the orthopedic doctor on
duty at Boston University home basketball games, for
which service she receives $125 per game directly from
the University.
Physicians continue their medical education through-
out their lifetime by reading medical journals, taking
courses, and attending rounds, conferences, and scientific
meetings in their field. Massachusetts requires physi-
cians to have 100 hours of continuing medical education
over a 2-year period in order to maintain their state licen-
sure, and most have more.
Unlike other BMC employees, house officers are not
recruited, interviewed, or hired by BMC’s human re-
sources department. They receive, however, annual
compensation ranging from about $34,000 to over
$44,000, depending on the number of years in the resi-
dency program. They also receive paid vacation and
sick, parental, and bereavement leave. Like other BMC
employees, house officers are entitled to health, dental,
and life insurance, and they may use the employee health
service. BMC also provides malpractice insurance at its
expense for its house staff.
BMC deducts Federal and state taxes from house offi-
cers’ pay. House staff receive W-2 forms for income tax
purposes. BMC also maintains a workers compensation
policy that applies to all employees, including house
staff, and treats house staff as covered by the various
state and Federal laws that regulate employment, such as
the Family and Medical Leave Act, the Americans with
Disabilities Act, and other state and Federal laws that
prohibit various forms of discrimination in employment.

10 This evidence, offered by the Petitioner to show that in many ways
the fully licensed residents function as full-fledged doctors in these
moonlighting situations, is characterized by BMC as evidence that
demonstrates that these doctors are students while in the BMC resi-
dency programs and that comparing the two situations “only serves to
highlight the very essence of the academic nature of the graduate medi-
cal programs, and the student status residents have while enrolled.”
There are, however, some differences in the treatment
of house officers as compared to other BMC physicians
and/or employees in general. House officers are much
lower paid than attending physicians, and their compen-
sation is generally unrelated to the number of hours they
work. House officers cannot participate in the retirement
program, which is made available to other employees,
although about 24 of them participate in a tax-sheltered
annuity. The group malpractice insurance policy main-
tained by BMC for its house staff is separate from the
individual policies provided for the faculty and paid for
by their department practice plans. Other benefits avail-
able to other BMC employees but not to house officers
include vision care, disability insurance, health care and
dependent care reimbursement accounts, extended sick
leave, and earned time. Unlike other BMC employees,
residents are allowed to defer payments of some of their
Federal and bank loans for medical school during a por-
tion of their residency because they are still considered to
be training for a job.
II. POSITIONS OF THE PARTIES
The Petitioner contends that there are compelling rea-
sons for the Board to reconsider its determination in Ce-
dars-Sinai and St. Clare’s Hospital that interns, resi-
dents, and fellows are not employees within the meaning
of Section 2(3) of the Act. The Petitioner argues that a
substantial question of law is raised by the conflict be-
tween the Board’s current position and the interpretations
of Section 2(3) by the Supreme Court in several cases
since the Board decided Cedars-Sinai and St. Clare’s
Hospital. It contends that the national policies of pro-
moting peaceful collective bargaining and effective
graduate medical training programs are best effectuated
by recognizing that residents are employees entitled to
the protections of and regulation by the Act. It further
argues that the Board’s unfounded speculation in Ce-
dars-Sinai and St. Clare’s Hospital regarding the alleged
subjective intent of residents in pursuing graduate medi-
cal training is inappropriate and erroneous. In this re-
gard, it points out that residents do inquire and are in-
formed about the terms and conditions of their employ-
ment, and that if residents were unconcerned about the
terms and conditions of their employment, they would
not support unionization. Moreover, the Petitioner ar-
gues that the Supreme Court has rejected an analysis of
employee status based on subjective intent.
The Petitioner further asserts that the legislative his-
tory of the 1974 Health Care Amendments11 supports the
conclusion that residents are employees under the Act,
and that the Board should also consider that the prevail-
ing weight of opinion in public sector jurisdictions is that
residents are employees. The Petitioner also argues that
11 See 88 Stat. 395, Legislative History of the Coverage of Nonprofit
Hospitals Under the National Labor Relations Act, 1974 (P.L. 93–360)
(S. 3203).
BOSTON MEDICAL CENTER CORP. 157
the Board must acknowledge that other Federal agencies
have rejected the premise of Cedars-Sinai that house
staff are students.
The Petitioner contends that a unit of house staff—
interns, residents, and fellows—is an appropriate unit for
bargaining. Lastly, it contends, contrary to the position
taken by the Employer, that the chief residents are nei-
ther supervisory nor managerial, and should be included
in the bargaining unit.
The Employer contends that Cedars-Sinai is control-
ling and that it should not be overruled. It asserts that
interns, residents, and fellows are primarily students and
not employees and, accordingly, the Petitioner is not a
labor organization as defined in the Act since it is not an
organization in which employees participate. It further
argues that the Board should not extend coverage of the
Act to residents because graduate medical education is
not compatible with the economic relationship contem-
plated by the Act. In this regard, it contends that the
academic pursuit that characterizes the training hospital
setting prevents the parties from actualizing the goals of
an economic relationship; that the student/teacher rela-
tionship that exists in graduate medical education pro-
grams is not compatible with Congress’ desire for equal-
ity of bargaining power between employees and employ-
ers; and that the process of graduate medical education is
not suited to the collective treatment of residents. Fi-
nally, the Employer asserts that collective bargaining will
undermine both the educational process and academic
freedom.12
The Employer further argues that extending coverage
of the Act to an academic relationship conflicts with the
overall statutory scheme of the Act. Thus, it contends
that the academic nature of the relationship between resi-
dents and BMC does not allow for equal participation by
a labor organization in determining standards for evalua-
tion, promotion, and discipline and dismissal; and that
extending coverage of the Act to academic relationships
will result in inevitable violations of Section 8(a)(2) of
the Act because the Employer is compelled under appli-
cable academic standards to organize committees, in
which house staff participate, that have an effect on tradi-
tional collective-bargaining issues.
The Employer also contends that the Board’s determi-
nation that residents are not employees gained legislative
support when a proposed amendment to include residents
within the definition of employee was defeated in Con-
gress. It argues that the Supreme Court precedent relied

12 Contrary to these assertions, the Petitioner points to a “successful”
history of collective bargaining at BMC. It asserts that the parties
(actually BMC’s predecessor) have had a collective-bargaining rela-
tionship since 1969, that the collective-bargaining agreement focuses
on employment-related issues, that the Petitioner has never sought to
bargain over academic prerogatives, and that the collective-bargaining
agreements have actually been used by BMC to satisfy the ACGME
Essentials standards.
on by the Petitioner is inapposite here. It contends that
residents are not “employees” within the meaning of the
Act because they are primarily engaged in graduate edu-
cational training. It also points to certain ways that resi-
dents at BMC are treated differently from hospital em-
ployees and contends that this supports its contention that
residents are students rather than employees.
The Employer also argues that numerous administra-
tive problems will arise if the Board exercises jurisdic-
tion over the primarily educational relationship between
BMC and its residents because of the diversity, number,
and complexity of its joint programs with other hospitals,
including some public hospitals, and because of the tran-
sient status of residents.
The Employer further contends that assuming, ar-
guendo, its house officers are employees, the petition
must be dismissed because the petitioned-for unit di-
rectly contravenes the Board’s Rule on collective-
bargaining units in the health care industry13 and is there-
fore inappropriate. It also asserts that the petition must
be dismissed because the unit sought is inappropriate as
it is based solely upon the Petitioner’s extent of organiza-
tion, and that, despite its petition, the Petitioner seeks to
represent certain residents who are not even on the pay-
roll of BMC. Lastly, the Employer argues that if the
Board finds that residents are employees, then its chief
residents should be excluded from the proposed bargain-
ing unit because they are Section 2(11) supervisors and
managerial employees.
In addition, amici took the following positions:
The AFL–CIO and the American Nurses Association
argue, in support of the Petitioner, that BMC’s house
staff are employees as defined in the Act, especially
given that the term “employee” must be broadly con-
strued. They urge that the Board “reverse” its decisions
in Cedars-Sinai and St. Clare’s Hospital and hold that
house staff are employees under the Act.
The American Medical Students Association urges, in
support of the Petitioner, that the Board overturn Cedars-
Sinai and hold that house staff are employees under Sec-
tion 2(3) of the Act. It contests as factually contrary to
the experience of the membership of its organization, the
Employer’s argument that the relationship between the
house staff and the Hospital is similar to the academic
relationship between medical students and the Hospital.
The most significant distinction between medical stu-
dents and house staff, it argues, is the ability of the latter
to write medical orders, which are essentially the mecha-
nism used to implement patient care. Lastly, it argues
that the adequacy of salary, benefits, and working condi-
tions offered by a residency program is an important part
of the relationship between a resident and the hospital
and that, without the ability to bargain collectively, house
staff will have no protection against unilaterally imposed
13 Sec. 103.30 of the Board’s Rules, 29 CFR § 103.30.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 158
increases in work hours and/or reduction in their salaries
and benefits.
The University of Michigan House Officers Associa-
tion, arguing in support of the Petitioner, points out that,
as an organized association of self-governing resident
physicians, it has collectively bargained on behalf of
residents at the University of Michigan Hospital since
about 1973, successfully negotiating 16 consecutive col-
lective-bargaining agreements with the University of
Michigan Hospital. It argues that its 25-year successful
bargaining history should dispel the Board’s speculation
in St. Clare’s Hospital that collective bargaining might
“prove detrimental to both labor and educational poli-
cies.” It further argues that its experience proves the
fear, expressed in St. Clare’s Hospital, that collective
bargaining might “unduly infringe upon traditional aca-
demic freedoms” of a hospital’s residency program is
unfounded.
The Medical Society of the State of New York argues,
in support of the Petitioner, that the issue concerning the
status of house officers should not be addressed as an
“either-or” question, and that the fact that house officers
may be students should not preclude them from also pos-
sessing the status of employees under the Act. It also
states that it supports the longstanding policy of the
American Medical Association that house officers should
be able to organize in any manner they choose regarding
negotiations with the institution sponsoring the residency
program. It is, however, opposed to permitting the use of
strikes where patient care is withheld for the purpose of
gaining leverage in collective bargaining, although it
believes that affording house officers NLRA protection
will reduce the likelihood of strikes.
The Ad Hoc Committee for House Staff Rights at Uni-
versity Hospital, Inc. and the Ad Hoc Committee for
House Staff Rights at Prince George’s Hospital Center,
in support of the Petitioner, assert that their house staff
associations, both with longstanding collective-
bargaining rights which were initiated when the respec-
tive hospitals were public institutions, lost those rights
after privatization of the hospitals. They aver that in
both instances, it was the private employer’s reliance on
the Board’s Cedars-Sinai policy that caused their loss of
bargaining rights. They further contend that, because of
the state of the law, these committees are effectively de-
nied any realistic opportunity to obtain a fair and binding
vote of the house staff at their hospitals to ascertain
whether there is majority support for a union, and that
committee members are subject to recrimination and
retaliation for their concerted activities, without any re-
course to a legal process or remedy. Accordingly, they
jointly urge the Board to void Cedars-Sinai and St.
Clare’s Hospital and to deem house staff to be “employ-
ees” under the Act.
The California Medical Association, arguing in sup-
port of the Petitioner, asserts that it specifically supports
the right of house staff physicians to unionize and to ne-
gotiate collectively. It notes that modifications in Fed-
eral and state reimbursement programs, and the programs
and policies designed to promote competition among
health care providers, are generating new economic pres-
sures. Thus academic medical centers face major chal-
lenges resulting from both private market driven forces
and public reforms, and that these changes profoundly
affect the work environment of house staff, as well as the
poor and high-risk patients they care for. Accordingly, it
argues that it is critically important that house staff have
the right to bargain collectively as academic medical
centers adapt to economic and political challenges now
and in the future. Finally, it points out that speculation
about the harm which would result from granting house
staff collective-bargaining rights is not borne out by ex-
perience.
The American Medical Association and the Massachu-
setts Medical Society together argue that residents should
have a right to negotiate as a group on issues of patient
care and resident well being, but they should not have the
right to strike. They further assert that the standards and
procedures of the Accreditation Council for Graduate
Medical Education (ACGME) provide the appropriate
forum to address the concerns of residents. They point
out that those standards and procedures are currently
under development, and request that the Board rule con-
sistently with their positions.
The American Public Health Association, in support of
the Petitioner, argues that because quality of patient care
and working conditions of the care-givers are closely
related, the Board should recognize that house staff are
employees entitled to engage in collective bargaining to
improve their working conditions. It also recounts the
story of Libby Zion, who died after going to the emer-
gency room at a major New York City teaching hospital,
and the resulting grand jury investigation and subsequent
Bell Commission’s study of, inter alia, residents’ work
schedules. It also argues that the dichotomy between
“student” and “employee” is false. While house staff in
their capacity as “trainees” are certainly the “beneficiar-
ies” of training, likewise the hospital certainly is the
beneficiary of the services and health care delivered to
patients by house officers in their capacity as “doctors”
and “employees.” It further points out that house staff
provide the bulk of physician-type services to the tradi-
tionally underserved in hospital emergency rooms and
clinics, and that it would perhaps be insulting, if not dis-
quieting, to the underserved to be told that their medical
care is being provided not by “doctors” but by “stu-
dents.”
The American Medical Women’s Association submit-
ted a statement in support of the Petitioner, concurring in
the position of the California Medical Association that
interns, residents, and fellows are employees under the
BOSTON MEDICAL CENTER CORP. 159
Act, and urging that the Board reverse its decision in
Cedars-Sinai.
The Association of American Medical Colleges, the
American Hospital Association, the American Council
on Education, the American Board of Medical Special-
ties, and the Council of Medical Specialty Societies to-
gether argue, in support of the Employer, that the Board
in Cedars-Sinai and St. Clare’s Hospital properly sought
to avoid any involvement in academic decision making,
and that the Board’s rationale for such noninvolvement is
even more compelling today than it was then. They con-
tend that the reversal of Cedars-Sinai and St. Clare’s
Hospital would wrongly involve the Board and labor
organizations in academic decision making. In response
to the Petitioner’s argument that its 40-year bargaining
history “empirically demonstrates that the Board’s fears
expressed in Cedars-Sinai concerning the impact of col-
lective bargaining upon medical training are unfounded,”
they point out that if the law is changed and house staff
are held to be employees under the Act, any labor or-
ganization may seek to represent those employees and
those unions may aggressively seek to become involved
in “academic” issues.
III. ANALYSIS
Over 20 years ago, this Agency—despite the dissent of
one member—concluded that hospital house staff were
“primarily” students, and thus were not employees within
the meaning of Section 2(3) of the Act. Cedars-Sinai,
223 NLRB at 253. The Board “clarified” its position
shortly thereafter to explain that it did not mean to find
that private sector house staff were not covered by the
statute, but that as a particular type of student they were
not entitled to collective-bargaining rights. St. Clare’s
Hospital, 229 NLRB at 1003.
We are convinced by normal statutory and legal analy-
sis, including resort to legislative history, experience, and
the overwhelming weight of judicial and scholarly opin-
ion, that the Board reached an erroneous result in Ce-
dars-Sinai. Accordingly, we overrule that decision and
its offspring, conclude that house staff are employees as
defined by the Act, and find that such individuals are
therefore entitled to all the statutory rights and obliga-
tions that flow from our conclusion.
A. Background
In Cedars-Sinai Medical Center, 223 NLRB 251
(1976), decided shortly after the enactment of the Health
Care Amendments to the Act, a Board majority con-
cluded that interns, residents and fellows were not statu-
tory employees. Although recognizing that house staff
received many benefits characteristic of employee status,
the Board majority concluded that house staff were pri-
marily engaged in graduate educational training, and
therefore were students rather than employees entitled to
bargaining rights under the Act. The majority reasoned
that house staff entered into a relationship with a hospital
not primarily to earn a living, but to fulfill educational
requirements of state or specialty boards. The majority
placed little reliance on the fact that house staff spent
most of their time in direct patient care, finding that “this
is simply the means by which the learning process is car-
ried out.” Concerning the stipends house staff received,
the Board majority concluded that such pay was more in
the nature of a living allowance than compensation for
services. The Board majority noted that stipends were
fixed depending on the year of training, and did not vary
depending on hours worked or with the nature of the ser-
vices rendered. The majority further found significant
that house staff tenure was related to the particular edu-
cation program, that such a relationship was of relatively
short duration, and that there was little chance that a
regular employment relationship would be established
following completion of the program.14
In St. Clare’s Hospital & Health Center, 229 NLRB
1000 (1977), the Board attempted to clarify its Cedars-
Sinai decision by emphasizing that the decision was one
involving students. Because of intervening litigation,15
and a “misunderstanding” that “can perhaps justifiably
be laid at our feet for we may not have been as precise as
we might have been in articulating our views,” the Board
majority attempted to rearticulate its Cedars-Sinai deci-
sion. The majority set forth what it identified as four
categories of cases involving students. The majority
concluded that house staff fell within the fourth category,
“that in which students perform services at their educa-
tional institutions which are directly related to their edu-
cational program.” 229 NLRB at 1002 (citation omit-
ted). The majority reasoned that such individuals are
serving primarily as students and not primarily as em-
ployees, that their relationship with their institutions is
therefore predominantly academic rather than economic
in nature, and thus that such interests are not “readily
adaptable to the collective-bargaining process.” 229
NLRB at 1002.
B. Section 2(3) of the Act
We find the Board’s determination in Cedars-Sinai
and St. Clare’s Hospital of the status of house staff to be
flawed in many respects. We begin our analysis with
reference to Section 2(3) of the Act. That key statutory
language is as follows:

The term “employee” shall include any employee
. . . unless the Act [this subchapter] explicitly states
otherwise . . . but shall not include any individual
employed as an agricultural laborer, or in the domes-
tic service of any family or person at his home, or
any individual employed by his parent or spouse, or

14 As discussed more fully below, Member Fanning dissented from
the majority’s decision.
15 The Board’s Cedars-Sinai opinion begat a tangled web of litiga-
tion. See the discussion in St. Clare’s Hospital, 229 NLRB at 1000,
1005.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 160
any individual employed as an independent contrac-
tor . . . .

The “breadth of §2(3)’s definition is striking. The Act
specifically applies to ‘any employee.’” Sure-Tan, Inc.
v. NLRB, 467 U.S. 883, 891–892 (1984) (undocumented
aliens “plainly come within the broad statutory definition
of ‘employee’”). The exclusions listed in the statute are
limited and narrow, and do not, on their face, encompass
the category “students.” Thus, unless there are other
statutory or policy reasons for excluding house staff, they
literally and plainly come within the meaning of “em-
ployee” as defined in the Act. We find no such reasons.
In his dissent in Cedars-Sinai, then-Member Fanning
traced the Act’s definition of “employee” as an out-
growth of the common law concept of the “servant.” 223
NLRB at 254. In turn, the master-servant relationship
itself finds its antecedents in common law agency doc-
trine. Id. at 254–255. See also NLRB v. Town & Coun-
try, 516 U.S. 85, 93–95 (1995). At common law, a ser-
vant was one who performed services for another and
was subject to the other’s control or right of control.
Consideration, i.e., payment, is strongly indicative of
employee status. Id. Cf. WBAI Pacifica Foundation,
328 NLRB 1273 (1999). We agree with this analysis.
The Supreme Court in Town & Country echoed the
same logic in its analysis of Section 2(3). Specifically,
the Court noted that the Board’s definition of the term
“employee” as used in the Act reflected the common law
agency doctrine of the conventional master-servant rela-
tionship. 516 U.S. at 93-95. In this recent case, the
Court reiterated that the language of this section of the
statute is “broad”:

The ordinary dictionary definition of “employee” in-
cludes any “person who works for another in return for
financial or other compensation.” American Heritage
Dictionary 604 (3d ed. 1992). See also Black’s Law
Dictionary 525 (6th ed. 1990) (an employee is a “per-
son in the service of another under any contract of hire,
express or implied, oral or written, where the employer
has the power or right to control and direct the employ-
ees in the material details of how the work is to be per-
formed”). The phrasing of the Act seems to reiterate
the breadth of the ordinary dictionary definition, for it
says “[t]he term ‘employee’ shall include any em-
ployee.” 29 U.S.C. § 152(3) (1988 ed.) [Emphasis
added.]
For another thing, the Board’s broad, literal in-
terpretation of the word “employee” is consistent
with several of the Act’s purposes, such as protect-
ing “the right of employees to organize for mutual
aid without employer interference” . . . and “encour-
aging and protecting the collective-bargaining proc-
ess.”. . . And, insofar as one can infer purpose from
congressional reports and floor statements, those
sources too are consistent with the Board’s broad in-
terpretation of the word. It is fairly easy to find
statements to the effect that an “employee” simply
“means someone who works for another for hire.”
H.R.Rep. No. 245, 80th Cong., 1st Sess., 18 (1947),
and includes “every man on a payroll.” 79 Cong.
Rec. 9686 (1935) (colloquy between Reps. Taylor
and Connery). . . . At the same time, contrary state-
ments, suggesting a narrow or qualified view of the
word, are scarce, or nonexistent—except, of course,
those made in respect to the specific (here inapplica-
ble) exclusions written into the statute.

Town & Country Electric, 516 U.S. at 90–91 (some cita-
tions omitted). As the Court noted, the Board’s historic,
broad, literal reading of the statute finds support in Supreme
Court precedent. Id. at 91–92; Sure-Tan, supra; NLRB v.
Hendricks County Rural Electric Membership Corp., 454
U.S. 170, 189–190 (1981); Phelps Dodge Corp. v. NLRB,
313 U.S. 177, 185–186 (1941).
We believe, therefore, that whatever other description
may be fairly applied to house staff, it does not preclude
a finding that individuals in such positions are, among
other things, employees as defined by the Act.
Ample evidence exists here to support our finding that
interns, residents and fellows fall within the broad defini-
tion of “employee” under Section 2(3), notwithstanding
that a purpose of their being at a hospital may also be, in
part, educational. That house staff may also be students
does not thereby change the evidence of their “em-
ployee” status. As stressed above, nothing in the statute
suggests that persons who are students but also employ-
ees should be exempted from the coverage and protection
of the Act. The essential elements of the house staff’s
relationship with the Hospital obviously define an em-
ployer-employee relationship.
First, house staff work for an employer within the
meaning of the Act. Second, house staff are compen-
sated for their services. The house staff, as noted, re-
ceive compensation in the form of a stipend. There is no
exclusion under the Internal Revenue Code for such sti-
pends. The Hospital withholds Federal and state income
taxes, as well as social security, on their salaries.
Further, the interns, residents, and fellows receive
fringe benefits and other emoluments reflective of em-
ployee status. Workers’ compensation is provided. They
receive paid vacations and sick leave, as well as parental
and bereavement leave. The Hospital provides health,
dental, and life insurance, as well as malpractice insur-
ance, for house staff and other Hospital employees.
Third, house staff provide patient care for the Hospital.
Most noteworthy is the undisputed fact that house staff
spend up to 80 percent of their time at the Hospital en-
gaged in direct patient care. The advanced training in the
specialty the individual receives at the Hospital is not
inconsistent with “employee” status. It complements,
BOSTON MEDICAL CENTER CORP. 161
indeed enhances, the considerable services the Hospital
receives from the house staff, and for which house staff
are compensated. That they also obtain educational
benefits from their employment does not detract from
this fact. Their status as students is not mutually exclu-
sive of a finding that they are employees.
As “junior professional associates,”16 interns, resi-
dents, and fellows bear a close analogy to apprentices in
the traditional sense. It has never been doubted that ap-
prentices are statutory employees eligible to vote in elec-
tions with their more experienced colleagues. See, e.g.,
The Vanta Co., 66 NLRB 912 (1946).17 Nor does the
fact that interns, residents and fellows are continually
acquiring new skills negate their status as employees.
Members of all professions continue learning throughout
their careers, and many professions, including those in
the healthcare industry, require individuals to be trained
further after graduation in order to be licensed or re-
ceived in the field. See, e.g., Wurster, Bernardi &
Emmons, Inc., 192 NLRB 1049, 1050–1051 (1971) (de-
scribing licensing process for graduates of architecture
schools); UTD Corp., 165 NLRB 346 (1967) (appren-
tices in 4-year training program included in production
and maintenance unit); General Electric Co., 131 NLRB
100, 104 (1961) (describing employer training program
for apprentices in tool and die trade; “[t]he very purpose
of an adequate apprenticeship program is to broadly train
apprentices in their craft so that they may practice it in
any industry or company or advance into executive or
managerial responsibilities”); Riverside Memorial
Chapel, 92 NLRB 1594, 1595 (1951) (describing steps
necessary for apprentice embalmers to be licensed).
“[F]ledgling lawyers employed by a law firm spend a
great deal of time acquiring new skills, yet no one would
contend that they are not employees of the law firm.”
Regents of the University of Michigan v. Michigan ERC,
204 N.W. 2d 218, 226 (Mich. 1973). Plainly, many em-
ployees engage in long-term programs designed to im-
part and improve skills and knowledge. Such individuals
are still employees, regardless of other intended benefits
and consequences of these programs.
Additionally, while house staff possess certain attrib-
utes of student status, they are unlike many others in the
traditional academic setting. Interns, residents, and fel-
lows do not pay tuition or student fees.18 They do not
take typical examinations in a classroom setting, nor do
they receive grades as such. They do not register in a
traditional fashion. Their education and student status is

16 1 Leg. Hist. 540 (LMRA 1947).
17 Indeed, in the construction industry, it has long been the case that
apprentices are included in units with journeymen. The practice is so
well established that it has rarely been litigated. See, e.g., Heating,
Piping & Air Conditioning Contractors, 110 NLRB 261, 263 (1954)
(plumber and pipefitter apprentices included in respective craft units).
18 The only exception appears to be that several dental residents pay
some tuition.
geared to gaining sufficient experience and knowledge to
become Board-certified in a specialty.
Review of our decisions concerning students does not
lead to a different result. In prior cases, there has been
no question that students are statutory employees.
Rather, the issue has been the eligibility of student work-
ers based on community of interest considerations. It is
true, as found by the Board in St. Clare’s Hospital, that
the Board has, on occasion, excluded students from bar-
gaining units. But it has not done so, as posited in St.
Clare’s Hospital, on the basis of some broad delineation
of categories of students. Rather, as Member Fanning
noted in his St. Clare’s Hospital dissent, the Board has
analyzed the placement of students, as it has other cate-
gories of employees, under community-of-interest prin-
ciples, determining on that basis whether such workers
may be included in the unit. See, e.g., NLRB v. Action
Automotive, 469 U.S. 490, 496 (1985) (relatives of own-
ers of closely held corporation excluded from unit as
they do not share a community of interest with unit em-
ployees); Town & Country, 516 U.S. at 97 (identifying
confidentials as employees who are nonetheless excluded
from bargaining units). The Board traditionally looks to
whether students work in the same capacity as other
workers and what their stake in the outcome of negotia-
tions would be, just as it does with every other set of
employees. St. Clare’s Hospital.
C. Other Statutory Considerations
Our interpretation of Section 2(3) of the Act to include
house staff as statutory employees is further supported
by reference to Section 2(12) of the Act. That provision
defines a professional employee as:

(a) any employee engaged in work . . . (iv) re-
quiring knowledge of an advanced type in a field of
science or learning customarily acquired by a pro-
longed course of specialized intellectual instruction
and study in an institution of higher learning or a
hospital . . . or
(b) any employee who (i) has completed the
courses of specialized intellectual instruction and
study described in clause (iv) of paragraph (a) and
(ii) is performing related work under the supervision
of a professional person to qualify himself to be-
come a professional employee as defined in para-
graph (a).

