Physician Unionization: Opportunities and Challenges for Anesthesiologists in the United States

Abstract

Physician unionization is gaining traction in the United States, with <10% of practicing physicians now members, up from historically weak support. Factors that drive interest in unions include a decreased number of independent practitioners, an increase in workloads, and the erosion of autonomy. Approximately 56% of anesthesiologists are considered employees and may be eligible for union membership. Physician unions may provide higher wages, better working conditions, and legal protection. However, they also raise concerns about patient care and professionalism. This article discusses the legal and regulatory framework governing the unionization of physicians, benefits, challenges, and potential future developments. Continued analysis and debate are necessary to determine the optimal role of physician unions in the health care industry.

KEY POINTS.

• Growing interest in physician unionization in the United States is secondary to factors such as burnout and health care consolidation, offering potential benefits and challenges to doctors, patients, and the health care system.

Recently, physicians in the United States have indicated a renewed interest in unionization to address concerns over autonomy, satisfaction, patient safety, and the patient–physician relationship.^1,2 Although physician unions have existed in the United States since the 1970s, <10% of physicians are currently unionized.^3,4 Most physicians have historically used an independent practice model, disqualifying them from union membership. In 2012, 23.4% of physician practices were partly hospital owned, and 5.6% of physicians were considered employees. The share of employed physicians has risen to 74% recently.⁴ While not as high as all physicians, 55.6% of anesthesiologists report being currently employed.⁵ The rise of the employed physician as the dominant practice model provides a fertile field of potentially union-eligible members.¹

Unions in the United States provide advantages to their members, including higher wages, better benefits, protections against adverse job actions, and safety innovations that positively impact patient care.^2,4,6–8 Conversely, unionization can negatively impact individuals’ earning potential, hospital revenues, physician autonomy, and erode the patient–physician relationship.⁶

While data solely about anesthesiologists remains lacking, we contend that any initiative empowering physicians’ rights and power will significantly impact our specialty. Growing data regarding house staff unionization provides the most reasonable and robust comparator employed physicians such as anesthesiologists, for possible impacts on patient care and physicians’ working conditions. While anesthesiology and nursing practices are distinct, data from nursing unions provide insight into how the anesthesia care team model may be impacted by physician unionization.

Regardless of whether an anesthesiologist is an employee, patients generally cannot unilaterally or independently seek out an anesthesiologist for their care. Unlike many physicians, anesthesiologists rely on the engagement and acquiescence of other physicians, health systems, or facilities that utilize anesthesia services for patient care. While hospital and facility-based specialties—such as anesthesiologists—and employers could create a symbiotic relationship, contract negotiations might put either the anesthesiologists or the facility at a significant disadvantage. This article reviews the ethical, legal, and regulatory considerations of physician unionization in the United States, factors favoring and opposing unionization, and potential consequences.

PHYSICIAN UNIONS: LEGAL AND REGULATORY OVERVIEW

The intricate legal and regulatory environment for physician unions involves federal and state legislation. Laws regulating unionization stipulate that only salaried employees may unionize. Federal legislation codified labor rights in 1914 and the right to unionize in 1932.⁹ The primary federal legislation governing private-sector labor unions in the United States is the National Labor Relations Act (NLRA), which created the National Labor Relations Board (NLRB). The Federal Trade Commission (FTC) and the Department of Justice (DOJ) Antitrust Division each are responsible for enforcing federal antitrust laws.¹⁰ The NLRB oversees labor practices, which extends to physicians not categorized as supervisors, independent contractors, or members of a public-sector workforce.^11,12 Due to these legal complexities, physician uncertainty persists regarding eligibility to form and join unions.

Despite the lack of federal inclusion, individual states can extend union protections to the public-sector workforce. The rules governing these unions may differ considerably from state to state. For example, California’s allowance of collective bargaining rights to public-sector employees led to the creation of the Union of American Physicians and Dentists (UAPD).¹³ In contrast, Wisconsin significantly limited the ability of public-sector employees to collectively bargain.¹⁴ The ability of independent private practitioners to band together to better negotiate fee terms or payor requirements is not a protected activity and is generally considered to be a violation of antitrust laws.

