223 N.L.R.B. 251 (N.L.R.B. 1976)

Cedars-Sinai Medical Center

National Labor Relations Board - Board DecisionsMar 23, 1976

223 N.L.R.B. 251 (N.L.R.B. 1976)

CEDARS-SINAI MEDICAL CENTER 251 Cedars-Sinai Medical Center and Cedars-Sinai Housestaff Association , Petitioner. Case 31-RC- 2983 March 23, 1976 DECISION AND ORDER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held on various dates before Hearing Officer James M. Middleton. Following the hearing and pursuant to Section 102.67 of the National La- bor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, by direction of the Regional Director for Region 31, this case was transferred to the Board for decision. Thereafter, the Employer and Petitioner filed briefs,' which have been duly considered. On September 3, 1975, the Board, having de- termined that this and a number of other cases in the health care industry presented issues of importance in the administration of the National Labor Rela- tions Act, as amended, scheduled oral argument in several of these cases, including this one. Oral argu- ments were heard on September 8, 1975. Briefs amici curiae were filed by interested parties and have been duly considered. The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. On the entire record in this case, the Board finds: 1. Cedars-Sinai Medical Center is a private non- profit California corporation engaged in the opera- tion of a medical center, including acute general hos- pitals, in the Los Angeles, California, area. The Employer annually receives revenues valued in ex- cess of $500,000 from such operations, and annually purchases goods valued in excess of $50,000 from di- rectly outside the State of California. The. parties have stipulated, and we find, that the Employer is engaged in commerce. Accordingly, we find that it will effectuate the policies of the Act to assert juris- diction herein. 2. The Employer contends that the Petitioner is not a labor organization within the meaning of Sec- tion 2(5) of the Act. The Petitioner's constitution states its purpose is to unite the Employer's interns and residents for the attainment of their collective goals including, inter alia, contract negotiations per- taining to salaries and working conditions. As we find hereinafter that the interns, residents, and clini- 1 With the Board 's consent , Association of American Medical Colleges and the Physicians National Housestaff Association submitted amicus curi- ae briefs, which have also been carefully considered. cal fellows are not "employees" within the meaning of the Act, and the record shows that Petitioner is composed solely and exclusively of interns, residents, and clinical fellows at Cedars-Sinai, we find, for the purposes of this proceeding, that the Petitioner is not a labor organization within the meaning of the Act. 3. No question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act for the following reasons: As indicated above, Cedars-Sinai is a nonprofit corporation engaged in the operation of a medical center in the Los Angeles, California, area. The Em- ployer operates two acute general hospitals: the Ce- dars of Lebanon Hospital Division which is licensed to operate 530 beds, and the Mount Sinai Hospital Division which is licensed to operate 230 beds. The Petitioner seeks to represent a unit of interns, resi- dents, and clinical fellows 2 The Employer contends that such a unit is inappropriate because, inter alia, these interns, residents, and clinical fellows are stu- dents, not employees. We find merit in the Employer's position, as we find that interns, resi- dents, and clinical fellows, although they possess cer- tain employee characteristics, are primarily students. Accordingly, for the reasons given below, we con- clude that the interns, residents, and clinical fellows in the petitioned-for unit are not "employees" within the meaning of Section 2(3) of the Act. The record shows that the medical education and training of a physician involves a progression from classroom and laboratory education in the basic and clinical sciences, through an internship, and usually then to a period of more advanced training in a spe- cialty or subspecialty of medicine. It is the purpose of internship and residency programs to put into prac- tice the principles of preventive medicine, diagnosis, therapy, and management of patients that the medi- cal school graduate learned in medical school. An intern is a medical school graduate serving his first period of graduate medical training in a hospi- tal. Most states, including California, require an in- ternship of 1 year to qualify for the examination to practice medicine. A resident is a physician who has completed an internship and serves a period of more advanced training, lasting from 1 to 5 years, in a specialty. A clinical fellow is a physician who has completed an internship and a residency and is tak- ing an educational postgraduate program to qualify for certification in an identifiable subspecialty of medicine. The term "housestaff" is commonly used by medical and hospital personnel, and will be used in this Decision, when referring collectively to in- terns, residents, and clinical fellows. 2 Petitioner does not seek to represent research fellows. 223 NLRB No. 57 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Graduate medical education and training pro- grams to qualify for licensing and for certification in a specialty or subspecialty are governed by national medical organizations, such as the American Medical Association, the National Board of Medical Examin- ers, and the specialty boards, and by state licensing authorities. The standards for internships and resi- dencies are contained in "Essentials of an Approved Internship" and "Essentials of Approved Residen- cies," hereinafter the "Essentials," prepared by the Council on Medical Education and approved by the American Medical Association. The programs are carried out in hospitals that are accredited by these various bodies and that in many instances have affili- ation agreements with approved medical schools. Ce- dars-Sinai is such a hospital. Cedars-Sinai offers internships and residencies in medicine, pediatrics, surgery, obstetrics and gynecol- ogy, pathology, psychiatry, and radiology. Its pro- grams are fully accredited by the Council on Medical Education of the American Medical Association and by the various specialty boards. Cedars-Sinai has af- filiation agreements with the UCLA Medical School. Most of Cedars-Sinai's 41 full-time and 25 part-time staff physicians hold UCLA Medical School ap- pointments and certain of its