Literally read, Section 2(12)(b) embraces house staff. In-
terns, residents, and fellows clearly are individuals who
have completed a course of specialized intellectual instruc-
tion and study “in an institution of higher learning or a hos-
pital.” Just as plainly, they are “performing related work
under the supervision of a professional to qualify” to be a
professional as defined in the Act. The legislative history of
the Taft-Hartley amendments (the Labor Management Rela-
tions Act) supports the conclusion that this section of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 162
Act was crafted to include “such persons as legal, engineer-
ing, scientific and medical personnel along with their junior
professional associates.” I Leg. Hist. 540 (LMRA 1947)
(emphasis added). As Member Fanning stated in his Ce-
dars-Sinai dissent, this “definition fits, precisely, housestaff
officers.” 223 NLRB at 258. See also Physicians Nat.
House Staff Assn. v. Fanning, 642 F.2d 492, 500 (D.C. Cir.
1980) (Chief Judge Wright, dissenting).19 We find, there-
fore, based on the foregoing and the record as a whole, that
house staff clearly fit within the statutory definition of “em-
ployee.”
D. Legislative History of the 1974 Healthcare
Amendments
Were there any lingering doubt about our interpreta-
tion of Section 2(3) as applied to interns, residents, and
fellows, it is put to rest by consideration of the legislative
history of the 1974 Healthcare Amendments.20 Member
Fanning, in his dissent in Cedars-Sinai, as well as Chief
Judge Wright in his dissent in Physicians Nat. House
Staff, extensively analyzed this history. In agreement
with them, we believe, based on our own review, that the
legislative history amply demonstrates that Congress, to
the extent it considered the question, thought house staff
to be statutory employees.21
In 1974, Congress extended the Board’s jurisdiction to
nonprofit healthcare facilities. In repealing the exemp-
tion of private, nonprofit hospitals from the definition of
“employer,” Congress was responding to the spate of
recognition strikes in the healthcare industry, Physicians
Nat. House Staff, 642 F.2d at 505, and stressed the need
for continuous health services.22 In Senate hearings on
the amendments, representatives for the house staff,
while urging that Congress adopt the amendments, ad-
vanced a new provision that would have excluded house
staff from the ambit of Section 2(11) of the Act, which
sets forth the definition of “supervisor,” thus ensuring
that house staff were not excluded from coverage of the
Act on that basis. The committee report on why this leg-
islative provision was not adopted bears reciting:

Various organizations representing health care profes-
sionals have urged an amendment to Section 2(11) of
the Act so as to exclude such professionals from the
definition of “supervisor.” The Committee has studied
this definition with particular reference to health care

19 The Cedars-Sinai majority responded to this argument with sleight
of hand simply by stating that since house staff are not employees
within the meaning of the Act, there is no reason to refer to other sec-
tions of the Act (223 NLRB at 253 fn. 4).
20 Legislative History of the Coverage of Nonprofit Hospitals Under
the National Labor Relations Act, 1974 (P.L. 93–360) (S. 3203).
21 It is telling that the Board majority failed to address this legislative
history in Cedars-Sinai. See Note, Student-Workers or Working Stu-
dents? A Fatal Question for Collective Bargaining of Hospital House
Staff, 38 U. Pitt. L. Rev. 762, 767 (1977) (hereafter Student-Workers);
Physicians Nat. House Staff, 642 F.2d at 505–506.
22 Student-Workers at 767.
professionals, such as . . . interns, residents, fellows . . .
and concludes that the proposed amendment is unnec-
essary because of existing Board decisions. The
Committee notes that the Board has carefully avoided
applying the definition of a “supervisor” to a health
care professional who gives directions to other employ-
ees, which direction is incidental to the professional’s
treatment of patients and thus is not the exercise of su-
pervisory authority in the interest of the employer.23

This statement clearly assumes that house staff are employ-
ees. For if they were thought to be students, their status as
supervisors would not be pertinent. Physicians Nat. House
Staff, 642 F.2d at 505; Student-Workers at 768.
This view is underscored by the remarks of Senator
Cranston, cosponsor and floor manager of the Senate bill.
Senator Cranston, in introducing the bill, explained that
one of the conditions the bill was designed to remedy
was the “notoriously underpaid . . . average annual salary
for all hospital employees—including doctors . . . . Ac-
cording to [the] president of the Physicians National
House staff Association, the average house staff offi-
cer—intern, resident, or fellow—works 70 to 100 hours
per week, and earns about $10,000 per year. His hourly
wage then ranges from $1.92 to $2.74.”24 Senator Cran-
ston’s remarks about interns, residents, and fellows obvi-
ously reflect his assumption that they were to be covered
by the legislation he was offering. Physicians Nat.
House Staff, 642 F.2d at 505–506.25
This legislative history is very persuasive. Yet, the
Employer does not address it. Rather, the Employer ar-
gues that the failure of Congress to pass legislation, for-
mally considered in 1979, that would have set aside the
Board’s Cedars-Sinai and St. Clare’s Hospital decisions,
means that Congress approved the Board’s decisions in
those cases, and thus we are not free to overrule them.
The argument lacks merit.
It is a canon of statutory construction that opinions of
legislatures expressed years after an Act was passed
should not be given weight as to the meaning of the ear-
lier Act. Teamsters v. U.S., 431 U.S. 324, 354 fn. 39
23 Legislative History of the Coverage of Nonprofit Hospitals at 13;
S.Rept. 93–766, 93d Cong., 2d Sess. 6 (1974). See also Legislative
History of the Coverage of Nonprofit Hospitals at 275, H.R. Rep. No.
1051 at 7 (1974).
24 Legislative History of the Coverage of Nonprofit Hospitals at 93,
120 Cong. Rec. 12937 (1974). As the dissent noted in Physicians Nat.
House Staff, even the opponents of the 1974 Amendments assumed that
house staff were employees. Senator Dominick “referred repeatedly to
the coverage of house staff under the bill, grouping house staff together
with other hospital employees.” 642 F.2d at 506. See 120 Cong.Rec.
12971, 12580 (remarks of Senator Dominick).
25 The Cedars-Sinai majority’s response to this legislative history
was simply to posit that house staff were not employees, and thus there
was no merit to the arguments based on the legislative history. It may
be that such history does not require the Board to find house staff to be
statutory employees. But it is no answer simply to ignore the contem-
poraneous understanding of those who sponsored the statute as to its
meaning.
BOSTON MEDICAL CENTER CORP. 163
(1977) (“views of members of a later Congress . . . are
entitled to little if any weight”); U.S. v. Mine Workers,
330 U.S. 258 (1947); Physicians Nat. House Staff, 642
F.2d at 509–510. Indeed, when the language of a statute
is plain—as it is here—one is to give the words their
plain meaning. American Tobacco Co. v. Patterson, 456
U.S. 63, 68, 75 (1982).
It is a dubious proposition indeed that the inaction of
one house of Congress could be relevant evidence of
what a previous entire Congress meant to do when it
acted in its “full constitutional cycle.” Physicians Nat.
House Staff, 642 F.2d at 510. The germaneness of sub-
sequent congressional action is further diminished where,
as here, the alleged “action” is, in fact, inaction. Our
reconsideration of Cedars-Sinai and related cases cannot
appropriately be foreclosed merely because of the failure
of one house of Congress to reverse that and related
cases.26
E. Other Considerations
As detailed above, we find persuasive the dissent by
Member Fanning in Cedars-Sinai. The majority in that
case set forth no coherent rationale and never answered
satisfactorily any of the dissent’s criticisms, nor, as we
have seen, was their later attempt to justify the result in
St. Clare’s Hospital equal to the task. Similarly, we find
it instructive that four judges of the Court of Appeals for
the District of Columbia Circuit believed that the Board’s
decision in Cedars-Sinai was so aberrant as to cause
them to vote to reverse it in Leedom v. Kyne27 litigation.
Physicians Nat. House Staff Assn. v. Fanning, 642 F.2d
492, 500 (D.C. Cir. 1980). Leedom v. Kyne is limited to
only those cases in which the Board has so erred as a
matter of law that a United States District Court asserts
jurisdiction over a suit to set aside a Board finding in a
representation proceeding. Physicians Nat. House Staff,
642 F.2d at 502–503.
Further, we reach our decision here to overrule Ce-
dars-Sinai and its progeny on the basis of our experience
and understanding of developments in labor relations in
the intervening years since the Board rendered those de-
cisions. Almost without exception, every other court,
agency, and legal analyst to have grappled with this issue
has concluded that interns, residents, and fellows are, in
large measure, employees. Regents of the University of
Michigan v. ERC, supra, 204 N.W.2d at 225 (evidence
on doctors’ pay, benefits, amount of time devoted to pa-
tient care, and duties and responsibilities to diagnose and
prescribe patient care program and put it into effect “far

26 To the extent that post-Cedars Sinai congressional responses
might be deemed relevant to consideration of the issue of employee
status of house staff, we note that Representative Frank Thompson, a
co-sponsor of the 1974 Health Care Amendments, stated that “[w]hen
we passed the . . . Amendments in 1974 . . . we all thought, proponent
and opponent alike, that medical house staff were included.” 125
Cong. Rec. 33943 (1979).
27 358 U.S. 184 (1958).
more indicative of an employee (i.e.—in this case a doc-
tor) than a student”); House Officers Assn. for the Uni-
versity of Nebraska Medical Center v. University of Ne-
braska Medical Center, 255 N.W.2d 258 (Neb. 1977)
(“the obvious conclusion from the recitation of facts is
that House Officers are both students and employees”);
University Hospital v. SERB, 587 N.E.2d 835 (Ohio
1992), rehearing denied 590 N.E.2d 753 (May 6, 1992);
The Regents of the University of California v. PERB, 715
P.2d 590 (Cal. 1986); Walls v. North Mississippi Medical
Center, 568 So.2d 712 (Miss. 1990); Long Beach Veter-
ans Administration Medical Center, Long Beach, CA, 7
FLRA 134 (1981); Veterans Administration Medical
Center, Brooklyn, NY, 8 FLRA 289 (1982); Veterans
Administration Medical Center, East Orange, NJ, 20
FLRA 900 (1985); City of Cambridge, 2 MLC 1450
(Mass. Lab. Rel. Comm. 1976); Student-Worker, supra;
Note, Medical Housestaff: Scholars or Working Stiffs?
The Pending PERB Decision, 12 Pac. L.J. 1127 (1981);
Malin, Student Employees & Collective Bargaining, 69
Ky. L.J. 1 (1980). Cf. Ross v. University of Minnesota
439 N.W.2d 28 (Minn. 1989). But see Philadelphia
Assn. of Interns & Residents v. Albert Einstein Medical
Center, 369 A.2d 711 (Penn. 1976); Sepinuck, Hospital
Residents & Interns: Inconsistent Treatment Under Fed-
eral Law, 29 St. Louis L.J. 665 (1985).
These judicial bodies, and other commentators, have
concluded that house staff are employees, in addition to
being students, on similar facts as exist here. In each
case, the courts and others have rejected the analysis the
Board adopted in Cedars-Sinai. In its stead, these courts
and commentators have assessed the realities of the rela-
tionship between house staff and the hospitals that they
serve, and have concluded that the relationship exhibits
sufficient factors to warrant a finding of employee status.
Moreover, there is no indication that any of the nega-
tive problems flowing from such a finding, as predicted
by the Cedars-Sinai/St. Clare’s Hospital opinions, have
occurred, or would occur. It is plain that collective bar-
gaining by public sector house staff has been permitted
and widely practiced. No party or amicus in the instant
proceeding has pointed to any difficulty arising from this
bargaining. Indeed, the American Medical Association,
although opposed to granting house staff the right to
strike under the Act, urges that house staff be accorded
bargaining rights.28 Further, since an overriding purpose
of the 1974 Healthcare Amendments was the elimination
of recognition strikes and picketing, according house
staff employee status will have the beneficial purpose of
bringing them within the ambit of the Act, and providing
a mechanism for resolving recognition and other repre-
sentation issues without resort to such tactics.
28 The American Medical Association proposes that matters between
hospitals and house staff in this regard be governed by ACGME guide-
lines.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 164
As a policy matter, we do not believe that the fact that
house staff are also students warrants depriving them of
collective-bargaining rights, or withholding the statutory
obligations attendant to those rights. The Employer and
Member Brame argue strenuously that by granting em-
ployee status to house staff, the Board will improperly
permit intrusion by collective bargaining into areas in-
volving academic freedom. This argument puts the pro-
verbial cart before the horse. The contour of collective
bargaining is dynamic with new issues frequently arising
out of new factual contexts: what can be bargained
about, what the parties wish to bargain about or concen-
trate on, and what the parties are free to bargain about,
may change. But such problems have not proven to be
insurmountable in the administration of the Act. We
need not define here the boundaries between permissive
and mandatory subjects of bargaining concerning interns
and residents, and between what can be bargained over
and what cannot. We will address those issues later, if
they arise. But we note that there are often restrictions
on bargaining due to outside influences, e.g., contracts an
employer may have with other concerns that require the
employer to conduct its business in a specific manner, or
specifications in a contract that limit what an employer
may or may not do. An employer is always free to per-
suade a union that it cannot bargain over matters in the
manner suggested by the union because of these restric-
tions. But that is part of the bargaining process: the par-
ties can identify and confront any issues of academic
freedom as they would any other issue in collective bar-
gaining. The parties in this case are not novices to col-
lective bargaining. If the parties cannot resolve their
differences through bargaining, they are free to seek
resolution of the issues by resort to our processes, and we
will address them at the appropriate time.
The arguments raised by the Employer regarding pos-
sible intrusion on academic freedom reflect those raised
before state courts that have confronted the issue of the
employee status of house staff. Those courts’ responses
to these arguments echo those we have set forth herein.
For example, the Michigan Supreme Court faced a con-
stitutional argument that by finding house staff to be em-
ployees, the court would infringe on the constitutional
autonomy of the Board of Regents. Regents of the Uni-
versity of Michigan, supra. The court noted that because
of the “unique nature” of the University of Michigan, the
scope of bargaining “may be limited” if the matter fell
“clearly” within the educational sphere. 204 N.W.2d at
224. The court continued:

For example, the Association clearly can bargain with
the Regents on the salary that their members receive
since it is not within the educational sphere. While
normally employees can bargain to discontinue a cer-
tain aspect of a particular job, the Association does not
have the same latitude as other public employees. For
example, interns could not negotiate working in the pa-
thology department because they found such work dis-
tasteful. If the administrators of medical schools felt
that a certain number of hours devoted to pathology
was necessary to the education of the intern, our Court
would not interfere since this does fall within the
autonomy of the Regents under Article VIII, § 5. Nu-
merous other issues may arise which fall between these
two extremes and they will have to be decided on a
case by case basis.

204 N.W.2d at 224.
The Supreme Court of California addressed a similar
argument:

The University asserts that if collective bargaining
rights were given to housestaff the University’s educa-
tional mission would be undermined by requiring bar-
gaining on subjects which are intrinsically tied to the
educational aspects of the residency programs. This
“doomsday cry” seems somewhat exaggerated in light
of the fact that the University engaged in meet- and–
confer sessions with employee organizations represent-
ing housestaff prior to the effective date of [the relevant
statute]. Moreover, the University’s argument is pre-
mature. The argument basically concerns the appropri-
ate scope of representation under the Act. (See § 3562,
subd. (q).) Such issues will undoubtedly arise in spe-
cific factual contexts in which one side wishes to bar-
gain over a certain subject and the other side does not.
These scope-of-representation issues may be resolved
by the [PERB] when they arise.

The Regents of the University of California v. PERB, 715
P.2d at 604 (footnote omitted).
Today, we accord individuals who clearly are employ-
ees within the meaning of the Act the rights that are af-
forded all such employees, and likewise impose the re-
sponsibilities commensurate with those rights. We be-
lieve that our interpretation of the statute, informed by
analysis of the facts here and experience, is a reasonable
one that takes into account the entire nature of the house
staff-hospital relationship.29
We cannot subscribe to dissenting Member Brame’s
forecast of doom to medical education as a consequence
of our decision today. We simply cannot say, either as a
matter of law or as a matter of policy, that permitting
medical interns, residents and fellows to be considered as
employees entitled to the benefits of the Act would make
them any less loyal to their employer or to their patients.
Nor can we assume that the unions that represent them
will make demands upon them or extract concessions
form their employers that will interfere with the educa-
tional mission of the institutions they serve, or prevent
them from obtaining the education necessary to complete

29 Action Automotive, supra.
BOSTON MEDICAL CENTER CORP. 165
their professional training. If there is anything we have
learned in the long history of this Act, it is that unionism
and collective bargaining are dynamic institutions capa-
ble of adjusting to new and changing work contexts and
demands in every sector of our evolving economy. We
have no doubt that they can also adjust to accommodate
the special functions of medical house staff. To assume
otherwise is not only needlessly pessimistic, but gives
little credit to the intelligence and ingenuity of the par-
ties.
IV. ANCILLARY ISSUES
Having determined that BMC’s house staff are em-
ployees within the meaning of Section 2(3) of the Act,
we now turn to consideration of other issues raised by the
parties.30
A. Labor Organization Status
BMC contends that the petition must be dismissed be-
cause the Petitioner is not a labor organization within the
meaning of Section 2(5) of the Act in that it is not an
organization in which “employees” participate. Since we
are finding herein that interns, residents, and fellows em-
ployed by BMC are employees within the meaning of
Section 2(3) of the Act, and since the record establishes
that the Petitioner is an organization in which employees
(house staff) participate and that exists at least in part for
the purpose of dealing with employers concerning wages,
hours, and terms and conditions of employment, we con-
clude that the Petitioner is a labor organization within the
meaning of Section 2(5). Alto Plastics Mfg. Corp., 136
NLRB 850, 851–852 (1962).
B. Joint Employer Issues
As noted by the Regional Director, BMC argues that
several administrative problems would result if the Board
were to find that its house officers are statutory employ-
ees. First, BMC contends that it has various affiliations
with other institutions which will raise complex ques-
tions about joint employer status. Second, BMC con-
tends that, because some of those institutions are gov-
ernment entities not subject to the Board’s jurisdiction,
our assertion of jurisdiction over the house officers will
present numerous bargaining and enforcement problems.
The record shows that BMC’s house officers are as-
signed to various clinical rotations throughout BMC. In
addition, as found by the Regional Director, house offi-
cers in some BMC residency programs perform one or
more rotations at other institutions with which BMC has
an affiliation agreement. As they rotate through the vari-

30 In addition to the issues discussed below, BMC contends that if
the Board finds that house staff are employees, then the chief residents
should be excluded from the unit on the basis that they are 2(11) super-
visors and managerial employees. The Regional Director thoroughly
considered this issue and concluded that chief residents are not statu-
tory supervisors or managerial employees. We affirm the Regional
Director’s conclusion in this regard, for the reasons stated by her.
ous clinical assignments, house officers remain part of
BMC’s residency program. This is so regardless of
where they are actually performing their duties and al-
though they may perform their duties under the medical
direction of one or more physicians at the site of the rota-
tion. Importantly, however, residents in all BMC pro-
grams spend the vast majority of their residency at
BMC’s facilities.
Although this situation potentially presents various,
and perhaps unusual, issues for resolution through collec-
tive bargaining, in that employees (residents) are for dis-
crete periods performing services at the facility of an-
other employer or employers, these issues do not appear
to be novel or insurmountable. In any event, at this junc-
ture any such potential problems are speculative.31
In addition to the clinical rotations discussed above,
BMC operates at least two joint residency programs with
other institutions. As described by the Regional Direc-
tor, one is a joint residency program in Oral and Maxillo-
facial Surgery with Tufts University, and another is the
Boston Combined Residency Program in Pediatrics,
which includes individuals in BMC’s residency program
as well as those in Children’s Hospital’s program, with
some of the residents being paid by BMC and others by
Children’s Hospital. The Regional Director did not ad-
dress whether these programs operate so as to require a
finding that house staff enrolled in the two programs are
jointly employed by BMC and either Children’s Hospital
or Tufts University. We find that the present record is
insufficient to enable us to resolve this issue. Accord-
ingly, we do not at this time make a final determination
as to the unit placement of house staff assigned to joint
residency programs such as that in Oral and Maxillofa-
cial Surgery with Tufts University, and the Boston Com-
bined Residency Program in Pediatrics, but shall permit
them to vote under challenge.32
C. Temporary Employees
BMC contends that numerous problems will arise as a
result of the transient status of its house staff. It points
31 That some of the institutions with which BMC maintains affilia-
tions may be government entities over which the Board does not have
jurisdiction does not foreclose our assertion of jurisdiction over BMC.
See, e.g., Management Training Corp., 317 NLRB 1355 (1995).
32 The Regional Director noted that there are a number of house offi-
cers who are enrolled in BMC’s residency program but are paid by
other institutions, including approximately 15 house officers who are
included in the bargaining unit presently represented by the Petitioner.
All of these house officers are treated no differently from other house
officers on BMC’s payroll, including with respect to their training and
rotations. The 15 house officers who were included in the bargaining
unit receive the same wages and benefits as all other house staff. The
Petitioner seeks to include in the unit herein the 15 house officers who
it has historically represented. It appears that neither the Petitioner nor
the Employer contend that other house staff not on BMC’s payroll must
be included in the unit. Under these circumstances, we shall not at this
time determine whether the 15 historically represented house officers
shall be included in the unit found appropriate, but direct that those
individuals be permitted to vote under challenge.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 166
out that while the length of the residency training pro-
grams may vary, nearly all of the residents and fellows
leave BMC once they complete their respective training
program. It cites Board rulings that “temporary” em-
ployees are not eligible to vote in representation elec-
tions, because they do not have a sufficient interest to
participate in a representation election. It also contends
that there exists an even more fundamental issue regard-
ing the temporary nature of these house staff. Thus, it
avers that, because the house officers’ goal is to obtain
the necessary training to become Board certified and
independent practicing physicians, it is questionable
whether any of them have sufficient interest in terms and
conditions of employment to warrant participation in an
election. BMC argues that while house staff “may wish
to soften the more rigorous and demanding elements of
their own educational experience, they hold no genuine
interest in affecting the enduring relationship between
their program and future medical trainees.” Finally,
BMC contends that the rapid turnover of residents enter-
ing and graduating from the programs frustrates the in-
tent of the Act. It claims that between the time an elec-
tion petition is filed, the election results are certified, and
a collective-bargaining agreement is negotiated and rati-
fied, those residents who voted in the election would
likely be transferred to a different rotation and, equally
likely, would have graduated from the residency pro-
gram.
Although, at first blush, the Employer seems to raise a
troubling point, we ultimately find no merit to its argu-
ment. Ordinarily, “temporary” employees are not eligi-
ble to vote in a representation election. As we stated in
St. Thomas-St. John Cable TV, 309 NLRB 712, 713
(1992), citing Pen Mar Packaging Corp., 261 NLRB 874
(1982):
It is established Board policy that a temporary em-
ployee is ineligible to be included in the bargaining unit
and that an employee’s eligibility status is determined
by his status as of the eligibility payroll date. . . . The
critical inquiry on this date is whether the “temporary”
employee’s tenure of employment remains uncer-
tain. . . . [The] “date certain” eligibility test for tempo-
rary employees . . . does not require a party contesting
an employee’s eligibility to prove that the employee’s
tenure was certain to expire on an exact calendar date.
It is only necessary to prove that the prospect of termi-
nation was sufficiently finite on the eligibility date to
dispel reasonable contemplation of continued employ-
ment beyond the term for which the employee was
hired.
As we have set out above, every house officer at BMC
is there for a set period of time, in some instances for 3
years, or for as many as 7 years, depending on the par-
ticular residency program. Relatively few of these house
officers go on to become permanent staff physicians at
BMC.33 In this sense, then, all of BMC’s house staff
arguably are “temporary” employees because their em-
ployment will terminate on a date certain.
Nevertheless, we do not find that house staff are “tem-
porary” employees as the Board has defined that term.
Thus, the Board has never applied the term “temporary”
to employees whose employment, albeit of finite dura-
tion, might last from 3 to 7 or more years, and we will
not do so here. In many employment relationships, an
employee may have a set tenure and, in that sense, may
not have an indefinite departure date. Athletes who have
1, 2, or greater years’ length employment contracts are,
theoretically at least, employed for a limited time, unless
their contracts are renewed; work at a legal aid office
may be for a set 2-year period; a teaching assignment
similarly may be on a contract basis. To extend the defi-
nition of “temporary employee” to such situations, how-
ever, would be to make what was intended to be a limited
exception swallow the whole.
D. The Appropriate Bargaining Unit
BMC argues that if its house staff are employees under
the Act, the petition must be dismissed because the Peti-
tioner seeks to represent a unit that is not appropriate
under the Board’s Rule on collective-bargaining units in
the health care industry.34
BMC notes that in 1989, the Board promulgated the
Rule defining appropriate bargaining units for acute
health care facilities. BMC contends that, absent ex-
traordinary circumstances in which there are existing
nonconforming units, in acute care hospitals only the
following eight bargaining units will be found appropri-
ate by the Board: (1) all registered nurses; (2) all physi-
cians; (3) all professionals except for registered nurses
and physicians; (4) all technical employees; (5) all
skilled maintenance employees; (6) all business office
clerical employees; (7) all guards; and (8) all nonprofes-
sional employees except for technical employees, skilled
maintenance employees, business office clerical employ-
ees, and guards. BMC argues that, even if its house staff
are to be regarded as physicians, the petition must be
dismissed because it does not seek a unit of all physi-
cians. It notes that house staff are generally regarded as
“doctors” although some, as noted above, have only tem-
porary licenses. BMC further notes that it has on its pay-
roll at least two nonmanagement staff physicians, who
are also regarded as “doctors.” It contends that since the
Petitioner does not seek to include these two nonman-
agement staff physicians, the petition must be dismissed
as contrary to the Rule.
BMC further contends that the Rule’s exception for
“existing non-conforming units” will not solve this di-
lemma in that there is no such unit of employees but only

33 See fn. 29 of the attached Regional Director’s decision.
34 54 Fed.Reg. 16336 (1989), reprinted at 284 NLRB 1580.
BOSTON MEDICAL CENTER CORP. 167
a unit of students, since BMC has never recognized its
house staff to be anything but students, and certainly not
as employees. Accordingly, BMC contends, the Board
will be creating a ninth appropriate bargaining unit if it
finds appropriate a separate unit of house staff. BMC
further argues that the consequences of the Board certify-
ing a “partial unit of physicians” will have “significant
ramifications on a nation-wide basis.” In this regard,
BMC contends that, contrary to the Board’s rulemaking
and the admonition from Congress against undue prolif-
eration of bargaining units in the health care industry,
physicians at teaching hospitals could be fragmented into
two groups.
The Petitioner counters these arguments with the con-
tention that since, by its petition, it “seeks reversal of a
Board policy of 21 years’ duration and brings into the
ambit of the Act a whole class of previously excluded
employees, it is apparent that these circumstances are
extraordinary.” The Petitioner argues that the so-called
“attending physicians” have a “separate and distinct
community of interest” from the house staff, given that
they are significantly better paid and are appointed to the
faculty of the Boston University Medical School, and
that they regularly evaluate the performance of interns,
residents, and fellows under their supervision and direc-
tion. It does not address the possible inclusion of the two
nonmanagerial staff physicians in the bargaining unit. It
does argue, however, that should the Board reverse its
long-held policy that house staff are not employees under
Section 2(3) of the Act, the existing history of collective
bargaining in a distinct unit of house staff at BMC, and
the evidence of very sharp differences in salary, hours,
and duties plainly warrant a determination that extraordi-
nary circumstances exist which render appropriate a de-
parture from the Rule.
In considering the merits of the parties’ contentions, it
is obvious that when the Rule was considered and
adopted, house staff were excluded from all proposed
bargaining units, as well as from the units found appro-
priate in the final Rule, since under Cedars-Sinai, supra,
they were students who did not possess statutory organ-
izational rights. See Notice of Proposed Rulemaking and
Notice of Hearing, 52 Fed.Reg. 25142, 25417 (1987),
reprinted at 284 NLRB 1516, 1523. However, in ad-
dressing the appropriateness of a separate unit of physi-
cians in the Notice of Proposed Rulemaking, the Board
stated:
[M]ost physicians employed by hospitals are consid-
ered either supervisors, managerial employees, or (in
the case of interns and residents) students, and hence do
not have statutory organizational rights. . . .
Id. (Footnote omitted.) This language clearly indicates that
the Board deemed interns and residents to be “physicians”
for purposes of the Rule,35 and that but for their student
status, interns and residents under the Rule properly would
be included in the physicians unit, just as supervisory or
managerial physicians would be included in the physicians
unit but for the statutory and Board policies mandating their
exclusion.
In addition, even absent consideration of the above-
cited language in the Proposed Rule, the facts in the in-
stant case lead to the same conclusion; i.e., that house
staff properly are included in the unit of “All physicians”
under the final Rule, 54 Fed.Reg. 16336, 16348 (1989).
Thus, as more fully set forth above in the Facts portion of
our decision and in the attached Regional Director’s de-
cision, all house staff are medical school graduates who
have passed Parts 1 and 2 of the U.S. medical licensing
exam. The large majority (all except first year residents)
also have passed Part 3 of the licensing exam, and are
fully licensed physicians who may legally practice medi-
cine, without restriction.36 All house staff are qualified to
perform, and in fact do perform, medical procedures that
only licensed physicians are permitted by state law to
perform. Hence, it can fairly be said that house staff
possess the types of skills and are required to perform the
types of job duties common to other physicians, at simi-
lar, albeit not identical, skill levels.37
To be sure, there are some differences between the du-
ties performed and the skills possessed by BMC’s staff
physicians and the duties performed and the skills pos-
sessed by its house staff. But we find that these differ-
ences are insufficient to warrant creation of a ninth ap-
propriate unit in acute care hospitals (with two of those
nine units consisting of physicians). Similarly, we find
that the skills, duties, and training possessed by all phy-
sicians, including house staff, is sufficiently similar that
to place them in separate units would unduly fragment a
fairly homogeneous grouping of medical professionals.
Although the Petitioner does not explicitly argue the
matter, its unit contentions implicitly raise the question
of whether the Board should find the requested unit of

35 For this reason, and because the employment of house staff at
some acute care hospitals was well known to the Board, we find that
the Extraordinary Circumstances Exception of the Health Care Rule
does not apply herein. See Second Notice of Proposed Rulemaking, 53
Fed.Reg. 33900 (1988), which provides, in relevant part:
To satisfy the requirement of “extraordinary circumstances,”
a party would have to bear the “heavy burden” to demonstrate that
“its arguments are substantially different from those which have
been carefully considered at the rulemaking proceeding,” [such]
as, for instance, by showing the existence of such unusual and un-
foreseen deviations from the range of circumstances revealed at
the hearings and known to the Board from more than 13 years of
adjudicating cases in this field, that it would be unjust or an abuse
of discretion for the Board to apply the rules to the facility in-
volved.
53 Fed.Reg. at 33933 (footnotes omitted).
36 First-year residents (interns) possess a limited license to practice
medicine within the parameters of their residency program.
37 Cf. St. Luke’s Health Care Assn., 312 NLRB 139, 141 (1993).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 168
house staff appropriate as an historically recognized non-
conforming unit. The Health Care Rule explicitly per-
mits representation elections in nonconforming units in
only two situations—where the parties have stipulated to
an otherwise acceptable nonconforming unit, Section
103.30(d),38 or where a petition is for an additional unit
in the face of an existing nonconforming unit, Section
103.30(c).39 Neither situation is present here. The par-
ties have not stipulated to a house staff unit, and, al-
though the recognized house staff unit might be consid-
ered an existing nonconforming unit, the petition is not
for an additional (i.e., different) unit. An example of the
latter situation could be a petition for a unit of physicians
where there is an existing unit of house staff, but where
there is such a petition, the Board will find appropriate
such additional units which comport, “insofar as practi-
cable,” to the Rule. See generally, Kaiser Foundation
Hospitals, 312 NLRB 933 (1993) (severance of skilled
maintenance unit from larger nonconforming unit inap-
propriate); St. John’s Hospital, 307 NLRB 767 (1992)
(unit including only a portion of the remaining unrepre-
sented skilled maintenance employees inappropriate).
Nor do we agree, at least in the circumstances of this
case, that the existence of the historical unit of house
staff, established under the Massachusetts state public
employee collective-bargaining law, should be found to
be an “extraordinary circumstance” under Section
103.30(b) of the Rule,40 such that the requested unit of
house staff should be found appropriate notwithstanding
the provisions of the Rule. It is undisputed that there are
only two staff physicians employed by the Employer
who would be eligible for inclusion in a bargaining unit
of “all physicians.” Even assuming, but without decid-
ing,41 the existence of the historical unit constitutes an

38 “(d) The Board will approve consent agreements providing for
elections in accordance with paragraph (a) of this section, but nothing
shall preclude regional directors from approving stipulations not in
accordance with paragraph (a), as long as the stipulations are otherwise
acceptable.”
39 “(c) Where there are existing non-conforming units in acute care
hospitals, and a petition for additional units is filed pursuant to section
9(1)(A)(i) or 9(c)(1)(B), the Board shall find appropriate only units
which comport, insofar as practicable, with the appropriate unit set
forth in paragraph (a) of this section.”
40 “(b) Where extraordinary circumstances exist, the Board shall de-
termine appropriate units by adjudication.”
41 We note that the existing house staff unit is one that did not arise
under the auspices of Board law but is one that was established under
state authority. Thus, any request to have the Board recognize the
existing house staff unit as an historically recognized unit raises comity
issues similar to those presented to the Board after Congress gave it
jurisdiction over nonprofit hospitals. The Board’s attempts to grant
comity to state-recognized units were rejected by the courts as contrary
to Sec. 9(b) of the Act. See Long Island College Hospital v. NLRB, 566
F.2d 833, 841 (2d Cir. 1977); Memorial Hospital of Roxborough v.
NLRB, 545 F.2d 351 (3d Cir. 1976). Also, see generally LaCrosse Tel.
Corp. v. Wisconsin Employment Relations Board, 336 U.S. 18, 26
(1949) (“A certification by a state board under a different or conflicting
theory of representation may therefore be as readily disruptive of the
extraordinary circumstance in this regard, the fact that
there are only two employee-staff physicians convinces
us that the appropriate unit in this case must include
those individuals.
Accordingly, pursuant to the Board’s Final Rule on
collective-bargaining units in the health care industry,42
we find that the following employees of the Employer
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of the Act:
All physicians, including interns, residents and fellows,
employed by the Employer at its hospital located in
Boston, Massachusetts; excluding all other employees,
guards, and supervisors as defined in the Act.
[Direction of Election omitted from publication.]

