BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION STATE OF WASHINGTON In the matter of the petition of: UW HOUSESTAFF ASSOCIATION PERC No. 26163-E-13-384O Petitioner, POSITION and STATEMENT REGARDING STATUTORY COVERAGE OF SCHOOL OF MEDICINE UNIVERSITY OF WASHINGTON RESIDENTS AND FELLOWS Employer. POSITION STATEMENT DWT 23610367115 0001019?000101 Davis Wright Tremaine LLP LAW OFFICES Suite 2300 777 108th Avenue NE Bellevue, WA 98004-5149 425.646.6100 main 425.646.6199 fax TABLE OFVCONTENTS I. INTRODUCTION .. 1 II. BACKGROUND .. 1 A. Factual Background .. 1 B. Procedural Background .. 6 LEGAL ARGUMENT AND AUTHORITY .. 7 A. Because Medical Residents and Fellows Are Not Employees, They Are Not Entitled. to Collective Bargaining Rights Under Washington Law .. 7 1. Limited Indicia of Employment are Not Decisive .. 10 2. Seemingly Contrary Authority From Other Jurisdictions is Not Controlling .. 11 B. Even if Residents and Fellows are ?Employees,? None of the Statutes Apply to Them .. 13 1. Chapter 41.80 RCW Does Not Apply Because Medical Residents and Fellows are Exempt as ?Academic Personnel? .. 13 2. Chapter 41.56 RCW is Inapplicable Because None of the Speci?c Statutory Provisions Includes Medical Residents and Fellows .. 15 C. If Any Statute is to Apply At All, Chapter 41.56 RCW Does .. 17 IV. QUESTIONS REGARDING THE COMPOSITION OF THE UNIT. .. 17 A. Whether Dual Appointments Should be Excluded .. 18 B. Whether Chief Residents Should be Excluded as Supervisors 18 0. Whether the Bargaining Unit Should Be Limited to Those Residents and Fellows in the ACGME Program .. 18 Davis Wright Tremaine LLP LAW OFFICES POSITION STATEMENT - i DWT 23610367v5 0001019-000101 Suite 2300 777 108111 Avenue NE Bellevue, WA 98004-5149 425.646.6100 main 425.646.6199 fax INTRODUCTION UW Housestaff Association (?Petitioner? or ?Association?) has ?led a petition seeking an election to determine representation of some of the residents and fellows at the University of Washington School of Medicine. The Employer, University of Washington (?Employer? or ?University?)? submits this Position Statement to address whether the petitioned for bar-gaining unit has collective bargaining rights under the Washington?s statutory framework and, if so, which statute applies. As shown below, the residents and fellows at the University?s School of Medicine (whether the petitioned for unit or the complement of residents and fellows) are not eligible for collective bargaining. First, residents and fellows are not ?employees? for purposes of Washington labor law. Second, even if the residents and fellows can be deemed to be employees, Washington?s statutory framework for collective bargaining rights has not been extended to cover them. In particular, Chapter 41.80 RCW excludes them and none of the statutory provisions under Chapter 41.56 RCW include, or were intended to include, residents and fellows. As a result, residents and fellows are not eligible for collective bargaining under Washington law. While the University submits that there is no statutory coverage, if PERC disagrees, the most likely statute to apply would. be Chapter 41.56.021 RCW. It provides general coverage of employees of institutions of higher learning and residents and fellows are not speci?cally listed in any of the exclusions. II. BACKGROUND A. Factual Background The path to obtaining a medical license is notoriously long and arduous. It involves many years of schooling and training at the undergraduate, graduate and postgraduate level in addition to earning passing grades in a battery of examinations administered by national examination and licensing entities. Davis Wright "Tremaine LLP LAW OFFICES POSITION STATEMENT - 1 23610367v5 0001019?000101 Suite 2300 777 108th Avenue NE Bellevue, WA 98004-5149 425.646.6100 main 425.646.6199 fax LDJN practice medicine in Washington, physicians and surgeons must complete an MD. or DC. degree program from an approved medical school. They must also complete ?postgraduate medical training? after receiving the medical degree. See, ag. RCW 18.71.050.1 ?Postgraduate medical training.? means ?clinical training approved by the [Medical Quality Assurance Commission] in general medicine or surgery, or a recognized specialty or subspecialty in the ?eld of medicine or surgery.? WAC 246-919-330. The residents and fellows in the petitioned for unit are currently undergoing that postgraduate medical training. Training approved by the Commission includes residency and fellowship programs accredited by the Accreditation Council for Graduate Medical Education (ACGME). Id. The duration of these programs ranges from one to seven years, depending on the specialty or subspecialty.2 At least two years are required for licensure in the state of Washington; satisfactory completion of the entire program, lasting from 3 to 7 years, is required to attain eligibility for board certi?cation. I Students apply for residency programs during their ?nal year of medical school. They also register for the National Residency Matching Program (N RMP), a private, non-pro?t organization. See UW School of Medicine, Resident Fellow Eligibility and Selection Policy, attached as Exhibit A.3 NRMP is responsible for placing applicants in available residency programs. After a student registers for NRMP and interviews for residency placement, they provide a rank order list (ROL) to NRMP that ranks the applicant?s residency programs in order of preference. Similarly, pro-grams supply an ROL that ranks applicants in order of preference. See (explaining the match program) (last visited Feb. 25, 2014). NRMP applies an algorithm to match the applicant with a program on the ROL. If the 1 Because of the complexity involved in earning a state a license to practice medicine, citations to Washington statutes and regulations are provided. Washington?s standards, however, are not unique, and they comply with national credentialing standards adopted by nearly every other state. 