Board RD Green Lights Hospital Resident Physicians Election

Earlier this week, a Regional Director of the National Labor Relations Board held that resident physicians at Beth Israel Medical Center in New York, NY were employees pursuant to Section 2(3) of the National Labor Relations Act. Accordingly, Regional Director Karen P. Fernbach of Board Region 2 in New York ordered a representation election, wherein the 410 residents in the proposed unit will vote on whether to be represented by the Committee of Interns and Residents (CIR), an affiliate of the Service Employees International Union (SEIU).

In arguing against the election petition, Beth Israel contended that although the residents possessed some “indicia of employee status,” the residents were more appropriately classified as students pursuant to the Board’s decision in Brown University, 342 NLRB 483 (2004). Arguing that the residents were “learners,” Beth Israel noted that the residents regularly attend class-like didactic sessions. Also, the residents work closely with attending physicians who closely monitor the new doctors’ skills and techniques. Beth Israel further opined that the hospital prioritizes the residents’ learning “to the detriment of efficiency,” which renders the relationship between the residents and Beth Israel “predominantly educational, not economic.”

The Regional Director disagreed. Beth Israel’s reliance on Brown University, the Regional Director explained, was misplaced because the graduate students in that case were enrolled in school, paying tuition, and working toward degrees. In contrast to the Brown graduate students, the residents at Beth Israel “are not enrolled in school, do not pay tuition, and have already received their academic degrees.” Further, unlike the graduate students in Brown who received a small stipend and no fringe benefits, the residents in the instant petition are entitled to full fringe benefits, including FMLA privileges, and also receive a stipend that was more in tune with a salary.

The Regional Director then provided that the instant petition was on all fours with Boston Medical Ctr., 330 NLRB 152 (1999), where the Board held for the first time that teaching hospital interns, residents, and fellows were “employees” under the National Labor Relations Act. While acknowledging that the residents here attend various teaching sessions and lectures for between 5-8 hours a week, the primary duty of the Beth Israel residents is patient care. Testimony presented in the record made clear that the residents spend at least 40 hours a week tending to patients, and regularly care for patients for as much as 80 hours a week.

Accordingly, because “in all salient respects the terms and conditions of employment” of the Beth Israel residents are squarely in line with the residents described in Boston Medical, the Regional Director determined that the Beth Israel residents were employees and subsequently directed that an election take place. Notably, Beth Israel can file an appeal of the Regional Director’s decision with the NLRB by May 28, 2014.

This decision may not be nearly as radical or surprising as the Northwestern election decision, and it is consistent with the Board’s anticipated reversal of direction from Brown University. Hospital employers and others should still take careful notice. The current National Labor Relations Board — and its regional appointees — continue to expand the Board’s reach into a variety of relationships not traditionally or purely recognized as “employment”. It is safe to assume now that in close cases, the Board is going to take the expansive view of its jurisdiction and authority.