approximately 1,000 voluntary attending staff physicians who participate in the teaching program also hold UCLA appoint- ments. The medical staff, but not the housestaff, has admission privileges at Cedars-Sinai. At the time of the hearing, there were 34 interns, 86 residents, and 24 clinical fellows in the various graduate medical training programs at Cedars-Sinai. The majority of the interns and residents were train- ing in the specialty of medicine. The remaining in- terns were training primarily in pediatrics or surgery and the remaining residents were spread out over the specialties other than medicine. The vast majority of the clinical fellows were training in subspecialties of medicine. The placement of graduating medical students at Cedars-Sinai is governed by the National Intern and Resident Matching Program. This program is de- signed to place graduating medical students with a preferred graduate training institution. Both the stu- dents and the hospitals register with the National Matching Program by signing an agreement that they will be bound by the matching results. The pro- cedure is for a graduating medical student to make out a preference list of positions they have applied for (with or without a personal interview) at the par- ticipating hospitals approved by the American Medi- cal Association. The hospitals make out a ranking list of their student applicants. The entire basis for matching decisions is the student-ranking list in com- bination with the hospital list? Appointments of resi- dents and clinical fellows are made by department directors at Cedars-Sinai. Generally, these positions are filled by interns who were originally placed at Cedars-Sinai through the National Matching Pro- gram. The activities of interns, residents, and clinical fel- lows while in graduate programs such as those oper- ated by Cedars-Sinai are prescribed by the accredit- ing bodies and specialty boards which govern graduate medical education, supra. The training pro- grams consist of patient care activities coordinated with a variety of teaching and educational activities designed to develop the student's clinical judgment and proficiency in clinical skills. The record contains numerous examples of the types of patient care per- formed by the housestaff in Cedars-Sinai's depart- ments of medicine, pediatrics, and surgery and to a lesser extent in gynecology and the treatment and evaluation center. In general, the patient care activi- ties consist of taking medical histories, performing examinations , preparing medical records and charts, and developing diagnostic and therapeutic plans. The housestaff also participates in service rounds and assists in surgical procedures. These patient care activities, an integral part of a physician's education- al training, are coordinated with a variety of teaching and educational activities, such as grand rounds, teaching rounds, laboratory instruction, seminars, and lectures. A housestaff officer also can take elec- tive courses and participate in rotations to other hos- pitals. During their training at Cedars-Sinai, members of the housestaff receive an annual stipend which is on a graduated basis ranging from a first-year intern to a fifth-year resident. The amount of the stipend is not determined by the nature of the services rendered or by the number of hours spent in patient care. Nor does the choice of electives or even rotations to other hospitals affect the amount of the stipend. The "Es- sentials" characterize the stipend as a scholarship for graduate study. The housestaff also receives a variety of fringe benefits, such as medical and dental care, an annual vacation and paid holidays, uniforms, meals while on duty, and malpractice insurance. They are not eligible for Cedars-Sinai's retirement plan. Discipline is administered by a housestaff com- mittee. The tenure of interns and residents at Cedars-Sinai is closely related to the length of the program which each individual pursues. The record indicates that 58 of the 120 interns and residents at the time of the hearing were in their first year at Cedars-Sinai, 35 3 If an applicant goes unmatched , he makes individual arrangements among the positions that remain unfilled after the matching. CEDARS-SINAI MEDICAL CENTER 253 were in their second year, and 22 were in their third year. Thus the average stay of interns and residents at Cedars-Sinai is less than 2 years. As to the clinical fellows , the record indicates that 1974-75 was the first year at Cedars-Sinai for seven of them . Follow- ing completion of their programs at Cedars-Sinai, the majority of the housestaff go into private practice and others go into group practices or accept positions with health organizations . Only a few interns, resi- dents , or clinical fellows can expect to , or do, remain to establish an employment relationship with Cedars- Sinai. From the foregoing and the entire record , we find that interns , residents , and clinical fellows are pri- marily engaged in graduate educational training at Cedars-Sinai and that their status is therefore that of students rather than of employees . They participate in these programs not for the purpose of earning a living ; instead they are there to pursue the graduate medical education that is a requirement for the prac- tice of medicine . An internship is a requirement for the examination for licensing . And residency and fel- lowship programs are necessary to qualify for certifi- cation in specialties and subspecialties . While the housestaff spends a great percentage of their time in direct patient care , this is simply the means by which the learning process is carried out. It is only through this direct involvement with patients that the gradu- ate medical student is able to acquire the necessary diagnostic skills and experience to practice his pro- fession. The number of hours worked or the quality of the care rendered to the patients does not result in any change in monetary compensation paid to the housestaff members . The stipend remains fixed and it seems clear that the payments are more in the na- ture of a living allowance than compensation for services rendered . Nor does it appear that those ap- plying for such programs attached any great signifi- cance to the amount of the stipend . Rather their choice was based on the quality of the educational program and the opportunity for an extensive train- ing experience . The programs themselves were de- signed not for the purpose of meeting the hospital's staffing requirements, but rather to allow the student to develop , in a hospital setting , the clinical