2 Residencies range from three to seven years. Fellowships range from one to three years. 3 Also available at Selection-Policv.pdf Davis Wright Tremaine LLP LAW OFFICES Suite 2300 777 108111 Avenue NE Bellevue, WA 98004-5149 425.646.6100 main - 425.646.6199 fax POSITION STATEMENT - 2 DWT 23610367v5 0001019000101 applicant cannot be placed at his or her most preferred program, NRMP will attempt to place the student at the second choice program, and so on until a match is made. Id. Physicians must also pass a series of examinations that begin during medical school and continue through postgraduate medical training. The University of Washington requires residents to pass Step 3 of the United States Medical Licensing Examination (USMLE) within the ?rst 6 months of their third residency year. See UW Medicine, USMLE Policy, attached as Ex. B.4 Once a physician passes. Step 3 and completes 2 years of post-graduate medical training, he or she becomes eligible for a state medical license. However, the physician will not be eligible for board certi?cation untilcompletion of the residency program. Eligibility for USMLE Step 3 requires the successful completion of Steps 1 and 2. WAC 246-919-355. Steps 1 and 2 are usually taken while the individual is still enrolled in medical school, though the University allows newly appointed residents to take them during the ?rst year of their respective program. However, ?[a]11 appointments and promotions are subject to ful?llment of these requirements. Residents and fellows must ful?ll these requirements in order to be considered in good academic standing in the program.? USMLE Policy, Ex. at 2. The University of Washington School of Medicine Of?ce of Graduate Medical Educations oversees 96 different residency and clinical fellow training programs accredited by ACGME. UW Medicine, Prospective Residents and Fellows, (last Visited Feb. 25, 2014). It also oversees a number of post-graduate training programs that are not ACGME-aecredited. ?The GME Of?ce is dedicated to providing [all of these] residents and fellows with the best educational experience possible.? UW Medicine, Residents and Fellows, (last visited Feb. 25, 2014). Currently, there are approximately: 4 Also available at Davis Wright Tremaine LLP LAW OFFICES POSITION STATEMENT 3 DWT 23610367v5 0001019?000101 Suite 2300 777 108th Avenue NE Bellevue, WA 98004-5149 425.646.6100 main - 425.646.6199 fax 866 Residents (ACGME-accredited) (UW job code 0328); 52 Chief Residents (ACGME?accredited) (UW job code 0329); 14 Chief Residents (not ACGME?accredited) (UW job code 0333); 27 Clinical Associates (not ACGME?accredited) job code 0366); 236 Senior Fellow Trainees (about 50 are ACGME-accredited) (UW job code 0442); 4 Senior Fellows STIPEND (not ACGME-accredited) (UW job code 0443); 319 Fellows (most are ACGME-aecredited though others are accredited through speci?c boards) (UW job code 0444); and o- 500 Senior Fellows (not ACGME-accredited) (U job code 0445). Of these, approximately 6 Fellows (UW job code 0444) have concurrent Acting Instructor appointmentst job code 0124), which is a. faculty appointments See Faculty Code, 24- (discussing quali?cations for ?instructor? positions), attached as Ex. C.6 Another 94 non-ACGME-accredited appointees have concurrent Acting Instructor positions (14 chief residents, 80 Senior Fellows). Six Residents and 63 Fellows also have concurrent Senior Fellow Trainee appointments, and 25 Senior Fellows have concurrent Senior Fellow Trainee. appointments. Postgraduate medical training consists of a didactic component and a clinical component. Didactic curricula generally span the entire program, and typically consist of a series of lectures and/or teaching conferences on a regular basis. Lectures are often faculty led and cover programmatically relevant material. Residents also attend grand rounds and take an ?in-service? or ?in-training exam.? Some residents and fellows are also concurrently enrolled 5 Faculty, including Acting Instructors, are entitled to representation for collective bargaining purposes under Chapter 41.76 RCW, the Faculty Collective Bargaining Act. As argued below, those individuals are excluded from coverage under Chapter 41.80 RCW and Chapter 41.56 RCW. See in?'a Section 6 Also available at Davis Wright Tremaine LLP LAW OFFICES POSITION STATEMENT - 4 DWT 23610367v5 0001019?000101 Suite 2300 777 108th Avenue NE Bellevue. WA 980045149 425.646.6100 main 425.646.6199 fax alternate degree programs and/or register for college courses in the other schools at the . University. The clinical care training component is comprised of a number of rotations to the academic year. During the ?rst year of residency, trainees generally are enrolled in 13 rotations scheduled in 4 week blocks. Each subsequent year is usually divided into a 12 block rotation schedule, corresponding to a new rotation every month, although some rotations'last several months, depending upon the educational need in each program. At the end of each rotation, residents are expected to pass rotation