When health care workers are allowed to unionize, restrictions are placed on the ability to strike.⁹ The NLRB requires that health care unions provide a 10-day notice of “concerted refusal” to work so that patients retain access to emergency services and that hospitalized patients continue to receive adequate care. The responsibility unionized health care employees must take with respect to refusal to perform services is therefore greater than unionized non-health care employees.¹⁵ Resident physicians have been given an expressed right to unionize under the NLRB, and are viewed as “junior professional associates” rather than students for purposes of labor laws, even though they are not hired as “employees” within the traditional sense of the word.¹⁶ Resident physicians have exercised this right at multiple institutions with increasing frequency.^17–19

To address antiunion right-to-work laws and encourage union participation in industries that have been historically considered “hard to organize,” President Biden issued an Executive Order on Worker Organizing and Empowerment in April of 2021.²⁰ It stated that “…the policy of the United States is to encourage worker organizing and collective bargaining and to promote equality of bargaining power between employers and employees.” The subsequent task force encouraged federal government agencies to facilitate both public and private union organization. They recommended increasing awareness of workers’ rights to organize, employers’ responsibilities and limits when workers are organizing, and directly facilitating worker organizing and collective bargaining.²¹ However, at this time tangible results of this federal initiative, especially on physician unionization, are unclear.

THE CURRENT STATE OF AFFAIRS

Nationally, the percentage of all workers who are union members has significantly declined since the 1980s, from roughly 20% of workers to just over 10% in 2022.²² However, a 2022 Gallup poll showed public approval of labor unions reached 71%, its highest percentage since 1965.²³ Demographic factors such as age, income, and political affiliation impact opinions on unionization. A 2021 Pew Research Center study indicated that liberal Democrats and young voters view labor unions most favorably, and conservative Republicans the most negatively.²⁴ Notably, a 2016 analysis of physicians’ political affiliations found that around two-thirds of anesthesiologists were registered as Republicans.²⁵

With the increase in the employed-physician model, many anesthesiologists might not realize they are eligible for union membership. Increases in house staff unionization and employed-physician rates contribute to a resurgent interest in physician unionization.⁵ Mounting dissatisfaction with increasing administrative responsibilities, remuneration, working conditions, loss of autonomy, and impacts on patient safety further fuel interest.²⁶

Several unions exist in the United States for practicing physicians, such as the UAPD and Physicians United. Founded in 1972, the UAPD is the largest union representing licensed doctors in the United States, boasting over 5000 members across multiple states.² Physicians United is a relatively new organization that advocates for health care professionals, including doctors. Physicians’ unions gain greater access to resources and, therefore, leverage when affiliated with larger national union organizations. For example, the UAPD is a part of the American Federation of State, County & Municipal Employees (AFSCME). The Doctors Council represents attending physicians employed within public and private hospital systems, and the Council on Interns and Residents represents 30,000 members throughout the country. Both are members of the Service Employees International Union (SEIU), representing 1.9 million workers throughout the United States and Canada.²⁷

Despite the expansion of physician unions, these organizations face considerable challenges, such as limited engagement and participation. Unionization may not align with some physicians’ professional identities. Doctors may not prioritize union involvement because of their busy schedules and the demanding nature of their profession. Additionally, the different classifications of doctors (eg, employees, supervisors, or independent contractors) lead to legal obstacles in unionizing, making it challenging for unions to represent the interests of all physicians.

Many physicians feel a loss of control over their environment and that corporate focus is skewed towards maximizing profit above other priorities. Physicians’ workloads in patient care, documentation, and billing have all increased substantially. Loss of autonomy increases as managed care organizations and hospitals implement greater oversight and regulations. Between 1975 and 2010, health care administrator positions far outpaced physician growth, increasing 3200% as compared to 150%.²⁸ An additional stressor includes hospitals and health care organizations replacing physicians with nonphysician providers.