judgment and the proficiency in clinical skills necessary to the practice of medicine in the area of his choice. The "Essentials ," which describe the standards for ap- proved internships and residencies , indicate that the primary function is educational . Moreover, the ten- ure of a member of the housestaff at Cedars-Sinai is closely related to the length of the student's training program ; thus few interns , residents , or clinical fel- lows can expect to, or do , remain to establish an em- ployment relationship with Cedars-Sinai following the completion of their programs. In sum, we believe that interns, residents, and clin- ical fellows are primarily students. We conclude, therefore, that they are not employees within the meaning of Section 2(3) of the Act.4 Accordingly, no question affecting commerce exists concerning the representation of "employees" of the Employer with- in the meaning of Section 9(c) of the Act, and we shall dismiss the petition herein. Our dissenting colleague has misconstrued the ba- sis for our decision. We are aware that the Board has included students in bargaining units and, in a few instances , has authorized elections in units composed exclusively of students. However, contrary to our dis- senting colleague, we do not find here that students and employees are antithetical entities or mutually exclusive categories under the Act. Instead, we find that the interns, residents, and clinical fellows who filed the petition herein are primarily engaged in graduate educational training at Cedars-Sinai. It is the educational relationship that exists between the housestaff and Cedars-Sinai (a teaching hospital) which leads us to conclude that the housestaff are students rather than employees, i.e., that the housestaff's relationship with Cedars-Sinai is an edu- cational rather than an employment relationship. Thus, far from "exploiting semantic distinctions," our decision rests on the fundamental difference be- tween an educational and an employment relation- ship. In addition to misconstruing our decision, our dis- senting colleague advances inapposite considerations which have no bearing on whether interns, residents, and clinical fellows are employees within the mean- ing of the Act. Thus, whether Cedars-Sinai or any other "hospital charges fees in amounts which have sparked national debate," or whether patients "would hardly take comfort in the notion that the individual in whose hands their life itself may repose ... is primarily a student of the matter," has no bearing on the issue here. Similarly, even assuming that "there is some support for the proposition that the primary interest of the housestaff's representa- tional aims is the improvement of patient care," as our dissenting colleague suggests, that aim is of no significance in resolving the employment status of the individuals before us. Furthermore, our dissent- ing colleague is inaccurate in stating that Cedars-Si- nai offers "no degree , no grades , no examinations." On the contrary, housestaff are regularly evaluated As we have found , for the reasons stated above, that interns, residents, and clinical fellows are not employees within the meaning of the Act, we find no merit in Petitioner 's contention that they are employees based on Sec. 2(l 1) and (12 ) of the Act, which defines the terms "supervisor" and "professional employee," respectively. 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by staff physicians and Cedars-Sinai is required to certify that the training program has been successful- ly completed. Teaching hospitals play an integral role in the training of physicians. A graduate of an approved medical school is not ready to practice upon completion of the M.D. requirements . Rather, as more fully described above , he must continue his graduate educational training in a so-called teaching hospital, where the program offered by the hospital and the activities engaged in by the medical students are prescribed by accrediting bodies and specialty boards. In short, it is plain from the record as a whole that the interns , residents , and clinical fellows are engaged in graduate educational training at Ce- dars-Sinai and that-in view of this educational rath- er than employment relationship-they are students rather than employees within the meaning of the Act. ORDER It is hereby ordered that the petition filed herein be, and it hereby is, dismissed. MEMBER FANNING, dissenting: At the outset, I wish to emphasize that the issue in these cases is not how to exploit semantic distinctions between the terms "students" and "employees." One does not, necessarily, exclude the other and, indeed, this Board has included "students" in bargaining units in numerous cases and has authorized elections in which the voting group was composed exclusively of "students." 5 The touchstone has always been whether the "students" were also employees. I equal- ly emphasize that the issues before us are simply stat- ed. Are those doctors commonly denominated "housestaff" entitled to bargain collectively under the auspices of our statute and, if so, do they possess a sufficiently distinct community of interests en- abling them to constitute an appropriate unit unto themselves? Nevertheless, because my colleagues choose to proceed on such a basis, I turn initially to consideration of the question whether a finding that housestaff officers are "primarily students" justifies the conclusion they are not, for that reason, "em- ployees" within the intendment of the Act. I Section 2(3) of the Act states that the term "em- ployee" is meant to "include any employee . . . un- less the Act explicitly states otherwise," and proceeds s The Macke Company (IIA Case 2-RC-16725 (Not reported in volumes of Board Decisions .) The Macke II students were those originally excluded from the unit found appropriate in The Macke Company, 211 NLRB 90 (1974). to explicitly state those excluded from the definition, e.g., agricultural laborers, domestic servants, et al. "Students" are not among those exclusions. Recogni- tion of an underlying Federal policy which seeks to draw a line between labor and management has fur- ther led to the exclusion, on such policy grounds, of two additional classes of "employees," namely, con- fidential and managerial employees 6 That is all. Since the statutory exclusions do not mention and the policy underlying the nonstatutory exclusions does not reach "students," the relationship between "student" and "employee" cannot be said to be mu- tually exclusive. The fundamental question then is always whether the individual before us, be