assessments. During these rotations, patient care is administered by a team of trainees and physicians. A typical. team is comprised of a medical student, a junior resident, a senior resident or fellow, and an attending physician. Nearly all attending physicians are faculty at the University, though residents will occasionally rotate to community clinics where some supervising physicians are not on the faculty. Residents can admit/discharge patients only under the auspices of their supervising faculty member. Residents and fellows generally train for long hours, though the number of hours varies based on the rotation and the. specialty. These trainees, however, cannot generally bill professional fees as physician services. Department of Health and Human Services, Centers for Medicare Medicaid Services, Guidelines for Teaching Physicians, Interns, and Residents, attached as Ex. D, at 1.7 Teaching hospitals receive monies paid through Medical Education payments for the direct and indirect cost of medical education and through Medicare Part for services performed by trainees participating in an approved training program when an attending physician is physically present for the key portions of the examination. The University does not pay residents and fellows based on their interaction with patients or on the clinical component of the training. Instead, the University compensates residents and fellows by paying them an annual stipend, which is intended to defray the cost of 7 Also available at available at Davis Wright Tremaine LLP LAW OFFICES Suite 2300 777 108th Avenue NE Bellevue, WA 98004-5149 425.646.6100 main - 425.646.6199 fax POSITION STATEMENT - 5 owr 23610367v5 0001019?000101 living and other expenses during training. Residency Fellowship Position Appointment 2014-2015, attached as Ex. E, at 12.8 The stipends are tiered to the individual?s training year, not to the hours worked, to participation in patient care, or to the speci?c residency program. Some stipends are governed by? the National Research Service Award (N RSA) stipend schedule, which is set by the National Institutes of Health. Because the NRSA stipends are up to 25 percent below the University?s current stipend schedule, departments are permitted to supplement their stipends to bring them up to the University?s stipend level if funding is available. Residents also receive fringe bene?ts, including health, dental, life and long?term disability insurance and retirement contributions. They are allotted paid vacation/sick time and given access to wellness resources to help them cope with the stress of medical residency programs. See Summary of Bene?ts for Residents and Fellows, attached as Ex. F.9 The trainees also receive paid educational leave to attend conferences and receive free meals when working shifts lasting. 12 hours or more; other University employees do not. B. Procedural Background On December 24, the University of Washington Housestaff Association ?led a petition to represent medical residents and fellows appointed to ACGME-accredited programs at the University of Washington, School of Medicine.10 After the University provided a list of medical residents and fellows that ?t the designated criteria, PERC determined that at least 30 percent of the residents and fellows signed valid showing of interest cards as required by WAC 391-25-?110. On January 23, 2014, Michael P. Sellars, Executive Director of the Public Employment Relations Commission, sent a letter requesting that the University and the Association address 8 Also available at 9 Also available at df 1? PERC will need to determine whether the UW Housestaff Association is a ?bargaining representative? under any Washington collective bargaining statute or is, instead, a component of the School of Medicine?s shared governance approach. The University will address this issue if and when requested by PERC. Davis Wright Tremaine LLP LAW OFFICES Suite 2300 777 108th Avenue NE Bellevue, WA 98004-5149 425,646.6100 main - 425.646.6199 fax POSITION STATEMENT - 6 23610367v5 0001019000101 whether (1) medical residents and fellows have collective bargaining rights under Chapter 41.80 RCW or are excluded under WAC 35 7-04?040; or (2) if they are excluded from coverage under Chapter 41.80, whether they qualify for collective bargaining rights under RCW 41 .56.021. LEGAL ARGUMENT AND AUTHORITY For the reasons explained below, neither Chapter 41.80 RCW (the Personnel System Reform Act or PSRA) nor Chapter 41.56 RCW (the Public Employees? Collective Bargaining Act or PECBA) applies to medical residents and fellows appointed to ACGME?accredited programs. As a result, the petitioned-for group is not eligible for collective bargaining. A. Because Medical Residents and Fellows Are Not Employees, They Are Not Entitled to Collective Bargaining Rights Under Washington Law The threshold question is whether residents and fellows in the School of Medicine are employees. All relevant collective bargaining statutes apply only to ?employees,? and those who do not qualify as employees have no collective bargaining rights. The statutes do not mention medical school residents and fellows and PERC has not yet decided whether residents and fellows are within the statutory de?nition of ?employees.? While the statutes do not provide any substantive de?nition of ?employee,?11 PERC precedent provides helpful guidance. When distinguishing between employees and students, PERC looks to the ?primary purpose? of employment. Metro, Decision 2986 (1988). If