Physicians feel disillusioned and disempowered to counter the forces of corporate medicine, such that the only perceived choices are to either capitulate to the system or cease practicing.^29–33 And while doctors are generally well paid, Medicare reimbursements to physicians have decreased in real dollars since 1998.³⁴

Medical systems often discourage the creation of unions, and there have been reports of some hospitals hiring “union-busting” consulting firms to dissuade employees from unionizing.^17,35–38 Corporations benefit from stigmatizing union employees as less professional, neither acting in the best interests of patients nor health care facilities. Several factors influence the small number of physicians who have chosen to unionize. A primary reason is the perceived tension between physicians’ concepts of altruistic identity and their own needs. Moreover, business-savvy physicians may prefer to directly negotiate their salaries and benefits, rather than risk a less favorable personal result in a collective bargain agreement. However, recent data indicates physicians are more willing to explore the concept of physician unionization as a path to workplace equity.

Critics may suggest that medical societies could support physicians in a similar role to unions. The American Medical Association (AMA) and similar medical societies primarily focus on policy and legislative issues. The AMA provides guidance for physicians considering collective action and has provided limited financial and advisory support for physician unions.^27,39 No medical society engages in direct collective bargaining for its members, so the existence of medical societies cannot negate the drivers for unionization.

THE CASE FOR PHYSICIAN UNIONIZATION

Potential advantages of unionization include increased physician engagement, improved retention, and enhanced worker and patient safety. Prounion physicians report that negotiations with physician unions may improve patient care, increase physician satisfaction, and enable physicians to focus on what they do best––treat patients. In recent years, interns and residents have joined physician unions and made strides in improving benefits and working conditions, from working time (hours, rest periods, and schedules) to remuneration, as well as workplace physical conditions and mental demands.^{16,18,19,40,41} Similarly, attending physician unions secured increased wages for their members and gained agreements on processes for grievances and arbitration.^40,42,43

In medicine, a field traditionally calling for self-sacrifice and fiduciary responsibility to patients, it may seem counterintuitive that collectively advocating for one’s group, rather than directly for patients, can be an ethically sound strategy. By improving work-hour requirements and staffing ratios, unions may contribute to doctors becoming more effective and safer in the workplace, thereby improving patient care. In addition, the power of collective bargaining allows physicians to protect their professional standards from being eroded by administrators primarily focused on business interests. Unionization may decrease the flight to part-time positions or early retirement and increase the retention of engaged and mission-driven physicians in the workplace. While some specialists fear that unionization will limit their personal economic advantages, union contracts allow for individual financial arrangements above and beyond a negotiated baseline, as seen in the sports and entertainment industries.⁴

Physicians considering unionization cite frustrations about powerlessness in meaningful contract and other workplace negotiations. This lack of agency is a frequently cited source of burnout among physicians. Burnout has been linked in a meta-analysis to a doubling of both patient safety incidents and low professionalism.⁴⁴

Physicians spend 2 hours on electronic medical record (EMR) and desk work for every 1 hour of direct clinical face time with patients,⁴⁵ eroding opportunities for the formation of the patient-physician relationship. In specialties where clinic is not a central feature, such as anesthesiology, unionization can allow physicians the opportunity to negotiate workplace expectations, such as time to evaluate patients’ needs, staffing, and workflow. To our knowledge, a causal relationship between unionization and burnout reduction remains unproven empirically. However, known causative factors of burnout, such as excessive work hours and administrative burdens, are targets for collective bargaining.