that indi- vidual "primarily a carpenter" or "primarily a stu- dent," is, nevertheless, an "employee" under the Act. The imprecision which necessarily accompanies the attempt to define an "employee," particularly in terms well suited to modern industrial relations, ac- counts for the deliberate refusal of the drafters of the Wagner Act to define the term in any but a circular fashion, "An employee includes any employee." His- torically, that approach gave rise to two conflicting views. The primary consideration, it was contended on one hand, "is whether effectuation of the declared policy and purposes of the Act comprehended secur- ing to the individual the rights guaranteed and pro- tection afforded by the Act." 7 Such circularity, it was stated on the other, reflected no more than a congressional intent to ascribe an "ordinary mean- ing" to the term, as that meaning was "developed under the common law." 8 For present purposes, it is unnecessary to consider either the vitality of those early decisions which re- solved the matter in favor of the former, more liberal, interpretation or the applicability of those decisions which, in the context of employee/independent con- tractor disputes, upheld the latter.9 If we posit that Section 2(3)'s usage of the term "employee" is no broader than the common law's, housestaff officers are, beyond doubt, employees within the meaning of the Act. The term "employee" is the outgrowth of the com- mon law concept of the "servant."t°At common law, a servant was a "person employed to perform serv- 6 For a more authoritative discussion , see N. L. R. B. v. Bell Aerospace Com- pay, Division of Textron, Inc., 416 U.S. 267 (1974). N.L.R.B. v. Hearst Publications, Incorporated 322 U.S. 111, 131-132 (1944). s Id. at 120, et seq. See also I Leg . Hist. 309 (1947). 9 Compare Hearst, supra, with N.L.R.B. v. United Insurance Company, 390 U.S. 254, 256 (1%8). See Boire v. Greyhound Corp., 376 U.S. 473, fn. 10 (1964). 10 See 30 C.J.S. Employee at 672 (Corpus Juris Secundum). "The shift to the first terminology seems to have accompanied the development of workmen 's compensation legislation, which makes clear the substantial identity of the two." Stevens , "The Test of the Employment Relation," 38 Mich. L. Rev. 188, 189 (1939). CEDARS-SINAI MEDICAL CENTER ices in the affairs of another and who with respect to the physical conduct in the performance of the serv- ices is subject to the other 's control or right of con- trol." Although, under the common law, consider- ation for the services performed does not appear to have been a sine qua non of establishing the master- servant relationship,'2 it is generally conceded, today, that such consideration is necessary for classification as an "employee." 13 So that the conventional mean- ing of the word implies someone who works or per- forms a service for another from whom he or she receives compensation. 14 It is significant to note that the common law's de- velopment of the master-servant doctrine was princi- pally concerned with establishing a tortious liability in the master for the acts of the servant 15 and, in- deed, the principle of respondeat superior plays more than a small part in the current malpractice crisis of which we are all aware. That my colleagues have ig- nored a significant component of the hospital-house- staff relationship namely. the former's vicarious lia- bility for the actions of the latter , 16 is a convenient introduction to another aspect of these cases which requires greater discussion-the facts. 1I Restatement (Second), Agency, § 200 ( 1957). See also § 2: "A servant is an agent employed by a master to perform service in his affairs...:' 12 Id. at ¢ 225, a. ' See, e.g., 30 C.J.S., supra at 673. 14 See I Leg . Hist . 309 (1947). See, e .g., Meyer Dairy, Inc., a Subsidiary of Milgram Food Stores, Inc. v . N.L.R.B., 429 F.2d 697, 701 (C.A. 10, 1970). This notion of the "performance of a service for another" merits an aside, for it points out a fundamental confusion on my colleagues' part . Presum- ably the basis for the majority opinion is found somewhere within the con- fines of The Leland Stanford Junior University, 214 NLRB 460 (1974). The Stanford petitioner sought to represent 83 "research assistants" who were graduate students enrolled in Stanford 's doctoral physics program . The re- search they conducted was a fundamental and required part of the course of instruction leading to the degree . The research they conducted was thesis oriented , that is to say, and this is a crucial point , the research assistants did not perform a service for Stanford . With guidance , perhaps, from their men- tors, they independently selected their research projects . They performed that research for themselves . In terms of the actual research conducted , Stanford was, essentially , a disinterested party. Stanford did not control the research, did not request the research , and, most significantly , did not receive remun- eration from a third party for the particular research . All of which is to say, as Cornell University , amicus curiae in the case, pointed out, the research assistants did not work for the alleged employer and, therefore , were not employees . It is a point of moment. We do not exclude students from cover- age because they are students (even less the case where they are "primarily students"). In certain cases , they will be excluded because, as students, they do not work or perform a service for an employer. In other cases , they will be excluded from the unit found appropriate because , as students, their interests may not be aligned with those of other employees . There is, on the other hand, simply no basis either in the Act or in our precedents for concluding that under any circumstances students and employees are antithetical enti- ties. IS See Stevens , supra at 189. 