MEMBER HURTGEN, dissenting.
For more than 20 years, the Board has held that in-
terns, residents, and fellows (house staff) are not em-
ployees entitled to bargain collectively under the Act.1
As discussed infra, the courts have endorsed this posi-
tion, as has the Congress of the United States. I see no
reason now to proceed 180 degrees in the opposite direc-
tion. Instead, I agree with the result and rationale
reached in those cases. I incorporate by reference the
rationale of those cases, and thus need not repeat it here.
I need only to add a few further thoughts.
First, the majority relies on two Supreme Court deci-
sions that have issued since Cedars-Sinai and St.
Clare’s.2 Those cases do not support the position of the
majority. Those cases hold only that it is permissible for
the Board to treat illegal aliens and paid union organizers
as employees. They do not require that these employees
be included in bargaining units. Similarly, it may be
permissible for the Board to treat house staff as employ-
ees. But surely the Board is not compelled to take the
position that they are entitled to be in bargaining units.
Rather, in all these cases, the Board makes a policy
choice to include or exclude the group at issue. This is
precisely what the Board did in Cedars-Sinai and St.
Clare’s. The Board there exercised its discretion by
holding that “collective bargaining should not be applied
to what is fundamentally an educational relationship.”3

practice under the federal act as if the orders of the two boards made a
head-on collision.”).
42 In view of our finding that the unit must, consistent with the
Board’s Health Care Rule, consist of all physicians employed by BMC,
the Employer’s contention that our finding a unit limited to house staff
to be appropriate would be based on the Petitioner’s extent of organiza-
tion, and thus violative of Sec. 9(c)(5) of the Act, is moot.
1 Cedars-Sinai Medical Center, 223 NLRB 251 (1976); St. Clare’s
Hospital & Health Center, 229 NLRB 1000 (1977).
2 NLRB v. Town & Country Electric, 516 U.S. 85 (1995); Sure-Tan
v. NLRB, 467 U.S. 883 (1984).
3 St. Clare's Hospital, 229 NLRB at 1004. In St. Clare’s, the Board
made it clear that it was “not renouncing entirely our jurisdiction over
[house staff].” Id. at 1003. Rather, the Board was simply declining, for
policy reasons, to place house staff in units for purposes of collective
bargaining.
BOSTON MEDICAL CENTER CORP. 169
The majority goes to some length to establish that
house staff fall within the statutory definition of em-
ployee. They thereby miss my essential point. I am not
necessarily suggesting that house staff cannot fall within
the statutory definition. Rather, I conclude that, as a pol-
icy matter, the Board should continue to exercise its dis-
cretion to exclude them for purposes of collective bar-
gaining.
No case has held that the Act compels a conclusion
that house staff are employees for purposes of collective
bargaining. Nor does the language of Section 2(3) com-
pel that result. That section provides that “the term ‘em-
ployee’ shall include any employee.” Thus, the Act de-
fines the word “employee” by reference to the word it-
self. This is hardly a statutory command that house staff
must be regarded as employees for bargaining purposes.4
Second, I note that all courts considering the matter
have upheld the Board’s discretion to exclude house staff
from the status of employees who are entitled to the col-
lective-bargaining provisions of the Act.5
Further, I note that, in 1979, Congress was presented
with a bill that would have specifically overruled Ce-
dars-Sinai/St. Clare’s, and would have required the
Board to treat house staff as unit employees. The pro-
posed legislation was rejected.
With respect to the legislative history of the 1974
healthcare amendments, the majority notes that Congress
rejected a bill that would have excluded house staff from
the ambit of supervisory status under Section 2(11) of the
Act. They argue that this legislative action demonstrates
that house staff are statutory employees. The argument
has no merit. The legislative proposal was based on a
concern that house staff would be supervisors, and the
proponents of the proposal wished to avoid that result.
The rejection of the proposal was based on a desire to
leave things as they were. Thus, if a house officer is a
supervisor under Section 2(11), he would remain a su-
pervisor (because the proposal was rejected). But, if the
house officer is not a supervisor under Section 2(11), it
does not follow that he is made into an employee by rea-
son of the rejection of the proposal. The proposal and its
rejection dealt only with the issue of whether these per-

In view of my position stated herein, I do not pass on the issue of
whether house staff are employees under Sec. 2(3) of the Act. I assume
arguendo that they are.
4 The section contains explicit exceptions (e.g., agricultural labor-
ers). These persons must be excluded. As explained above, others may
be excluded.
Sec. 2(12) of the Act (defining professional employees) does not
compel a finding of employee status. House staff have not “completed”
their education within the meaning of that section. Rather, their work
at the hospital includes continuing education. Further, even if house
staff fit the statutory definition of professional employees, the Board, as
a matter of policy, can choose to exclude them from bargaining units.
5 Physicians National House Staff Assn. v. Fanning, 642 F.2d 492
(D.C. Cir. 1980), cert. denied 450 U.S. 917 (1981); NLRB v. Committee
of Interns & Residents, 566 F.2d 810 (1977), cert. denied 435 U.S. 904
(1978).
sons are Section 2(11) supervisors. The debate did not
focus at all on the issue of whether house staff are em-
ployees within the meaning of Section 2(3). Thus, that
legislative history does not support the proposition that
house staff must be treated as employees. Indeed, I think
it ironic that the majority is quick to draw an inference
from this rejection of a legislative bill, but seeks to reject
the much clearer inference to be drawn from the rejection
of the 1979 bill that would have specifically endorsed the
proposition that house staff are Section 2(3) employees.6
The majority observes that no problems have devel-
oped in the public sector where house staff are involved
in collective bargaining. I would remind them that these
governmental employees do not have the right to strike.
The majority would now thrust house staff into the
NLRA sector where there is a right to strike. In these
circumstances, it surely does not follow that the absence
of strikes in the public sector will translate to an absence
of strikes under the NLRA.
The Board decision in Cedars-Sinai spoke correctly
about the danger of imposing collective bargaining on
academic issues. The majority responds by suggesting
that the parties will voluntarily forego bargaining with
respect to academic issues. I concede that it will likely
be the case that the employer will agree to this, but I am
far from certain that the union will voluntarily forego
bargaining in this area. In apparent recognition of this,
the majority goes on to suggest that, in this situation, the
Board will resolve whether a union proposal is a manda-
tory subject of bargaining. However, it may be years
before the Board and courts resolve the issue, and the
parties will be in the dark for this prolonged period.
Surely, this is not a recipe for stability.
Although the Board has the power to change long-
standing precedent, that change should be grounded in
experience. An agency can change its rules and policies
if there are “change[d] circumstances.”7 But, there is no
record evidence herein of “change[d] circumstances.”
More particularly, there is no record evidence that the
essentially educational nature of the house staff experi-
ence has changed to any appreciable degree in the past
20 years. Indeed, the Regional Director found, in the
instant case, that the graduate medical programs of Re-
spondent are substantially the same as those in Cedars-
Sinai and St. Clare’s.
In essence, there is no change in circumstances, but
only a change in Board member composition. I would
not alter longstanding and workable precedent simply
because of a change in Board membership. In my view,
the interests of stability and predictability in the law re-
quire that established precedent be reversed only upon a
6 I note that, in both cases, Congress was dealing with a proposed
amendment of earlier legislation. In 1974, the proposal was to amend
Sec. 2(11); in 1979, the proposal was to amend Sec. 2(3).
7 See Permian Basin Area Rate Cases, 390 U.S. 747, 784 (1968).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 170
showing of manifest need. There is no such showing
here.
Finally, in making my decision herein, I do not suggest
that collective bargaining for house staff would necessar-
ily have disastrous consequences for medical education
or for patient care. I simply believe that the risks were
sufficiently high that the Board chose, in 1976, to refrain
from granting bargaining rights to house staff. As dis-
cussed above, I do not believe there have been any sub-
sequent changes that would warrant a change from that
policy choice.

MEMBER BRAME, dissenting.
The majority today overrules 23 years of well-
established precedent and places in jeopardy the finest
system of medical education in the world. In finding that
medical interns, residents, and fellows are employees as
defined in Section 2(3) of the Act, the majority ignores
evidence clearly establishing that these individuals are
not employees but rather students, and thus are not enti-
tled to engage in collective bargaining. Accordingly, I
dissent from the Direction of Election.1
I. FACTS
BMC operates a teaching hospital in Boston, Massa-
chusetts, which, in addition to providing acute care
medical services to patients, serves as the primary teach-
ing facility for the Boston University School of Medi-
cine. As such, BMC offers 37 residency programs to
medical school graduates who seek to further their medi-
cal education. The Petitioner seeks an election in an ex-
isting, voluntarily recognized unit of interns, residents,
and fellows (residents) enrolled in these residency pro-
grams.2

1 I join the majority in denying the Employer’s Request for Review
of the Regional Director’s factual findings concerning the nature of its
residents’ duties and the extent of their supervision by the Employer’s
attending physicians, as I agree with my colleagues that the Employer
has not established that the Regional Director’s findings are incorrect.
In light of my conclusion that the petition should be dismissed for the
reasons stated herein, I find it unnecessary to pass on the remaining
questions presented, concerning the applicability of the health care unit
rule, the joint employer and jurisdictional issues raised by the Em-
ployer, the placement of residents who are not on the Employer’s pay-
roll, and the supervisory and/or managerial status of the Employer’s
senior residents.
2 See General Box Co., 82 NLRB 678 (1949) (voluntarily recog-
nized union may petition for election in order to secure benefits of
NLRB certification).
BMC is the successor institution to Boston City Hospital (BCH), a
department of the City of Boston and a public hospital, and Boston
University Medical Center Hospital (BUMC). The two institutions
merged in July 1996. Prior to the merger, BCH had recognized and
bargained with the Petitioner as representative of its residents pursuant
to state law. As a condition of the merger, BMC agreed to recognize
the Petitioner as representative of the former BCH residents. In August
1996, following a card check, BMC recognized the Petitioner as repre-
sentative of all residents at the merged entity.
As discussed below, residency programs are of varying length but all
require several years to complete. Residents are sometimes referred to
by their post-graduate year level, e.g. (PGY 1 for first-year residents).
A. History of American Medical Education3
During the colonial period, the primary mode of
American medical education was the apprenticeship sys-
tem. During the 19th century, apprenticeships were first
supplemented and then largely supplanted by training at
one of several dozen “proprietary” medical schools.
These schools were owned by their faculties and often
operated on a for-profit basis. Most were wholly inde-
pendent institutions, and even those which were affiliated
with a hospital or university retained nearly complete
autonomy.4
Admission standards for medical schools of this era
were virtually nonexistent. Most medical students had
only an elementary school education, and some were
illiterate. There were no official standards governing
these schools. The typical course of instruction consisted
of two 4-month terms of lectures on basic principles of
medical practice, with no laboratory or clinical training
or experience of any sort. After completing this cursory
program, students were awarded the M.D. degree. Be-
cause states at that time did not independently license
physicians, a medical school diploma itself was a license
to practice medicine anywhere in the United States.5
In response to the obvious deficiencies of these medi-
cal schools, some students elected to supplement their
education with practical experience through various
means. These included an apprenticeship with a skilled
preceptor; clinically oriented, nondegree-granting medi-
cal schools; serving in a hospital as a “house pupil”; or
European study following completion of an American
medical degree. Most 19th century physicians, however,
either did not, or could not, avail themselves of these
educational supplements.6
Throughout this period, it was thought to be unneces-
sary and undesirable to provide physicians with a back-
ground in the basic sciences such as physics, biology,
and chemistry as these disciplines were seen to have no
application to the practice of medicine. Rather, the aim of
medical education at the time was to provide students
with the facts they needed for clinical practice.7
This state of affairs proved increasingly unsatisfactory
in the years following the Civil War. It became apparent
that medical schools were failing to provide their stu-
dents with the education required for the practice of
medicine. Practitioners also were unsatisfied with the
quality of medical education, as they associated the lack

First-year residents are sometimes referred to as interns. Following the
completion of a residency program, some physicians elect to continue
their medical education through postresidency training programs
known as fellowships.
3 The following discussion of the history of medical education is
drawn from Ludmerer, Kenneth, Learning to Heal (New York 1985).
4 Id. at 11–15.
5 Id. at 11–13.
6 Id. at 16–18.
7 Id. at 22–24.
BOSTON MEDICAL CENTER CORP. 171
of meaningful training with the low status and pay pre-
vailing among physicians at the time. With the develop-
ment of experimental science during the 19th century,
especially in Germany, didactic educational methods
increasingly lost favor in American higher education
generally. American universities shifted their focus from
delivering predigested wisdom to passive students to
research and experimentation, as the proper means for
scientific education. Many of the brightest American
physicians experienced this form of education while fur-
thering their education in Germany after receiving their
M.D. degree in the United States, and they later sought to
apply the same principles to medical education in the
United States.8
These trends were consolidated and reified in the Car-
negie Foundation’s seminal 1910 report “Medical Educa-
tion in the United States and Canada,” now known as the
Flexner Report after its author, Abraham Flexner. The
Flexner Report asserted that medicine was a scientific
discipline and that the scientific method of observation
and evaluation of results was the only proper method for
its practice. Accordingly, Flexner advocated a system of
medical education in which students would learn by do-
ing, as contrasted with the passive reception of facts
through lectures which prevailed in many medical
schools of the time.9 Learning by doing, for Flexner, en-
compassed both clinical experience and the pursuit of
basic research, and represented the best means for both
transmitting scientific knowledge and teaching medical
students the scientific method which, in Flexner’s view,
should inform all aspects of the practice of medicine.
The achievement of these goals required a complete
transformation of the structure of medical education. In
order to support an aggressive program of experiential
learning, medical schools required both modern laborato-
ries and access to a teaching hospital where their faculty
could teach, and their students could acquire the skills of
a physician through the treatment of patients. This ad-
vanced scientific training required stringent admission
standards and, to support those standards and ensure a
vigorous program of basic scientific research, medical
schools generally affiliated with research universities.10
The Flexner Report’s recommendations were widely
accepted and completely changed the face of U.S. medi-
cal education. Freestanding medical schools which em-
phasized teaching instead of research were largely elimi-
nated. The proprietary schools were the first to go. The
remaining medical schools were reorganized and devoted
significant financial resources to upgrading their facili-

8 Id. at 29–46. 9 Id. at 166–175. Flexner’s faith in the value of “learning by doing”
drew heavily on the principles of the progressive education movement
which, led by reformer John Dewey and others, held that this was the
only proper means for effective education at all levels of the education
system. Id. at 167, 189–190.
10 Id. at 177–178.
ties. These new standards were initially enforced through
invigorated state licensing procedures which, among
other things, provided that “only graduates of ‘approved’
medical schools were permitted to apply for the license
to practice medicine.”11 Medical schools associated
themselves with research universities and acquired con-
trol of teaching hospitals. Control over medical education
thus passed decisively from practitioners, who had held
sway until then, to academic physicians, who often were
full-time employees of the medical school, and who fo-
cused their efforts on research and teaching. These re-
forms were largely implemented by the 1920s, and con-
tinue to form the guiding principles of U.S. medical edu-
cation.
B. Medical Education Today
1. Background
U.S. medical education today is a continuum begin-
ning with the first year of medical school and, for most
physicians, continuing on through completion of a resi-
dency or fellowship program. For many physicians, this
process continues with board certification in their spe-
cialty or subspecialty.
The first 2 years of medical school primarily consist of
lecture courses in which students further their education
in the basic sciences that are the underpinning of the
modern practice of medicine. In the third and fourth
years, medical students spend increasing amounts of their
time in a teaching hospital affiliated with their medical
school, learning practical skills and acquiring experience
by observing and participating in patient care activities.
These activities include: examining patients and taking
their medical history; drawing blood; inserting an IV;
and putting in a catheter.12
On graduation from medical school, students are
awarded the M.D. degree. They are then eligible, after
taking and passing parts 1 and 2 of the U.S. national
medical licensing examination, to receive a limited state
license to practice medicine. This limited license only
authorizes medical practice under the aegis of a resi-
dency program.
After successfully completing a 1-year internship and
passing part 3 of the U.S. national medical licensing ex-
amination, a resident is eligible for an unlimited state
license to practice medicine. However, without more
training, a physician would not generally qualify for ad-
mitting privileges at most hospitals. Rather, the vast ex-
panse of medical knowledge today makes specialization
necessary, and residency programs are the usual means
by which the necessary specialized training is obtained.13
11 Id. at 236.
12 Brief of Amicus American Medical Students Association at 4, 6.
13 Once they receive a general license from the state, some residents
choose to “moonlight,” i.e., practice medicine independently of their
residency program and sponsoring institution. Moonlighting residents
are employees: they work primarily for compensation; they contract
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 172
Most residency placements are made through the Na-
tional Residency Matching Program (NRMP). After a
period of interviews and school visits, graduating medi-
cal students, and residency programs, mutually rank their
preferences. Participating residency programs agree to
accept the medical students matched to their program,
and participating students agree to accept a residency in
the program to which they are matched.14 Each set of
rankings is sent to the NRMP, which matches the high-
est-ranking choices of the teaching hospital with the
highest-ranking choices of the medical students and noti-
fies the parties of the selection(s). Residency programs
are required to select successful applicants “on the basis
of their preparedness and ability to benefit from the pro-
gram to which they are appointed. Aptitude, academic
credentials, personal characteristics, and ability to com-
municate should be considered in the selection.”15 Resi-
dency programs all start on the same date, July 1.
In sum, residency programs follow an academic model
in all respects. They begin on the same day; run for a
specific number of years, which varies depending on the
discipline or specialty involved; and students who are
accepted into a particular residency program generally
stay at the same institution for the complete course of
instruction.
Residents who successfully complete an accredited
residency program receive a diploma from the sponsor-
ing institution and, because the program is accredited, are
generally eligible to sit for an examination in their cho-
sen specialty administered by the appropriate medical
specialty board. The requirements for board certification
vary from one specialty to another. In general, however,
a candidate must: (1) have graduated from an accredited
medical school; (2) have a valid state license to practice
medicine; (3) have completed an accredited residency
program and any additional training required by the spe-
cialty board; and (4) take and pass the required examina-
tion(s). Upon successful passage of the certification pro-
cess, a physician may hold him or herself out as “Board-
certified” in the relevant specialty. It is after receiving
their Board certification that most physicians actually
begin their chosen vocation.
2. The accreditation process
Residency programs and the institutions that sponsor
them are accredited by the Accreditation Council for
Graduate Medical Education (ACGME), which has
promulgated detailed standards for accredited residency

individually with their employer; they generally may admit patients;
their work is not subject to the supervision imposed by residency pro-
grams; work is assigned based on their employer’s needs and usual
considerations of efficiency and ability; and they are paid according to
work performed as defined by their individual contract.
14 Fellows are not subject to the NRMP process; they apply for and
are accepted to fellowships on an individual basis.
15 See Graduate Medical Education Directory 1996–1997 (GME Di-
rectory) (P. Exh. 19) at 27.
programs and institutions.16 These standards, known as
the “Essentials of Accredited Residencies in Graduate
Medical Education: Institutional and Program Require-
ments,”17 specify detailed standards which all residency
programs must meet in order to become and remain ac-
credited. These include: eligibility standards for admis-
sion; criteria for resident selection; and rules respecting
compensation and benefits as well as the conditions un-
der which residents receive training and participate in
patient care.18
ACGME also maintains residency review committees
(RRCs) for each specialty. Each RRC consists of repre-
sentatives appointed by the American Medical Associa-
tion, the appropriate specialty board, and, in some cases,
a national specialty organization.19 The RRCs establish
the specific curricular standards for that medical spe-
cialty’s accredited residency programs, and also periodi-
cally review residency programs for compliance with
both the general and specific ACGME requirements and
grant accreditation to programs which meet the stan-
dards.
The Essentials limit eligibility for appointment to a
residency program to graduates of accredited U.S. or
Canadian medical schools or foreign medical graduates
who satisfy specified criteria. Enrollment of noneligible
residents may result in withdrawal of accreditation. The
Essentials require residency programs to provide com-
pensation based on a resident’s program year (as opposed
to merit-based pay) and require programs to justify ex-
ceptions. Residency programs are also required to pro-
vide professional liability insurance to all residents meet-
16 ACGME has five sponsors, each of which appoints members to
the council: the American Medical Association (AMA), the American
Association of Medical Colleges (AAMC), the American Board of
Medical Specialties (ABMS), the Council of Medical Specialty Socie-
ties (CMSS), and the American Hospital Association (AHA).
ACGME’s sponsoring organizations also review and accredit medical
schools. Hospitals, including teaching hospitals, are periodically evalu-
ated and accredited (or reaccredited) by the Joint Committee on Hospi-
tal Accreditation.
17 See GME Directory at 23–28.
18 Id. at 27. The ABMS, an association of national medical specialty
boards, also plays a role in the accreditation process for residency pro-
grams. Its membership consists of the following national medical spe-
cialty boards: Anesthesiology, Colon and Rectal Surgery, Dermatology,
Emergency Medicine, Family Practice, Internal Medicine, Medical
Genetics, Neurological Surgery, Nuclear Medicine, Obstetrics and
Gynecology, Opthamology, Orthopaedic Surgery, Otolaryngology,
Pathology, Pediatrics, Physical Medicine and Rehabilitation, Plastic
Surgery, Preventive Medicine, Psychiatry and Neurology, Radiology,
Surgery, Thoracic Surgery, Urology, and Allergy and Immunology.
ABMS is a constituent of the ACGME and of the Council for Medical
Affairs, the Accreditation Council for Continuing Medical Education,
the NRMP, the National Board of Medical Examiners, and the Educa-
tional Commission for Foreign Medical Graduates. Both through the
ACGME and independently, the ABMS and its members participate in
the establishment of national standards and requirements for graduate
medical education, continuing medical education for practicing physi-
cians, and state medical licensing exams.
19 GME Directory at 11.
BOSTON MEDICAL CENTER CORP. 173
ing specific criteria as well as access to disability insur-
ance where available.20
Each sponsoring institution must establish a graduate
medical education (GME) committee with responsibility
for advising on and monitoring all aspects of residency
education. These committees are expected to include
residency program directors, faculty, and residents
among their membership. In addition, the GME commit-
tees are responsible for establishing and implementing
institutional policies for discipline and adjustment of
grievances relating to the institution’s residency pro-
grams. Grievance procedures must satisfy the require-
ments of fairness and due process and apply equally to
all residents, faculty, and residency programs in the
sponsoring institution.21
The Essentials require residency programs to “provide
appropriate supervision for all residents as well as a
working environment and duty hour schedule that are
consistent with proper patient care and the educational
needs of residents.”22 Supervision must afford each resi-
dent with increasing levels of responsibility for patient
care, in line with their increasing experience and ability.
Residency programs must insure that teaching staff are
readily available to residents on duty, and may not rely
on residents to fulfill institutional service obligations to
the detriment of their educational and learning objec-
tives, or impose excessive duty or on-call schedules.
Residency programs are required to provide backup
when patient care responsibilities are especially difficult
or prolonged, and to allow residents to participate in the
educational, scholarly, and other medical staff activities
of the sponsoring institution.23
3. Curricular standards
Each residency program must also meet the specific
curricular standards established by the appropriate RRC.
Some specialties require programs to enroll a minimum
number of residents to achieve or retain accreditation;
others do not. Residency programs vary in duration, with
most lasting 3, 4, or 5 years, although some are of longer
duration. Residents’ hours vary substantially between
specialties, as does the mix between academic and clini-
cal time. All residents spend some of their time in purely
didactic educational settings (lectures, journal clubs, and
the like) and some of their time in direct patient-related
activities. These differences turn in large part on the na-
ture of the specialty for which the resident is training. In
this regard, a comparison between the requirements for
general surgery and pathology residencies is instructive.
A general surgery residency is a 5-year program which
covers both “the fundamentals of basic science as applied
to clinical surgery” and “experience in preoperative, op-

20 Id. at 27.
21 Id. at 26.
22 Id. at 28.
23 Id.
erative, and postoperative care for patients in all areas
that constitute the principal components of general sur-
gery . . . .”24 The surgery curriculum includes actual ex-
perience in the performance of endoscopic surgery,
emergency medical and intensive care, and personal
clinical experience in various surgical specialties.
While the total number of operations to be performed
by each resident is not specified, “an acceptable range is
from 500 to 1,000 major cases over all 5 years, with from
150 to 300 major cases in the chief [final] year.” These
surgeries must be distributed to provide a balanced ex-
perience in surgery on the “head and neck, breast, skin
and soft tissues, alimentary tract, abdomen, vascular sys-
tem, and endocrine system,” and the comprehensive
management of trauma, burns, and emergency surgery
and surgical critical care.25 This must include participa-
tion in preoperative and postoperative care as well as in
operations themselves. All care provided by residents
must be supervised by an attending physician, who must
in all cases be immediately available for consultation and
support.26 To avoid inducing “undue stress and fatigue,”
it is considered “desirable” that residents’ workloads be
structured so that they have at least 1 day out of 7 free of
routine responsibilities and be on call in the hospital no
more often than every third night.27
A residency in anatomic and clinical pathology is 4
years long and must include 18 months of formal educa-
tion in anatomic pathology and 18 months of formal edu-
cation in clinical pathology.28 The pathology residency
curriculum must include education in, inter alia, anat-
omic and surgical pathology, immunopathology, cytopa-
thology, microbiology, hematology, and medical micros-
copy. Residents are expected to perform at least 75 au-
topsies, examine and sign out at least 2000 surgical pa-
thology specimens, examine at least 1500 cytologic
specimens, perform at least 200 operating room consulta-
tions or frozen sections, and have a laboratory workload
of at least 500,000 workload units during the course of
the program.29
The teaching staff of a pathology residency program
must, as a whole, demonstrate broad involvement in re-
search and scholarly activity and programs are expected
to encourage residents to participate in clinical or labora-
tory research projects.30 To provide a broad educational
experience, sponsoring institutions are required to have
at least three additional accredited residency programs
and should have at least two residents enrolled in each
24 Id. at 286.
25 Id. at 289.
26 Id.
27 Id. at 290. Programs must also insure that their on site library is
“readily available during nights and weekends.” Id. at 289.
28 Id. at 176. Three year programs in either anatomic or clinical pa-
thology are also available.
29 Id. at 178–179.
30 Id. at 179.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 174
program year.31 Pathology residents should, on average,
have the opportunity to spend at least 1 full day out of 7
free from hospital duties and should be on call no more
often than every third night.32
4. Supervision by attending physicians
Attending physicians play a critical role in a residency
program’s clinical education process. They are the physi-
cian of record for all patients seen by a resident and re-
sponsible for patient admissions and the formulation of
each patient’s plan of care. The attending physician is,
thus, in effect the chief instructor for each resident’s (and
each medical student’s) clinical education. They typically
work in assigned teams consisting of an attending physi-
cian, a chief resident, junior residents, PGY 1s, and
medical students.33
Each residency program must identify the attending
physicians who constitute its faculty.34 These physicians,
in conjunction with the residency program director and
the chief of service, supervise the residents and assign
clinical responsibilities to them based on the residents’
demonstrated skill and educational needs. These assign-
ments are coordinated with the didactic component of the
residency program as part of a systematic course of in-
struction. As indicated below, the exact nature of the
supervision depends on the service to which the resident
is assigned. Consistent with the mandatory requirements
of the Essentials, however, all patient care provided by
residents at the sponsoring institution must be supervised
by an attending physician.35
5. Clinical functions
For most specialties, first-year residents rotate through
different departments and areas of a hospital in line with
the specific requirements of their residency program. In
order to meet specific requirements of their clinical edu-
cation, some residents also rotate through hospitals other
than their sponsoring institution, and one or several co-
operating institutions may jointly offer a residency pro-

31 Id. at 176, 178.
32 Id. at 179.
33 In practice, chief residents also oversee the work of more junior
residents at least to some degree.
34 At BMC, 99 percent of the attendings are also members of the
faculty of the Boston University School of Medicine.
BMC’s attendings are technically employed by the Faculty Practice
Plan Foundation, Inc., which is an umbrella corporation for the various
subsidiary practice plans in place for each department within the hospi-
tal. BMC and the School of Medicine are both members of the corpora-
tion, and attendings receive support from both the Faculty Practice Plan
and the School of Medicine. Attendings receive their paychecks from
the School of Medicine, which hires the attendings and serves as the
common paymaster for the two entities.
35 The Essentials provide as follows:
Residents must be supervised by teaching staff in such a way
that the residents assume progressively increasing responsibility
for patient care according to their level of training, their ability,
and their experience. On-call schedules for teaching staff must be
structured to ensure that supervision is readily available to resi-
dents on duty.
gram. After the first year, residents generally do not ro-
tate, but instead increasingly focus on developing skills
and acquiring experience in their chosen specialty.
The day-to-day clinical functions performed by a resi-
dent depend on the service to which he or she is as-
signed.
Internal Medicine. Resident begin the day with
“rounds,” in which a team of residents, interns, medical
students, and an attending physician check on and dis-
cuss the status of each patient in their assigned ward.
Thereafter, the residents order X-rays, consults, lab tests,
and other treatments, and themselves perform certain
procedures. In emergency situations, residents will re-
spond and provide the required care (e.g., resuscitating a
patient who has stopped breathing) without an attending
physician. However, an attending physician is always the
physician of record for all patients and must approve all
hospital admissions, treatments, and discharges.
Radiology. Radiology residents review a patient’s
films and draft a preliminary report, which is then re-
viewed and signed off on by an attending physician. For
emergency cases at night, when no attending is present,
the resident will render an interpretation of the image and
the attending will review and sign off on the interpreta-
tion the following day.
Pathology. Pathology residents review slides of tissue
samples and make a preliminary diagnosis which is then
discussed with an attending pathologist, who signs off on
the final report. This is true even with respect to “frozen
sections,” i.e., cases where a pathology diagnosis is re-
quired while a patient is undergoing surgery. Residents
are forbidden to give a diagnosis to the surgeon without
prior review by an attending pathologist even under those
circumstances. All autopsy reports also must be approved
by an attending pathologist.
Surgery. Surgery residents personally perform part of
or all of all surgical procedures, and are allowed to per-
form more complicated procedures (and/or parts of pro-
cedures) as their experience increases. However, an at-
tending physician must be physically present (scrubbed
in) for the critical parts of all procedures, and readily
available for consultation during the entire operation.
6. Summary
In summary, medical education is a continuous process
of at least 7 to 10 years in duration. It begins in medical
school with didactic instruction in the basic sciences and
clinical work and moves, according to a proscribed path
developed by each specialty, through graduate medical
education and board certification. All of this is a prelude
to a physician’s independent medical practice. The model
of clinical education on which U.S. medical education is
built necessarily requires increasing clinical responsibili-
ties as a resident progresses through his or her course of
study. However, those clinical duties must be performed
under the supervision of an attending physician, whose
BOSTON MEDICAL CENTER CORP. 175
purpose is to further the resident’s educational develop-
ment and preparation for Board certification.
II. PRECEDENT
Under an unbroken line of precedent beginning with
the first case in which the Board addressed the issue and
reaching back more than 20 years, the Board has uni-
formly held that residents are students primarily involved
in an educational process and therefore not “employees”
entitled to engage in collective bargaining within the
meaning of Section 2(3) of the Act.36 Until today, the
Board has, with court approval and Congressional accep-
tance, consistently dismissed petitions for elections in
units of medical residents.37
III. THE MAJORITY’S OPINION
It is undisputed that, under the precedent set forth
above, the residents sought to be represented in this case
are not employees entitled to engage in collective bar-
gaining and, accordingly, under existing law, the petition
must be dismissed. The majority, however, rejects the
Board’s precedent in this area as wrongly decided and
today seeks to overrule it. According to the majority,
even if medical residents are considered to be students,
they nevertheless meet the Act’s definition of an “em-
ployee” because they (1) work for an employer within
the meaning of the Act; (2) provide patient care for that
employer; and (3) are compensated for their services.38
The majority also finds support in cases in which the
Board has at least implicitly found that other workers in
training programs are employees, including construction
and manufacturing apprentices, architects, and embalm-
ers. The majority asserts that the statutory definition of
“professional employee” in Section 2(12) and the legisla-
tive history of the Act, as amended, further support their
finding that residents are employees. Finally, the major-
ity notes that residents are considered to be “employees”
for the purposes of other federal statutes and for the pur-
pose of collective bargaining under the public sector la-
bor relations statutes of many States.
IV. ANALYSIS
The Supreme Court has consistently recognized that
individuals may fall within the literal meaning of the
term “employee” and yet be excluded from the Act’s
coverage entirely, or for certain purposes, based on a