the primary purpose. is pecuniary (rather than educational) in nature, and a reasonable expectation of continued employment exists, students can be employees entitled to collective bargaining rights. See Thurston County Fire District 8, Decision 11524-A (2013). Here, the primary purpose of a. resident or fellow trainee position is clearly and unambiguously for educational rather than economic purposes. Further, the resident and ?1 For purposes of PSRA, a cover-ed ?employee? is ?any employee covered by chapter 41.06 RCW [the state civil service laws].? PECBA applies to certain ?employees of institutions of higher education who are exempted from civil service.? RCW 51.46.02]. PECBA de?nes ?public employees? as ?any employee of a public employer? unless one of the enumerate exceptions. applies. RCW 41 .56.030(1 1). Davis Wright Tremaine LLP LAW OFFICES POSITION STATEMENT - 7 DWT 23610367v5 0001019-000101 Suite 2300 777 108th Avenue NE Bellevue, WA 98004-5149 425.646.6100 main - 425.646.6199 fax POSITION STATEMENT 8 fellows do not have a reasonable expectation of employment by the University upon completion of their training. This is illustrated by a consideration of the following factors. First, residency is a seamless extension of the training that began in medical school. Residency training is necessary and required step to practicing as a physician. See RCW 18.71.050. Just as medical students do, trainees in postgraduate programs sit for exams, attend lectures, undergo evaluations, and engage in supervised patient care during rotations. Only after all of these steps are completed can a physician be considered eligible for state licensure and board certi?cation. This is starkly different from other professions, like the practice of law, where the only requirement for sitting for state licensing exam is the completion of an accredited degree program. Residents and fellows expressly agree that they are enrolled for educational (and not economic) reasons. The Residency Fellowship Position Appointment provides: The primary purpose of the appointment of resident and fellow physicians is the completion of a graduate medical education training program in accordance with the current accreditation standards established by the Accreditation Council for Graduate Medical Education (hereafter referred to as or other accrediting bodies. It is clearly understood that the major objective of the training programs is education, and they will be administered through the University of Washington School of Medicine (hereafter referred to as and by the respective Department Chairs and Program Director's, with the educational needs of residents and fellows foremost in mind. Position Appointment 2014-2015, Ex. at 3 (emphasis added). Residents further agree that they are ??rst and foremost learners and are expected to pursue the acquisition of competencies that will qualify them for careers in their chosen specialties.? Position Appointment 2014- 2015, Ex. E. at 11 (emphasis added). The Association may contend that the assistance with patient care by residents and fellows, in combination with the stipend they receive, makes them employees. However, the nature and character of the functions proves otherwise. Residents and fellows cannot practice medicine, cannot care for patients alone and cannot bill for their services when provided in the Davis Wright Tremaine LLP LAW OFFICES Suite 2300 777 108th Avenue NE Bellevue, WA 98004-5149 425.546.6100 main '425.646.6199 fax DWT 23'610367v5 0001019-000101 context of their training program; they must be closely supervised by more senior housestaff and by faculty. The patient care is explicitly for the purposes of ?training? and only at their assigned ?training sites.? Id. This arrangement is in direct contrast to graduate students that the Legislature has deemed to be employees; those graduate students are not required to work for their degree programs. ,Most do, to pay their tuition and expenses, but it is not anobligatory part of the training program or their subsequent career. The stipend also does not turn residents and fellows into employees. The stipend is not associated with the work performed in any way. Instead, it is designed to allow the resident and fellow to afford housing, food, and other living expenses. It is provided for all the training activities of residents and fellows, including both the didactic and clinical activities. It is not analytically different from other ?nancial aid provided to students by the University. The University also must abide by external restrictions in its training program. The ACGME controls accreditation and dictates residency program activities, and the postgraduate training requirement can be satis?ed only at an approved teaching hospital. Residents must ?attend required didactic and other educational activities as speci?ed by [the] duty/training schedule.? Id. at 6. Consistent with these didactic requirements, training sites commit to ?minimize[ing] residents? work that is extraneous to the graduate medical educational programs? educational goals and objectives [even if such work is otherwise valuable to the employer].? Id. at 4. The University is thus deprived of the autonomy enjoyed by other employers when setting a resident?s or fellow?s program, work schedule and terms of service. Placement in a residency program also lacks the true indicia of a bargained-for exchange associated with employer/employee hiring negotiations. Residents are not recruited or hired by any University