Unionization offers several advantages for hospital-based physicians including protecting due process rights, improving job security, and increasing bargaining power in contract negotiations.^2,6,18,40 Broadly, unions have effectively reduced gender pay gaps, racism, disability bias, and other forms of discrimination.^46–51 Unionization provides opportunities to achieve similar benefits among physician anesthesiologists. Additionally, the high prevalence of substance use disorders and suicidality among anesthesiologists could be addressed by a union holding employers to standards for prevention, treatment, and mitigation.^52–54

A union can provide legal protection, including due process, in high-conflict situations. Unionized physicians are more likely to speak up regarding workplace conditions that affect patients and themselves, enjoying greater protection against retaliation. By advocating for better working conditions and improved patient care, unions may enhance patient outcomes. For example, hospitals with higher nurse–patient ratios, as advocated by nursing unions, demonstrated lower patient mortality rates and shorter lengths of stay.^55,56

In conclusion, physician unions serve as a counterbalance against other administrative goals that may oppose quality medical care. Wang et al⁵⁷ and Borsa et al⁵⁸ found that both hospital mergers and private equity hospital acquisitions––an increasingly common occurrence within the US health care system––were related to worsening patient care and outcomes.⁵⁹ A physician union can advocate for workplace conditions that improve patient safety, increase support staff, allow more time with each patient, and prioritize care for conditions and populations that are not economically advantageous to the institution.^40,50

THE CASE AGAINST PHYSICIAN UNIONIZATION

Despite the aforementioned advantages, there are potential drawbacks of unionization for hospitals, physicians, and patients. Health care organizations report increased operating costs when dealing with unions. Increased bargaining power resulting from unionization may lead to higher wages, potentially causing organizations to reduce the number of available staff positions.⁵⁶ The collective bargaining process may create divisions among medical professionals and lead to an adversarial relationship between physicians and their employers.⁶⁰

Physicians generally value their individual autonomy and may prefer negotiating with an employer individually rather than collectively. Unions often expose differing priorities among members. Individual physicians may feel stifled by a union, as they are obligated to act in accordance with their membership.⁴⁰ In this case, physicians may be less able to make independent decisions, potentially impacting the quality of patient care.⁶⁰

Unionization of physicians may serve to heighten the inequity between employed and independently practicing physicians. In contrast to unionized employees, independent physicians will have no leverage for negotiating or collective bargaining further accelerating the rise of physicians as employees. Thus, robust physician unions may contribute to the demise of the independent practice model, a defining characteristic of many physicians’ identities.

Unions may complicate employer–employee relationships. Sanctioning unionized physicians with serious performance or behavior issues may be harder to accomplish. As with any large bureaucracy, unions may be too inflexible to respond rapidly to local problems. Union rules may arbitrarily decrease workplace efficiency. Without strong local leadership, physicians might have to deal with both an unresponsive health care administration and union leadership.

In addition, a well-functioning operating room relies on productive, interdependent relationships among staff, employed physicians, and independent practitioners. When these individual groups have separate representation within the organization, such relationships may be jeopardized.

While sharing many characteristics with employees everywhere, employed physicians also have a unique, high-stakes, bidirectional relationship with their patients. Unionization may further complicate the complex health care business environment and negatively impact the patient-physician relationship. A physician’s fiduciary responsibility to patients is paramount.⁶¹ Unions may claim to improve patient care, but instead prioritize physician interests above patients. Increased revenues necessary for physician remuneration and benefits may divert funds away from patient care.⁶²

Further arguments generally center on perceptions of access to care and the patient-physician relationship. Improvements in physician work rules may be contrary to the interests of patients, as decreased work hours may influence access to timely care. Patients may view unionized physicians as less professional or less able to fulfill patient obligations. Although physician strikes are rare, they may be viewed as breaking the social contract, regardless of their effect on patient care.

While unions may be an appealing option for dissatisfied physicians, unionization is not the only mechanism available to facilitate communication and partnership between employers and employees. Other avenues, such as effective leverage of medical staff committees and strong relationships among physician leaders and hospital administration, may provide alternatives to collective bargaining.

HEALTH CARE WORKER STRIKES

The strike threat is an essential feature of union power in collective negotiation.⁶³ The fear of negative implications from strikes is often used to dissuade physician unionization. Whether strikes negatively impact patient care is controversial. In recent years, nurses and house staff grappled with various challenges, including inadequate staffing, long working hours, and low wages. Nursing strikes have been a key tactic used by nurse unions to push for changes in the workplace.⁶⁴ These strikes increased awareness of nurses’ plight and the importance of addressing their concerns regarding patient safety and well-being.