36 Cedars-Sinai Medical Center, 223 NLRB 251 (1976). See also St.
Clare’s Hospital & Health Center, 229 NLRB 1000 (1977).
37 Physicians National House Staff Assn. v. Fanning, 642 F.2d 492
(D.C. Cir. 1980), cert. denied 450 U.S. 917 (1981). See also NLRB v.
Committee of Interns & Residents, 566 F.2d 810 (2d Cir. 1977) (up-
holding Board’s determination that state labor board’s jurisdiction over
residents preempted), cert. denied 435 U.S. 904 (1978).
38 My colleagues cite, in support of this proposition, Sure-Tan, Inc.
v. NLRB, 467 U.S. 883 (1984) (Board reasonably found that illegal
aliens are “employees” covered by the Act), and NLRB v. Town &
Country, 516 U.S. 85 (1995) (Board reasonably found that paid union
organizers are “employees”).
consideration of Congressional intent and national labor
policy. See NLRB v. Hendricks County Rural Electric
Membership Cooperative, 454 U.S. 170 (1981) (confi-
dentials whose duties have “labor nexus” properly ex-
cluded from collective-bargaining units); NLRB v. Bell
Aerospace Co., 416 U.S. 267 (1974) (managerial em-
ployees excluded from protections of Act.).39 As the D.C.
Circuit recognized in Physicians National House Staff
Assn. v. Fanning, supra, the absence of an express exclu-
sion for residents therefore is not determinative of their
status under the Act. Rather, “for policy reasons persons
who are literally ‘employees’ may nonetheless be ex-
cluded from coverage under the Act.” Id. at 497.
The majority, ignoring these principles, considers the
statutory term “employee” in isolation, without taking
into account the fact that all of the clinical duties—which
they assert are indicia of employee status—take place in
the context of the medical educational process. The ma-
jority’s finding of employee status thus ignores the poli-
cies that the Act is designed to promote.
A. Residents are Students
My colleagues do not dispute that medical residents
are students engaged in an educational process, for the
record indisputably demonstrates this fact. Thus, resi-
dency programs are a continuation of the educational and
training process that begins with medical school.40 As
noted above, the mix between medical school clinical
and academic components changes over time, so that
third- and fourth-year medical students, like residents,
are necessarily involved in patient care services as part of
their clinical educational program. This relationship is
39 When the Board has construed the scope of the Act too broadly,
without regard for its underlying purposes, Congress has not hesitated
to legislatively reverse the Board’s error. See, e.g., NLRB v. Hearst
Publications, Inc., 322 U.S. 111, 130 (1947) (Board failed to apply
common law agency principles in determining independent contractor
issues); Packard Motor Car v. NLRB, 330 U.S. 485 (1947) (supervisors
included in bargaining unit); NLRB v. E. C. Atkins & Co., 331 U.S. 398
(1947) (affirming Board’s order requiring employer to bargain with
Machinists local as representative of its plant guards). Each of these
decisions was legislatively overruled, within a year of its issuance, by
the Taft-Hartley Act. Furthermore, in rejecting the position of the
Board and the Supreme Court in E. C. Atkins, that plant guards were
indistinguishable from other employees with regard to their rights un-
der the Act, Congress “was impressed by the dissenting views of Board
Member Reynolds in such cases as Monsanto Chemical Co., 71 NLRB
11 (1946), wherein he argued that the Board has a duty to decline the
use of its processes in order to avoid encouraging the creation of rela-
tionships which are incompatible with the Act and are inherently un-
sound labor practices.” Teamsters Local 807 v. NLRB, 755 F.2d 5, 8
(2d Cir.), cert. denied 474 U.S. 901 (1985). Ignoring these lesson, the
majority is apparently determined to repeat the errors of the past by
encouraging the creation of bargaining relationships which are incom-
patible with the Act.
40 The close relationship between medical education in medical
school and graduate medical education in a residency program is high-
lighted in this case by the fact that 99 percent of BMC’s attendings are
also members of the faculty of the School of Medicine and the close
relationship between BMC and the School of Medicine with regard to
the operation of the residency programs, as discussed above.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 176
reflected in the composition of teaching hospital teams
which, as previously noted, include third- and fourth-
year medical students as well as residents and an attend-
ing physician. While residents obviously perform more
complicated procedures than medical students and with
less oversight, chief residents likewise perform more
complicated procedures than junior residents. This pro-
gression simply reflects the very nature of clinical educa-
tion.
Every aspect of the resident’s relationship to a teach-
ing hospital is controlled by the national accreditation
process and is educational in nature. As noted above,
residents generally are appointed to residency programs
pursuant to a computerized “match” process, by which
residency programs agree to accept applicants chosen by
an algorithm rather than through individual selection or
negotiations. Thereafter, all residents at an institution are
classified according to the number of years they have
been at the institution, rather than by evaluations or
merit, the particular specialty which they are studying, or
on the value to the institution of the residents’ clinical
activities. Moreover, as noted above, the length in years,
typical hours worked, and clinical/didactic components
vary widely among different residency programs, even at
the same sponsoring institution. In contrast, due to the
uniform national accreditation requirements, residency
programs in particular specialties at different institutions
have similar curricula, hours of work, and other require-
ments.
Thus, medical residencies last for a fixed period of
years, which varies according to the specialty program
involved. Residents move through the program on a
graduated basis according to a scheme devised by na-
tional accrediting authorities. The skills that they acquire
are measured by the three parts of the U.S. medical li-
censing examination and serve as building blocks for the
acquisition of further skills, all of which are required for
graduation from the program and board certification in
their chosen specialty.
On successful completion of the residency program,
residents receive a diploma and then seek employment.
With few exceptions, they do not seek or obtain em-
ployment at the hospital where they served as residents.
Any such employment, whether at a hospital, in a general
practice group, or at the sponsoring institution, is entirely
separate from the residency program. All of these factors
differ markedly from the usual elements found in em-
ployment relationships.
As noted above, the majority finds that residents nev-
ertheless are employees for three reasons: they (1) work
for an employer within the meaning of the Act; (2) pro-
vide patient care for that employer; and (3) are compen-
sated for their services. As shown below, none of these
asserted indicia support the majority’s position.
1. Working “for” an employer
To be sure, residents work “at” teaching hospitals;
however, the majority fails to justify their finding that
residents work “for” the hospital in the usual manner in
which an employee works for an employer. As noted
above, residents are paid by the hospital which sponsors
their residency program, but are overseen by attending
physicians, who may be independent businesspersons or
members of independent practice groups, and their cur-
riculum is controlled by yet a third group—the ACGME
and its various constituent organizations—which,
through the RRCs, accredits the residency program. The
clinical services provided by the resident benefit the resi-
dent, by furthering his or her education, not the hospital.
These complexities are not present in an employment
relationship. They further demonstrate the educational
nature of residency programs, and call into question the
majority’s simplistic assertion that residents work “for”
the hospitals which, in the majority’s view, are their sup-
posed employers.
2. Providing direct patient care
The majority relies on the fact that residents provide
“direct patient care” as critical support for their finding
that medical residents are statutory employees. In doing
so, however, my colleagues ignore the undisputed evi-
dence that the provision of direct patient care is an indis-
pensable component of medical education.41 The patient
care responsibilities assigned to residents are made for
the purpose of furthering the resident’s medical educa-
tion.42 These assignments address the resident’s educa-
tional needs, often by correcting a student’s weaknesses,
and thus are quite the opposite of employer assignments,
which address the employer’s needs, usually by focusing
on an employee’s strengths to achieve maximum output.
Clinical assignments are, accordingly, carefully struc-
tured to provide residents with increasingly complex
cases, thereby allowing them to build on their prior ex-
periences in an organized fashion until they are able to
leave the institution and practice medicine independ-
ently. As such, they are completely unlike employer
training, where the focus is on obtaining a fully trained
(and more valuable) employee—much less the normal
assignment of work to a trained employee.
At every step of the educational process, attending
physicians remain ultimately responsible for the patient’s
care and are required by the Essentials to supervise the
work of the residents at all times.43 And, consistent with

41 Indeed, third and fourth year medical school students also provide
“direct patient care.” Under the majority’s analysis, presumably they
are hospital employees as well.
42 For this reason, the ideal teaching hospital has a high volume of
patients with a wide range of challenging medical conditions. In light of
their educational mission, many teaching hospitals are affiliated with
nonprofit institutions.
43 As noted above, the attending physicians are not employed by
BMC, the alleged employer of the residents in this case. The absence of
BOSTON MEDICAL CENTER CORP. 177
the educational nature of residents’ clinical duties, Medi-
care regulations prohibit teaching hospitals from charg-
ing Medicare for the patient care services provided by
residents. 42 CFR § 415.200. Thus, when a resident par-
ticipates in a medical procedure or furnishes “direct pa-
tient care” in a teaching setting, Medicare reimbursement
is available to the institution only if an attending physi-
cian is physically present and supervising the procedure
or consultation as physician of record. 42 CFR
§ 415.172(a).
Appropriately recognizing the duplication of effort and
institutional costs represented by the presence of medical
students and residents in trainee status, Medicare pro-
vides direct subsidies to teaching hospitals as support for
the cost of their teaching programs. See 42 CFR
§ 413.86. The fact that the Federal Government denies
reimbursement for resident services but subsidizes
graduate medical education further demonstrates the es-
sentially educational nature of medical residencies, as
these subsidies are akin to those provided to educational
institutions for undergraduate and graduate education in
other settings.
The historical development of medical education sup-
ports the view that residency programs are educational in
nature. As noted above, clinical teaching methods were
instituted to replace the antiquated didactic instructional
methods used in medical education for most of the 19th
century and to raise the level of medical education to that
of other scientific disciplines. Then, as now, clinical edu-
cation existed to promote educational objectives. It is,
therefore, ironic that the majority would seize on the
enormously successful clinical teaching methods which
were developed for educational purposes and independ-
ently of the needs of hospitals, as the basis for finding
that graduate medical education is employment and not
education.
3. Receive compensation “for” their services
The majority appears to recognize that compensation,
while an essential element of any finding of employee
status, is not sufficient in and of itself. In this regard, the
fact that residents receive a stipend does not, without
more, establish that they are employees, as the stipend is
not, contrary to the majority’s assertion, compensation
“for” their services. To the contrary, everything about the

direct supervision of residents by individuals employed by BMC fur-
ther distinguishes this case from the typical employer-employee rela-
tionship. Compare, Northeast Utilities Service Corp. v. NLRB, 35 F.3d
621 (1st Cir. 1994) (distribution coordinators employed by utility con-
sortium held not supervisors of employees of member utilities).
Contrary to the majority, that residents sometimes perform emer-
gency procedures and surgery without prior discussion or approval by
an attending does not undercut the evidence demonstrating that their
work is pervasively supervised by attending physicians. Emergencies
are, by definition, exceptions to the general practice and, in any event,
the record is clear that residents report to an attending concerning any
emergency procedures as soon afterwards as possible.
financial arrangements for residency programs demon-
strates that the stipends received by residents are for the
purpose of supporting the individual during a lengthy
graduate education program. The payments are based
upon status—a resident’s program year—and do not vary
based on the nature or amount of clinical work per-
formed by a resident or program. Because residency ar-
rangements are complex and often involve many institu-
tions, it is not clear that the entity which pays the stipend
is in all cases the entity which is reimbursed for the ser-
vices provided to the patient nor, in light of the substan-
tial costs of operating a residency program, is it clear that
any of the parties to the transaction derives a net finan-
cial gain from the residents’ clinical activities.44 The ma-
jority fails to justify their conclusion that the stipend is a
quid pro quo for some quantum of clinical services pro-
vided under these circumstances.
In contrast, there is no question that the compensation
received by residents who “moonlight” outside their
residency program is compensation for their services.
Moonlighting residents are assigned work based on usual
considerations of efficiency and the employer’s needs
and make patient care decisions without the supervision
and review imposed by their residency program. This
work, whether performed at the same institution as their
residency program or a different institution, is governed
by a separate contract unrelated to their residency train-
ing program and is based solely on their M.D. degree and
state medical license. The contrast between the residents’
status in the moonlighting setting and in their residency
program illustrates the quintessentially educational na-
ture of the latter relationship.
It is important to recognize that students are required
by their educational program to acquire “hands on” ex-
perience in a variety of settings. See, e.g., Pawating Hos-
pital Assn., 222 NLRB 672 (1976) (co-op students);
Leland Stanford Junior University, 214 NLRB 621
(1974) (research assistants). The Board has consistently
taken the relationship between the educational program
and the work performed into account in its decisions. Id.
This course properly reflects the fact that educational
interests “are completely foreign to the normal employ-
ment relationship and . . . are not readily adaptable to the
collective-bargaining process.” St. Clare’s, supra, 229
NLRB at 1002. The majority fails to justify its departure
from these wise principles in this case.
44 The unprofitability of graduate medical education is well recog-
nized. See, e.g., Bitter Pills for Ailing Hospitals (N.Y. Times Oct. 31,
1999 sec. 3 p. 1) (“Academic medical centers play a vital role in
American health care . . . . They treat the toughest cases and train the
best new doctors.”); New Doctors Step Into a Turbulent World (N.Y.
Times Nov. 14, 1999 pp. 1, 32–33) (discussing effects of cost cutting
on training programs). In a related vein, medical schools absorb a
disproportionate share of higher education dollars reflecting the expen-
sive, and highly subsidized nature of medical education. See Ludmerer,
supra at 272.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 178
B. Finding that Residents are Employees is Inconsistent
with the Policies of the Act
The majority’s finding that residents are employees is
inconsistent with the underlying structure and assump-
tions of the Act as well as the policies the Act was in-
tended to promote.45
First, the Congressional findings and declaration of
policy reflect the belief of Congress that “the inequality
of bargaining power between employees . . . and em-
ployers” was a root cause of the Great Depression and of
strikes and other interruptions to commerce, and that the
Act was therefore designed to “restor[e] equality of bar-
gaining power between employers and employees.” 29
U.S.C. § 151. As Senator Wagner, the principal architect
of the Act, stated, the purpose of the Act is to counter-
balance the power of employers

by the equal organization and equal bargaining power
of employees. Such equality is the central need of the
economic world today. It is necessary to insure a wise
distribution of wealth between management and labor,
to maintain a full flow of purchasing power, and to
prevent recurring depressions

I Leg. Hist. 15 (NLRA) (remarks of Sen. Wagner, 78
Cong.Rec. 3443 (Mar. 1, 1934). And “[t]he main purpose of
such collective dealing is to establish minimum standards in
wages, hours, and working conditions.” I Leg. Hist. 318
(NLRB). See also American Ship Building Co. v. NLRB,
380 U.S. 300, 316 (1965) (a purpose of the Act is “to re-
dress the perceived imbalance of economic power between
labor and management.”); NLRB v. Yeshiva University, 444
U.S. 672, 680 (1980 (the Act was intended to accommodate
industrial management-employee relations, as contrasted
with the collegial practices of academic institutions).
The primary purpose for which a physician undertakes
a residency, in contrast, is to gain certification in a spe-
cialty—not the wages, benefits, or working conditions
that the residency program affords. Indeed, one of Peti-
tioner’s witnesses acknowledged that residents would
immediately leave a program that had lost its accredita-

45 That residents are considered to be employees for the purpose of
other Federal laws, and are required to pay taxes on their stipend, does
not compel the conclusion that they are employees for the purposes of
the Act. Thus, the laws prohibiting discrimination on the basis of race,
religion, age, sex, etc., serve different policies than the Act, and com-
pliance with them imposes different burdens than are involved in the
case of the Act. Prohibiting residency programs from engaging in pro-
hibited discrimination may be consistent with the purpose of Federal
antidiscrimination laws (certainly it is consistent with the treatment of
other educational programs under Federal civil rights laws). But these
laws require only that the institution refrain from engaging in prohib-
ited discrimination. The Act requires covered employers to bargain
with the representative of their employees concerning a host of matters
not regulated by the antidiscrimination laws. Before finding that resi-
dents are employees under the Act, the Board must determine whether
imposing these requirements on teaching hospitals is consistent with
the national labor policy. As shown, it is not.
tion “because they would be crazy to spend a moment of
time working in a situation where you weren’t going to
get credit for it.”
The Act is also premised on the view that there is a
fundamental conflict between the interests of the em-
ployers and employees engaged in collective bargaining
under its auspices. As the Supreme Court observed in
General Bldg. Contractors Assn. v. Pennsylvania, 458
U.S. 375, 394 (1982) (quoting NLRB v. Insurance
Agents, 361 U.S. 477, 488 (1960)), “[t]he entire process
of collective bargaining is structured and regulated on the
assumption that ‘[t]he parties . . . proceed from contrary
and to an extent antagonistic viewpoints and concepts of
self-interest.” The Board has also recognized that collec-
tive bargaining “is largely predicated upon conflicting
interests of the employer to minimize costs and the em-
ployees to maximize wages, and is thus economic in na-
ture.” St. Clare’s, supra, 229 NLRB at 1002.
The Act directs that the parties seek to reconcile their
interests through collective bargaining, a process in
which an incumbent union serves as the exclusive repre-
sentative of unit employees for the purpose of negotiat-
ing “rates of pay, wages, hours of employment or other
conditions of employment,” and is thus invested with
“wide authority over those whom it represents: ‘As col-
lective bargaining agents, unions help determine when a
man shall work, what he shall do, how much he shall
make, when he shall have holidays and the terms on
which he shall retire. As exclusive representative, the
union alone speaks for him in obtaining these terms, and
he can speak only through the union. Even his personal
grievances are not free of the union’s controlling hand.”
Randell Warehouse of Arizona, 328 NLRB 1034 (1999),
(Member Brame, concurring) (quoting Clyde W. Sum-
mers, Union Powers and Workers Rights, 49 Mich. L.
Rev. 805, 815 (1951)).46
By contrast, the educational process “is predicated
upon a mutual interest in the advancement of the stu-
dent’s education and is thus academic in nature.” St.
Clare, supra, 229 NLRB at 1002. In addition, the educa-
tional process, including clinical education, is inherently
“personal” and individualized. Id. Thus, the goal of
equalizing bargaining power through collective action, a
fundamental purpose of the Act, is

largely foreign to higher education. . . . the teacher-
student relationship is an inherently inequalitarian one,
it being assumed that the teacher, by virtue of superior
knowledge and experience, is in a better position to de-
46 Elsewhere in his article, Professor Summers comments: “Unions,
under the protection and authority of the law, govern the lives of indi-
vidual workers, controlling their jobs, regulating their conduct, and
determining their economic welfare. Unions are the workers’ economic
government and only through them can individuals have any voice in
making the laws under which they work.” Id. at 837–838.
BOSTON MEDICAL CENTER CORP. 179
termine the most appropriate course of instruction and
method of proceeding.

Id. Whereas employment relationships should ideally repre-
sent a bargain struck by equals with at least a rough parity of
bargaining strength, “[e]ducation by its very nature—the
transfer of knowledge from those who know to those who
don’t—is ineradicably authoritarian to some degree.”47 Be-
cause education requires inequality, the concept of bargain-
ing parity on which the Act is based, and the view that equal
bargaining strength will serve the national interest, are sim-
ply inapplicable.
Elsewhere, the Board has recognized that “the indus-
trial model cannot be imposed blindly on the academic
world as though there were a one-to-one relationship,” in
light of the distinctive nature of academic bodies. Syra-
cuse University, 204 NLRB 641, 643 (1973) (law school
faculty entitled to special opportunity to vote on separate
representation in light of unique circumstances of their
relationship to university). Consistent with this principle,
the Supreme Court in 1980 rejected the Board’s attempt
to expand the Act to include university faculty who par-
ticipated in the collegial governance of the institution.
NLRB v. Yeshiva University, supra. These considerations
apply with equal force in this case and militate against a
finding that residents are employees.
Second, the Act addresses inequality in bargaining
power by providing for the right of employees to choose
to bargain collectively through their duly selected collec-
tive-bargaining representative over all “terms and condi-
tions of employment.” Petitioner’s own briefs, and those
of various supporting amici, tacitly acknowledge the
poor fit between collective bargaining under the Act,
which presupposes that employment terms are under the
control of the employer, and the process of graduate
medical education, which is to a large degree controlled
by national accrediting agencies independent of the puta-
tive employer. Indeed, rather than tout its aggressive rep-
resentation of residents, the Petitioner boasts that it re-
frains from making proposals or pressing grievances that
would “interfere with the educational prerogatives of
graduate medical education programs.”48 In making these
claims, the Petitioner implicitly acknowledges the wide
scope of academic matters which could be considered
“terms and conditions of employment” over which a pu-
tative employer would be obligated to bargain. The Peti-
tioner thus appears to recognize that aggressive represen-
tation of its members across the range of mandatory sub-

biped.51

47 Kernan, Alvin, In Plato’s Cave 297 (1998).
48 The Petitioner claims that it has never “made a proposal which
would limit a teaching hospital’s academic prerogatives in grading,
course content, course materials, teaching methods, course length, or
the duration of a residency program,” or proposals which would “limit
a teaching hospital’s ability to set standards for advancement and suc-
cessful completion of the residency programs it administers.” P. Brief
on Review at 16.
jects of bargaining would inevitably, and inappropriately,
intrude on academic prerogatives.
Likewise, several amici support extending collective-
bargaining rights to residents only if they are deprived of
the right to engage in strikes. According to these amici,
engaging in a work stoppage would violate a physician’s
ethical responsibilities to his or her patients.49 Of course,
once residents are found to be Section 2(3) employees,
they must possess the same statutory rights, including the
right to strike, as other health care employees.
The majority states that any restrictions on the scope of
bargaining that may be established in an academic setting
do not affect the status of residents as employees.50 This
misses the point and turns the issue on its head. The fact
that a collective-bargaining representative could demand
that the employer bargain in good faith regarding these
items demonstrates the poor fit between the Act and
graduate medical education. That voluntary restraint on
the part of unions may circumscribe the scope of
bargaining in practice in some cases does not make
coverage under the Act appropriate any more than a dog
standing on two legs becomes a
Indeed, the problems created by this ill-considered de-
cision are manifold. Even when such core subjects of
bargaining as job assignments and rotations, training
opportunities, starting dates, and “promotions” are con-
sidered, it is evident that traditional collective bargaining
is completely unsuited to resolve differences that many
arise. Many of these issues are under the control of at-
tending physicians, and thus are not subject to direct
resolution through bargaining with the hospital, even
49 See brief of amici American Medical Association and Massachu-
setts Medical Society at 3; brief of amicus Medical Society of New
York at 4.
50 Amici Association of American Medical Colleges, American
Hospital Association, American Council on Education, American
Board of Medical Specialties, and Council of Medical Specialty Socie-
ties assert that course length and content, standards for appointment,
advancement and graduation, assignment and hours of work, among
other things, all would be mandatory subjects of bargaining under the
Act. Brief on Review at 26–28. See also Boston Medical Center Brief
on Review at 22. My colleagues appear to maintain that the Employer’s
duty to bargain may be limited by its obligations to third parties. The
majority, however, cites no precedent in support of the contention that
an employer may limit its statutory obligation to bargain under Sec.
8(a)(5) and (d) by entering into contracts or business arrangements with
other private entities.
51 During the public debates leading to ratification of the Constitu-
tion, concern was expressed over possible abuses of power by the pro-
posed Federal Government. When supporters of the Constitution as-
serted that these concerns were baseless because the new government
would act with restraint, “Brutus” retorted:
The just way of investigating any power given . . . is to examine its
operation supposing it to be put in exercise. If upon enquiry, it appears
that the power, if exercised, would be prejudicial, it ought not to be
given. For to answer objections made to a power given . . . by saying it
will never be exercised, is really admitting that the power ought not to
be exercised, and therefore ought not to be granted.
II Bailyn, Bernard (ed.), The Debate on the Constitution 267 (1993).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 180
though the hospital is the putative employer.52 The scope
of bargaining is further clouded because many of these
subjects are governed by national standards imposed on
hospitals, residency programs, and their faculty on a na-
tional basis by accreditation agencies and directed toward
preparing the resident for board certification. As such, a
hospital presumably will be required to delay implemen-
tation of residency program changes which are mandated
by accrediting authorities until good-faith bargaining has
taken place—despite the risk to the program’s accredita-
tion.
Third, when efforts to bargain break down, as they in-
evitably will in some cases, the Act contemplates that the
parties will resort to “economic warfare,” including
strikes and lockouts, to resolve their differences.53 These
tools also fit poorly with graduate medical education.
Striking employees withhold their labor for the purpose
of pressuring the employer to accede to their demands; of
course, they retain the right to seek work with another
employer as well. Because residency programs are edu-
cational in nature, residents generally remain with the
same program until they complete their course of study.
Thus, by striking a resident would on the one hand ex-
tend by the duration of the strike the amount of time re-
quired to complete the residency program, and, on the
other hand, be limited, relative to striking employees, in
his or her ability to secure equivalent employment with
another program.54
The experience with public sector collective bargain-
ing by residents establishes the incompatibility of collec-
tive bargaining under Section 8(d) with graduate medical
education. State statutes which have been held to permit
or require collective bargaining by medical residents
generally circumscribe the topics which are subject to
bargaining, the use of economic pressure, or both. See,
e.g., Regents of the University of Michigan v. ERC, 204
N.W. 2d 218, 224 (Mich. 1973) (scope of bargaining
limited if the subject matter falls within the “educational
sphere”); Regents of The University of California v.
PERB, 41 Cal. 3d 601, 715 P.2d 590 (Cal. 1986) (scope
of negotiations governed by particular provisions of state
labor relations law).55 Compare Philadelphia Assn. of
Interns & Residents v. Albert Einstein Medical Center,
369 A.2d 711 (Pa. 1976) (residents are students and thus

52 In particular, crucial promotional issues, such as recommendations
to prospective employers, are made by the residency program’s faculty
and may not be subject to direct control by the hospital.
53 See First National Maintenance Corp. v. NLRB, 452 U.S. 666,
678 (1981) (“The concept of mandatory bargaining is premised on the
belief that collective discussions backed by the parties’ economic
weapons will result in decisions that are better for both management
and labor and for society as a whole.”).
54 Indeed, as noted above, some of the amici supporting the Peti-
tioner, in recognition of these troublesome issues, have argued that
residents should somehow be deprived of the right to strike.
55 See, e.g., Mass. Gen. Laws Ann. Ch 150 § 9A9(2) (West 1996);
Minn. Stat. §§ 179.01–179.17, 179.35–179.39.
not employees for purposes of state labor relations law).
By contrast, the Act provides for mandatory bargaining
over all matters involving wages, hours, and other terms
and conditions of employment, and authorizes strikes. In
light of the evident difficulties inherent in extending the
Act to cover residents, any decision to do so should be
made by the Congress and not, as my colleagues have
done, by overruling the Board’s longstanding interpreta-
tion of the law.
C. The Cases Cites by the Majority are Distinguishable
Contrary to the majority, cases in which the Board has
directed elections in units including apprentices and
trainees of construction and manufacturing employers
provide no support for their contention that residents are
employees. See Wurster, Bernardi & Emmons, Inc., 192
NLRB 1049 (1971) (unlicensed architects); UTD Corp.,
165 NLRB 346 (1967) (apprentice machinists); General
Electric Co., 131 NLRB 100 (1961) (apprentice tool and
die workers); Riverside Memorial Chapel, 92 NLRB
1594 (1951) (apprentice embalmers); Vanta Corp., 66
NLRB 912 (1946) (apprentice knitting machine opera-
tors). First, the apprentices’ employee status was neither
disputed nor decided by the Board in any of these cases.
Second, in Wurster, Bernardi & Emmons, UTD Corp.,
Riverside Memorial Chapel, and Vanta Corp., there was
no evidence or finding that the employer provided any
specific training program for the disputed individuals.
Rather, the “apprentices” in these cases were merely un-
skilled or less skilled new hires whose “training” con-
sisted of performing unit work, albeit perhaps with
greater assistance from more experienced coworkers.56
Further, there is a fundamental distinction, ignored by
my colleagues, between employer-provided training and
an educational program. None of the employer-based
programs cited above took place in an accredited aca-
demic program, the purpose of which is to equip its
graduates with the skills and professional certification
required to leave the putative employer as an independ-
ent practitioner. Rather, these apprenticeship programs
upgraded the skills of existing employees by providing
them with the opportunity to work under the close super-
vision of a coworker or supervisor. A residency program,
in contrast, provides medical residents with the educa-
tion, under the direction of the program faculty, needed
to undertake an independent medical specialty practice
elsewhere.
56 General Electric is also distinguishable because, while the appren-
tices there were placed in a bona fide tool-and-die training program, the
purpose of the program was to train individuals to work in the em-
ployer’s plant, and the apprentices so trained normally went on to work
for the employer. As noted above, it is expected that the vast majority
of BMC’s residents will not work for BMC after they graduate from
their residency program.
BOSTON MEDICAL CENTER CORP. 181
D. The Majority’s Decision is Inconsistent with Supreme
Court Precedent
My colleagues are mistaken in their apparent belief
that the Supreme Court’s decisions in Sure-Tan and
Town & Country Electric support the broad, literal read-
ing of Section 2(2) they announce today. To the contrary,
in both cases the Supreme Court approved the Board’s
finding that certain individuals were employees only
after the Court had considered whether the Board’s deci-
sion was consistent with the policies of the Act. Thus, in
Sure-Tan, the Court approved the Board’s finding that
illegal aliens were employees entitled to the protection of
the Act because “extending the coverage of the Act to
such workers is consistent with the Act’s avowed pur-
pose of encouraging and protecting the collective-
bargaining process.” Sure-Tan, supra 467 U.S. at 892.57
Likewise, in Town & Country Electric, the Court recog-
nized that the Board’s finding that paid union organizers
were employees “is consistent with several of the Act’s
purposes, such as protecting ‘the right of employees to
organize for mutual aid without employer interference.’”
Town & Country Electric, supra, 516 U.S. at 91.
Moreover, both Sure-Tan and Town & Country in-
volved the extension of the Act to cover individuals
working side-by-side with acknowledged employees,
performing the same work under the same conditions of
employment. The Supreme Court found that affording
these individuals the protections of the Act was consis-
tent with its underlying purpose; excluding them would
undermine the Act’s purposes and adversely affect the
Section 7 rights of their coworkers. These considerations
are not present here: residents occupy a unique position
in the hospital hierarchy based on their status as students;
their status under the Act, accordingly, has no effect on
the Section 7 rights of health care employees.
In contrast, the Supreme Court has rejected the
Board’s contention that disputed individuals are employ-
ees where, as here, the policies of the Act are not pro-
moted by extending the coverage of the Act to them.58 In
NLRB v. Bell Aerospace Corp., supra, the Court held that
managerial employees, even though not specifically ex-
cluded from reach of Section 2(3), nevertheless are not
employees. As the Supreme Court recognized,

the Wagner Act was designed to protect “laborers” and
“workers,” not vice presidents and others clearly within
the managerial hierarchy. Extension of the Act to cover
true “managerial employees” would indeed be revolu-

57 The Supreme Court noted that if illegal aliens were excluded from
the protections of the Act, “there would be created a sub-class of work-
ers without a comparable stake in the collective goals of their legally
resident co-workers, thereby eroding the unity of all the employees and
impeding effective collective bargaining.” 467 U.S. at 892.
58 See also Physicians National House Staff Assn. v. Fanning, supra
at 497 (“for policy reasons persons who are literally ‘employees’ may
nonetheless be excluded from coverage under the Act.”).
tionary, for it would eviscerate the traditional distinc-
tion between labor and management. If Congress in-
tended a result so drastic, it is not unreasonable to ex-
pect that it would have said so expressly. [Supra, 416
U.S. at 284.]59

Likewise, in Chemical Workers v. Pittsburgh Glass
Co., 404 U.S. 157, 166 (1971), the Supreme Court re-
jected the Board’s contention that retirees could be con-
sidered employees under Section 2(3) of the Act. In
support of its determination, the Supreme Court stressed
that the Act

is concerned with the disruption to commerce that
arises from interference with the organization and col-
lective-bargaining rights of “workers”—not those who
have retired from the work force. The inequality of
bargaining power that Congress sought to remedy was
that of the “working” man, and the labor disputes that it
ordered to be subjected to collective bargaining were
those of employers and their active employees.