human resources department. Instead, they are placed at the University by the NRMP, which applies an algorithm to match the applicant with a selected program on the student?s ROL. Davis Wright Tremaine LLP LAW OFFICES Suite 2300 777 108th Avenue NE Bellevue, WA 98004?5149 425.646.6100 main 425.646.6199 fax POSITION STATEMENT - 9 DWT 23610367v5 0001019000101 The residents and fellows also have no reasonable expectation of employment with the University after completion of training. They typically scatter throughout the State and the country to provide full patient care as licensed physicians. For all of these reasons, the primary purpose motivating medical residents and fellows to participate in ACGME?accredited programs is educational, not pecuniary. These trainees thus fall beyond the scope of either PRSA or PECBA, and are not eligible for collective bargaining under Washington law. We expect the Association to contend that the residents and fellows are employees, and therefore address some anticipated arguments: 1. Limited Indieia of Employment are Not Decisive The University acknowledges that residents and fellows are cloaked with limited indicia of employment. For instance, they receive remuneration and fringe bene?ts (health, dental and life insurance, paid vacation/ sick time, and retirement contributions) and the University deducts Federal taxes from their pay. But whether residents and fellows receive some form of compensation or are treated as employees for tax purposes is not the test, nor does it alter the primary purpose for participating in the program. Moreover, the ?nancial compensation and bene?ts provided to residents and fellows are not linked to hours worked or work performed. It is a ?stipend to assist in defraying the cost of living and other expenses during training.? Position Appointment 2014-2015, Ex. at 12. And unlike other employment settings where prior experience is re?ected in an increased salary, ?residents will not receive credit for prior training in a specialty that is not required for entry into the current program.? Id. Simply put, residents and fellows attend postgraduate training programs to ful?ll educational requirements necessary for the independent practice of their chosen professions. They are not in it for the money. 12 '2 The Association may citeMayo Foundation for Med. Educ. Research v. United States, 131 S. Ct. 704, 178 L.Ed.2d 588 (2011). That case is inapposite. The question presented was whether the Treasury Department reasonably excluded medical residents from the ?student? exemption under 26 U.S.C. 3121(b)(10), which subjected them to Federal Insurance Contributions Act (FICA) tax Davis Wright Tremaine LLP LAW OFFICES Suite'2300 777 108th Avenue NE Bellevue, WA 98004?5149 425.646.6100 main 425.646.6199 fax POSITION STATEMENT - 10 DWT 23610367v5 0001019-000101 Seemingly Contrary Authority From Other Jurisdictions is Not Controlling The Association will likely cite Boston Medical Center Corp, 330 NLRB 152 (1999), and various state labor decisions ?nding that housestaff qualify as ?employees? for purposes of collective bargaining. But those decisions do not control here and are legally distinguishable. Boston Medical Center held that housestaff were. also ?employees? for purposes of the National Labor Relations Act in part because Section 2(12) of the Act contained a provision de?ning ?professional employees.? That provision de?nes ?professional employees? as: any employee engaged in work (iv) requiring knowledge of an advanced type in a ?eld of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital or any employee, who has completed the courses of specialized intellectual instruction and study described in clause (iv) of paragraph and (ii) is performing related work under the supervision of a professional person to quali?/ himself to become a professional employee as de?ned in paragraph 29 U.S.C. ?152 (12) (emphasis added). According to the Board, ?[l]itera11y read, Section 2(12)(b) embraces house staff.? Boston Med. Ctr., 330 NLRB at 161. They are ?clearly individuals who have completed a course of specialized intellectual instruction and study ?in an institution of higher learning or a hospital.? Just as plainly, they are ?performing related work under the supervision of a professional to qualify to be a professional as. de?ned in the Act.? Id. Washington law does not contain such a provision. Boston Medical Center, therefore, provides little if any guidance. The conclusion regarding residents and fellows is also withholdings. The Court upheld the Department?s construction of the statute, reasoning that its interpretation was reasonable in the face of Congress?s failure to provide a statutory de?nition of the term. Mayo Foundation thus has no bearing on the coverage of Washington?s public sector collective bargaining statutes, which, as a matter of state law, is not subject to the Treasury Department?s interpretation of the FICA statutory framework. Davis Wright Tremaine LLP LAW OFFICES Suite 2300 777 108th Avenue NE Bellevue, WA 98004-5149 425.646.6100 main -425.646.6199 fax POSITION STATEMENT - 11 23610367v5 0001019-000101 not entitled to great weight since its conclusion vacillates depending on which political party is in power. See Cedars-Sinai Medical Center, 223 NLRB 251 (1976) (holding that residents and fellows are not ?employees? entitled to bargain collectively under the St. Clare ?8 Hospital Health Center, 229 NLRB 1000 (1977) (af?rming Cedars-Sinai Med. Ctr). Similarly, the state labor decisions ?nding that residents and fellows are ?employees? for purposes of public sector collective bargaining rely on statutory language that is nearly identical to 29 U.S.C. ?152 (12). For instance, Massachusetts extends collective bargaining rights to ?professional employees,? which are de?ned as: any employee engaged in work (iv) requiring knowledge of an advanced type in a ?eld of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital, as distinguished from a general academic education or from an apprenticeship or from training in the performance of routine mental, manual or physical processes. M.G.L. 0. 