Labor Relations Monitor - Generic: NLRB Regional Director Orders Election Among Interns, Residents at Bronx Hospital

Interns and residents at St. Barnabas Hospital in the Bronx, N.Y., are employees, not students, under National Labor Relations Board precedent and are entitled to coverage under the National Labor Relations Act, a National Labor Relations Board regional director ruled May 22 (St. Barnabas Hospital, N.L.R.B. Reg. Dir., 2-RC-23356, 5/22/09).

Stating that she is “without authority to direct the Board to reverse a decade long holding that clearly applies to the facts before me,” NLRB Region 2 Director Celeste J. Mattina ordered an election within 30 days among the 280 doctors in training on whether they wish to be represented by the Committee of Interns and Residents, an affiliate of the Service Employees International Union.

CIR Local 1957 filed a petition with the NLRB after 90 percent of the interns and residents in January signed a petition asking the hospital to recognize the union.

St. Barnabas contended that the employees were students not covered by the NLRA, citing passage of the Pension Funding Equity Act of 2004, which provides the employer with federal funding for “graduate medical education” to train doctors. The hospital said that under that law “any individual who seeks to be admitted to a graduate medical education program” is a “student.”

The hospital contended that this legislation reversed the board's 1999 decision in Boston Medical Center, 330 NLRB 152, 162 LRRM 1329 (1999), which found interns and residents to be employees. The employer urged that Boston Medical be re-examined and the decision be vacated by the board.

The hospital also argued that a recent unpublished decision by the U.S. Court of Appeals for the Second Circuit in U.S. v. Memorial Sloan Kettering Cancer Center that involved the applicability of the Federal Insurance Contributions Act (FICA) to residents and interns, impacts on the board's definition of employee. St. Barnabas contended that the NLRB was obligated to treat this “enactment” as an amendment to the NLRA.

Regional Director Bound to Apply Current Law.

In her decision, Mattina said that she is “bound to apply Board law to the facts before me. Clearly, the employer litigated this matter and raised its arguments herein for consideration by the Board. It is evident that the Board decision in Boston Medical, decided nearly a decade ago, dealt with facts that are nearly identical to facts here.”

According to Mattina, in its Boston Medical decision the board based its ruling that the doctors-in-training are employees on the fact that they receive compensation in the form of a stipend, workers' compensation, paid vacations, sick leave, as well as bereavement leave, health, dental, and life insurance. In addition, the board noted that residents spend up to 80 percent of their time at hospitals engaged in direct patient care and the fact that they received on-the-job training did not negate their status as employees. The board also said that they did not, like students, pay tuition or take typical exams in a classroom setting or receive grades.

While St. Barnabas contended that it is more of an educational institution than Boston Medical Center and the relationship with the interns and residents is more closely an educational relationship than an employer-employee relationship, Mattina said that the employer's argument “attempts to accentuate the training aspect of the employer's relationships with the residents and denigrate the work that they do at the hospital regarding” patient care.

“The facts set forth here do not warrant a finding that this case presents significantly different facts than those in Boston Medical,” Mattina said, adding that these residents are “very closely akin to the interns and residents” at Boston Medical. “There is no question but that a very significant amount of the resident's time is spent with patients providing medical services. There clearly is supervision and training which is no doubt essential to the further professional development of these medical school graduates, but I cannot conclude based on this record that the residents are predominately students.”

Mattina rejected the employer's argument that passage of the Pension Funding Relief Act reversed the Boston Medicaldecision.

The legislation was primarily directed at replacing for two years the 30-year Treasury Bond rate that had been used to calculate employers' contributions to defined benefit plans with a long-term corporate bond rate, Mattina said. Buried in this legislation was a provision entitled Confirmation of Antitrust Status of Graduate Medical Resident Matching Programs, which required that lawsuits brought under antitrust cases cannot make the argument that the matching process in anti-competitive, she said. “The clear and very specific purpose of the temporary legislation has nothing to do with the definition of employee under the NLRA,” she said.

Turning to St. Barnabas's argument that the decision by the Second Circuit inU.S. v. Memorial Sloan Kettering Cancer Center is binding on the NLRB, Mattina said that the court in that case reversed and remanded to district courts two cases in which postgraduate medical residents invoked the tax exemption for students permitted under the FICA.

“I fail to see how statutory definitions in other, unrelated statutes involving tax, antitrust and pension issues, requires the board to change its view of the definition of an employee under this statute,” Mattina said.

In a statement, CIR said that the interns and residents chose to join the union after attempts to “collaborate with the administration to improve efficiency and cut costs failed.” In addition, according to the union, the doctors-in-training are seeking to bring their working conditions up to the standards of other hospitals in the Bronx. CIR said that the resident physicians at St. Barnabas earn nearly $8,000 less than resident physicians at other Bronx hospitals.

A spokesman for St. Barnabas could not be reached immediately for comment.