In the present case, it is equally true that the Act was
designed to protect “‘workers,” not students and others
clearly within the educational system. The inequality of
bargaining power that Congress sought to remedy was
that of the “working’ man,” not of students. Extension of
the Act to cover students would “indeed be revolution-
ary,” for it would subject educational decisions to the
processes of the Act. As in the case of retirees and mana-
gerial employees, if Congress intended a result so drastic,
it is not unreasonable to expect that it would have said so
expressly. Congress has not, and accordingly there is no
proper basis for the Board’s reversal of precedent.
E. The Legislative History of the Act does not Support
the Majority’s Position
My colleagues appear to concede that the legislative
history of the Act does not require the Board to find that
residents are statutory employees. I agree with this find-
ing. While it is true that Congress in 1974 rejected a pro-
vision that would have denied supervisory status to
medical residents, Congress did so because it preferred to
allow the Board to determine such supervisory issues
under its existing standards. This rejection of a proposed
amendment to the statutory definition of a supervisor
does not establish that Congress contemplated that resi-
dents would necessarily be found to be employees.
Likewise, the statutory definition of a “professional
employee” is not dispositive of the issue before the
Board today. Section 2(12)(b) defines “professional em-
ployee” to include an employee who has completed a
course of specialized intellectual instruction and study as
defined in Section 2(12)(a) and “is performing related
59 See also Yeshiva University v. NLRB, supra (university faculty are
managerial employees based on their participation in academic govern-
ance, consistent with the unique nature of an academic community).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 182
work under the supervision of a professional person to
qualify himself to become a professional employee . . . .”
As the D.C. Circuit has recognized, “[b]ecause this defi-
nition is applicable to ‘any employee’ it is not a com-
mand to the Board to regard anyone as an employee.”
Physicians National House Staff Assn. v. Fanning, supra,
642 F.2d at 497. In any event, it appears that Section
2(12)(b) more closely fits individuals such as architects,
who are required to complete an apprenticeship in order
to be licensed, rather than residents, who are licensed,
and who are engaged in, and thus have not “completed,”
their course of “specialized intellectual instruction.” A
contrary reading of this provision would compel the con-
clusion that a “moonlighting” resident is not a “profes-
sional employee” under Section 2(12)(a).
Moreover, following the issuance of Cedars-Sinai and
St. Clare’s, Congress refused to amend the Act to over-
turn the Board’s finding that residents are not employees.
See H.R. 2222 (96th Cong., 1st Sess.); H.R. Conf. Rep.
No. 96–504 (1979); 125 Cong. Rec. 33942–33952 (Nov.
28, 1979). While not determinative of the issue, the de-
feat of this legislation supports the view that Cedars-
Sinai and St. Clare’s are consistent with the wishes of
Congress. At the very least, I submit that the Board
should show more respect for established precedent of
longstanding where, as here, Congress has considered
that precedent and expressly declined to overturn it.
Conclusion
Today’s decision exemplifies an inherent weakness in
our statute and our process. Congress entrusted us with
the first responsibility of interpreting and applying the
Act. In theory, we have the accumulated experience of
the agency and bring that to bear in understanding and
applying the policies of the Act. Today, however, the
majority focuses on isolated parts of existing methods of
clinical education to support a finding that residents are
statutory employees but refuses to recognize their essen-
tial role in the larger process of graduate medical educa-
tion. The majority thereby demonstrates yet again that
the Board is more enticed by expanding its jurisdiction
than by a reasoned analysis of the Act’s policies.60 The
Supreme Court has previously had occasion to instruct
the Board on the congressional policies which necessar-
ily exclude core business decisions from collective bar-
gaining,61 and exclude managerial employees from the

60 The Board has been the target of pointed court criticism for its
tendency in making supervisory determinations, to “promote policies of
broadening the coverage of the Act, maximizing the number of unions
certified, and increasing the number of unfair labor practice findings
[the Board] makes.” Glenmark Associates v. NLRB, 147 F.3d 333, 340
fn. 8. (4th Cir. 1998). See also Sowell, Thomas, Knowledge and Deci-
sions (1980) at 141: “[G]overnmental agencies with mandated activities
have every incentive to push their particular activities as far as possi-
ble—even into regions of negative returns to society.”
61 See First National Maintenance Corp. v. NLRB, 452 U.S. 666
(1981).
ambit of Section 2(11).62 Once again, however, we are
like a foolish repairman with one tool—a hammer—to
whom every problem looks like a nail; we have one
tool—collective bargaining—and thus every petitioning
individual looks like someone’s “employee.”
Having designated residents as employees, we cannot
then limit Petitioner’s statutory rights to demand bargain-
ing over all “terms and conditions of employment” nor
restrict its right to engage in “economic warfare,” includ-
ing strikes and work to rule. We have blinded our eyes to
the fact that every state legislature which authorized bar-
gaining by state medical institutions not covered by the
Act has in one way or another limited either the topics or
weapons used by students, and that the Petitioner and
most of the supporting amici have explicitly or implicitly
acknowledged the ill fit of full statutory collective bar-
gaining by either foreswearing the full expression of their
statutory rights or suggesting some limitation on those
rights.
The majority thus forces medical education into the
uncharted waters of organizing campaigns, collective
bargaining, and strikes. If the majority is successful in
this endeavor, American graduate medical education will
be irreparably harmed. Today, residency programs are a
cooperative project in which many different institutions
and accreditation authorities together determine the na-
ture and content of medical residency training in each
recognized specialty. These various entities further coop-
erate with physicians and sponsoring institutions to pro-
vide the physical resources, access to patients, and clini-
cal instruction which make America’s board-certified
physicians the envy of the world. Collective bargaining,
by contrast, presupposes a bipolar relationship between
one employer and a relatively stable group of employees.
By imposing the Act’s alien processes on graduate medi-
cal education, the majority jeopardizes this delicate web
of relationships on which the astounding success of
American medical education depends.
Exposing hospitals which sponsor residency programs
to the costs and uncertainty of union elections and collec-
tive bargaining may accelerate the trend among for-profit
hospitals of eliminating residency programs, and increase
the existing burdens on already struggling private non-
profit institutions. Medical education can only suffer.
Subjecting academic decision-making to collective bar-
gaining, and to review by this agency, will also hinder
residency program faculty from developing and imple-
menting a curriculum that, in their judgment, is best
suited to confer on a resident the knowledge and experi-
ence needed for that specialty. That the Petitioner claims
it will voluntarily avoid this result is beside the point as it
would, under the majority’s position, have every right to
do so under the Act, and no legal basis for refraining.
62 See NLRB v. Bell Aerospace Co., supra.
BOSTON MEDICAL CENTER CORP. 183
I cannot accept the majority’s speculation that the
gains that may be derived from granting collective-
bargaining rights to residents will outweigh these costs.
More fundamentally, however, balancing interests and
tailoring economic weapons is the province of the Con-
gress, not this Agency. The legislative history of the Act,
and its longstanding interpretation, show that it was not
designed or intended to apply to academic relationships
like that between residents and teaching hospitals. By
overturning these longstanding principles, the majority
ignores the Act’s policies and usurps the authority of the
Congress in the establishment of national labor policy.
I fear that my colleagues’ reversal of longstanding
precedent holding that residents are not employees enti-
tled to engage in collective bargaining will be viewed by
the courts as another example of overreaching by this
Agency. For all of the foregoing reasons, I dissent.
APPENDIX
REGIONAL DIRECTOR’S DECISION AND ORDER
4. No question affecting commerce exists concerning the
representation of certain employees of the Employer within the
meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act.
[Boston Medical Center Corporation] (BMC) operates a
teaching hospital in Boston, Massachusetts. The Petitioner
seeks to be certified as the representative of a unit composed of
all house officers employed by BMC. In filing its petition, the
Petitioner requests the Board to reverse its holding in Cedars-
Sinai Medical Center19 and St. Clare’s Hospital & Health Cen-
ter20 that interns, residents, and fellows are primarily students
and, therefore, not “employees” within the meaning of Section
2(3) of the Act. BMC asserts that such a reversal is unwar-
ranted. It seeks dismissal of the petition on the ground that,
under Cedars-Sinai, the Petitioner is not a labor organization
because it is not an organization in which “employees” partici-
pate and on the ground that the unit is inappropriate because the
individuals sought are primarily students rather than “employ-
ees.”
BMC also seeks dismissal of the petition on the ground that
the unit sought is inappropriate under the Board’s health care
rules, because the Petitioner only seeks to represent interns,
residents, and fellows, rather than all physicians employed by
BMC. BMC further contends that the complexity of its rela-
tionships to other institutions with which it has affiliation
agreements will pose numerous problems for the Board which
warrant dismissal of the petition. BMC seeks dismissal on the
additional ground that the unit sought is based on the extent of
organization, in that the Petitioner does not seek all physicians
and seeks to include some, but not all, house officers who are
on payrolls other than BMC’s.
If the petition is not dismissed, BMC takes the position that
chief residents should be excluded from the unit both as statu-
tory supervisors and as Yeshiva-type managerial employees.21
The Petitioner maintains that the chief residents are neither
supervisors nor managerial employees and would include them
in the unit.

19 223 NLRB 251 (1976).
20 229 NLRB 1000 (1977).
21 NLRB v. Yeshiva University, 444 U.S. 672 (1980).
I. EMPLOYEE STATUS OF INTERNS, RESIDENTS, AND FELLOWS
A. Facts
Each year approximately 16,500 students graduate from
medical schools in the United States. Approximately 90 per-
cent of them immediately enter graduate medical education
programs commonly referred to as residencies. There are cur-
rently about 7500 residency programs in the United States of-
fered by some 1100 institutions. Typically, the sponsor of a
residency program is a teaching hospital that is affiliated with a
medical school. Residency programs offer training in particular
medical specialties. After completing a residency program,
some physicians pursue further training in a medical subspe-
cialty. Such training programs are commonly referred to as
fellowships.
BMC currently sponsors 37 different residency programs.22
The programs vary in length, with most lasting from 3 to 5
years, but some are longer.23 Fellowships last from 1 to 4
years. There are about 430 house officers in the unit sought.24
BMC is a 432-bed, nonprofit teaching hospital that is affili-
ated with Boston University School of Medicine. BMC came
into existence on July 1, 1996, as a result of the consolidation
of Boston City Hospital (BCH) and Boston University Medical
Center Hospital (commonly referred to as University Hospital).
BCH was a department of the city of Boston and a public hos-
pital. BCH and University Hospital were located a block apart,
with the Boston University School of Medicine situated be-
tween them. Both were affiliated with the School of Medicine,
and some of their residency programs were integrated prior to
the merger.
As a public sector hospital, BCH was subject to the Massa-
chusetts public employee collective-bargaining law,25 under
which residents have the right to organize into unions.26 The
Petitioner had represented a unit of interns, residents, and fel-
lows at BCH since 1969 and had negotiated approximately 10
successive collective-bargaining agreements with BCH since
1970. As a condition of the merger, the Boston City Council
required BMC to recognize the Petitioner as the representative
of the 280 former BCH interns, residents, and fellows. BMC
22 BMC sponsors residencies in allergy and immunology, anesthesi-
ology, cardiology, child psychiatry, critical care, cytopathology, derma-
tology, dermatopathology, emergency medicine, endocrinology, gastro-
enterology, geriatrics, hematology/oncology, infectious disease, inter-
nal medicine, nephrology, neurology, neuroradiology, OB/GYN, oph-
thalmology, oral surgery, general practice, orthopedic surgery, otolar-
yngology, pathology, pediatrics, physical medicine and rehabilitation,
preventive medicine, psychiatry, pulmonary/critical care, radiology,
rheumatology, general surgery, thoracic surgery, urology, vascular
radiology, and vascular surgery. E. Exh. 4. (The exhibit lists two
additional programs to be voluntarily withdrawn as of July 1, 1997.)
23 The first year of a residency is commonly referred to as an intern-
ship. In a 3-year residency program, for example, second-year resi-
dents are sometimes referred to as junior residents, and third-year resi-
dents are sometimes referred to as senior residents. Interns, residents,
and fellows are also sometimes referred to by their postgraduate year
level (PGY or PL). For example, an intern is a PGY 1, a second-year
resident is a PGY 2, and so on.
24 This number includes 30 to 40 chief residents, as well as 15 resi-
dents on the payrolls of other hospitals, all of whom BMC would ex-
clude. About 56 out of the 430 are fellows.
25 M.G.L. Ch. 150E.
26 City of Cambridge, 2 MLC 1450 (1976); Worcester City Hospital,
4 MLC 1373 (1977).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 184
signed a recognition agreement in which it further agreed to a
representation election among all house officers at the merged
entity. Ultimately, on August 29, 1996, the parties held a “card
count,” as a result of which the Petitioner became the represen-
tative of all interns, residents, and fellows at BMC. On January
31, 1997, the parties executed a revised version of the collec-
tive-bargaining agreement that had been in effect between the
Petitioner and BCH prior to the merger, with effective dates
from July 1, 1994, through June 30, 1997.27
House officers enter a residency or fellowship in order to be-
come certified specialists in their chosen medical specialty.28
Residents who successfully complete their program receive a
diploma from the Boston University School of Medicine. On
approval by the specialty board that certifies physicians in their
field, they are then considered to be “Board-eligible,” i.e., they
have successfully completed their training and are eligible to sit
for an exam in their chosen specialty. Most hospitals will per-
mit Board-eligible physicians to practice in their field for a
period of time until they have taken the exam. After passing a
written exam, these doctors can hold themselves out as being
“Board-certified” in their field. It is not necessary to be certi-
fied in a specialty to practice medicine. Because some institu-
tions and practices are beginning to require certification, how-
ever, failure to be certified in a specialty may limit the em-
ployment opportunities of uncertified physicians. Most resi-
dents and fellows leave BMC when they have completed their
residency or fellowship program to pursue opportunities else-
where. Only a small percentage remain to join the faculty.29
House officers are assigned throughout the year to various
rotations, usually about 4 to 6 weeks in length, which expose
them to various types of patients in their chosen specialty. For
example, pediatric residents are assigned to rotations on inpa-
tient wards, the emergency room, the pediatric intensive care
unit, and the neonatal intensive care unit, as well as to rotations
in cardiology, adolescent medicine, and elective rotations.30 In

27 Although this contract had apparently expired by the close of the
hearing on July 17, 1997, there was no evidence in the record concern-
ing a successor agreement.
28 To become a resident, an individual must have graduated from
medical school and passed parts 1 and 2 of the U.S. medical licensing
exam. Interns are issued a temporary license by the appropriate state
board of registration in medicine, which permits them to practice only
under the aegis of their particular residency program. The state boards
require that in order for medical school graduates to practice as fully
licensed physicians, they must successfully complete the 1-year intern-
ship and then pass part 3 of the U.S. medical licensing exam. This
allows them to practice outside their residency program, as well.
29 For example, out of about 100 residents who completed the pediat-
ric residency in the last ten years, about 20 stayed on as faculty and 10
to 15 stayed on for a fellowship. Only one out of the 20 to 24 residents
who completed the pathology program in the last 6 years has remained
at BMC. Less than 10 percent of the oral surgery residents remain as
faculty. Five out of 20 graduating radiology residents have stayed on
as junior faculty in the last 5 years. Radiology residents generally do a
fellowship elsewhere and then enter private practice or join the faculty
of another institution.
30 Dr. Joseph Korn, program director of the rheumatology program,
testified that residents select elective rotations based on their interests
and career goals. Dr. David Batinelli, program director for the internal
medicine program, testified that residents have 28 to 32 weeks of elec-
tives over the course of the 3-year program. The residents choose from
a menu of options. Their choices must be approved by Batinelli, who
sometimes denies residents’ requests if he feels, based on their pro-
gress, that they need additional time in another rotation.
some programs the residents do one or more rotations at other
institutions with which BMC has an affiliation agreement. The
program director for each residency program determines what
rotations each resident must experience in order to complete the
program, based on the curriculum for the residency.
House officers work very long hours, which vary depending
on the specialty and the rotation. Residents in internal medi-
cine work 6 to 7 days per week anywhere from 60 hours per
week when assigned to the emergency room or 80 to 90 hours
per week when assigned to the cardiac care unit. When as-
signed to the wards, they work a 36-hour shift every fifth day.
Surgical residents average 60 hours per week, but work longer
hours when assigned to the surgical intensive care unit. Resi-
dents in otolaryngology31 average 100 hours per week, but can
work up to 120 hours on certain rotations. Radiology residents
work about 60 hours per week, while rheumatology fellows
work about 50 hours per week.
House officers are trained and supervised by attending phy-
sicians (referred to as attendings or faculty).32 Attendings are
physicians on the staff of BMC, 99 percent of whom are also
faculty members of the Boston University School of Medi-
cine.33
House officers work in teams that include third- and fourth-
year medical students, interns, junior and senior residents, and
attending physicians. Each intern on an inpatient ward is gen-
erally assigned 12 to 15 patients. A more senior resident on the
service is responsible for overseeing the work of the interns,
while the interns oversee the medical students.34 An attending
physician must be the physician of record for every patient.
PGY 3 Camilla Graham and Intern Andrew Yacht, both resi-
dents in BMC’s internal medicine program, testified about the
duties of interns in BMC’s internal medicine residency pro-
gram. Interns start the day early in the morning by checking in
with the “night float,” i.e., the intern who has been on duty
overnight, to learn of any developments during the night. Then
they “pre-round” or check their patients on their own. From
7:30 to 9:30 a.m., the team of medical students, two to three
interns, a more senior resident, and, occasionally, an attending
physician do “work rounds” in which they check on and discuss
the status of each patient at the patient’s bedside. Following
that, the interns order X-rays, consults, and treatments. They
start intravenous lines (IVs) and perform procedures such as
arterial blood gases, which involve drawing blood, and
thorancentesis, paracentesis, and lumbar punctures, which in-
31 Otolaryngology refers to surgery of the ear, nose, throat, head, and
neck.
32 As noted above, the exception to this is when house officers are on
rotation at other institutions, where they are supervised by attending
physicians from those institutions.
33 The attendings are technically employed by the Faculty Practice
Plan Foundation, Inc., an umbrella corporation for various subsidiary
practice plans in place for each department within the hospital. BMC
and the School of Medicine are both members of the corporation.
Attendings receive support from both the Faculty Practice Plan and the
School of Medicine. Attendings receive their paychecks from the
School of Medicine, which hires them and acts as the common paymas-
ter for the two entities.
34 Medical students typically follow only two patients on an inpatient
unit and are closely observed. A licensed physician, typically an intern
(who, as indicated above, has a temporary license), signs all their notes
and orders. Medical students pay tuition to the medical school and
receive no pay or benefits. Unlike residents, they receive grades for
each rotation.
BOSTON MEDICAL CENTER CORP. 185
volve removing fluids. Attending physicians are rarely present
when interns perform these procedures. Interns perform critical
patient-care procedures, such as intubating patients who cannot
breathe for themselves. Residents, including interns, respond to
“codes,” i.e., life-threatening emergencies, without attending
physicians. Interns are the primary physicians with whom pa-
tients’ families have contact. Interns write “do not resuscitate”
(DNR) orders for terminally ill patients at the request of pa-
tients and/or families. Such orders must be cosigned by an
attending physician within 24 hours, however.
Interns are also responsible for hospital admissions, which
usually begin with a call from a physician from the emergency
room or clinic. When the patient arrives, interns take a history,
perform a physical, draw blood, start an IV, initiate any neces-
sary immediate treatments, and write admission orders, includ-
ing any medication orders. The junior resident also does a
more focused history and physical examination of the patient.
The intern and junior resident consult with the senior resident
on duty, and, together, they decide what tests or treatments
should be performed. Interns are responsible for writing daily
progress notes on all their patients. On approval of an attend-
ing, they discharge patients, which involves writing a discharge
summary and instructions, filling out prescription orders, and
instructing the patient and/or caregivers about any necessary
care after the hospitalization.
As residents progress through the program, they are given
increased responsibility commensurate with their level of ex-
perience. Internal medicine interns see patients 80 to 90 per-
cent of the time outside the presence of an attending physician.
Interns do discuss all patients with attending physicians, who
are primarily responsible for their patients’ care plans and who
see their patients daily. In the emergency room or urgent care
clinic, the interns consult with an attending after examining
each patient. The intern on “night float” operates more inde-
pendently, as there is not likely to be an attending physician on
the inpatient wards overnight. A PGY 3, PGY 2, and two in-
terns take care of the entire ward at night, when there are no
attendings on duty except in the emergency room.
Jodi Wenger, a third-year pediatric resident, testified that she
makes 80 percent of patient-care decisions on her own and
consults with an attending the balance of the time over deci-
sions such as whether to transfer a patient to the intensive care
unit. She testified that she has helped families make life or
death decisions about the level of intervention to be used in the
case of critically ill infants and children. The pediatric resi-
dents are the only physicians present on the pediatric wards for
a twelve-hour period at night, although there is always a chief
resident and an attending on call at home. Wenger testified that
she does not call an attending very frequently at night, perhaps
twice a month.
Fellows in the cardiology program may perform certain non-
invasive procedures on their own. More risky procedures must
be done in the presence of an attending. Cardiology fellows
may perform some procedures, such as CPR, defibrillation, or
transthoracic echocardiograms,35 on an emergency basis with-
out an attending, and then review the matter with an attending
as soon as possible.
In the radiology program, residents draft a preliminary report
for each film, but an attending physician must sign off on every

35 This procedure involves placing a venous catheter in a patient’s
vascular system.
final report. A radiology resident is on duty in the emergency
room 24 hours a day. After 9 p.m., when there are no attend-
ings present at the facility, radiology residents interpret films
alone, and an attending signs off on them the following day.
Residents in the pathology program make a preliminary diag-
nosis with respect to each slide of tissue that they examine, and
discuss each diagnosis with a faculty physician. In those cases
where a pathologist is required to make a diagnosis while a
patient is undergoing surgery, pathology residents are not per-
mitted to give a diagnosis to the surgeons without prior review
by faculty. Pathology residents must present each autopsy
report to an attending, who is legally responsible for the report.
Residents in the various surgical residency programs spend 8
to 10 hours a day in the operating room on those days that they
perform surgery. They are permitted to perform increasingly
more complicated surgery as their experience increases. An
attending physician must be “scrubbed in” for the significant or
critical portion of each operation. Chief Orthopedic Resident
Linda D’Andrea testified, for example, that a knee arthroscopy,
one of the most common procedures performed by orthopedic
surgeons, takes about 2 hours, out of which an attending would
be present for 30 minutes to an hour. She does complicated
procedures in the emergency room on her own, such as fracture
manipulations or immobilizing a pelvic fracture, which in-
volves putting pins into stable portions of the bone and attach-
ing them to an external frame.
In addition to time spent in direct patient care, residents
spend many hours per week attending various “didactic” con-
ferences. In the internal medicine program, for example, resi-
dents have “attending rounds” each Monday, Wednesday, and
Friday for an hour and a half in a conference room. During
these sessions, a resident, intern, or medical student presents a
current case, and the attending physician gives a short, formal
lecture about the topic. In addition to attending rounds, there is
a 1-hour conference on various topics at noon, 5 days a week.
One of them is “grand rounds,” a lecture usually attended by
about 100 physicians, including residents and attendings, in an
auditorium. Another is “journal club,” in which residents dis-
cuss an article from a scientific journal in their field. Some of
the didactic sessions involve topics that are not directly related
to the treatment of current patients. For example, in some con-
ferences residents review slides or X-rays of individuals who
are no longer or never were patients of BMC, in order to learn
diagnostic skills.
Interns often miss parts of conferences because they are fre-
quently “beeped” and must leave to attend to patients. Interns
do not attend conferences when they are doing a “night float”
or emergency room rotation, and rarely attend during rotations
in the medical intensive-care unit and coronary-care unit, due to
lack of time. A 1-hour noontime conference for interns is the
only one which is considered “protected time” for interns, i.e.,
they give up their beepers for 1 hour each week to attend that
conference. Junior and senior residents are beeped less often
than interns, and they spend more time attending didactic con-
ferences. In addition to the attending rounds and noontime
conferences, PGY 2s and PGY 3s attend a 1-hour conference,
called “morning report,” 6 days a week. These sessions are led
by a chief resident, with an attending usually present. There are
many other types of conferences offered, such as a primary care
series from 8 to 9 a.m. 5 days a week, subspecialty rounds, and
ambulatory a.m. clinic talks.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 186
There were various estimates in the record with respect to
the number of hours or percentage of time that residents spend
in these “didactic” conferences. Yacht testified that he spends
about ten percent of his time in didactic conferences not di-
rectly related to his current patients. Dr. David Batinelli, direc-
tor of house staff training, testified that the average PGY 3 in
internal medicine attends about 5 hours of conferences weekly,
in addition to the attending rounds. Wenger testified that there
are about 10 to 12 hours of didactic conferences offered per
week in the pediatric program, but each resident attends only
about 5 or 6 hours, amounting to 10 percent of their time, due
to conflicting demands. Other estimates of the number of hours
residents typically spend in didactic conferences each week
were 8 to 10 hours for surgical residents, 2 to 4 hours for ortho-
pedic residents, 5 to 8 hours for otolaryngology residents, 4
hours for rheumatology residents, 20 hours for pathology resi-
dents, and 5 to 7 hours for cardiology fellows. The program
director for the radiology program estimated that residents
spend 35 to 40 percent of their time in educational activities
such as lectures and one-on-one teaching. Interns in the oral
and maxillofacial surgery program spend 50 percent of their
time in didactics, including rounds. This figure drops to about
30 percent of their time in subsequent years of their residency.
Dr. Joseph Korn, program director for the rheumatology
residency program, testified that the bulk of a resident’s train-
ing occurs not necessarily in formal lectures and conferences,
but rather in one-on-one teaching by attendings in the course of
patient care. Faculty employ the “Socratic” method of teaching
in which they question the residents regarding patients’ diagno-
ses and treatments. Dr. James Becker, program director for the
general surgical residency program, testified that the main
classroom for surgeons is in the operating room, where there is
a continuous exchange between faculty, residents, and medical
students during the course of surgery.
Residents in each program are required to take an annual “in-
training” exam offered by their specialty board, which is used
to make comparisons with other programs throughout the coun-
try, to identify the residents’ academic strengths and weak-
nesses, and to indicate the likelihood that they will pass the
Boards. Becker testified that residents whose score falls below
the 25th percentile on the in-training exam are put on academic
probation. Those who fall below that level for a second year
could be held back a year in the program. According to 1995
memoranda regarding the internal medicine in-training exam at
BCH,36 however, the examination is not used in making deci-
sions concerning acceptance, continuation, or advancement in
residency or fellowship training positions.
In addition to the in-training exam, residents in the surgery
residency program take weekly or biweekly exams and are
constantly quizzed by attendings using the Socratic method. In
the otolaryngology program, residents take a written exam at
the end of each series of lectures on a given topic, every 2 to 3
months. In the pediatric program, residents are required to take
a Pediatric Advanced Life Support (PALS) and Neonatal Ad-
vanced Life Support (NALS) course, each of which culminates
in a written exam.
At the end of each rotation, the faculty member who has
worked most closely with each resident fills out an evaluation
form which rates him or her with respect to various factors,
including medical knowledge, technical skills, clinical judg-

36 E. Exh. 46.
ment, and humanistic qualities.37 In the case of residents who
fail to meet the programs’ standards for medical knowledge or
clinical competence, department chairpersons and/or program
directors may put them on probation, require them to fulfill
additional time in training prior to advancing to the next level,
terminate them from the residency program, decline to renew
their contract, or decline to give them the certification of satis-
factory performance needed to sit for the Board exam. These
steps have, in fact, been taken with some residents.
After their internship year, when they have a full license,
some residents “moonlight,” i.e., work part time as doctors
elsewhere to make extra money.38 Residents Wenger and Gra-
ham testified that they perform the same work when they
moonlight at local clinics and a local community hospital as
they do at BMC. When they moonlight, however, they attend
no ward attending rounds, grand rounds, or conferences. Both
Wenger and Graham are paid much more for their moonlight-
ing work than for their work at BMC. They testified that they
remain at BMC despite the lower pay because they want the
training necessary to become Board-certified in their respective
specialties.
Physicians continue their medical education throughout their
lifetime by reading medical journals, taking courses, and at-
tending rounds, conferences, and scientific meetings in their
field. Massachusetts requires physicians to have 100 hours of
continuing medical education over a 2-year period in order to
maintain their state licensure, and most have more. Attendings
at BMC fulfill this requirement, in part, by attending grand
rounds and other conferences at BMC, including those in which
the talks are given by residents. About 23 or 24 of the 40 or
more medical specialty boards have adopted time-limited certi-
fications that are valid for periods ranging from 7 to 10 years.
When their certifications expire, physicians may be recertified
as specialists by passing another exam. The recertification
exam, which is shorter than the original exam, assumes mastery
of the basics and focuses on advances in the field.
Unlike other BMC employees, house officers are not re-
cruited, interviewed, or hired by BMC’s human resources de-
partment. The vast majority are selected through the National
Residency Matching Program, which is used by residency pro-
grams throughout the country.39 All residency programs begin
on July 1 of each year. Medical students apply to residency
programs during their last year of medical school.40 At BMC, a
small percentage of those who apply are granted interviews.
After the interview process, the program director for each resi-
dency ranks the candidates in order of preference, and the ap-
plicants rank the residency programs in their order of prefer-
ence. The rankings are sent to the Matching Program, which
matches the highest-ranking choices of the teaching hospitals
37 At the same time, residents submit an evaluation form in which
they rate the attendings and their educational experience during the
rotation.
38 Interns cannot moonlight because, as noted above, their limited li-
cense permits them to practice only within the residency program.
39 There is no matching process for fellowships. Applicants for fel-
lowships are hired directly by the teaching hospitals.
40 Dr. Robert D’Alessandri, dean of the School of Medicine at West
Virginia University and member of the Accreditation Council on
Graduate Medical Education, testified that about 10 medical schools
across the country offer joint programs in which medical students’
fourth year of medical school is also their first year of residency. There
is no evidence that BMC offers such a program.
BOSTON MEDICAL CENTER CORP. 187
with the highest-ranking choices of the medical students. The
matches are announced simultaneously in March. Participating
hospitals agree to accept the residents matched to their pro-
grams, and medical students agree to accept a residency in the
program to which they are matched.
Several program directors at BMC testified that, during the
interview process, residency candidates rarely inquire about
compensation and benefits. Instead, they inquire about matters
such as the passing rate of past residents who have taken the
Board exam, the availability of faculty, research opportunities,
the volume of cases, call schedule, and the like. Applicants are
informed, however, of the compensation and benefits associ-
ated with the residency at various stages in the application and
interview process, either by administrators or through bro-
chures and handouts distributed during the application and
interview process.41 During the orientation for new residents at
BMC, a representative from the Petitioner makes a presenta-
tion, and a representative from the BMC human resources de-
partment makes a presentation on benefits.
House officers are treated by BMC in some respects as if
they are employees. Pursuant to the collective-bargaining
agreement between the Petitioner and BMC, house officers
receive compensation for their services. The collective-
bargaining agreement refers to the compensation as an annual
salary.42 Under the collective-bargaining agreement, house
officers receive paid vacation and sick leave, parental leave,
and bereavement leave. Like other BMC employees, house
officers are entitled to health insurance, dental insurance, and
life insurance, and they may use the employee health service.
A description of benefits available to house staff43 describes
“your benefits as a Boston Medical Center (BMC) employee.”
The forms for the various insurance plans offered to house
officers refer to BMC as the employer and the house officers as
employees. Residents are issued an employee number by
BMC, as are other BMC employees. BMC provides malprac-
tice insurance at its expense for all interns, residents, and fel-
lows covered by the collective-bargaining agreement. The
affiliation agreement between BMC’s urology department and
Children’s Hospital Medical Center refers to the BMC residents
who rotate through Children’s Hospital as “employees” of
BMC.44

41 See, e.g., E. Exh. 19G, “Information for Radiology Resident Ap-
plicants,” which includes a “Summary of Benefits,” which describes
salary, vacation, malpractice insurance coverage, maternity/paternity
leave, and health insurance. Further, the Accreditation Council for
Graduate Medical Education (ACGME), discussed below, which ac-
credits teaching hospitals, states in its institutional requirements that
candidates for residencies must be fully informed of benefits, including
financial support, vacation, professional leave, parental leave, sick
leave, insurance, etc. P. Exh. 19, p. 27.
42 The compensation is commonly referred to either as a salary or a
stipend.
43 P. Exh. 4.
44 According to the affiliation agreement, “BMC agrees to provide
the salary, fringe benefits and professional liability coverage for five
(5) residents from July 1, 1996, to June 30, 1997. Said residents will be
deemed employees of BMC.” P. Exh. 114. A 1994 affiliation agree-
ment between the Boston University School of Medicine and the for-
mer University Hospital with respect to the internal medicine program
provided that residents would have a written employment contract with
University Hospital that would provide the salary and fringe benefits
for a certain number of residents. P. Exh. 103. A 1994 affiliation
agreement between the radiology department of the former BCH and
BMC also treats the house officers as employees with respect
to various state and Federal laws that treat them as employees.
Federal and state income taxes are deducted from the house
officers’ pay, and they receive a W2 form for income tax pur-
poses like other BMC employees. BMC maintains a workers
compensation policy that applies to all employees, including
house officers, should they be injured in the performance of
their duties. BMC treats house officers as if covered by the
various state and Federal laws that regulate employment, such
as the Family and Medical Leave Act, the Americans with Dis-
abilities Act, and other state and Federal laws that prohibit
various forms of discrimination in employment. BMC’s human
resources department maintains a file for each house officer
that includes an “I-9” or visa form. BMC must submit a labor
condition application to the U.S. Department of Labor for for-
eign house officers in which BMC describes itself as the em-
ployer of a nonimmigrant worker and attests that “[t]he em-
ployment of H-1B non-immigrant will not adversely affect the
working conditions of workers similarly employed in the area
of intended employment.”45
According to the record, there are some differences in the
treatment accorded to house officers versus other BMC physi-
cians and/or employees in general.46 House officers are much
lower paid than attending physicians.47 The compensation
received by house officers is generally unrelated to the number
of hours they work.48 Unlike other employees, the eight resi-
dents in the oral surgery program pay about $7000 tuition per
year to the Boston University School of Dental Medicine over
the term of their 4-year residency.49 House officers may not
participate in the retirement program, which is made available
to other employees, although about 24 of them participate in a
tax-sheltered annuity. BMC maintains a group malpractice
insurance policy for all house officers, while the faculty have
individual malpractice policies paid for by their department
practice plans. Other benefits available to other BMC employ-
ees but not house officers include vision care, disability insur-
ance, health care and dependent care reimbursement accounts,
extended sick leave, and earned time.50 Unlike other BMC

Brockton Hospital stated that the city of Boston would provide the
salary and benefits for a certain number of residents, who “will be
deemed employees of the City of Boston,” while Brockton Hospital
would provide the salary and benefits for some number of residents,
“who are Brockton Hospital employees.”
45 P. Exh. 112.
46 BMC has collective-bargaining agreements with unions represent-
ing several other bargaining units, each of which may have negotiated
different benefits. It also has various unrepresented employees.
47 According to the 1994–1997 contract, house officers’ pay for the
1996–1997 year ranged from $34,502 for a PGY 1 to $44,939 for a
PGY 6. In contrast, it appears that faculty at a teaching hospital or
physicians in private practice earn over $200,000 more than the amount
paid to house officers.
48 The one notable exception is that under art. XIV, sec. 6 of the
1994–1997 collective-bargaining agreement, house officers who are
required to or who volunteer to work an extra on-call shift are paid
$200 per call.
49 Of the eight residents, six receive a “stipend” from BMC, one re-
ceives a stipend from the dental school, and one receives no stipend.
50 Accrued earned time can be used by BMC employees for time off
for any purpose such as illness, vacation, or holidays. Unused earned
time is a vested benefit for which employees are paid when they leave
BMC. House officers accrue sick leave rather than earned time, and
unused sick leave lapses at the termination of their residency.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 188
employees, residents are permitted to defer payment of some of
their Federal and bank loans for medical school during a por-
tion of their residency because they are still considered to be
training for a job.51
Residency programs as well as the institutions that sponsor
them are accredited by the Accreditation Council for Graduate
Medical Education (ACGME).52 Institutions and individual
residency programs must be accredited every 3 to 5 years.53
The ACGME establishes standards for sponsoring institutions
and for each type of residency program, which are set forth in a
document entitled the “Essentials of Accredited Residencies in
Graduate Medical Education: Institutional and Program Re-
quirements,” commonly referred to as “the Essentials.”54 The
ACGME may withdraw or withhold the accreditation of institu-
tions or residency programs that fail to meet the standards in
the Essentials, or put them on probation.
The Essentials specify requirements that must be met by
each type of residency program in order to be accredited, in-
cluding educational content, faculty, instructional activities,
responsibilities for patient care, supervision, equipment, and
library facilities. It requires residency programs to offer ex-
periences with certain patient populations, diagnostic tech-
niques, and procedures. Residency programs are required to
offer many conferences and seminars, and to give residents the
opportunity to conduct research and to attend national scientific
meetings.
According to the Essentials:

[t]he training of residents relies primarily on learning acquired
through the process of their providing patient care under su-
pervision. . . . A proper balance must be maintained so that a
program of graduate medical education does not rely on resi-
dents to meet patient care needs at the expense of educational
objectives.