150B, 1. See, also Williams v. Bresnahan, 27 Mass. App. Ct. 191, 192 (1989) (recognizing that residents are members of the House Of?cers? Association pursuant to M.G.L. c. 150E). Other state legislatures have taken a similar approach. See, e. g. CONN. GEN. STAT. J. STAT. ANN. MINN. STAT. 179A.03, subd. 13; OR. REV. STAT. Again, Washington law contains no analog to the statutory ?professional employee.? Accordingly, those decisions are of no assistance. Moreover, PERC applies a ?primary purpose? test where these other jurisdictions do not. Thus, for. purposes of PSRA or PECBA, the term ?employee? cannot reasonably be extended to include medical residents and fellows appointed to ACGME-accr-edited positions without violating established PERC precedent. Davis Wright Tremaine LLP LAW OFFICES Suite 2300 777 108th Avenue NE Bellevue, WA 98004-5149 425.646.6100 main - 425.646.6199 fax POSITION STATEMENT - 12 DWT 2.3610367v5 0001019-000101 B. Even if Residents and Fellows are ?Employees,? None of the Statutes Apply to Them Even if PERC disagrees and ?nds that members of the petitioned-for group qualify as ?employees,? the current statutory framework in Washington has not been extended to provide collective bargaining rights to residents and fellows. 1. Chapter 41.80 RCW Does Not Apply Because Medical Residents and Fellows are Exempt as ?Academic Personnel? Employees that are exempted. from civil service under RCW 41 .06.070 are not entitled to representation for collective bargaining purposes under PSRA. See University of Washington, Decision 9410 (?Any employee exempted from civil service under RCW 41.06.070 loses their Chapter 41.80 RCW collective bargaining rights [under that RCW 41.06.070(2) reads: (2) The following classi?cations, positions, and employees of institutions of higher education and related boards are hereby exempted from coverage of this chapter: Members of the governing board of each institution of higher education and related boards, all presidents, vice presidents, and their con?dential secretaries, administrative, and personal assistants; deans, directors, and chairs; academic personnel; and executive heads of major administrative or academic divisions employed by institutions of higher education; principal assistants to executive heads of major administrative or academic divisions; other managerial or professional employees in an institution or related board having substantial responsibility for directing or controlling program operations and accountable for allocation of resources and program results, or for the formulation of institutional policy, or for carrying out personnel administration or labor relations ?rnctions, legislative relations, public information, development, senior computer systems and network programming, or internal audits and investigations; and any employee of a community college district whose place of work is one which is physically located outside the state of Washington and who is employed pursuant to RCW 28B.5 0.092 and assigned to an educational program operating outside of the state of Washington; Davis Wright Tremaine LLP LAW OFFICES POSITION STATEMENT - 13 DWT 23610367v5 0001019-000101 Suite 2300 777 108111 AvenueNE Bellevue, WA 98004-5149 425.646.6100 main - 425.646.6199 fax #0310 The governing board of each institution, and related boards, may also exempt from this chapter classi?cations involving research activities, counseling of students, extension or continuing education activities, graphic arts or publications activities requiring prescribed academic preparation or special training as determined by the RCW 41 .06.070(2) (emphasis added). This provision exempts all ?academic personnel? in addition to other categories or classi?cations of employees. The civil service law does not de?ne the term ?academic personnel,? nor is the term de?ned in Chapter 41.80 RCW or Chapter 41.56 RCW. Instead, the authority to de?ne ?academic personnel? is reserved to the governing boards of the four-year universities. See, University of Washington, Decision 9410 (PSRA, 2006) (?Nothing in Chapter 41.80 RCW expressly repeals or negates the authority to exempt employees, which is reserved to higher education institutions in RCW 41 see also University of Washington, Decision 10150-B (?This statute continues to grant the higher education institutions the authority to exempt individual employees and remove them from existing bargaining units?). The University of Washington governing board de?nes ?academic personnel? to include faculty, librarians, medical residents (chief, resident, and fellow) and senior fellows/trainees, and other academic appointees delivering instructions and/or conducting research or scholarship. See Administrative Policy Statement 40.1, Types of University Personnel, attached as Ex. G.13 Because medical residents and fellows are deemed to be academic personnel by