On May 16, the National Labor Relations Board ruled that it will hold a union election for resident physicians at the Loma Linda University Health Education Consortium (LLUHEC). The ruling is the culmination of a three-month process that saw LLUHEC challenge the NLRB’s jurisdiction to oversee the unionization effort. In a hearing that took place in March and April, lawyers for LLUHEC argued that it is a Seventh-day Adventist educational institution and therefore can’t be forced to recognize a union vote. LLUHEC also made the case that resident physicians should be classified as students, not employees.
The decision from NLRB Regional Director Mori Rubin rejected the majority of LLUHEC’s arguments. “For decades, the Board has asserted jurisdiction over religious-affiliated employers—including employers that are affiliated with or owned and operated by the Seventh-day Adventist Church,” the decision says, also adding that for the last two decades, the NLRB has “held that medical interns, residents, and fellows, while they may be students, are also employees.”
On May 31, ballots will be mailed to LLUHEC residents to vote on whether to be represented by the Union of American Physicians and Dentists, with the ballots scheduled to be counted on June 22.
LLUHEC disputes the ruling and scheduled vote. “The regional director of the National Labor Relations Board erroneously concluded that the NLRB has jurisdiction over Loma Linda University Health Education Consortium and has the authority to hold a union election,” Loma Linda University Health told Spectrum in a statement on Wednesday. “The director acknowledged but ultimately ignored our deep religious faith and teachings of the Seventh-day Adventist Church, which guides all aspects of the medical education we provide. It was also improperly concluded that our residents and fellows are not engaged in continuation of education and training, but rather [are] employees.”
Michaela Posner, an attorney for the union, said in a statement to Spectrum that the union welcomes the decision. “The Regional Director properly decided that the residents and fellows are employees. Not only is this conclusion the proper application of valid law, but it is also a recognition of the quality patient care that Loma Linda residents and fellows provide to the residents of the Inland Empire.”
While a union vote is now scheduled, LLUHEC can still ask for a review of the NLRB regional director’s decision, and a federal lawsuit is still pending. In April, LLUHEC’s request for an injunction before the US District Court for the District of Columbia was denied, but an appeal to the Court of Appeals for the DC Circuit is still ongoing. The only court above the Court of Appeals is the Supreme Court of the United States.
During the NLRB hearing in March and April, lawyers for LLUHEC called witnesses from the General Conference of Seventh-day Adventists to testify about the Adventist Church’s historical stance against labor unions. Representatives from different residency specialties also testified about the educational aspects of their programs, and LLUHEC asked the NLRB to apply precedent from cases involving educational institutions. The 1979 Supreme Court case NLRB v. Catholic Bishop of Chicago held that teachers at religious schools are outside the NLRB’s jurisdiction, and Bethany College, a 2020 NLRB case, adopted a broad standard for deciding what schools should count as religiously affiliated.
However, in her decision on Tuesday, Rubin found that “there are no Board cases in which residents or fellows . . . are characterized as faculty,” and testimony at the hearing showed that “LLUHEC’s residents and fellows spend most of their time at work performing direct patient care or otherwise engaging in clinical work.”
In the United States, medical residents have received an undergraduate college degree and completed four years of medical school before entering a residency that lasts for a minimum of three years. Residents and fellows practice under the supervision of board-certified physicians but have increasing autonomy as they gain experience. While LLUHEC argued that a substantial part of the resident experience involves teaching other residents and medical students, Rubin’s decision compared residencies to traditional work apprenticeships. The 1999 NLRB case Boston Medical Center Corp. found that “members of all professions continue learning throughout their careers, and many professions, including those in the healthcare industry, require individuals to be trained further after graduation in order to be licensed or received in the field.”
Part of LLUHEC’s argument about why its programs should be viewed differently from other recent NLRB cases involving residents unionizing also revolves around LLUHEC’s corporate structure. In 2012, the education consortium was established as its own religious nonprofit organization. While the Loma Linda University Medical Center is one of the corporate members, LLUHEC itself doesn’t operate hospitals or clinics.
The NLRB hearing and federal lawsuits have given LLUHEC the opportunity to make its legal case, but the proceedings have also put the organization at odds with residents who have complained about poor working conditions and lower pay than rival residency programs. “People who initially didn’t care at all . . . now feel very motivated,” Jessica Muñoz, a second-year emergency medicine resident, told Spectrum this month.
In a statement to Law360 following the NLRB decision, David Rosenfeld, an attorney representing the union, said that “more of the residents have supported the union because they disliked the delay tactics and [LLUHEC’s] claims that they're not employees.”
LLUHEC is represented by Seyfarth Shaw LLP, which has offices across the United States and ranks as one of the country’s largest law firms. “Loma Linda University Health Education Consortium will continue to raise these issues with the National Labor Relations Board in Washington DC and ultimately in the courts if necessary,” LLUH said in its statement to Spectrum following the NLRB decision.
Union attorney Michaela Posner expects continued attempts to stop the election. “Loma Linda is already taking steps to prevent the counting of ballots that is part of the democratic union election process, which would silence the voice of residents and fellows,” she said.
In a letter to the US Court of Appeals on May 17, LLUHEC wrote that that the NLRB decision “in no way moots” its motion for an injunction “but, rather, concretely demonstrates LLUHEC is experiencing immediate and irreparable harm.” LLUHEC has asked for arguments in the case to be scheduled for mid-June.
This story was updated on May 18 with additional comments from union legal representation.
Loma Linda University Health Residents Attempting to Unionize (March 3, 2023).
Legal Battle Begins over Unionization at Loma Linda University Health (March 16, 2023).
Alex Aamodt is managing digital editor and the Roy Branson Investigative Reporter for Spectrum. You can contact him here.
Title image credit: Carl Canwell / AME (CC BY 4.0).
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