Dr. Robert D’Alessandri, a member and prior chair of
ACGME, testified that there has been a shift in graduate medi-
cal education from a predominantly “service-oriented” ap-
proach in the 1970s to the current purely educational approach.
Those programs that lose their accreditation tend to be more
service-oriented, i.e., they tend to provide patient care services
without supervision and without regard to educational value.
Some of the major reasons why such residency programs lose
their accreditation or are put on probation include excessive
duty hours, lack of supervision of residents by faculty, insuffi-

51 The Petitioner asserts, however, that under the regulations govern-
ing Federal Stafford and SLS loans, 34 CFR § 682.210(b)(2)(v) and (c),
such loans are deferred only for the first 2 years of residency, and that
the deferment for residents is distinct from a separate deferment for
“students.” The Petitioner also asserts that the residents’ 2-year defer-
ment for repayment of Federal Perkins loans has been eliminated. 34
CFR § 674.35(d)(1) and (4); 34 CFR § 674.34(a) and (b)(2).
52 The ACGME has five sponsors, each of which appoints members
to the council: the American Medical Association, the American Asso-
ciation of Medical Colleges, the American Board of Medical Special-
ties, the Council on Medical Subspecialties, and the American Hospital
Association.
53 Sponsoring institutions, such as BMC, are accredited by the
ACGME’s Institutional Review Committee. Individual residency
programs are accredited by the ACGME’s various Residency Review
Committees (RRCs) established for each specialty.
54 The Essentials is a section of the ACGME’s Graduate Medical
Education Directory, P. Exh. 19.
cient scholarly/research activity by faculty, and inadequate
educational experience in a particular area.
Maxine Kessler is director of graduate medical education at
BMC and the School of Medicine and held an equivalent posi-
tion at the former BCH. Her role is to ensure that BMC stays in
compliance with ACGME requirements. She was responsible
for coordinating the accreditation process at the former BCH,
and now at BMC, and has participated in about 50 to 60 resi-
dency and institutional reviews for accreditation since 1982.
She testified that ACGME never indicated in any of those re-
views that collective bargaining was detrimental to graduate
medical education.55
In 1994, when the former BCH last went through the institu-
tional accreditation process,56 BCH attached its collective-
bargaining agreement with the Petitioner in its submission to
the ACGME and cited various of its provisions to demonstrate
that it satisfied certain requirements set forth in the Essentials.57
These requirements include the establishment of policies rela-
tive to the promotion and dismissal of residents; the establish-
ment of policies and procedures for discipline and the adjudica-
tion of complaints and grievances, which must satisfy the re-
quirements of fairness and due process; provisions for resident
participation in various committees; the requirement to ensure
that all residents at similar levels of experience in all programs
receive a comparable level of financial support; the requirement
to provide full liability insurance; the requirement to have a
written policy on leave and the effect of leaves of absence on
satisfying the criteria for completion of a program; the estab-
lishment of formal policies governing resident duty hours and
on-call schedules; the provision of adequate ancillary support;
and the obligation of sponsoring institutions to provide an indi-
vidual contract to residents which sets forth their terms of em-
ployment.
D’Alessandri testified that hospitals would be much more ef-
ficiently run without residents, because teaching residents
makes each case take longer than it otherwise would. Under
Medicare and Medicaid rules, BMC cannot bill for the services
its residents provide to individual patients; an attending must be
the physician of record and be present for many procedures and
consultations in order to bill Medicare or Medicaid.
The Petitioner asserts, however, that although teaching hos-
pitals cannot bill Medicare for specific services residents per-
form for individual patients, Medicare reimburses teaching
hospitals for the services of its residents in a more general
manner by direct payments based on the number of residents
and the hospital’s Medicare patient load. See generally 42 CFR
§ 413.86. According to a 1994 budget recommendation by a
committee at the former BCH:

[u]nder the current reimbursement system, the cost of house
staff and attending physicians is virtually free. The cost of
55 In July 1995, the Medical and Dental Staff (faculty) of the former
BCH unanimously passed a resolution to express its support for the
house staff of the newly created BMC to have the option of organizing
themselves for the purpose of collective bargaining and urging BMC to
recognize the house staff’s chosen representative. (P. Exh. 109).
56 There has been no more recent application for institutional ac-
creditation by either BCH or BMC. ACGME standards are the same
for public institutions, such as the former BCH, and private institutions,
such as BMC.
57 P. Exh. 111, pp. 5–6, 9, 11–12, 13–14.
BOSTON MEDICAL CENTER CORP. 189
providing services without a teaching program would be sig-
nificantly higher.58

Battinelli testified that if there were no interns and residents
to staff the BMC’s Urgent Care Center, the hospital would
either have to see fewer patients or hire more attendings. For
example, a March 15, 1997 memo59 from the medical director
of BMC’s Urgent Care Center to all junior and senior residents
states:

Over the past several months, there have been multiple
occasions where residents have left the Urgent Care Cen-
ter for interviews and other planned absences without pro-
viding adequate coverage. This has often left the UCC
critically short of MD coverage and has forced the clinic
to close to incoming patients on several occasions.
This is an intolerable situation. . . . During sessions
when absences will result in a staffing shortage, coverage
must be arranged and the name of the covering House Of-
ficer must be submitted to the UCC staff in advance.
This process should alleviate the need to pull emer-
gency coverage from your fellow House Officers and help
provide better continuity of care for our patient population.

CIR negotiated its first collective-bargaining agreement in
1958 and is currently party to 20 collective-bargaining agree-
ments covering approximately 7500 house officers at 30 private
and public sector hospitals. Standard provisions cover matters
such as wages, vacation, health insurance, hours,60 the ade-
quacy of the rooms where residents sleep while on call, the
availability of ancillary support,61 meals, parking, and beepers.
CIR has made proposals concerning matters such as more regu-
lar evaluations, extra on-call pay, the availability of a medical
library, and the availability of small laboratories where house
officers can run their own tests nights and weekends. CIR has
never made proposals regarding the duration of a residency
program, course content, teaching methods, examinations, or
the criteria for advancement from year to year or for gradua-
tion. Some provisions attempt to avoid possible conflicts with
medical training requirements, e.g., by permitting the reduction
of vacation days in accordance with medical specialty board
requirements.62
CIR files about 20 grievances per year, the vast majority of
which are resolved informally. Past grievances have concerned
salary issues, maternity leave, the availability and cleanliness of

58 More specifically, according to the budget report, all direct gradu-
ate medical education costs at BCH were fully reimbursed, as well as a
portion of indirect overhead costs. Overall, more than 82 percent of
total GME costs were reimbursed. The report also noted that the cost
of alternative providers such as physician assistants and nurse practitio-
ners was higher than the cost of residents, that the availability of alter-
native providers remained problematic, and that a service delivery
model without a teaching relationship did not appear to be a viable
option. P. Exh. 113.
59 P. Exh. 86.
60 The contracts usually limit the frequency with which residents are
assigned to be on call to one night in three. Some adopt the “Bell regu-
lations,” the New York State Health Code rules limiting the hours of
work for residents to 80 hours per week and shifts to no longer than 24
hours.
61 These provisions typically limit the obligation of busy residents to
perform ancillary services such as IV services, clerical work, phlebot-
omy services, routine vital signs and weights, and patient transport
services, and require the hospital to provide such services.
62 P. Exh. 49, art. VII; P. Exh. 55, art. VI.
call rooms, parking, and discipline, e.g., for leaving the hospital
without permission. CIR has taken to arbitration grievances
concerning premiums for health insurance, the provision of
ancillary services, and house officers’ hours.63 During the
years it represented the house officers at BCH, the Petitioner
filed unfair labor practice charges at the Massachusetts Labor
Relations Commission over such matters as the unilateral clos-
ing of parking lots, cafeterias, and medical libraries, while the
City filed a charge over whether the provision of ancillary ser-
vices is a permissive subject of bargaining.
The Petitioner also plays a role in decisions not to renew a
resident’s contract and in the evaluation process. Under the
current contract between the Petitioner and BMC, for example,
BMC must make every effort to make offers of reappointment
by December 31 for the following year, or offer a “conditional
renewal,” which outlines what aspects of the house officer’s
performance must improve in order for his/her services to be
renewed.64 The contract requires BMC to use standardized
evaluation tools, with input from the Petitioner, and to complete
evaluations within 30 days of each rotation. It gives house
officers the opportunity to dispute evaluations and to examine
material in their personnel files. It requires the department
chair or designee to meet with house officers individually twice
a year to review their progress. It requires the department to
communicate to each house officer in a timely fashion if his/her
performance is substandard and to make clear what issues must
be addressed in order to raise performance to an acceptable
standard.65
The contract provides for just cause for suspension or dis-
charge, under a bifurcated system.66 “Alleged administrative
misconduct” is subject to the standard grievance and arbitration
process. “Alleged professional or clinical misconduct based on
issues of clinical performance or competence” is not subject to
the grievance procedure, and there is no appeal to an arbitrator.
Such allegations are investigated and resolved by the chief of
service for the department or a designee. If discipline is im-
posed, the resident can appeal only to an ad hoc committee of
seven members of the BMC medical and dental staff, which
may overturn the discipline by majority vote. The resident is
entitled to representation by the Petitioner during this process.
At least one other contract provides that an arbitrator may not
review medical judgments.67
Mark Levy, associate director of CIR, testified concerning
cases in which CIR has grieved and/or arbitrated a hospital’s
decision to terminate a resident or not renew a resident’s con-
63 See, e.g., P. Exh. 71, a 1981 arbitration award over whether BCH
was paying its contractual share of residents’ group health insurance
premiums; P. Exh. 72, a 1996 arbitration award concerning the issue of
equal pay for University Hospital and BCH residents; P. Exh. 33, a
1994 arbitration award over whether Bellevue Hospital, a public hospi-
tal in New York, had violated the “Bell Regulations,” which had been
incorporated into the contract, by requiring surgical residents to work
excessive hours.
64 P. Exh. 1, art. XV. This is a standard type of provision.
65 P. Exh. 1, art. XVI.
66 P. Exh. 1, art. XI. A similar provision appears in some of the Peti-
tioner’s other collective-bargaining agreements, e.g., P. Exh. 39, its
contract with Catholic Medical Center.
67 P. Exh. 53, states at art. XIV, “The arbitrator shall not substitute
his or her judgment for academic or medical judgments rendered by the
person charged with making such judgments, nor shall the arbitrator
review such decisions except for the purpose of determining whether
the decision has violated this Agreement.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 190
tract. Arbitrators have reinstated such residents to their em-
ployment position and, thus, given them the opportunity to
obtain certification in their field. He testified, however, that
certification is a separate procedure, i.e., arbitrators never man-
date a department chairman either to issue a letter certifying
that a resident has satisfactorily completed the year or to issue a
letter to a specialty board certifying that the resident has satis-
factorily completed the program and should be eligible to sit for
the requisite board exam.68
Several examples of grievances involving nonrenewal or
termination, some of which went to arbitration, were submitted
into the record. In several instances CIR filed a grievance over
untimely nonrenewal letters and sought an offer of a contract
for the following year.69 Two arbitration awards involved in-
stances of alleged medical malpractice by a resident, in which
an arbitrator reduced the penalty of termination to a letter of
reprimand or suspension without pay.70
A grievance filed against a New Jersey hospital in 199671
concerned a third-year resident who was informed in February
of that year that she had to leave the program effective March
15 because she had never passed part 3 of the medical licensing
exam. CIR argued in a letter that the hospital’s policy did not
put residents on notice of the consequences of failing the exam.
CIR further argued that the resident should at least be allowed
to finish out the last 3 months of her third year, inter alia, in
order to have the opportunity to obtain a certificate of satisfac-
tory completion at the end of the year. This would permit her to
qualify for the certifying exam of the Board of Psychiatry,
which requires applicants to satisfactorily complete 2 years of
training in the same program. The grievance was settled by
allowing the resident to complete the year, but requiring her to
move on to another program for her fourth year of training.
A 1995 grievance72 involved a PGY 3 who received a nonre-
newal letter from Bronx Lebanon Hospital and had been told he
would not receive even 1 year of satisfactory credit from the
hospital. Arguing that the resident could not have been ad-
vanced to PGY 3 unless he had satisfactorily completed his
PGY 1 and PGY 2 years, CIR sought and received as a settle-
ment 1 year of credit to enable him to apply for a license. In a
1996 grievance against the same hospital over the nonrenewal
of a resident,73 CIR’s representative wrote to the hospital that
the reasons for the resident’s nonrenewal were never ade-
quately explained to him and “his work performance and grade
scores indicate a level of competence that warrant his moving
into a PGY 3 position at Bronx Lebanon Hospital.”
In 1996, CIR filed a grievance against a New Jersey hospi-
tal74 over the nonrenewal of a resident for receiving the lowest
possible grades for medical knowledge, substandard skills and
understanding of orthopedic knowledge, difficulty describing
clinical and radiographic findings, substandard knowledge of
anatomy, poor dexterity, and failure to complete necessary

68 One of CIR’s collective-bargaining agreements, for example,
states, “Decisions as to whether a housestaff officer has successfully
completed the residency program are not grievable or arbitrable.” P.
Exh. 44, art. XI, sec. 2.
69 See, e.g., Emp. Exhs. 79 and 91.
70 Emp. Exh. 76 and 77.
71 Emp. Exh. 88.
72 Emp. Exh. 89.
73 Emp. Exh. 90.
74 Emp. Exh. 83.
assigned readings. Ultimately, the grievant decided not to pur-
sue the grievance.
CIR’s constitution states that it “was formed for the purpose
of organizing and representing house officers . . . in their col-
lective efforts pertaining to compensation, benefits, hours,
working conditions, and such other matter affecting their em-
ployment, education and training.”75 Many of CIR’s agree-
ments give CIR access to Residency Review Committee find-
ings concerning accreditation, and CIR has made information
requests concerning such findings. In 1992, when the former
BCH proposed to integrate the BCH and University Hospital
internal medicine residency programs, the Petitioner, in ex-
pressing its agreement with BCH’s position that new PGY 1s
would be the first group affected, indicated that it supported
this position because it “serves as a guarantee that the program
is committed to providing the current PGY IIs and PGY IIIs
with the educational choices they were told they would get
when they decided to come to BCH’s Internal Medicine Pro-
gram.”76 In 1994 contract negotiations with BCH, the Peti-
tioner made a proposal that house officers “who remain in good
standing shall be allowed to complete their training for board
eligibility.”77
Levy testified that CIR has been involved in a few strikes
against private hospitals that either refused to grant recognition
after an organizing drive or withdrew recognition during con-
tract negotiations. After two such strikes, an 11-day strike at
Interfaith Hospital in 1985 and a 9-day strike at Bronx Lebanon
Hospital in 1990, CIR was able to negotiate agreements with
the two hospitals. At two other hospitals, the house staff held
rallies in support of their quest for recognition, but voted not to
strike. When those hospitals still declined to recognize CIR,
the organizing drives ended, as there was no option to petition
the NLRB for an election. Two other private hospitals have
withdrawn their voluntary recognition of CIR in the past year,
although there was no evidence of loss of majority support. In
1980, the Petitioner engaged in a 6-day strike against the for-
mer BCH over contract negotiations.78 The strike was resolved
when, after the Massachusetts Labor Relations Commission
ordered mediation, the parties agreed upon a new contract.
Finally, the Petitioner introduced several studies by Amy
McCarthy, who has a Ph.D. in economics and specializes in
labor economics. One study purports to show that unionized
house staff receive higher wages and better benefits than the
non-unionized house staff in certain family practice residencies.
A second study purports to show that house staff wages and
benefits are much higher than those of graduate level teaching
assistants, who are not currently considered to be employees
under the Act. A third study purports to show, inter alia, that
house staff receive higher wages and benefits than post-
graduate architect interns, who are considered by the Board to
be employees. It also compares the postsecondary apprentice-
ships and internships of construction electricians, certified pub-
lic accountants, and architects to that of doctors. A fourth study
is an “age times earnings profile,” which purports to show that
75 P. Exh. 30 (emphasis added).
76 Emp. Exh. 3.
77 Emp. Exh. 6. This proposal was apparently not included in the
1994–1997 agreement.
78 The strike was apparently in violation of the Massachusetts collec-
tive-bargaining law, which prohibits strikes by public employees.
M.G.L. Ch. 150E, § 9A.
BOSTON MEDICAL CENTER CORP. 191
the initial relatively low earnings of interns, residents, and fel-
lows is followed by a steep increase over time, which is similar
to the profile for various other professions.79
B. Existing Board Law with Respect to the Employee Status of
Interns, Residents, and Fellows
In filing this petition, the Petitioner seeks the reversal of Ce-
dars-Sinai Medical Center80 and St. Clare’s Hospital,81 issued
some 20 years ago, in which the Board found that interns, resi-
dents, and fellows, while possessing certain employee charac-
teristics, are primarily students and, therefore, not employees
within the meaning of the Act. In first reaching this conclusion
in Cedars-Sinai,82 the Board found that house staff participate
in residency and fellowship programs in order to pursue the
graduate medical education that is a requirement for the prac-
tice of medicine, rather than to earn a living. While recogniz-
ing that house staff spend a large percentage of their time in
direct patient care, the Board concluded that this was simply
part of the learning process. The Board found that the stipend
paid to residents, which was unrelated to the number of hours
worked or the quality of patient care, was more in the nature of
a living allowance than compensation for services rendered.
The Board noted that applicants for residencies were more in-
terested in the quality of the educational program than in the
amount of their stipend. The “Essentials” indicated that the
primary function of the programs was educational, and pro-
grams were designed to permit residents to develop clinical
proficiency rather than to meet the hospital’s staffing require-
ments. Finally, the Board observed that few interns, residents,
or fellows remained to establish an employment relationship
with the hospital after the completion of their programs.
The Board clarified its views on the status of house staff the
following year in St. Clare’s Hospital. The Board found that
the relationship between residents and teaching hospitals is
academic in nature in that residents and their teachers have a
mutual interest in the advancement of the residents’ education,
in contrast to the employee-employer relationship, which is
economic in nature and predicated on conflicting interests. The
Board expressed its view that the imposition of collective bar-
gaining in a higher education setting posed the danger of in-
fringement upon traditional academic freedoms such as the
right of educators to determine program duration, course con-
tent, and teaching methods; to establish standards for advance-
ment and graduation; and to administer examinations and give
grades. The Board expressed its concern, for example, that the
notoriously long hours residents work, which may be necessary
from an educational standpoint, could become bargainable.
Similarly, failure to recommend program advancement, a sub-
ject of academic concern in the Board’s view, would be tanta-
mount to discharge and, thus, subject to arbitration. In sum, the
Board found such intrusions into traditional academic freedoms

79 I need not reach the issue of whether or not these studies are pro-
cedurally flawed, as BMC contends, because I find them to be of little
or no value in determining whether or not the interns, residents, and
fellows at BMC are students or employees.
80 Supra, 223 NLRB 251.
81 Supra, 229 NLRB 1000.
82 Based on the Board’s factual description of the residency pro-
grams under consideration in Cedars-Sinai Medical Center, it appears
that they were substantially similar in all major respects to the current
residency programs at BMC.
to be detrimental to the quality of the educational process and
to the public interest.
C. Positions of the Parties
1. Petitioner
The Petitioner contends that BMC and its predecessor, BCH,
have treated house staff as employees for all purposes. In this
regard, the terms and conditions of their employment have been
determined for almost 20 years by the successive collective-
bargaining agreements similar to those negotiated for other
groups of BMC employees. They receive a salary, paid vaca-
tion and sick leave, and various health and life insurance bene-
fits typical of those given to employees.83 With respect to the
Board’s observation in Cedars-Sinai that residents’ salaries are
unrelated to the number of hours worked or the quality of care
rendered, the Petitioner points out that this scenario is a com-
monplace indicium of professional employment. BMC pro-
vides malpractice insurance coverage for house staff, and they
are covered by BMC’s workers compensation policy. BMC
applies various Federal and state employment laws to them and
refers to its house staff as “employees” in its affiliation agree-
ments with other institutions.
The Petitioner argues that the Board’s conclusion in Cedars-
Sinai that residency programs are not designed for the purpose
of meeting hospitals’ staffing requirements ignores the very
real staffing needs that could not be met without house staff.84
Thus, house staff spend the vast majority of their time in direct
patient care. They are fully responsible for working up and
assessing newly admitted patients, ordering tests, consultations,
and medications, and performing both routine and complicated
medical procedures. Surgical residents perform common op-
erative procedures with minimal involvement by attendings.
Interns and residents are required to make independent patient
care decisions of both a routine and critical nature, from alter-
ing dosages of medication to intervening in life-threatening
situations. They are the primary contact for patients and their
families. They are the only physicians to staff the wards at
night. The Urgent Care Center, which is a site of the ambula-
tory clinic, is so dependent on the work of house officers that it
has been forced to close when the house officers have left for
planned absences without securing coverage.
83 As noted below, BMC argues that applicants for residencies never
even inquire about the compensation and benefits associated with these
programs, because their purpose in entering residencies is to obtain
Board certification rather than to earn a living. To this argument, the
Petitioner responds that applicants are, in fact, informed about salary,
benefits, and employment-related topics such as work hours in inter-
views and informational materials sent to applicants and that, if they are
as uninterested in their salary, benefits, and working conditions as
BMC suggests, they simply will not organize into unions. Finally, the
Petitioner contends that the Supreme Court has rejected an analysis of
employees status grounded in the subjective motivations of job appli-
cants. See, NLRB v. Town & Country Electric, 516 U.S. 85, 93–96
(1995), in which the Supreme Court rejected an employer’s argument
that union organizer “salts” were not employees under the Act because
they had dual motives in accepting the job.
84 In response to BMC’s apparent argument that because BMC can-
not bill Medicare for the individual services performed by its house
staff, their services are commercially worthless, the Petitioner points
out that Medicare does reimburse teaching hospitals for the services
provided by residents, albeit in a more general manner, through a for-
mula based on the number of residents and the Medicare patient
caseload.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 192
With respect to the Board’s assertion in Cedars-Sinai that
completion of a residency is a requirement for the practice of
medicine, the Petitioner points out that, after completion of
their internship year, house staff are fully licensed physicians
who can and do practice as physicians outside of their resi-
dency programs. As for the academic component of their resi-
dencies, the Petitioner contends that house staff spend less than
ten percent of their time in didactic conferences, and that pa-
tient care responsibilities routinely prevent them from attending
such conferences. While house staff, like many other profes-
sionals, learn their craft while performing it, this does not mean
that they are not employees. Further, because the medical pro-
fession requires life-long continuing education and recertifica-
tion in the various medical specialties, there is no basis to dis-
tinguish between the house officers’ training for certification as
specialists and specialists in continuing training for recertifica-
tion in their specialty. The true “students” at a teaching hospi-
tal, in the Petitioner’s view, are the medical students, who,
unlike the house staff, pay tuition, receive no compensation,
receive academic grades for the clerkships at BMC, are unli-
censed, and cannot issue medical orders.
The Petitioner points to CIR’s 40-year history of successful
collective bargaining with public and private hospitals, includ-
ing 18 years of collective bargaining with BCH and its succes-
sor, BMC, in which it has peacefully and productively resolved
the issues facing residents in their employment. Its collective-
bargaining agreements have focused on traditional employ-
ment-related issues such as compensation, hours of work, vaca-
tion, and benefits, as well as on employment-related issues of
unique concern to house staff, such as call schedules, the ade-
quacy of on-call rooms, ancillary services, access to medical
libraries and laboratories, parking, meals, and beepers. Most
grievances it has pursued involve nonacademic matters such as
compensation, health insurance premiums, and the provision of
ancillary services.
The Petitioner maintains that it has never sought to interfere
with educational and training prerogatives, which are separate
and distinct from the employment relationship. In this regard,
it has never made proposals or filed grievances regarding aca-
demic issues such as teaching methods, course materials, pro-
gram duration, standards for advancement or completion of
programs, and the like. Its contract with BMC provides for a
special procedure in cases of disputes involving issues over
clinical performance or competence, where the final determina-
tion is made by an internal hospital committee, with no appeal
to an arbitrator. CIR has left matters pertaining to the educa-
tional component of residency programs to the discretion of the
teaching hospitals and the ACGME. Although teaching hospi-
tals are regulated by the Essentials with respect to academic
matters, the Board concluded in Management Training Corp.85
that it would not refuse to exercise jurisdiction over an em-
ployer because of concerns that collective bargaining could

85 317 NLRB 1355 (1995). Management Training Corp. involved
the issue of whether the Board should assert jurisdiction over private
employers that contract with an exempt government entity. Overruling
Res Care, Inc., 280 NLRB 670 (1986), the Board held that jurisdiction
should no longer be determined on the basis of whether the employer or
the Government controls most of the employees’ terms of employment.
Rather, the question of whether there are sufficient employment matters
over which unions and employers can bargain will be left to the parties
at the bargaining table and to the employee voters in each case.
encompass some areas over which the employer did not have
meaningful discretion.
The Petitioner asserts that, in any event, far from conflicting
with the requirements of the Essentials, collective bargaining
provides a mechanism by which teaching hospitals can fulfill
certain requirements set forth in the Essentials. Thus, the for-
mer BCH cited its contract with the Petitioner to demonstrate,
e.g., that it fulfilled ACGME requirements to provide a proce-
dure for adjudication of complaints, to provide adequate finan-
cial support and benefits, and to prohibit excessive hours of
work. The Petitioner notes that the ACGME has never indi-
cated that collective bargaining is detrimental to graduate
medical education, and that the BCH faculty’s enthusiastic
endorsement of collective bargaining demonstrates that it is not
antithetical to graduate medical education.
As for the Board’s reasoning in Cedars-Sinai that few resi-
dents stay beyond the completion of their program, the Peti-
tioner argues that many industries frequently experience turn-
over in their workforce, and that a minimum tenure of 3 years
would be regarded as a symbol of stability in many industries.
The Petitioner contends that the legislative history of the Act
supports a broad reading of Section 2(3) of the Act. Thus, the
legislative history of the Wagner Act describes “employee” as
“every man on a payroll,”86 while the legislative history of the
Taft Hartley amendments indicates that the term “employee”
simply “means someone who works for another for hire.”87
Supreme Court cases since Cedars-Sinai have undercut the
Board’s reasoning in that case by interpreting Section 2(3) in an
expansive manner. Thus, in Town & Country Electric, Inc.,88
the Supreme Court found that workers who are also paid union
organizers are nonetheless “employees” under the Act, noting
that a broad, literal interpretation of the word “employee” is
consistent with the Act’s purpose to encourage collective bar-
gaining and consistent with other Supreme Court decisions.
See, e.g., Sure-Tan, Inc. v. NLRB89 (the Act covers undocu-
mented aliens); Phelps Dodge Corp. v. NLRB90 (job applicants
are employees). As the Supreme Court noted in Sure-Tan:

The breadth of Sec. 2(3)’s definition is striking: the Act
squarely applies to “any employee.” The only limitations are
specific exemptions for agricultural laborers, domestic work-
ers, individuals employed by their spouse or parents, indi-
viduals employed as independent contractors or supervisors,
and individuals employed by a person who is not an employer
under the NLRA.91

The Petitioner contends that the legislative history of the
Taft-Hartley amendments demonstrates that Congress consid-
ered interns, residents, and fellows to be professional employ-
ees within the Act’s coverage. In this regard, a House Confer-
ence Report specifically states the term “professional employ-
ees” under Section 2(12) includes “such persons as legal, engi-
86 79 Cong.Rec. 9686 (June 19, 1935); see also NLRB v. Town &
Country Electric, Inc., supra (summarizing legislative history).
87 H.R. Rep. No. 245, 80th Cong., 1st Sess. 18 (1947), cited in NLRB
v. Town & Country Electric, Inc., supra.
88 Supra at 454.
89 467 U.S. 883, 891–892(1984).
90 313 U.S. 177, 185–186 (1941).
91 467 U.S. at 891.
BOSTON MEDICAL CENTER CORP. 193
neering, scientific and medical personnel together with their
junior professional assistants.”92
The Petitioner also finds support for its position in the legis-
lative history of the 1974 health care amendments, in which
Congress deleted the statutory exemption of nonprofit hospitals
from the Act. A House and Senate conference committee con-
sidering the amendments found that it was unnecessary to ex-
plicitly state that interns, residents, and fellows were not super-
visors under Section 2(11) of the Act, given the Board’s analy-
sis of responsible direction of work in the health care context.93
This demonstrates, argues the Petitioner, that Congress pre-
sumed house staff to be employees under the Act.
The Petitioner asserts that the overwhelming majority of ju-
risdictions considering this issue have rejected the arguments
cited by the Board in Cedars-Sinai and St. Clare’s and have
concluded that house staff are employees for purposes of col-
lective bargaining.94 Finally, the Petitioner argues that the
NLRB stands alone among Federal agencies in viewing house
staff as students. The Internal Revenue Service, for example,
has taken the position that payments to medical residents are
taxable compensation for service rendered rather than nontax-
able grants for purposes of study.95 The Equal Employment
Opportunity Commission treats house staff as employees for
purposes of Title VII.96 House staff are deemed employees for
purposes of the Family and Medical Leave Act, the COBRA
provisions of the Employee Retirement Income and Security
Act, and social security taxes.97
With respect to BMC’s allusion to the threat of disruptive
strikes if Cedars-Sinai is overturned, the Petitioner argues that
the only private sector strikes by the Petitioner have occurred
when private hospitals refused to recognize the Petitioner. As
the Board noted in Management Training Corp.,98 the Congres-
sional findings upon which the Act is based assume that grant-
ing employees the right to bargain collectively encourages the
friendly adjustment of disputes and will decrease strikes and
other forms of industrial strife. The protections of the Act
bring with it measures that will reduce teaching hospitals’ ex-
posure to strikes, such as access to representation procedures,
the notice requirements of Section 8(g), and the Board’s prohi-
bition against partial and intermittent strikes.
2. BMC
BMC argues, first, that the Board’s holding in Cedars-Sinai
was subsequently approved by Congress. After the issuance of
Cedars-Sinai, Congress considered for nearly 4 years a pro-
posed bill, H.R. 2222, which would have set aside Cedars-Sinai
by amending Section 2(3) and (12)(b) of the Act to make ex-
plicit the intent of Congress that house staff be considered em-
ployees under the Act.99 The bill was defeated by a vote of 227
to 167 in November 1979.

