It has been said that there is a fine line between genius and insanity--both are marked by their ability to see connections where others see only differences. The recent filing of a representation petition on behalf of Northwestern University football players has been received with much shrugging of shoulders. (NLRB Case 13-RC-121359). The conventional wisdom is that under current NLRB precedent, university football players will never be deemed employees.

What does the Northwestern players' petition have to do with academic medical centers, you ask? Well, what if the seeming futility of the petition is, in fact, a stroke of genius by unions seeking to organize university students in other settings?

The NLRB has addressed the question of whether house staff in academic medical centers are employees and has decided that they can be. See Boston Medical Center, (1999) 330 NLRB 152. Clearly, as the NLRB considers the status of football players, it will be looking at its decisions in Boston Medical Center and Brown University, ((2004) 342 NLRB No. 42) where the NLRB decided that teaching assistants, teaching fellows and research assistants were not primarily employees and could not be organized. The NLRB may have occasion to issue a decision that refines (or in the case of Brown University, overturns) these decisions in ways that are adverse to academic institutions.

Perhaps even more important in the short term, the Northwestern petition will create terrific publicity for unions that have been battling to organize academic house staff. Witness the recent (and successful) attempt by the Patient & Physician Safety Association, which is affiliated with the Committee of Interns and Residents SEIU Healthcare, to organize house staff at the University of California Irvine Medical Center. California Public Employment Relations Board, Case No. SF-RR-939-H. [Although the University of California is not subject to the NLRB's jurisdiction, the NLRB, in reaching its decision in Boston Medical Center viewed with favor a 1986 decision of the California Supreme Court that reached the same result under state law. See Regents of the University of California v. Public Employment Relations Board, (1986) 41 Cal.3d 601.]

Following are some issues that may need resolution as academic medical centers face the prospect of efforts to organize house staff:

  • Who belongs in the bargaining unit? In Boston Medical Center, the NLRB claimed that it was returning to a traditional "community of interest" analysis when considering what is an appropriate bargaining unit for house staff. Where might that line be drawn? For example, if the Accreditation Council for Graduate Medical Education (ACGME) changes program requirements, as was the case in 2011 for first-year interns, may they be excluded from a bargaining unit that includes senior residents? What if ACGME program requirements vary depending on the medical specialty in question?

  • What issues are the province of collective bargaining? Even the NLRB has acknowledged that not all issues affecting house staff will be, or should be, amenable to collective bargaining. But, in the "playing in the sandbox" world of labor negotiations, it will be left to the parties, in the first instance, to decide what issues they will negotiate. The University of California, for example, uses "academic due process" as a mechanism for keeping program performance issues as the sole province of the university, limiting union involvement to misconduct, such as reporting to work under the influence, or workplace violence. How far will the union seek to intrude on academic or programmatic matters?

  • What about joint employment? Many academic medical programs allow interns and residents to cycle through outside facilities. How will organizing affect the working conditions of those interns and residents? Will the union have the right to bargain over them? Will the union have the right to visit the worksite to observe working conditions or address employee grievances?

No spoiler alert

The hearing on the question of whether Northwestern University football players are "employees" was scheduled for this month. At this point, no one can predict the outcome, although there is sentiment that when the NLRB is called upon to decide the issue, it may leave the door open to organizing where the athletes must be "students" to maintain eligibility but where any real pedagogic component is overwhelmed by the outsized scope of the athletic program. See Brown University, (2004) 342 NLRB No. 42 (where the NLRB concluded that the task of being a teaching assistant or research fellow was "an integral part of being a . . . student, and cannot be divorced from the other functions of being a . . . student").

While it may be interesting to muse on the fate of university football players, for academic medical centers the stakes are very real and much more immediate. University healthcare systems are encouraged to review their academic medical programs and program requirements to consider whether program changes that otherwise make sense for the university also may reduce vulnerability to organizing or reduce union interference if an effort to organize house staff is successful.