the University and qualify as ?academic personnel? under RCW 41 .0607 they are ineligible for collective bargaining under PSRA. Medical residents and fellows are exempt from PSRA for an additional reason. The Washington Personnel Resource board has exercised its authority to exclude student employees from coverage under the Act. Speci?cally, WAC 357?04-040 exempts 13 Also available at Davis Wright Tremaine LLP LAW OFFICES POSITION STATEMENT - 14 DWT 23610367v5 0-001019-000101 Suite 2300 777 108th Avenue NE Bellevue, WA 98004-5149 425.646.6100 main - 425.646.6199 fax (1) Students who are participating in a documented and approved internship program which consists of an academic component and work experience are . (3) Students are exempt if they are employed by the institution at which they are enrolled (or by a related board) and meet any one of the following conditions: The student is employed in a position directly related to his/her major ?eld of study to provide a training opportunity. Because medical residents and fellows bear a close analogy to students participating in an internship program consisting of work and academic components, they are exempted from PSRA. They are also exempt because (assuming, arguendo, they are employees) they are ?employed? in a position that directly relates to the training opportunity that the University provides them. Thus, residents and fellows fall into both of the above categories and are not eligible for collective bargaining under PSRA. 2. Chapter 41.56 RCW is Inapplicable Because None of the Specific Statutory Provisions Includes Medical Residents and Fellows PSRA restructured the collective bargaining rights of classi?ed (civil service) employees at public four?year institutions of higher education. See University of Washington, Decision 940 (PSRA, 2006) (outlining the history of the civil service at the four-year institutions of higher education). When the legislature restructured those collective bargaining rights, University employees exempted from civil service by RCW 41 .06.070(2) lost the right to engage in collective bargaining. Thereafter, ?[t]he Legislature intended to restore those rights to certain exempt employees at institutions of higher learning in 2007 when it enacted RCW Everett Community College, Decision 10392 (2009). However, RCW 41 .56.021 ?does not grant collective bargaining rights to all higher education employees.? University of Washington, Decision 10150-B (2009). It did not apply to lecturers, id., certain predoctoral graduate students, or to postdoctoral and clinical employees, among others. The Legislature had to enact special provisions for. these categories of exempt employees notwithstanding RCW 41 56021. See Chapter 41.76 RCW (governing faculty); RCW Davis Wright Tremaine LLP LAW OFFICES POSITION STATEMENT - 15 23610367v5 0001019-000101 Suite 2300 777 108th AvenueNE Bellevue, WA 98004?5149 425.646.6100 main - 425.646.6199 fax 41.56.203 (governing predoctoral student/employees); and RCW 41 .56.5 13 (governing ?postdoctoral and clinical employees?). In light of this careful drafting, the only reasonable inference to be drawn is that the Legislature intended to allow only those de?ned categories of employees speci?ed by law to elect representation for collective bargaining purposes. Thus, where, as here, no enabling statute for medical residents or fellows exists, representation for collective bargaining cannot exist under this chapter. Otherwise, if Chapter 41.56 RCW broadly applied to all non-classi?ed University employees, the speci?c provisions would be super?uous. PERC does not read statutes so as to render any part of them meaningless. Western Washington University, Decision 10068-A (2008) (?Statutes must be interpreted and construed so that all language used is given effect, and no portion is rendered meaningless or super?uous?). Neither of the remaining potentially relevant provisions under PECBA covers housestaff for collective bargaining purposes. RCW 41.56.203 does not apply because it governs certain ?predoctora student-employees, and medical residents and fellows have already attained their medical degrees. Similarly, RCW 41.56.513 is inapplicable because housestaff are neither ?postdoctoral? or ?clinical employees.? Postdoctoral positions are research appointments, not medical training appointments, and they are not accredited by ACGME. The term ?clinical employee? also excludes housestaff. Because the term is not de?ned by statute, it will be accorded its plain and ordinary meaning unless the statute evidences a contrary legislative intent. Dennis v. Dep ?t of Labor and Indus. 109 Wn.2d 476, 479 (1987); see also City of Yakima, Decision 3503-A. Residents and fellows are not ?clinical employees? in the plain sense. They are not there to provide clinical care to patients, but much more to learn how to provide care. They can act only under the direct supervision of an attending physician. ?Clinical employees? in RCW 41.56.513 refers to physicians and other health care providers who have clinicalappointments. Dav-is Wright Tremaine LLP LAW OFFICES Suite 2300 777 108111 AvenueNE Bellevue, WA 98004?5149 425.646.6100 main 425.646.6199 fax POSITION STATEMENT - 16 DWT 23610367v5 0001019-000101 \DOo-leNUI-simple comparison between RCW 41 56.203 and RCW 41.56.513 demonstrates that the Legislature could not. have intended to include medical residents and fellows under RCW 4156513, or indeed, any provision of Chapter 41.56 RCW. When the Legislature extended collective