92 H.R. Conf. No. 510, on H.R. 3020 at 36 (1947). [reprinted in I
Legislative History of the Labor Management Relations Act 540].
93 S. Rep. No. 93–766 at 6 (1974); H.R. 93–1051 at 7 (1974).
94 In this regard, the Petitioner cites in its posthearing brief numerous
cases involving public sector hospitals.
95 Christman v. Commissioner, 57 T.C.M. (CCH) 538 (1989).
96 Empl. Prac. Guide (CCH) ¶ 6870 (1988).
97 29 U.S.C. § 1163 (1965); 29 U.S.C. § 1002(4); 29 U.S.C. §
2611(2)(A); 42 U.S.C. § 410.
98 Supra at 1359, citing 29 U.S.C. § 151.
99 H.R. Rep. No. 504, 96th Cong., 1st Sess. (1979).
BMC contends that house officers are not “employees”
within the meaning of the Act because they are primarily en-
gaged in graduate educational training. In this regard, the train-
ing of physicians involves a continuum of education, which
begins in medical school and continues through internship,
residency, and possible fellowship programs through board
certification. The educational nature of the programs is evident
from the fact that residency programs are required to have an
affiliation with a medical school and its faculty. House officers
who complete their programs receive a diploma. Because
medical students now begin their clinical training in the third
year of medical school, rotating through the various specialties,
there is little distinction between the last 2 years of medical
school and the first years of residency. House officers are sim-
ply students along this continuum. In fact, residents in the oral
and maxillofacial program at BMC pay tuition.
BMC maintains that the mutual interests of the hospital and
house officers are academic rather than economic. House offi-
cers enroll in residency programs for the purpose of becoming
certified in their specialty, rather than for the purpose of earn-
ing a living. In this regard, applicants for residency programs
rarely inquire about compensation and benefits, but are much
more concerned about matters such as the program’s pass rate
for the Board exams. Although house officers who have com-
pleted their internship year could make significantly higher pay
by moonlighting at other hospitals, they choose to remain in
their residency programs because of the training offered. Fi-
nally, BMC incurs significant financial losses due to the ineffi-
ciencies associated with teaching house officers, which it would
not incur if its objectives were anything other than academic
excellence. For example, it is not very cost effective for pa-
tients to be seen by teams of as many as six to seven individu-
als, including medical students, interns, residents, and faculty.
Thus, the primary mission of BMC is not the profitable provi-
sion of health care but the training of physicians while provid-
ing quality medical care.
BMC maintains that the educational nature of the residency
programs is manifest by the fact that they are regulated by the
ACGME, which precludes hospitals from altering the educa-
tional experiences of house officers. Teaching hospitals must
adhere to the Essentials’ detailed requirements with respect to
curriculum, faculty supervision, and scholarship, or risk having
their accreditation withheld or withdrawn.
BMC points out that graduate medical education programs
are a prerequisite to obtaining a full license. Only after com-
pleting their internship and passing part 3 of the medical licens-
ing exam are house officers eligible to apply for a full license.
Further, successful completion of a residency is also a prerequi-
site for sitting for the board certification exams and becoming
certified in a specialty. Failure to obtain board certification
substantially limits a physician’s employment opportunities.
The house officers’ status as students, BMC asserts, is dem-
onstrated by the significant portion of their time which is spent
participating in conferences, rounds, and other purely didactic
activities, as required by the ACGME. Many of these didactic
activities have no direct relation to the care of current patients.
The true “classroom” in a residency program, however, extends
to the wards and operating rooms. The bulk of the educational
activity occurs in the course of direct patient care. Thus, the
Essentials require house officers, for example, to perform a
certain number of various types of procedures in order to suc-
cessfully complete a training program. Residents are assigned
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 194
to rotations based on the dictates of the curriculum, which re-
quire exposure to certain types of patients within each spe-
cialty. That assignment to rotations is not based on the hospi-
tal’s staffing needs is illustrated particularly by the fact that
house officers are permitted to choose 28 to 32 weeks of “elec-
tive” rotations, based on their own training needs.
BMC notes that, consistent with the academic nature of the
programs, house officers are required to take and pass graded
examinations. House officers are evaluated by their attending
physicians and may be required to repeat a year for poor test
scores or unsatisfactory performance. Unlike evaluations of
employees, however, the house officers’ evaluation have no
bearing on pay or benefits but, rather, are an assessment tool in
the decision to promote house officers to the next PGY level.
BMC argues that because of the house officers’ inexperience
and status as trainees, their level of supervision is unparalleled.
They perform substantial procedures only if an attending physi-
cian is present at the time or, in the case of emergencies, with
subsequent review by an attending. In this regard, for example,
an attending must be scrubbed in for the critical portion of any
surgical procedure, and radiology residents review all films
with an attending.
BMC maintains that house officers are treated differently
from BMC employees in many respects, which demonstrates
their nonemployee status. Unlike other BMC employees, they
are not recruited, interviewed, or hired by the hospital’s human
resources department, nor are there job postings for house offi-
cers. Rather, house officers are selected through the National
Residency Matching Program, which is the antithesis of the
traditional hiring process in that both hospitals and applicants
give up any degree of discretion after the ranking orders are
submitted. Thus, teaching hospitals have minimal control over
which applicants will be assigned to their programs. House
officers receive different benefits from other BMC employees.
They are denied long-term disability insurance or retirement
plans, for example, because those benefits are designed for
long-term employment.
BMC argues that house officers are paid a set stipend that
does not vary based on the number of patients treated or hours
worked. Rather than compensation for services rendered, the
stipends are provided simply to defray the ordinary costs of
living and to ensure that house officers do not have to endure
severe economic hardship during their training period. The fact
that these stipends are not even remotely comparable to the
sizable salaries of attending physicians demonstrates that the
house officers are not employees performing services equiva-
lent to those performed by attendings, but rather trainees who
need not be impoverished during the learning process.
BMC argues that, unlike ordinary employees, who hope to
establish a long working relationship with their employer, most
house officers enter residency programs with the intention of
leaving upon the completion of the program. Few intend to or
do stay beyond the length of their program. Further, the tran-
sient nature of their tenure carries with it additional complica-
tions. The Board will be called on to determine whether a par-
ticular house officer or a group of house officers are temporary
employees who are ineligible to vote in a representation elec-
tion, under either of the two standards used by the Board, the
“reasonable expectation of further employment test,” or the
“date certain” test. St. Thomas-St. John Cable TV.100
brief in this matter because of its great significance to the
100 309 NLRB 713 (1992).
BMC contends that other Federal agencies treat house offi-
cers as nonemployees. In this regard, house officers’ may defer
repayment of their Federal student loans during their residency
because the government considers them to be still in training
and not “employed.” Medicare does not reimburse teaching
hospitals for individual services performed by house officers;
only attendings perform billable services.
BMC asserts that the manner in which house officers are
trained remains essentially the same as it existed 20 years ago,
and that, in asking the Board to overrule established precedent,
the Petitioner has offered no compelling reasons not previously
considered by the Board. To the contrary, the Board’s reason-
ing in Cedars-Sinai and St. Clare’s remains valid. The educa-
tion process at the graduate level is an intensely personal and
individual one, which is not amenable to the collective treat-
ment afforded by the collective-bargaining process. The Board
correctly recognized the grave danger that could be posed to
traditional academic freedoms if collective bargaining were
imposed on the structure of higher education, and its fears
would come to fruition if it decided to deem house officers
“employees.” In its collective-bargaining relationships outside
the Act, CIR has filed grievances and demanded arbitration
over many matters involving academic freedom, such as the
discharge or nonrenewal of house officers. CIR has requested
remedies, such as issuing a letter of credit for partial comple-
tion of a residency program, which directly impinge on a teach-
ing hospital’s certification of residents. Such a purely educa-
tional matter as the decision to renew or not to renew a resident
for the next year of training should not be subject to a grievance
procedure.
BMC asserts that CIR’s activities clearly establish its
inclination to bargain, arbitrate, and even strike about those
freedoms the Board held sacred to academic institutions. CIR’s
past history of bargaining is hardly illustrative of the future, as
CIR has never before been Board-certified and afforded the
protections of the Act under which the mechanism for resolving
disputes when collective bargaining fails is the strike. Its intru-
sion into the academic affairs of all teaching hospitals will in-
tensify should CIR be granted the protections of the Act.
Teaching hospitals will be put into the precarious position of
negotiating over mandatory subjects of bargaining, such as
hours, the number of house officers allowed in the program, the
number of procedures required, evaluations, program advance-
ment, discharge and nonrenewals, program length, rotations,
and testing, all of which are also heavily regulated by the
ACGME. By declaring such matters to be mandatory subjects
of bargaining, the Board will be interfering with the efforts of
the ACGME to standardize medical education and involving
itself in matters of academic concern.
D. Positions of the Amici Curiae
The Association of American Medical Colleges (the
Association) is a nonprofit, voluntary association, the purpose
of which is to advance medical education and the nation’s
health. Its members include all of the nation’s 125 schools of
medicine, 89 academic societies, and 356 teaching hospitals
affiliated with medical schools. The Association is one of the
five members of the ACGME, and it participated as amicus
curiae before the Board in the St. Clare’s Hospital case. The
Association sought and was granted leave to file an amicus
BOSTON MEDICAL CENTER CORP. 195
matter because of its great significance to the graduate medical
education community.101
The Association contends that the inevitable consequence of
the Act’s application to graduate medical education will be
involvement by unions and the Board in the full panoply of
academic decision-making. It asserts that CIR’s history of
bargaining with public sector hospitals provides no precedent
for extending collective bargaining to house officers at private
sector hospitals. In this regard, the fundamental difference
between the Act and state public employment statutes is the
right to strike, which is the essential element of collective bar-
gaining under the Act but is prohibited in the public sector.
CIR’s contracts negotiated without the right to strike, it con-
tends, are totally irrelevant to the Board’s concerns about the
impact on graduate medical education of collective bargaining
under the Act. The Association claims that CIR’s history,
however, reveals its intrusion into academic matters, in that it
has pursued arbitration in cases involving house staff termi-
nated due to professional failures.
The Association asserts that the Board’s rationale in Cedars-
Sinai and St. Clare’s is even more compelling today. In this
regard, D’Alessandri testified that because of the tremendous
expansion of medical knowledge and technology over the last
25 years, medical students cannot be adequately prepared to
practice medicine within the confines of 4 years of medical
school. Thus, graduate medical education programs are a nec-
essary part of the continuum of formal medical education.
With respect to the Board’s reasoning that there should be a
national approach to labor relations in the health care industry,
the Association contends that the ACGME, through its accredit-
ing function, continues to provide national standards for gradu-
ate medical education. Further, graduate medical education has
shifted away from the service-oriented approach of the early
1970’s toward an almost purely educational approach, which
emphasizes the instructional and scholarly aspects of residency
programs. D’Alessandri testified, for example, that supervision
of residents has increased in the last 20 years, and that ACGME
passed a ruling in 1992 in response to the problem of house
officers’ excessive duty hours. In sum, the Association argues
that the finest system of medical education in the world is func-
tioning at the highest professional level, and that there is no
basis for overruling Cedars-Sinai and St. Clare’s.
The American Medical Association (AMA) was granted
leave to file an amicus brief on behalf of the Petitioner. By
letter dated August 28, 1997, the AMA informed the Region
that it would not file a brief on behalf of any party but, instead,
set forth its position in the letter. The AMA explained that,
pursuant to long-standing AMA policy,102 house staff should be
able to organize in any manner they choose for the purpose of
negotiating with institutional sponsors of residency programs
over their working conditions. While the AMA believes that
sponsoring institutions should recognize such organizations of
house staff, the AMA believes that house officers should not
have the right to strike, which may result in the withholding of
patient care. It believes that collective-bargaining agreements
should not require individual house officers to join a union.

101 As noted by the Association, there are approximately 100,000
house officers in approved programs of graduate medical education in
the United States. See Emp. Exh. 75, 1996 annual report of the
ACGME.
102 AMA policy H-310.999(IIB)(3).
The AMA stated its belief that house officers are both stu-
dents and employees under the NLRA. It also believes that the
ACGME is another forum where the concerns of house staff
can be addressed, without the risk of compromising medical
education and without the potential for strikes. In this regard, it
has proposed to the other members of the ACGME that it re-
view and revise its institutional requirements to more ade-
quately address the concerns of residents over working condi-
tions. It asserted that the ACGME has the expertise necessary
to identify when issues of concern to residents involve working
conditions that are appropriate for collective bargaining, and
when they are matters of medical education over which the
institution should retain discretion.
Because of the AMA’s decision not to file an amicus brief,
by letter dated August 29, 1997, the Massachusetts Medical
Society (MMS) withdrew its request to join in the AMA’s brief.
In its letter, the MMS expressed views similar to those of the
AMA. That is, MMS supports the right of house staff to form
associations that negotiate collectively, but it does not support
the house officers’ right to strike and, thus, withhold patient
care and does not support mandatory union membership.
Therefore, it is working with the AMA to ask the ACGME to
strengthen its standards by providing for the establishment of
house staff associations and for the implementation of due pro-
cess for house officers.
II. OTHER ISSUES RAISED BY BMC
A. Impact of the Board’s Rule on Collective Bargaining in the
Health Care Industry
Assuming house officers are employees, BMC argues that
the petition must be dismissed because it is contrary to the
Board’s rulemaking on bargaining units in acute care hospitals,
which requires a unit of “all physicians.”103 The Petitioner
seeks a unit of all interns, residents, and fellows, and does not
seek to include in the unit other nonmanagement staff physi-
cians employed by BMC, of which there are at least two. In
fact, Levy testified that CIR’s constitution prohibits the Peti-
tioner from representing physicians other than house officers.
BMC asserts that the certification of a partial unit of physicians
is contrary both to the rule and to the Congressional admonition
against undue proliferation of bargaining units in the health
care industry.
BMC maintains that the Petitioner is unable to establish that
its petition falls within the rule’s exception for existing non-
conforming units, because BMC voluntarily recognized the
Petitioner as a representative of students, not employees, and
there is no such thing as an historical bargaining unit composed
of students. Further, the broadened unit, which added the for-
mer University Hospital house officers to the former BCH unit,
had only existed for about 6 months or so when the petition was
filed, which is not the “historic” existence contemplated by the
Board’s rule.
The Petitioner argues that the rules provide for an additional
exception, which reserves to the Board the right to determine
appropriate units by adjudication “where extraordinary circum-
stances exist.” Such circumstances exist because reversal of
Cedars-Sinai would bring into the ambit of the Act a whole
class of employees who were excluded from its coverage at the
time of the rulemaking in 1989. Further, the existing history of
103 29 CFR § 103.30 (1996); 284 NLRB 1579, 1597 (1989).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 196
collective bargaining in a distinct unit is an extraordinary cir-
cumstance. The Petitioner contends that house officers have a
separate and distinct community of interest from the attending
physicians, who are significantly better paid and are appointed
to the faculty.104 The Petitioner urges the Board to use its
rulemaking authority to establish an appropriate modification to
the health care rules or to establish an appropriate unit by
adjudication.
B. Administrative Problems
BMC argues that several administrative problems would re-
sult if the Board were to assert jurisdiction over its house offi-
cers. First, BMC contends that its various affiliations with
other institutions raise complex questions about joint employer
status. Second, BMC contends that, because some of those
institutions are government entities not subject to the Board’s
jurisdiction, asserting jurisdiction over the house officers would
present numerous bargaining and enforcement problems.
House officers are assigned to various clinical rotations, both
at BMC facilities and at other institutions. As they rotate
through the various clinical assignments, house officers remain
part of BMC’s residency program and continue to be covered
by the BMC collective-bargaining agreement, regardless of
where they are actually performing their duties, although they
are trained and supervised by physicians at the site of the rota-
tion. Residents in all BMC programs spend the vast majority of
their residency at BMC’s facilities.105
Additionally, BMC operates at least two joint residency pro-
grams with other institutions. For example, the Boston Com-
bined Residency Program in Pediatrics includes individuals in
BMC’s residency program as well as those in Children’s Hospi-
tal’s program. Residents in the primary care track are paid by
BMC, while those in the larger categorical track are paid by
Children’s. Only those paid by BMC are in the existing bar-
gaining unit and in the unit sought by the Petitioner.106
Finally, there are a number of house officers who are in
BMC’s residency program but on the payroll of other institu-
tions.107 Fifteen of these are in the bargaining unit currently
represented by the Petitioner.108 The record does not explain
how this came about, or why. Historically, however, a certain
number of house officers from various departments have been
selected at random to be on the payroll of another institution
while they complete their BMC residency. For example, there
are approximately 41 house officers who are in BMC’s pro-
gram but on the payroll of the Boston Veterans Administration
Medical Center (VA). Of these, the Petitioner seeks to repre-
sent only the six pathology residents who have historically been

104 BMC does not appear to contend, however, that attending physi-
cians should be included in a unit of all physicians. It appears to con-
fine its argument to the inclusion of nonmanagerial physicians.
105 In internal medicine, for example, residents spend an average of 8
weeks, combined over the course of a 2-year period, at Malden and
Brockton Hospitals.
106 BMC also operates a joint residency program in Oral and Maxil-
lofacial Surgery with Tufts University.
107 Notwithstanding the source of their income, these residents are
part of the BMC’s residency program insofar as they are selected by
BMC and will complete their programs with BMC certificates or di-
plomas. The record is unclear as to exactly how many residents fit into
this category.
108 The exact number varies from year to year. In 1996–1997 there
were 21 BMC residents who were paid by other institutions but in-
cluded in the bargaining unit. In 1997–1998, there are 15.
included in the bargaining unit. Similarly, there are about
seven BMC house officers on Brockton Hospital’s payroll, but
the Petitioner seeks to represent only the single radiology resi-
dent who has been in the historic unit. An additional five BMC
house officers are on Malden Hospital’s payroll and in the unit
sought by the Petitioner, and an additional three psychiatry
residents paid by Brighton-Allston Mental Health Center are in
the unit sought by the Petitioner.
The house staff who receive their stipends from other institu-
tions are otherwise treated no differently from those on BMC’s
payroll, in that their training and rotations are identical to those
of other house officers. Like other house officers, they spend
the majority of their residency working at one of BMC’s facili-
ties. It is unclear from the record whether, in all cases, they
receive the same stipend as those who are on the BMC payroll,
but each affiliated institution has agreed to attempt to compen-
sate the house staff according to the collective-bargaining
agreement. All house officers who have historically been in-
cluded in the bargaining unit, however, receive the same wages
and benefits, regardless of whose payroll they are on.
BMC contends that the petitioned-for unit is inappropriate in
several respects. First, BMC argues that, because residents
rotate through various institutions, which supervise, train, and
evaluate the residents while they are there, each of those institu-
tions is potentially a joint employer. As a result, according to
BMC, the Board will have to analyze complex joint employer
questions in every case that comes before it, and may unwit-
tingly create a morass of bargaining and enforcement problems.
Second, BMC contends that the Board’s jurisdiction will be
constantly called into question whenever the affiliated institu-
tion is a government entity, such as the VA. According to
BMC, any finding of joint employer status with a public entity
will necessitate asserting jurisdiction over one institution, but
not the other. In such situations, BMC argues, the Board may
force BMC to bargain over a matter over which it has no con-
trol, or may expose BMC to a strike over economic issues
which it cannot alter. Finally, BMC takes the position that if
the Board decides to exercise jurisdiction over the house offi-
cers, the unit should include only those residents on BMC’s
payroll.109
The Petitioner asserts that BMC’s various affiliations with
other institutions do not raise any insurmountable administra-
tive difficulties. First, the Petitioner takes the position that the
rotation of residents through other institutions is no different
from carpenters or other employees who work at various job
sites. Noting that the Board has certified units of employees
who work at different locations, the Petitioner argues that the
unit it seeks is appropriate because BMC controls the terms and
conditions of employment of house officers on its payroll, re-
gardless of the site to which they are temporarily assigned; the
house officers always rotate back to BMC; the skills and duties
of the house officers are similar; and the long bargaining his-
tory justifies including all the residents in one bargaining unit.
109 BMC notes two exceptions to this general description. There are
currently approximately seven residents (referred to as the Brockton
Hospital transitional employees), and one forensic pathology resident,
who are on BMC’s payroll because BMC is serving as their paymaster,
but are otherwise unconnected to BMC’s program. They have no resi-
dency functions at BMC and, as of the 1998–1999 year, will no longer
be on BMC’s payroll. As they have historically been excluded from
the unit, the Petitioner agrees that they should not be part of any unit
found appropriate.
BOSTON MEDICAL CENTER CORP. 197
Second, the Petitioner takes the position that, given the long
bargaining history in the petitioned-for unit, the fact that some
BMC house officers are paid by other institutions does not
create any administrative problems. In this regard, the Peti-
tioner initially points out that it is not seeking to represent any
BMC house officers who are paid by other institutions and who
have historically been excluded from the unit for undisclosed
reasons. Accordingly, the Petitioner maintains, the application
of a simple payroll-based rule would resolve most of the unit
placement issues: house officers on BMC’s payroll should be
included in the bargaining unit. The only exception to this rule,
notes the Petitioner in its reply brief, would be the four resi-
dents paid by Malden Hospital who have historically been in-
cluded in the unit. I note, however, that the unit the Petitioner
has historically presented appears to include approximately 15
individuals who receive their stipends from institutions other
than BMC. Although the Petitioner takes the position that the
parties’ bargaining history justifies the unit it seeks, it agrees, in
the alternative, to proceed to an election in a unit that excludes
these 15 house officers.
Finally, the Petitioner takes the position that the unit place-
ment issues are not complicated by the fact that some of the
affiliated institutions are government entities. The Petitioner
first argues that neither the VA nor any other government entity
limits BMC’s discretion to compensate its house officers. Sec-
ond, the Petitioner cites Management Training Corp.110 to sup-
port its contention that the Board will certify a unit even where
there is direct government involvement in determining terms
and conditions of employment for private sector employees.
Finally, citing Board of Education of Calvert County,111 the
Petitioner argues that the Board will not decline jurisdiction
over private sector employees simply because of the participa-
tion of a public entity as a joint employer.
C. Unit Based on Extent of Organization
BMC takes the position that the unit sought is inappropriate
because it is based on the extent of the Petitioner’s organizing
effort. First, BMC argues that because the unit sought includes
only house officers, rather than all physicians, the unit is inap-
propriate, and the petition should be dismissed. Additionally,
BMC contends that because the unit includes some but not all
house officers on the payrolls of other institutions, the unit is
inappropriate, and the petition should be dismissed.
The Petitioner argues that the historic unit is not rendered in-
appropriate by the inclusion of a small number of residents with
different paymasters.
III. CONCLUSION
With respect to the employee status of interns, residents, and
fellows, I find that BMC’s residency and fellowship programs
operate in substantially the same manner as the graduate medi-
cal education programs considered by the Board some twenty
years ago in Cedars-Sinai and St. Clare’s Hospital. The Board
held in those cases that interns, residents, and fellows are not
employees within the meaning of Section 2(3) of the Act. The
parties have each argued comprehensively as to why Board law
with respect to this issue should be reversed or maintained.
This is a matter that can only be resolved by the Board. There-

110 Supra, 317 NLRB 1355.
111 322 NLRB 860 (1997), citing Management Training Corp., supra
at 1358 fn. 16.
fore, in accordance with Board precedent, the petition is dis-
missed.
In light of my dismissal of the petition on the ground that
BMC’s house officers are not employees, I need not reach the
issues of whether the petitioned-for unit violates the health care
rules, whether BMC’s affiliations with other institutions present
joint employer or jurisdictional issues, whether the petitioned-
for unit is based on the extent of organization, or whether cer-
tain house officers not on the BMC payroll should be included
in the unit.
IV. CHIEF RESIDENTS
Among the house officers the Petitioner seeks to represent
are approximately 30–40 chief residents, who BMC contends
should be excluded as either supervisors or managers. Chief
residents have historically been covered by the parties’ collec-
tive-bargaining agreement.
Chief residents cannot be adequately characterized as a
group, as their duties, responsibilities, and authority vary
widely from program to program. Indeed, the term “chief resi-
dent” does not mean the same thing from one residency pro-
gram to another. In some programs, such as those in orthope-
dics and surgery, all those in the final year of their residency
are called chief residents. In other programs, such as pediatrics
and internal medicine, chief residents are selected to serve an
additional year beyond the normal residency period. Some
programs have one chief resident, while others have half a
dozen or more; some have no chief resident in a given year.
Chief residents do not “hire” or “fire” other house officers,
but several BMC witnesses testified that chiefs sit on the com-
mittee that selects applicants for the residency program, and
that they frequently give input that is used to determine whether
an intern or resident progresses to the next PGY level. This is
particularly true in the Boston Combined Pediatrics Residency
Program, which is offered by the Employer in conjunction with
Harvard Medical School and Children’s Hospital, and in the
internal medical residency program.
Program Director Robert Vinci described the selection proc-
ess in the pediatric residency program and testified about the
involvement of chief residents in that process. The selection
committee is chaired by a staff physician from each of the two
hospitals in the Combined Residency Program. The chairper-
sons screen the approximately 3000 applicants and select ap-
proximately 250 for interviews. Each applicant selected for an
interview has two to four interviews over 2 days at the two
campuses. The interviews are conducted by faculty members
and, sometimes, fellows. Although both of BMC’s chief resi-
dents are involved in interviewing, the majority of applicants
are interviewed only by attending physicians on the faculty.
After each interview, the faculty interviewer completes an
evaluation form, which is then reviewed by the selection com-
mittee for ranking.
In the internal medicine program, approximately 60 faculty
and 2 to 4 house officers participate in the internship selection
committee.112 Applicants are interviewed by one or two peo-
ple. Although Program Director David Battinelli did not testify
about the frequency with which chief residents interview appli-
cants, he did testify that no applicant is interviewed only by a
resident. Following each interview, the faculty interviewer
112 Usually, only one of the house officers on the selection commit-
tee is a chief resident.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 198
completes an evaluation form. After the interviews are com-
pleted, the selection committee reviews the applications and
discusses the applicants’ ranks. Battinelli has ultimate respon-
sibility for ranking the applicants for submission to the match-
ing program.
Battinelli testified that house officers frequently meet with
candidates informally, outside the application process, and then
give input to the program director regarding their impressions
of the applicants. Although Battinelli is responsible for ranking
the applicants, he testified that he gives “considerable weight”
to the comments provided by house officers. About 20 percent
of those interns admitted to the program had positive input
from house staff, according to Battinelli, while about 5 percent
of all applicants interviewed have negative input from the
house staff. This informal input into the selection process is
given by house officers in all PGY levels, not just chief resi-
dents, although Battinelli testified that he gives greater weight
to the comments of more senior house staff.
In many residency programs, chief residents sit on evaluation
committees, which are responsible for appraising house offi-
cers’ performance at the end of each year of residency. In most
programs represented at the hearing, house officers are evalu-
ated at the end of each rotation by the attending physician or
program director responsible for that rotation. Then, an evalua-
tion committee reviews the appraisals given to each house offi-
cer and makes a composite evaluation for each to send to the
program director. In the oral and maxillofacial surgery resi-
dency program, the evaluation committee is comprised of four
to six individuals, one of whom is a chief resident.113 The
committee holds quarterly meetings in which it reviews the
rotation evaluations, makes a report on the evaluations to send
to the program director, and meets with the house officer to
discuss the evaluation. According to Program Director Donald
Booth, in making its report, the committee can recommend that
a house officer be placed on probation, suspended from the
program, or terminated, and the committee has recommended
termination on at least one occasion. In the event that the
committee recommends that a house officer be dismissed, sus-
pended, or placed on probation, the program director independ-
ently reviews the rotation evaluations and the facts before mak-
ing a decision.
The evaluation process is similar in the pediatrics program.
House officers are evaluated at the end of every rotation by the
attending physician on that service. Those evaluations are re-
viewed every 4 months by an evaluation committee, which is
comprised of six faculty members and four chief residents. The
full committee does not review each house officer’s evalua-
tions. Instead, each committee member is assigned three or
four house officers, whose rotation appraisals the member re-
views and for whom the member creates a composite evalua-
tion based on those evaluations. The composite evaluations are
then brought before the full committee, which discusses and
approves them. According to Vinci, the chief resident has a
“significant role” in this process because of his or her daily
contact with the house staff. After the evaluation is completed,

113 The chief residents rotate on this committee, however, so that
there is a different chief at each evaluation committee meeting.
the chief resident meets with the house officer to deliver and
discuss the evaluation.114
Vinci testified that house officers are occasionally asked to
leave the program. In the last 5 years, however, no house offi-
cer has been terminated from the pediatrics program, and fewer
than five percent have been denied promotion to the next PGY
level.
In other programs, the input of chief residents in the evalua-
tion process is less formal. For example, Battinelli testified that
internal medicine chief residents contribute to the evaluation of
other house officers by reporting performance problems to the
program director. There does not appear to be a formal mecha-
nism for such input, however. Similarly, in the surgery pro-
gram, chief residents have no formal role in evaluating other
house officers, but Program Director James Becker testified
that faculty frequently consult with chief residents when evalu-
ating house staff at the end of each rotation. Becker stated that
he consults with the chief resident every time he fills out an
evaluation on a house officer, and that the chief’s input has
influenced his evaluation.115
Some chief residents testified at the hearing that they have
been asked for input on a house officer’s evaluation, but that
such input is simply part of the “pecking order” among house
officers, rather than because of their role as chief residents. For
example, Acting Internal Medicine Chief Resident Camilla
Graham recalled three occasions on which she was asked for
her impressions of a resident’s performance. These occurred
when Graham was a PGY 2, however, not during her tenure as
acting chief. Similarly, Pediatrics Rising Chief Jodi Wenger116
testified that, in completing an intern’s evaluation, the attending
physician might ask a PGY 2 or 3, as well as the chief, what he
or she thinks of the intern. Otherwise, Wenger testified, the
attending physician bases the evaluation on his or her own ob-
servations of the intern at rounds and in other settings.
In some residency programs, such as radiology and pathol-
ogy, chief residents have no role in the evaluation process.
Radiology residents, like those in other departments, are evalu-
ated at the end of each rotation by a faculty member in that
rotation. Additionally, Program Director Joseph Ferrucci or his
associate conducts biannual review interviews with each house
officer. If, during the course of the residency program, a house
officer is not progressing as expected, Ferrucci confers with
other faculty members to confirm the problem, and then meets
with the house officer to discuss and design a corrective plan.
In the pathology program, attending physicians and faculty
members complete resident evaluations every 3 or 4 months,
based on their personal observations of the house officer’s per-
formance. Chief Orthopedics Resident Linda Parke D’Andrea
testified that she has never been asked for her impressions of a
house officer’s skills or performance, and that she has never
given such input. Likewise, Chief Otolaryngology Resident
Andrew Mester testified that attending physicians in that de-
114 This is not true if the evaluation is seriously negative. In that
case, the resident’s advisor and program director would also be present
during the evaluation meeting.
115 In the surgery program, a promotions committee comprised only
of faculty reviews each resident at the end of each year and makes a
recommendation to the program director as to whether the resident
should progress to the next PGY level.
116 A rising chief is one who has been selected to be a chief resident
for the following year. At the time of the hearing, Wenger was a PGY
3 who had been selected to be a chief resident for the 1997–1998 year.
BOSTON MEDICAL CENTER CORP. 199
partment do not ask their chiefs for an assessment of house
officers’ performance in conducting performance evaluations.
Chief residents are involved in assigning work to other house
staff. In virtually every department, chiefs are involved in cre-
ating the schedules of the house officers. Such scheduling and
assignment duties generally fall into four categories: preparing
the year-long rotation schedule, assigning on-call duties,
assigning coverage for absent house officers, and directing
house officers to perform specific tasks as needed.