Theoretically, nursing strikes can negatively affect patient care, often leading to the temporary absence of expertly skilled nursing staff. The potential risk to patient care during strikes includes increased morbidity and mortality rates, delayed treatments, and disruptions in the continuity of care. However, a recent systematic review found that strikes had “little impact on patient morbidity.”⁶³

To be effective, health care worker strikes need not involve multi-day walkouts. University of Washington resident physicians staged a 15-minute walk-out before returning to patient care. They also used “documentation strikes” where residents refused to document medically unnecessary reviews of systems, preventing their hospital from billing for services.⁶⁵ To remain ethically sound, striking health care workers must ensure a minimum patient service level, as well as emergency service coverage, to inflict meaningful economic damages but minimal patient care consequences.⁶⁶

CONCLUSIONS

Currently, few nontrainee physicians are members of unions. However, the call for unionization is increasing in popularity. Physicians report unprecedented rates of burnout and dissatisfaction with working conditions, remuneration, lack of adequate benefits, excessive documentation, and demanding workloads. In addition, health care conglomerates increased faster during and after the pandemic. The call for unionizing by physicians has never been higher. Physician unions are seen as a way for doctors to have representation and an increased voice through numbers. Not every physician is currently eligible for union membership. Only salaried physicians can join unions. Due to antitrust laws, independent practitioners, managers, and supervisors cannot be union members. The future status of physician unions may rely on dispelling the notion that unionization would violate physicians’ oaths and fiduciary responsibilities. The impact membership will have on health care costs for patients remains uncertain.

In conclusion, unionization has the potential to impact physicians, including anesthesiologists, significantly. Benefits include improved working conditions, pay equity, job security, and patient outcomes.³³ However, drawbacks include reduced staff positions, strained physician-employer relationships, interprofessional tension, and increased health care costs. Can striking, the ultimate union weapon, be avoided when bargaining? What ethical union rules should be defined with respect to patient access and safety in the event of a strike? An open dialogue will clarify these and other questions. A more informed conversation regarding physician unionization will require access to unbiased data on unions, including physician unions. The paucity of data on physician and health care worker demographics and ideologies related to union membership highlights the need for ongoing study. Reliable data collection will allow a better understanding of the ramifications of unionization for physicians, patients, and health organizations. To determine the optimal balance among the interests of medical professionals, health care organizations, and patients in the context of unionization, further discussion among professionals and rigorous study is needed.

DISCLOSURES

Name: Joseph Maxwell Hendrix, MD, FASA.

Contribution: This author helped in the conception of the article, drafting, writing, revising, and giving final approval of the article.

Conflicts of Interest: None.

Name: Alyssa M. Burgart, MD, MA.

Contribution: This author helped in the conception of the article, drafting, writing, revising, and giving final approval of the article.

Conflicts of Interest: Alyssa M. Burgart was in a clerical and allied services union in 2004.

Name: E. Brooke Baker, MD, JD.

Contribution: This author helped in the conception of the article, drafting, writing, revising, and giving final approval of the article.

Conflicts of Interest: None.

Name: Richard L. Wolman, MD, MA.

Contribution: This author helped in the conception of the article, drafting, writing, revising, and giving final approval of the article.

Conflicts of Interest: Richard L. Wolman was in a rail workers’ union in the early 1970s.

Name: Joseph F. Kras, MD, DDS, MA.

Contribution: This author helped in the conception of the article, drafting, writing, revising, and giving final approval of the article.

Conflicts of Interest: Joseph F. Kras was in a taxi drivers’ union in the late 1970s.

This manuscript was handled by: Zeev N. Kain, MD, MBA.

ACKNOWLEDGMENTS

This article was a work product authorized by the ASA Committee on Ethics.