bargaining rights to predoctoral graduate students in RCW 41.56.203, it expressly excluded certain subjects from the scope of collective bargaining. Thus, when the graduate students chose representation, they were not permitted to negotiate about academic standards and the University?s ability to terminate employment for failing to meet those requirements, the academic calendar of the University, and the number of students admitted to any given program. RCW 41.56.203 If medical residents and fellows were covered by RCW 41.56.513 or any other section Chapter 41.56 RCW, those same restrictions on the scope of bargaining have not been explicitly provided by the Legislature. Yet, residents and fellows are also required to meet academic standards and the appointment can be terminated for failing to meet them. In fact, much of the academic framework is provided by ACGME, and not by the University. There are also limited spaces for residents and fellows, and placement is not done by the University. The residents and fellows also follow an academic calendar. If the Legislature had intended to include residents and fellows within the coverage. of Chapter 41.56 RCW, it surely would have protected the academic integrity of the medical training program from bargaining in the same way it protected the integrity of the academic programs for predoctoral graduate students. C. If Any Statute is to Apply At All, Chapter 41.56 RCW Docs In the unlikely event that PERC concludes that the medical resident and fellow trainees are employees and were intended to be provided with collective bargaining rights, RCW 41 .5 6.021 may provide the most applicable statutory framework. IV. QUESTIONS REGARDING THE COMPOSITION OF THE UNIT. The Executive Director?s letter requested that the parties address the statutory coverage. for residents and fellows. If it is determined that there is statutory coverage for residents and Davis Wright Tremaine LLP LAW OFFICES POSITION STATEMENT 17 DWT 23610367v5 0001019-000101 Suite 2300 777 108111 Avenue NE Bellevue, WA 98004-5149 425.646.6100 main - 425.646.6199 fax N- r-I_ i?t a?a i?I t?fellows, the University suggests that the following questions regarding the composition of the unit must be subsequently addressed. A. Whether Dual Appointments Should be Excluded The collective bargaining rights of University faculty members are governed exclusively by Chapter 41.76 RCW, the Faculty Collective Bargaining Act (FCBA). Such faculty members cannot be included in any bargaining unit covered RCW 41 .56.021. See RCW 41 56.021 (2.) (excluded employees covered by Chapter 41.76 RCW). Moreover, there can be only one bargaining unit for faculty members. RCW 41 .76.005(1 1). As noted above, a number of housestaff also maintain faculty positions. RCW 41 .76.005(5) de?nes ?faculty? as ?employees who, at a public four-year institution of higher education, are designated with faculty status or who perform faculty duties as de?ned through policies established. by the faculty governance system.? Thus, where, as here, the University designates members of housestaff as faculty within the faculty code, they cannot be included in any collective bargaining unit authorized under RCW 41 .5 6.021. B. Whether Chief Residents Should be Excluded as Supervisors PERC will need to determine whether Chief Residents are supervisors under the appropriate statute, and Whether they must be excluded from a unit comprised of the residents and fellows they oversee. C. Whether the Bargaining Unit Should Be Limited to Those Residents and Fellows in the ACGME Program As noted above, see p. 4 supra, there are those with resident and fellow titles who are not in ACGME approved programs, including some with exactly the same titles as those who are in ACGME programs. In addition, there are also residents and. fellows at the University outside the School of Medicine. PERC will need to decide whether the requested bargaining unit is inappropriate because it is too narrowly de?ned. Davis Wright Tremaine LLP LAW OFFICES POSITION STATEMENT - 18 DWT 23610367v5 0001019-000101 Suite 2300 777 108m Avenue NE Believes, WA 98004-5149 425.646.6100 main 425.646.6199 fax DATED this 27th day of February, 2014. Davis Wright Tremaine LLP Attorneys. for University of Washington By H'e #18896 Jo Hodges-Howell, WSBA #42151 Davis Wright Tremaine LLP Suite 2300 777 108th Avenue NE BeIlevue, WA 98004-5149 425-646-6100 henrvfarber@dwt.com iohnhodgeshowell@dwt.com Davis Wright Tremaine LLP LAW OFFICES Suite 2300 777 108111 Avenue NE Bellevue, WA 98004-5149 425.646.6100 main 425.646.6199 fax POSITION STATEMENT - 19 DWT 23610367v5 0001.019-000101 00 *4 U.) . Dmitri Iglitzin CERTIFICATE OF SERVICE I hereby certify that I caused the document to which this certi?cate is attached to be delivered to the following as indicated: Washington State Public Employemnt Relations Commission PO Box 40919 Olympia, WA 98504-0919 ?ling@perc.wa. gov US. Mail, postage prepaid Email Jacob Sunshine Email UW Houses-taff Association PO Box 95318 Seattle, WA 98145 uwhousestaff@gmail.com Email Schwerin Campbell Bernard Iglitzin Lavitt LLP 18W. Mercer St., Ste. 400 Seattle, WA 98119 Iglitzin@workerlaw.com Declared under penalty of perjury under the laws of the state of Washington dated at Seattle, Washington this 27th day of February, 2014. arol Gary 9? Davis Wright Tremaine LLP LAW OFFICES POSITION STATEMENT - 20 owr 23610367v5 0001019-000101 Suite 2300 777 108th Avenue NE Bellevue, WA 98004-5149 425.646.6100 main 425.646.6199 fax