16 See Hospital Law Annual , Administrators' Vol. 1(a), 9. Compare Ro- sane v . Sanger, 112 Colo. 363 (1944), holding a medical staff physician's actions not to have created a liability in the hospital . The fact that liability can be imposed upon the hospital for the actions of its housestaff and will not, under certain circumstances , be imposed for the actions of medical staff is further demonstration that housestaff officers work for the hospital. II 255 All housestaff officers are M.D.'s. All fellows and residents are licensed physicians in every State of the Union. It is , of course, impossible to set forth the full range of services these physicians perform for the hospital and, more importantly, for the patient, but my colleagues' silence as to what these housestaff of- ficers do cannot go unnoted. The records before us demonstrate, for example, that housestaff officers, without immediate supervision of any kind, continually deal in matters literally of the ultimate significance. That they do is a function, no doubt, of their hours. The housestaff work round-the-clock, 7 days a week, 52 weeks a year. No other physicians do. They per- form their services, on an individual basis, for peri- ods lasting, at times, well over 100 hours a week, in shifts that often exceed 50 consecutive hours. They singly staff emergency rooms, frequently at times when their supposed "teachers" are not even in the facility. That accounts for the record facts which demonstrate that, without supervision, a housestaff officer can be called upon and, in fact, has been called upon, to open the chest wall of a 3-year-old child; hold the heart of a patient in his hands; re- move breast tissues, kidneys, veins; deliver babies; insert tubes in the trachea of newborns and catheters into abdominal cavities; administer closely con- trolled and potentially lethal medications; and per- form a host of similar procedures. For those services and innumerable others super- vised by medical staff but performed by housestaff, the hospital charges fees in amounts which have sparked national debate. In return for those services, the hospital pays that housestaff officer what my col- leagues call a "stipend." It exceeds, in some cases of multiple residencies, $20,000 a year. From that "sti- pend," the hospital withholds Federal and state tax- es,17 contributes to social security, and provides for 17 The "stipend" is taxable income . Although amicus AAMC contends that this point is in doubt , I find no support for that doubt in terms of the type of housestaff officers and training institutions before us . Because of AAMC's position , it merits attention . Under sec. 117 of the Internal Reve- nue Code , fellowships and scholarships are, under certain conditions, gener- ally excludable from gross income . Such fellowships and scholarships are not excludable if they constitute compensation for services rendered. From the very beginning of sec. 117, added to the Code in 1954, to this very day, the Department of Treasury has taken the position that the typical housestaff officer receives compensation for services rendered. Rev. Rul . 57-386, 1957-2 Cum. Bull . 107; Rev. Rul. 68-520, 1968-2 Cum. Bull. 58 ; Rev. Rul . 71-36, 1971-2 Cum . Bull. 99; Rev. Rul 75-490 at 5 (Bull. No. 1975-46). The uni- formity of approval of that position is not lightly dismissed . Hembree v. U.S., 464 F.2d 1262 (C.A. 4, 1972); Wertzberger v. U.S., 441 F.2d 1166 (C.A. 8, 1971); Quasi v. U.S., 428 F.2d 750 (C.A. 8, 1970); Woddail v. Commission- er, 321 F.2d 721 (C.A. 10, 1963); Tobin v. U.S., 323 F.Supp . 239 (D .C. Tex., 1971); Taylor v. U.S., 22 AFTR2d 5246 (D.C. Ark., 1968); Lingl v. Charles, 21 AFTR2d 410 (D.C. Ohio, 1967); Proskey v. Commissioner, 51 T.C. 918 ( 1969); Kadivar, T.C. Memo 1973-95; Kaufman, T.C. Memo 1973-21. There are , of course , cases, the most notable of which is Leathers v. U.S., Continued 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD health insurance . The hospital grants vacations and sick leave , laundry allowances , etc. For the negligent performance of those services the hospital can be sued . For those services the housestaff receives, ab- sent unusual circumstances not before us, no degree, no grades , no examinations . Housestaff officers per- form those services on (and in) individuals who would hardly take comfort in the notion that the in- dividual in whose hands their life itself may repose is not primarily interested in performing that service for the hospital and patient but, rather , is primarily a student of the matter . In point of fact, according to a study initiated by the Association of American Medi- cal Colleges itself, approximately 80 percent of a housestaff officer's time is spent "in direct patient care activities ." "• Certainly , there is a didactic com- ponent to the work of any initiate, but simply be- cause an individual is "learning" while performing this service cannot possibly be said to mark that indi- vidual as "primarily a student and , therefore, not an employee" for purposes of our statute. 417 F.2d 856 (CA. 8, 1972), which hold, under certain circumstances, the appropriate portion of the "stipend" to be excludable . My analysis of those cases reveals that they do not reflect the typical intern/resident case, to the extent that the individual involved in such cases is either not as actively involved in direct patient care (e.g., Dr. Leathers in Leathers, supra, who devoted the bulk of his time to personal research or study ) or the residency involved is undertaken either at the behest of a third -party grantor or in a facility in which the admission of patients is incidental to the purpose of the facility (e.g., the Western State Psychiatric Institute in Wrobleski v. Bingler, 161 FSupp. 901 (D.C . Penn ., 1958). Leathers, supra, did not hold , as AAMC argues that the "stipend " is partially excludable ; it merely held that there was substantial evidence justifying the below jury's verdict . Compare the other Eighth Circuit decisions in Quasi and Wertzberger, supra. Wrobleski, supra, issued, of course, prior to the lead Supreme Court decision in the area, Bingler v. Johnson, 344 U .S. 741 (1%9). In Bingler, the Supreme Court held that the sec. 117 exclusion would be applicable only where the "sti- pend" was a "relatively disinterested 'no strings' educational grant ." I find it difficult to accept my colleagues' apparent conclusion that the hospitals before us stand as disinterested grantors of "stipends " to which no strings are attached. These "stipends" are compensation for services rendered. Make no mistake , as my colleagues do, about that . The recipients are, there- fore, employees. is A. Carroll, "Program Cost Estimating In a Teaching Hospital" at 76. The study was jointly sponsored by the AMA , AAMC, and American Hos- pital Association (AHA). It is revealing in several respects , not the least of which is its demonstration that parties to Board proceedings have been known to be less than candid . I quote from the study: The patient care that interns and residents provide is similar to the care that a patient would receive from a practicing physician of his choice. The resident does all of the things that any other physician would do except that where he has not been thoroughly trained he performs under close supervi- sion.... [T]he hospitalized