With respect to the year-long rotation schedule, the aim in
every department is to ensure that all residents in the depart-
ment complete the same set of rotations by the end of the
year.117 Thus, for example, in the pediatrics program, one of
two chief residents is responsible for filling in the block sched-
ule for second- and third-year residents.118 According to Wen-
ger, in the pediatrics program, that task involves filling in a grid
to permit each of 12 rotations to be filled every month, with
every resident covering each rotation once. Wenger testified
that, in making the rotation schedule, she takes residents’
vacation preferences into account. The schedule must be ap-
proved by the program director.
Similarly, in the radiology program, chief residents make the
schedule according to staffing patterns set by the program di-
rector. According to Radiology Program Director Joseph Fer-
rucci, the two chief residents in his department fill the slots in
the schedule, with the aim of ensuring that all radiology resi-
dents complete the same rotations by the end of the year.
Chief residents also have responsibility for the on-call lists,
which are prepared monthly according to department protocol.
In general, the chief resident preparing the on-call list follows
that protocol, taking into account before making the schedule
residents’ special requests for particular dates off. In pediatrics,
for example, residents are on-call every fourth night, and the
chief resident fills in the schedule accordingly. Wenger testi-
fied that she has some discretion to take into account requests
for a particular night off-call to accommodate special circum-
stances such as weddings and other events, but that a resident
who is aggrieved with the schedule must bring the problem to
the program director. In preparing the orthopedic surgery on-
call schedule, D’Andrea asks residents to submit their requests
for time off, and tries to accommodate such special requests.119
Then she fills in the schedule according to protocol. At the
East Newton Street facility, residents are on call every third
night. In otolaryngology, Mester described the process of mak-
ing the on-call schedule as generally random, although he con-
siders personal requests for days off and alternates major holi-
days. In preparing on-call schedule, chief residents do not con-
sider individual skills and experience, but only the PGY level
of the resident.
Chief residents have responsibility for arranging coverage
for absent residents. In every program represented at the hear-
ing, however, the chief has a limited list from which to select
117 Chief residents do not prepare the rotation schedule in every de-
partment. For example, in the internal medicine program, the rotation
schedule is prepared by the program directors.
118 Beginning with the 1998–1999 year, the schedule for second-year
residents will be made by a secretary at Children’s Hospital, the co-
sponsor of the combined pediatric residency program. Scheduling for
pediatric interns is done by the same Children’s Hospital secretary.
119 According to D’Andrea, she has always been able to accommo-
date special requests and, thus, has never had to choose between com-
peting requests.
emergency coverage, and aims to rotate coverage among those
on the list. For example, when all the pediatric residents on a
particular ward have clinic on the same day, the chief resident
is expected to find coverage from among the house officers
who are on an “elective” rotation. When residents are absent
because of illness, the chief selects from the two or three house
officers who are assigned that month to sick call back-up duty.
Likewise, in the internal medicine program, the chief resident is
responsible for arranging emergency coverage, but must select
from a list of three residents in each PGY level designated for
emergency coverage. In making their selections, the chief resi-
dents simply call residents on a rotating basis so that back-up
shifts are distributed equitably.
Finally, chief residents have substantial responsibility for
overseeing the day-to-day work of the house staff in their pro-
grams. Chief residents frequently assign residents’ daily tasks
but generally have no authority to enforce them. For example,
when a house officer needs assistance performing a particular
procedure, the chief resident might ask another resident to help.
D’Andrea testified that, in internal medicine, if she asks another
resident and the resident is too busy or for some other reason
refuses to help out, she has no authority to enforce such a re-
quest. D’Andrea testified that she has never reported any house
officer for refusing to help out as requested. Similarly, al-
though chief residents frequently instruct less senior residents
on patient care issues, they have no authority to require the
resident to carry out their patient care directives.
Several witnesses described the chief’s duties with respect to
assignment of tasks as part of a “pecking order” in which the
more senior residents guide the junior residents, and the junior
residents guide the interns and medical students. Surgery De-
partment Program Director James Becker described this “peck-
ing order” as a “continuum of graded responsibility and author-
ity” in which chief residents oversee third- and fourth- year
residents, who in turn watch over first- and second- year resi-
dents. In this regard, a more senior resident might suggest to a
junior resident that he or she substitute a less expensive
medication for the one prescribed. Also, chief residents, as
well as other residents, may give input to program directors as
to which junior residents are ready for a particular rotation.
Notwithstanding the “pecking order,” some chief residents
have greater authority than other residents for assigning and
overseeing the work of junior residents. In the orthopedic sur-
gery residency program, the five chiefs assign residents be-
tween the clinic and the operating room on a day-to-day basis.
The chiefs do not independently decide how many residents are
needed in the operating room versus the clinic. Instead, the
ratio is determined by the number of operating rooms in use for
orthopedics on a given day, and the types of procedures sched-
uled. According to D’Andrea, these assignments are based on a
number of factors, including the PGY level of the resident, the
resident’s personal interest in a patient (for example, if the sur-
gical patient was a clinic patient of the resident), and the goal of
exposing house officers to a variety of procedures. D’Andrea
also testified that in making such assignments she sometimes
considers the skill level of the resident, but that her assessment
of a resident’s skill level is usually determined solely by his or
her PGY level. Moreover, D’Andrea testified that any consid-
eration of a resident’s skills is based on the attending physi-
cian’s assessment of those skills.
In the otolaryngology program, the two chief residents
schedule cases for surgery and assign house officers to partici-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 200
pate in the operations according to established protocol. Chief
Resident Mester testified that certain surgical procedures are
designated for junior residents, others for senior residents, and
still others for chief residents, and that he assigns them accord-
ingly. Mester emphasized that he makes surgical assignments
with no regard for the skills of the individual resident, because
all residents need to complete their program with the same level
of knowledge and skill.
Surgical chief residents appear to have the most discretion in
making assignments to other residents. Based on their experi-
ence with the complexity of certain surgical procedures, the
chief residents assign house officers to assist in the operating
room. According to Becker, the chiefs consider the complexity
of the case and the resident’s level of training in deciding
whether a resident could learn from the assignment. Becker
testified that the chief residents have a good feel for what type
of case is appropriate at each level of training, and that they
base their assignments on that experience. Although the chief
makes the surgical assignments, Becker testified, the attending
physician is responsible for ensuring that the assignment is
appropriate, and occasionally reassigns the case accordingly.
Including the chief residents on site, there are about nine
surgical residents available at the East Newton Street facility on
any given day.120 On Becker’s service, there are two residents
(a PGY 2 and a PGY 3) and one chief to assist in one or two
operating rooms. According to Becker, the usual practice is to
assign one resident for each operating room and keep one
available on the hospital’s surgical unit. In making these as-
signments, Becker testified, the chief resident usually keeps the
most complicated case for him or herself and divides surgical
unit and operating room duties between the other two residents.
Chief residents are paid more than less senior residents. Un-
der the wage scale set forth in the parties’ collective-bargaining
agreement, residents’ salaries increase each year of their pro-
gram. Accordingly, chief residents, like other residents, are
paid according to their PGY level. There is no separate wage
scale for a classification of chief residents, and there is no sepa-
rate benefits package for chiefs. In some departments, chief
residents share an office, while in others there is no office for
chief residents.
Chief residents have more regular work schedules than other
residents. While they are responsible for on-call coverage, they
can usually provide such coverage from their homes. Other
residents must remain in the hospital during on-call hours.
Chief residents are not required to perform certain duties, such
as overnight shifts and “long-call.”
In most of BMC’s residency programs, chief residents,
unlike other residents, are actively involved in curriculum plan-
ning. They have responsibility for conducting rounds on the
hospital units; organizing educational conferences; leading
journal club discussions; and making case presentations at
morbidity and mortality conferences, case of the week confer-
ences, and morning report, among other duties. In some de-
partments, chiefs decide when a particular lecture or conference
should be presented, in order to complement residents’ clinical
experience. For example, if there are several patients on a ser-
vice with a particular disease or condition, the chief resident
might adapt the curriculum and present a lecture on that issue at
that time, instead of at a later date. In this situation, the chief

120 There were five surgical chief residents in 1996–1997. All were
in their fifth and final year of residency.
does not design the curriculum, but has some discretion to mod-
ify it to allow issues to be presented when they are most rele-
vant. Where chief residents have responsibility for case presen-
tations, such as in rounds, case of the week, and morbidity and
mortality conferences, they are responsible for determining the
content of these didactic sessions. Thus, chief residents can
impact the learning experience of other house staff by selecting
the cases to which house officers are exposed.
Chief residents serve on several committees that govern resi-
dency program and intradepartmental issues such as intern
selection, curriculum, evaluations, and the like. Among those
committees, some include interns and junior residents as well
as chiefs. Other committees are comprised only of faculty
members.
Chief residents serve on the pediatric program’s executive
committee, along with faculty representatives of the two spon-
soring hospitals. Although Vinci testified that the executive
committee determines the educational components of the pro-
gram, he did not give any examples of the kinds of decisions
the committee makes or the autonomy it possesses. Chiefs also
sit on the pediatrics program’s Residency Program Develop-
ment Committee, which reviews curriculum development for
the combined residency program. Chief residents also serve on
the radiology program’s research committee, whose purpose is
to develop resources to obtain and pursue research projects and
funding.
Some committees include interns and junior residents as well
as chief residents. For example, the internal medicine pro-
gram’s curriculum committee is comprised of a program direc-
tor, representatives of all disciplines within the department,
faculty representatives, chief residents, and other residents. Its
function is to oversee the curriculum for residents, discuss
teaching methods, plan conferences, and review the rotations to
ensure that residents are exposed to all essential issues in inter-
nal medicine. The same department has a scheduling commit-
tee made up of a program director and program administrators,
the incoming chief residents for the following year, and one or
two house officers from each PGY level. The committee is
charged with making the schedule for the following year. The
radiology program’s education committee, which oversees
curriculum development, clinical rotations, faculty perform-
ance, and other issues, consists of several faculty members, the
program director and chairperson, chief residents, and a resi-
dent representative of each PGY level.
Still other committees exclude residents altogether. For ex-
ample, oral and maxillofacial surgery’s Program Advisory
Committee meets biannually to evaluate the residency program,
recommend program changes, and review individual residents’
performance. There are no chief residents on the committee,
but only senior faculty. As noted above, the surgery program’s
Promotions Committee, which determines whether residents
progress to the next PGY level, is comprised only of faculty
members. In orthopedics, chief residents do not sit on any
committees.
A. Chief Residents as Supervisors
BMC contends that, if the house officers are found to be em-
ployees within the meaning of Section 2(2) of the Act, then
chief residents are supervisors within the meaning of Section
2(11) of the Act and should be excluded from any unit found
appropriate.
Section 2(11) of the Act defines a supervisor as one who has:

BOSTON MEDICAL CENTER CORP. 201
authority, in the interest of the employer, to hire, transfer, sus-
pend, lay off, recall, promote, discharge, assign, reward, or
discipline other employees, or responsibly to direct them, or
to adjust their grievances, or effectively to recommend such
action, if in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature, but re-
quires the use of independent judgment.

To qualify as a supervisor, it is not necessary that an individ-
ual possess all of the powers specified in Section 2(11) of the
Act. Rather, possession of any one of them is sufficient to
confer supervisory status. Chicago Metallic Corp.121 Consis-
tent with the statutory language and the legislative intent, how-
ever, it is well recognized that the disjunctive listing of supervi-
sory indicia in Section 2(11) does not alter the requirement that
a supervisor must exercise independent judgment in performing
the enumerated functions. Thus, the exercise of supervisory
authority in a merely routine, clerical, perfunctory, or sporadic
manner does not elevate an employee into the supervisory
ranks, the test of which must be the significance of the judg-
ment and directions. Opelika Foundry.122 Additionally, the
existence of independent judgment alone will not suffice, for
the decisive question is whether the individual has been found
to possess the authority to use independent judgment with re-
spect to the exercise of one or more of the specific authorities
listed in the Act. Advanced Mining Group.123 The burden of
proving supervisory status rests on the party alleging that such
status exists. Tucson Gas & Electric Co.124 One’s status as a
statutory supervisor is determined by actual job duties, not by
title or job classification. Seven-Up Bottling of Phoenix.125 An
employee cannot be transformed into a supervisor by the vest-
ing of a title and the theoretical power to perform one or more
of the functions enumerated in Section 2(11) of the Act. Mag-
nolia Manor Nursing Home.126 Whenever the evidence is in
conflict or otherwise inconclusive on particular indicia of su-
pervisory authority, the Board will find that supervisory status
has not been established, at least on the basis of those indicia.
Phelps Community Medical Center.127 The Board will refrain
from construing supervisory status too broadly because the
inevitable consequence of such a construction is to remove
individuals from the protection of the Act. Quadrex Environ-
ment Co.128
Based on the foregoing, I find that the chief residents em-
ployed by BMC do not possess the authorities enumerated in
Section 2(11) of the Act and are not supervisors within the
meaning of the Act. In particular, and contrary to BMC’s con-
tentions, I find that chief residents lack the authority to select
house officers or effectively recommend their selection, or to
evaluate or reward house officers. I also find that, although
chief residents in some cases assign and responsibly direct the
work of other house officers, they do not exercise independent
judgment in doing so.129

121 273 NLRB 1677 (1985).
122 281 NLRB 879, 899 (1986).
123 260 NLRB 486, 506–507 (1982).
124 241 NLRB 181 (1979).
125 263 NLRB 596, 604 (1982).
126 260 NLRB 377, 385 fn. 29 (1982).
127 295 NLRB 486, 490 (1989).
128 308 NLRB 101, 102 (1992).
129 In its brief, BMC argues that chief residents also possess secon-
dary indicia of supervisory authority, such as higher pay, additional
I note at the outset that not all individuals with the title
“chief resident” have the same duties, responsibilities, or au-
thority. Because the role of the chief resident varies signifi-
cantly from department to department, no conclusions about
their common supervisory authority can be drawn from the
testimony at the hearing, which related to only 7 out of the
Employer’s 37 residency programs.130
Chief residents lack the authority to transfer, suspend, lay
off, recall, promote, or discharge employees, to adjust em-
ployee grievances, or to effectively recommend such action.
BMC takes the position, however, that participation by chief
residents in the selection of applicants into the residency pro-
gram is tantamount to hiring and satisfies the statutory indicia
for a finding of supervisory authority. I find that the level of
their participation in this process is insufficient to establish that
they are supervisors within the meaning of the Act, because
they do not effectively recommend the selection of any candi-
date. The Board has described an effective recommendation as
one that is acted upon without further investigation or review.
Waverly-Cedar Falls Health Care.131 Here, by contrast, the
selection committee’s ranking of applicants is not only re-
viewed by the program director, but is ultimately processed by
the National Residency Matching Program, which has the ulti-
mate “hiring” authority. Thus, the decisions made by the Se-
lection Committee are so attenuated as to render them ineffec-
tive. Clearly, they do not rise to the level of effective recom-
mendations required by the Board to support a finding of su-
pervisory status.
Moreover, chief residents alone do not make the selection.
For example, in the internal medicine residency program, the
two to four chief residents constitute such a small percentage of
the selection committee that their input is severely diluted by
the approximately 60 attending physicians and faculty who
serve on the committee. The Board has held that “mere partici-
pation in the hiring process, absent the authority to effectively
recommend hire, is insufficient to establish . . . supervisory
authority,” even where the purported supervisor participates in
the interview and assists in evaluating the candidates for hire.
North General Hospital.132
Chief residents do not discipline other house officers. While
a chief resident may speak to another resident about a problem
such as tardiness, it appears that any disciplinary action would
be imposed by the program director. Such initial counseling,
without more, does not establish supervisory authority. See
Providence Hospital.133 A chief resident may report discipli-
nary or performance problems to a program director, but makes
no recommendation as to how they should be handled. The
obligation to report problems to management, without the ac-
companying authority to effectively recommend any responsive

benefits in the form of more regular hours, and, in some cases, offices.
The Board has often held that such secondary indicia can support a
finding of supervisory status, but only when the employee also per-
forms one or more of the functions set forth in Sec. 2(11). See, e.g.,
Northcrest Nursing Home, 313 NLRB 491, 500 (1993). In light of my
finding that the chief residents do not perform any 2(11) functions, the
secondary indicia do not affect their status.
130 The Employer does not contend that certain individual chief resi-
dents are supervisors, but that the entire group of 30–40 have supervi-
sory functions.
131 297 NLRB 390, 392 (1989).
132 314 NLRB 14 (1994).
133 320 NLRB 717, 719 (1996).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 202
action, is not indicative of supervisory status. Express Messen-
ger Systems.134 The record here contains no other evidence of
discipline by a chief resident.
Although chief residents participate in the evaluation of
other house staff, the extent and nature of their participation do
not confer supervisory status upon them. The Board will find
supervisory status where an individual independently performs
employee evaluations that lead directly to personnel actions,
such as raises, promotions, or discipline. Ten Broeck Com-
mons.135 Where the evaluations do not directly affect employ-
ees’ job status, however, the Board will not find supervisory
authority. Bayou Manor Health Center.136
First, chief residents do not independently evaluate BMC’s
house officers. At most,137 they sit on departmental evaluation
committees, which generally meet about four times a year to
review the evaluations prepared by attending physicians at the
end of each rotation. The function of those committees, and of
the chief residents who sit on them, is to create a summary
evaluation for each resident’s file so that a determination can
ultimately be made by the program director as to whether the
resident is ready to advance to the next PGY level.138 Because
so many other individuals contribute to the evaluations, they
are not the sole product of the chief residents and do not confer
supervisory status. See Ten Broeck Commons.139
Second, the evaluations that the committees prepare do not
directly affect house officers’ terms and conditions of employ-
ment. Evaluations have no effect on house staff wages, promo-
tions, or assignments. Although a committee may recommend
that a house officer be terminated from the program or denied
advancement to the next PGY level, it appears from the record
that these actions are rarely taken.140 Moreover, all the pro-
gram directors who testified on this issue stated that they would
independently investigate such a recommendation before taking
action.141 Thus, it appears that advancement through the pro-

134 301 NLRB 651, 654 (1991).
135 320 NLRB 806 (1996).
136 311 NLRB 955 (1993).
137 In addition to sitting on such committees, chief residents often
have informal input into the evaluation process. Several program direc-
tors testified that they rely on the observations and reports of chief
residents when they prepare their formal reviews of residents and in-
terns. Such informal input, however, is not an indication of supervisory
authority because there is no evidence to establish that such input con-
stitutes an effective recommendation for a promotion or reward. Ari-
zona Public Service Co., 310 NLRB 477, 480 (1993). Moreover, the
record demonstrates that the residency program relies on a pecking
order in which junior residents oversee interns, chief residents oversee
junior residents, and attending physicians oversee chief residents.
Thus, it appears from the record that all residents, not just chief resi-
dents, provide informal input into the evaluation of other residents.
138 In completing this evaluation, committee members have not nec-
essarily observed the performance which they are evaluating, but sim-
ply base their appraisal on the observations of the attending physician
who has conducted the review. Thus, there is nothing independent
about these summary evaluations.
139 Supra at 813.
140 As noted above, fewer than five percent of pediatrics residents are
denied promotion, while no one has been terminated from that program
in the last 5 years. In oral and maxillofacial surgery, one resident was
terminated from the program.
141 In at least one department, chief residents are responsible for
communicating the committee’s evaluation to the resident. The author-
ity to deliver an appraisal to an employee, however, is not evidence of
supervisory authority, as it does not require the exercise of independent
gram is determined by a number of factors, not solely on a
house officer’s performance evaluations.142
Although chief residents frequently assign work to other
house officers, these assignments are routine and do not require
the exercise of independent judgment. Similarly, to the extent
that chief residents responsibly direct the work of subordinate
residents, their direction requires the use of professional, but
not independent, judgment.
In Providence Hospital,143 the Board addressed the impact of
the Supreme Court’s decision in NLRB v. Health Care & Re-
tirement Corp.144 on the determination of supervisory status in
a health care setting.145 Specifically, the Board addressed the
issue of when the “exercise of discretion and judgment” by
professional employees, as defined in Section 2(12) of the Act,
becomes “independent judgment” sufficient to make an indi-
vidual a supervisor under Section 2(11). Thus, in Providence
Hospital, the Board attempted to interpret the statutory lan-
guage “assign,” “responsibly to direct,” “routine,” and “inde-
pendent judgment” so as to harmonize Section 2(11) and (12).
In determining that the charge nurses were not statutory super-
visors, the Board distinguished between the “authority arising
from professional knowledge” and the “authority encompassing
front-line management.”146 Where the former alone is present,
the Board will find that professional employees are not supervi-
sors; where the latter also exists, the employees are supervisors
as well as professionals. In a health care setting, where nurses
and physicians frequently make critical decisions and give or-
ders affecting the life and death of their patients, the distinction
between professional judgment and independent judgment is
easily blurred. The Board has cautioned, however, that “the
possibility that severe consequences might flow from a profes-
sional’s misjudgment does not necessarily make that judgment
supervisory; critical judgment is the quintessence of profes-
sionalism.” Id. at 725–26; see also Ten Broeck Commons.147
I find that the chief residents’ authority to direct and oversee
the work of other house officers flows not from any supervisory
authority, but from their professional expertise, as well as from
their superior knowledge, skill, and experience. One of the
primary functions of all residents, not just chief residents, is to
formulate and implement treatment plans for patients in their
care, and to monitor those plans for effectiveness. Thus, al-
though chief residents provide guidance and direction to junior
residents regarding patient care issues, such direction is no
different from that given to interns by junior residents. In other
words, all residents, regardless of their title, guide and direct
less experienced residents in the treatment of patients according
to a “pecking order” that appears to be the modus operandi of
the residency program. As a result, it is not surprising that the
chief resident, who is frequently the most senior physician on
hand at any particular time, is the most familiar with the tasks
that need to be performed and the most effective way of carry-

judgment. Moreover, in the Pediatrics Department, if an evaluation is
seriously negative, the resident’s advisor and program director are
present for the evaluation.
142 Id.
143 320 NLRB 717 (1996).
144 510 U.S. 810, 114 S.Ct. 1778 (1994).
145 The disputed employees at issue in NLRB v. Health Care & Re-
tirement Corp. and Providence Hospital were charge nurses. The
analysis, however, applies equally to the chief residents at issue here.
146 Id. at 728.
147 Supra at 811.
BOSTON MEDICAL CENTER CORP. 203
ing them out. Bozeman Deaconess Hospital.148 As the Board
has often noted, the fact that those tasks may be highly techni-
cal or risky is irrelevant to the supervisory determination. Be-
cause the chief residents’ decisions and direction are based on
their knowledge and skill, they are routine in nature and not
indicative of supervisory authority.
Similarly, the fact that chief residents sometimes intervene in
a patient’s diagnosis or treatment does not elevate them to su-
pervisory status, but is merely a function of their professional
responsibility. In this regard, chief residents are no different
from other house officers, who have an obligation to intervene
when they observe someone junior to them making an incorrect
diagnosis or prescribing inappropriate treatment. See Provi-
dence Hospital.149
Chief residents’ participation in the day-to-day allocation of
duties does not make them statutory supervisors. In most de-
partments, chief residents are responsible for assigning resi-
dents to cover the various areas in that service. For example,
the surgical chief residents decide on a day-to-day basis which
residents will assist in the operating room, and which will cover
the surgical unit. In making these assignments, the chief con-
siders the resident’s skill in relation to complexity of the case,
as well as the equitable distribution of surgical procedures
among residents on the service. Familiarity with the proce-
dures is, of course, a function of the chief resident’s profes-
sional training and experience. The chief’s assessment of the
resident’s skill is usually based on his or her PGY level, rather
than on any independent evaluation.150 Moreover, the attempt
to be fair in distributing assignments is a reflection not of the
chief’s independent judgment, but of BMC’s goal of ensuring
that all residents complete the program with the same or similar
experiences and skills. Thus, an important consideration in
making assignments is whether exposure to a procedure would
enhance and equalize a resident’s clinical experience. Such
attempts to balance workloads do not indicate supervisory au-
thority. Providence Hospital.151 Finally, it is the attending
physician who is responsible for ensuring that the assignment is
appropriate, and attendings occasionally reassign cases accord-
ingly.
I also conclude that the various scheduling functions per-
formed by some chief residents do not require the exercise of
independent judgment and, therefore, do not confer supervisory
status. The Board has held that, where assignments are “made
to equalize employees’ work on a rotational or other rational
basis,” they are routine and not indicative of supervisory au-
thority. Id.; see also Ten Broeck Commons.152 Here, the crea-
tion of the year-long rotation schedule is essentially a clerical
task, in which a chief resident fills in the blanks to ensure that
each resident rotates through each clinical rotation during the
course of the year.153 Similarly, the preparation of monthly on-

152

148 322 NLRB 1107 (1997).
149 Supra at 732.
150 See, e.g., Providence Hospital, supra at 727 (assignment based
on employee’s skill level is routine where skills are obvious or well
known).
151 Supra at 727.
Supra at 810.
153 In Providence Hospital, the Board noted that the charge nurses
did not prepare staffing schedules. It does not follow, however, that the
Board would have reached a different conclusion if the charge nurses
were involved in scheduling employees’ hours. This is especially true
in light of the Board’s consistent holding that preparing schedules
call schedules does not require the exercise of independent
judgment. In creating the on-call schedules, chief residents
follow a predetermined protocol in which every resident is on
call every so many nights, according to his or her department’s
practice.154 Furthermore, the activation of emergency coverage
by a chief resident does not require independent judgment,
because chiefs are limited in their discretion by a short list of
replacements whom they may call, and because they are ex-
pected to distribute such assignments on a rotating basis. See
Providence Hospital,155 citing Ohio Masonic Home.156 Finally,
BMC argues that the authority to activate the on-call list is also
evidence of chief residents’ authority to reward employees,
because residents who are called in for an extra shift receive
extra compensation. Because these assignments are distributed
on a rotating basis, however, I find that they are not evidence of
independent authority to reward employees.
Accordingly, I find that chief residents do not perform any of
the functions enumerated in Section 2(11) and are not supervi-
sors within the meaning of the Act.
B. Chief Residents as Yeshiva Managerial Employees
BMC also argues that, if the house officers are employees
within the meaning of the Act, then the chief residents should
be excluded as managerial employees.157 Managerial employ-
ees, who are excluded from the Board’s coverage, are those
who “formulate and effectuate management policies by ex-
pressing and making operative the decisions of their employer.”
NLRB v. Bell Aerospace Co.158 Professional employees, such
as the chief residents at issue here, can be considered manage-
rial only if their activities “fall outside the scope of the duties
routinely performed by similarly situated professionals.” Mon-
tefiore Hospital & Medical Center.159 In NLRB v. Yeshiva
University,160 the Supreme Court held that university faculty
were excluded as managerial employees where they formed
committees which determined academic content, established
grading policies and matriculation standards, and effectively
decided which students would be admitted, retained, and
graduated. In applying the managerial exclusion to the peti-
tioned-for faculty, the Court considered that, while faculty rec-
ommendations were subject to the approval of a dean or other
administrator, the “overwhelming majority” of faculty recom-

according to the Employer’s predetermined requirements is tantamount
to filling in the blanks and is clerical, not supervisory. I note that, in
some BMC programs, it is in fact a clerical employee who creates the
residents’ schedules.
154 Although chief residents testified that they might take into ac-
count a resident’s request for a particular day or night off, there is no
evidence in the record that such a consideration has ever resulted in an
actual conflict requiring intervention or resolution. Thus, it is not clear
how a chief resident would resolve such a scheduling conflict, or
whether he or she even has the authority to do so.
155 Supra at 732.
156 295 NLRB 390, 395 (1989) (Balancing work assignments among
staff members or using other equitable methods does not require the
exercise of supervisory independent judgment.).
157 Although I need not reach this issue in light of my finding that the
house officers are not employees, I reach it because it is closely related
to the supervisory issue and because it was fully litigated in the hearing.
158 416 U.S. 267, 94 S.Ct. 1757 (1974).
159 261 NLRB 569, 570 (1982).
160 Supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 204
mendations were actually implemented.161 Id. at 2528–2529,
fns. 3–6.
Based on the foregoing, I find that BMC’s chief residents do
not formulate or effectuate management policies and are, there-
fore, not managerial employees. Some chief residents partici-
pate in committees which recommend, among other things,
applicant ranking for admissions, curriculum changes, and re-
search proposals. There is, however, little evidence in the re-
cord to establish the relative authority which these committees
possess. For example, while several program directors testified
generally about the committees on which chief residents sit,
there is no testimony concerning the extent to which the com-
mittees’ recommendations are implemented. Therefore, BMC
has not met its burden of establishing that the committees on
which chief residents sit actually formulate and effectuate man-
agement policies.
Moreover, unlike the committees in Yeshiva, which were
comprised entirely of petitioned-for employees, the committees
in BMC’s residency programs are comprised primarily of fac-
ulty and attending physicians, and only minimally of the peti-
tioned-for chief residents. In these circumstances, chief resi-
dents are so outnumbered as to render their collective voice
ineffectual.162
Additionally, not all chief residents sit on the committees
whose functions are purportedly managerial. Thus, any mana-
gerial authority which chief residents possess cannot be attrib-

161 Id. at 2528–1429, fns. 3–6.
162 Indeed, many committees have no chief residents at all. See Joint
Diseases, North General Hospital, 288 NLRB 291, 299 (1988) (physi-
cians not managerial employees, where, among other things, there was
no evidence of how many physicians served on committees with pur-
portedly managerial functions).
uted to chief residents as a group.163 Finally, several commit-
tees include junior residents as well as the chief residents who
BMC claims are managerial. In these situations, whatever au-
thority is vested in the chief residents sitting on the committees
appears to be a function of their status as residents, not their
status as chief residents. Therefore, I find that the chief resi-
dents’ participation in some committees is insufficient to re-
quire their exclusion as managerial employees.
BMC also contends that the chief residents are managerial
employees because they affect the academic content of their
programs by selecting cases for presentation, organizing didac-
tics and other conferences, and leading journal club discus-
sions. The record contains insufficient evidence that the chief
residents alone determine the academic content of their pro-
grams. In fact, in the one clear example in the record of the
scope of the chief resident’s authority in this respect, it appears
that the chief resident can affect the sequence of didactic pres-
entations, but not actual academic content.164
Accordingly, I find that the chief residents are not manage-
rial employees and should not be excluded from the bargaining
unit on this basis.
163 BMC has taken the position that all chief residents should be ex-
cluded as managerial employees. Thus, BMC has not presented evi-
dence sufficient to establish that particular individuals should be ex-
cluded on this basis. I note that BMC has the burden to demonstrate
that either the entire class, or specific individuals therein, are manage-
rial employees. Montefiore Hospital & Medical Center, 261 NLRB at
572 fn. 17.
164 Even assuming, however, that chief residents formulate and im-
plement policy with respect to academic content, they are not manage-
rial employees because health care, not education, is the basic business
of the Employer. Montefiore Hospital & Medical Center, 261 NLRB at
572.