patient can receive competent medical care regu- larly, routinely , or in emergencies as often as he may need it. This would not be possible without either an adequate number of interns and residents or a very large staff of f dl-time physicians . The present intern and resident system . . . gives hospitals and attending physicians a way to maintain constant stand-by physician services for all hospital patients . And the over- all costs of this stand-by care are considerably lower than would otherwise be pos ible. A patient who has been informed that the intern and resident physicians who care for him work hand in hand with his own private physi- cian and carry out his orders in all important matters will recognize these house staff services as an essential part of the care he receives while in the hospital. [Emphasis supplied.] Discourse on the exhaustive indicia of "employee status" enjoyed by housestaff officers and ignored by my colleagues should not be undertaken at the ex- pense of what my colleagues actually do say. I turn briefly to a consideration of the limited factors upon which my colleagues purport to rely: [a] The "Essentials," which describe the stan- dards for approved internships and residencies, indicate that the primary function is education- al. The "Essentials" constitute, in part, a set of guide- lines and instructions to hospitals which would seek to become training institutions. Because the hospitals are instructed to view the primary purpose of house- staff programs as educational has no bearing on whether the housestaff ultimately performs a service for compensation 19 and certainly is not entitled to overcome the classic employment relationship be- tween housestaff officers and these hospitals. In fact, the "Essentials" acknowledge that relationship by their mandate of "Employment Agreements" which "should specify at a minimum ... the salary .. . vacation periods . . . hours of duty," etc., of house- staff officers. In accordance with that mandate, the AMA, on January 13, 1975, distributed a memoran- dum to all approved teaching hospitals reporting the adoption of "Guidelines for Housestaff Contracts or Agreements" by the AMA house of delegates. It is an instructive piece of record evidence: The agreement should provide fair and equita- ble conditions of employment for all those per- forming the duties of interns residents and fel- lows . . . . The institution and the individual members of the housestaff must accept and recognize the right of the housestaff to determine the means by which the housestaff may organize its affairs, and both parties should abide by that determination; pro- vided that the inherent right of a member of the housestaff to contract and negotiate freely with the institution, individually or collectively, for terms and conditions of employment and training should not be denied or infringed. No contract should require or proscribe that members of the housestaff shall or shall not be members of an association or union. [Emphasis supplied.] 19 The study referred to in the preceding footnote devotes substantial discussion to the cost benefits of housestaff programs . The "Essentials" description of such programs as primarily educational may fairly be read as a proper admonition to would -be training institutions not to consider estab- lishment of such programs as a convenience whereby professional medical service may be increased without incurring the greater cost that would otherwise flow from an increase in the medical , as opposed to house, staff. Indeed, the "Essentials," in the same section , remind such institutions that the "primary function" of the training institution will continue to be "pro- viding adequate facilities for the scientific care of the sick and injured." CEDARS-SINAI MEDICAL CENTER 257 Other guidelines are variously listed under the fol- lowing subject headings: Salary for Housestaff, Hours of Work, Off-Duty Activities, Vacation and Leave, Insurance Benefits , Professional Liability Insurance, Grievance Procedure, and Disciplinary Hearings and Procedure. I do not see how my colleagues can ig- nore such compelling evidence that the ultimate au- thority governing housestaff relationships and programs so clearly considers these individuals to be employ- ees. [b] Nor does it appear that those applying for such programs attached any great significance to the amount of the stipend. In the cases before us, there is some support for the proposition that the primary interest of the housestaff's representational aims is the improve- ment of patient care. There ls, further, some support for the proposition that the primary value attached to an individual residency or subspecialty is the quality of the institution providing that program, and the opportunity of exposure to a wide range of medical experience. That is, hopefully, not a unique approach in any field of endeavor, particularly professional ones . There is, on the other hand, absolutely no sup- port for a statement which implies that the so-called "stipend" (the AMA calls it "salary," the study initi- ated in part by AAMC calls it a "wage," the IRS calls it "payment for services rendered") is not a con- siderable source of concern. Support for the majority proposition requires, merely, the complete dismissal of the testimony of housestaff representatives before Congress 20 and the congressional response to it 2' [c] [T]heir choice was based on the quality of the educational program and the opportunity for an extensive training experience. The pro- grams themselves were designed . . . to allow the student to develop, in a hospital setting, the clinical judgment and the proficiency in clinical skills necessary to the practice of medicine in the area of his choice. I fail to perceive how the fact that an individual desirous of becoming an orthopedic surgeon chooses a residency program based on its quality and the op- portunity for extensive training bears relevance to the question whether, having done so, he or she is an "employee" under the Act. It is, for example, fairly 20 See , e.g., Hearings on S.794, S.2292, Before the Subcommittee on Labor of the Committee on Labor and Public Welfare, United States Senate, 93d Cong., 1st Sess . at 291-295, 380-382 (hereinafter Hearings]. See also Hear- ings on H.R. 11357, Before the Subcommittee on Labor of the Committee on Labor and Public Welfare, United States Senate, 92d Cong., 2d Sess. at 29- 31. 21 See , e.g., 120 Cong. Rec. S6933 (daily ed., May 2, 1974) (remarks of Senator Cranston). common knowledge that physicians engaged in pri- vate practice for many years take up residencies both within their certified specialty (to keep abreast of de- velopments) and outside their certified specialty (to expand upon their skills). That the housestaff officer's choice 22 is "based on the quality of the edu- cational program and the opportunity for . . . exten- sive training" is not so much evidence that he or she is "not an employee" as it is evidence of the desire, as the residencies of fully licensed and certified practi- tioners demonstrate, of some individuals to perform their functions well. Finally, in my considerations of what my col- leagues have actually stated, as opposed to the nota- ble matters they have ignored, mention must be made of my colleagues' final footnote: As we have found, for the reasons stated above, that interns, residents, and clinical fellows are not employees within the meaning of the Act, we find no merit in Petitioner's contention that they are employees based on Sec. 2(11) and (12) of the Act ... . That simple footnote marks the majority's re- sponse to the two most significant considerations presented by these cases-the language of the statute and the intent of Congress. III Section 2(12) of the Act sets forth the definition of a "professional employee" as: (a) any employee engaged in work . . . (iv) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged 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 supervi- sion of a professional person to qualify himself to become a professional employee as defined in para- graph (a). [Emphasis supplied.] Section 2(12) was, in part, designed to cover house- staff specifically. In the words of the House Confer- 22 Considerable attention was devoted in these cases , as the majority opinion reflects, to the procedure by which housestaff officers are em- ployed . The degree of "freedom of choice" accompanying an employment relationship is largely irrelevant once it is established that the individual in question in point of fact performs a service for compensation. Witness, e.g.. the "hiring" procedures of professional athletes, National Football League Management Council, et al., 203 NLRB 958 (1973), and individuals supplied by referral agencies , Manpower, Inc., of Shelby County, 164 NLRB 287 (1967). 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ence Report accompanying the Taft-Hartley amend- ments to the Act, the section was designed to em- brace "such persons as legal, engineering, scientific and medical personnel together with their junior pro- fessional assistants, " 23 and, as the language of Section 2(12)(b) so clearly states, included in the definition of professional employee are individuals who have com- pleted courses of specialized instruction and are per- forming related work under the supervision of Sec- tion 2(12)(a) professionals. The definition fits, precisely, housestaff officers. Presumably, the theory underlying my colleagues' position is that Section 2(12) initially defines a professional employee as "an employee, who," and since housestaff are not employ- ees in the first instance the remainder of Section 2(12) is irrelevant. But the "employee" to whom Sec- tion 2(12) initially refers is the "employee" of Section 2(3), which does not exclude "students." More impor- tantly, I think it the better course to consider the clear language of Section 2(12) as bearing on the scope of Section 2(3) than to reverse the process and disregard, initially, Section 2(12) and the legislative history behind it; establish, without reference to its language or our precedents, the scope of Section 2(3); and, finally, utilize the conveniently established limits of Section 2(3) to rule out application of Sec- tion 2(12). The latter "analysis" would normally mer- it more attention were there not an example of an even more questionable statement within the majority's final footnote. A large segment of the committee hearings on the recent amendments was devoted to the testimony, statements , and accompanying documents of repre- sentatives of the housestaff 24 in support of the amendments . For the most part, the testimony con- cerned itself with the contention advanced by the Physicians National Housestaff Association, amicus here, that housestaff officers should be excluded from the ambit of Section 2(11) of the Act, which sets forth the definition of "supervisor," because house- staff officers do not exercise supervisory authority "in the interest of the employer." At no time during the course of the hearings was even a mention made that housestaff officers, because "students," might not be entitled to coverage under the Act?3 In point of fact, any reasonably diligent reading of the legisla- tive history surrounding the amendments would make it clear that coverage of housestaff, in some z3 I Leg. Hist. 540 (1947). 24 See Hearings, supra at 291-423. s The AAMC, amicus here, filed a statement subsequent to the testimony and statements of the housestaff representatives. Id at 636. Support for the proposition that AAMC and the employers in these cases are accomplishing here at the Board what they could not and would not accomplish before Congress is gleaned from the fact that AAMC did not, at that time, even mention the argument so readily accepted by my colleagues. context, was an assumption on the part of Congress. That is evident when one considers the congressional response to 26 the housestaff representatives' conten- tion that amendment of Section 2(11) was necessary: Various organizations representing health care professionals have urged an amendment to Sec- tion 2(11) of the Act so as to exclude such profes- sionals from the definition of "supervisor." The Committee has studied this definition with par- ticular reference to health care professionals, such as . . . interns, residents, fellows . . . and con- cludes that the proposed amendment is unneces- sary because of existing Board decisions. The Committee notes that the Board has carefully avoided applying the definition of a "supervi- sor" to a health care professional who gives di- rection to other employees, which direction is in- cidental to the professionals treatment of patients and thus is not the exercise of supervi- sory authority in the interest of the employer. [Emphasis supplied.] Throughout the debates on the floors of both Houses, again, no mention of the "student" status of housestaff officers can be found. Senator Cranston, cosponsor and floor manager of the Senate bill, indi- cated, on the other hand, that one of the conditions the bill was designed to redress was the "notoriously underpaid . . . average annual salary for all hospital employees-including doctors . . . . According to [the] president of the Physicians National Housestaff Association, the average house staff officer-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." 27 The majority's response to the above legislative history bears repeat- ing: As we have found . . . that interns, residents, and clinical fellows are not employees . . . we find no merit in Petitioner's contention that they are employees based on Sec. 2(11)... . Obviously, no petitioner has contended that it rep- resents "employees" because it represents "supervi- sors." And yet, that, apparently, is how my col- leagues dismiss the compelling argument that, in treating the question of amendment to Section 2(11), Congress clearly and explicitly recognized housestaff as employees. It is clear to me, as the language of Section 2(12) states, the legislative history of Section 2(12) states, the Committee Reports on the hospital amendments state, and Senator Cranston states in explanation to 26 S. Rept . 93-766, 93d Cong., 2d Sess. 6(1974). The same language ap- pea l1 rs in the substantially identical House Report. _20 Cong. Rec. 56933 (daily ed ., May 2, 1974) (emphasis supplied). CEDARS-SINAI MEDICAL CENTER 259 his colleagues, that housestaff officers are covered by this Act. IV Thus far I have attempted to deal with the sub- stantial errors in judgment I perceive in my col- leagues' disposition of these cases . But apart from what I consider to be their misstatement of the issue in these cases , what I know to be their failure to set forth the complete facts, and what I am convinced is their trifling with the language of our statute and its legislative history, my disagreement with my col- leagues , in these cases , equally extends to an under- standing of the very purposes of this statute and, more particularly, the additional responsibilities we have recently assumed as a result of the clearly stated congressional conviction that labor relations in the vital health care industry is best governed by this statute. That conviction flows from another, ex- pressed through all the Congresses that have consid- ered our statutory scheme-that this statute is pro- tective and ameliorative. To read the legislative history of the most recent amendments is but to rec- ognize that conviction. Thus, in considering how to minimize the potential for disruption of medical serv- ices inherent in an amendment granting significant numbers of employees the right to strike, Congress, realizing that recognitional strikes do not cease be- cause outlawed, considered it the wiser course to make available the provisions of this statute for the orderly resolution of such recognitional struggles: "The Committee was also impressed with the fact, emphasized by many witnesses, that the exemption of nonprofit hospitals from the Act had resulted in numerous instances of recognition strikes and picket- ing. Coverage under the Act should completely elimi- nate the need for any such activity, since the proce- dures of the Act will be available to resolve organizational and recognition disputes 28 285. Rept . 93-766 , supra at 3. And so there is a pathetic irony in what my col- leagues do today. The onset of organization of housestaff officers is among us. Fewer cases may come to this Agency, but as many will come to the training hospitals. The one group so singularly in- volved in the congressional issues , both in terms of its immediate relationship with the delivery of medi- cal services and in terms of its recognitional interests, is, today, by fiat, read out of the Act. This decision is not grounded in the statute, the law, or reason. Ac- cordingly, I must dissent.29 29 There is a seeming futility in my addressing the subsidiary unit question presented by these cases. But, for the purpose of wholeness and because I suspect that what my colleagues have done today is, in part, shaped by that consideration , I deem it fitting to set forth my views. I would grant a unit of all housestaff officers , to include all fellows. Although the singularity of interests I perceive in these cases runs, generally, only to interns and resi- dents, I nevertheless believe all fellows, by virtue of the fact they are house and not medical staff , and by virtue of that fact alone, must be included. With the exception of amicus AAMC and the employer in St. Christopher's Hospital for Children, 223 NLRB 166, no employer in the cases decided today contends salaried attending physicians must further be added to the "house staff unit ." Nevertheless, one of the unit considerations presented by these cases flows from the expressed congressional admonition to this Board to consider unit questions, in part, from the standpoint of the number of units which might otherwise result from an individual unit determination and, consistent with Board standards in this area , to avoid a proliferation of bargaining units. A unit of housestaff implies, I suspect , a unit of salaried attending staff. Thus, it is conceivable that in any given institution as many as four profes- sional units may result from determination , given the Board 's determination of the appropriateness of a unit of registered nurses, when sought separately (Mercy Hospitals of Sacramento, Inc., 217 NLRB No. 131 (1975) ). The es- tablishment of a unit combining all doctors, thus, has considerable appeal, especially at first glance . However, on my analysis of the records in these cases, it appears to me that in consequence of the vast operational authority vested in medical staff salaried attending physicians in training institutions approximate managerial employees. In addition, their role in relation to housestaff leads me to conclude with a greater degree of assurance that, absent unusual circumstances, they are also supervisory. Finally, as a practi- cal matter, while organizational efforts among attending staff exist , organi- zation of such highly paid individuals can fairly be expected to be minimal. For those and other reasons requiring a more detailed discussion inappro- priate here, I resolve the matter on the side of an "all-housestaff" unit. Finally, I note for my colleagues that the Board has already, through its Regional Directors , certified what amount to housestaff units in Kingsbrook Jewish Medical Center, Case 29-RC-2785, and Children's Hospital of the District of Columbia, Case 5-RC-9152 . All of which tends to demonstrate, I suppose , that when left to their own devices institutions which truly accept the rights and responsibilities set forth in the Act can come to live with that fact.