On July 10, 2018, on behalf of the Union, I sent President Wilson a demand to bargain the terms and conditions of employment of the members of our bargaining unit who would be affected by the negotiations now being carried out between the WSU Administration and Henry Ford Health Systems (HFHS) (see Crains May 29, 2018, Attached).
There was no reply for 15 days. A notice was then sent of an Unfair Labor Practice (ULP) petition that the Union submitted to the Michigan Employment Relations Commission (MERC) charging the Administration with refusing to bargain this matter.
The President finally replied to me on July 26, 2018 stating in his letter that:
“Frankly, your letter (and now your charge) leaves me puzzled. You appear to have based your claim on what you have heard from a reporter. Even though you have been kept apprised of major developments in discussions with Henry Ford Health System. If you had doubts about this, I would have expected that you simply would have called me.”
I do not know to what President Wilson is referring when he states that I “… have been kept apprised of major developments in discussions with Henry Ford Health System.” A lack of transparency has been characteristic of the negotiations with HFHS this far. The only information that has come to me on these discussions has been little more than gossip and it has not come to me from the Administration. It was not until the Crains article (May 29, 2018) was published that I, and the University community, learned details of the negotiations with HFHS. That in-depth article was based on an extensive number of WSU documents obtained through an FOIA request. It was the first time that I, or other members of that community, got any substantial information from the Administration on a possible merger. The documents on which the Crains article was based showed such things as how new departments between the WSUSOM and HFHS would be formed. For example, it is proposed that department chairs would be from WSUSOM and the vice-chairs would from HFHS. There is considerable dissonance between the Crains account and President Wilson’s letter to me indicated when he states:
“More to the point, there are not now, and there have not been, discussions for a merger between Henry Ford Health System and the School of Medicine. There are no negotiations that would require any member of the medical school faculty to give up his or her university status.”
If there is to be no formal merger between the WSUSOM and HFHS, then what Vice President David Hefner and the representatives of HFHS been talking about for the last 18 months is a merger between the practice plans of the WSUSOM and the clinical activities of HFHS physicians. What else could be the subject of such extensive negotiations?
What Is to Be Negotiated?
The problem that is presented by such discussions is that the Union maintains that the distinction between the WSUPG, the principal practice plan and the SOM is essentially a ruse that reeks of hypocrisy. Back in the 1980s when the SOM practice plans were established the Union sought to bargain the terms and conditions of employment of the clinicians’ payments from them. The plans were established as independent non-profit legal bodies under 501 (c) 3 of the IRS Code. The Union went to MERC to get it to declare that the University had to bargain the terms and conditions of employment of clinicians being paid through the WSUPG. The Administration argued that since participation in the practice plans was “voluntary,” that bargaining with the Union was not mandatory. MERC bought this interpretation and since that time the Union has not been able to bargain the terms and conditions of employment in the practice plan. It is clear that participation in the practice plans is not voluntary, and never has been, but MERC is not the first government agency to make a mistake.
Six years ago the Union challenged the MERC interpretation arguing that the WSUPG was a legal part of the SOM (an alter ego) and therefore it should be negotiating the terms and conditions of employment of the clinicians in the WSUPG. The case was heard by an Administrative Law Judge. There was a settlement under which the Administration agreed that the grievance procedure in the Collective Bargaining Agreement (CBA) applied to the WSUPG and the creation of salary committees in the WSUPG. The settlement was a failure from the outset. Because all employees of the WSUPG are essentially at-will, the first attempt to apply the grievance process resulted in the immediate firing of the grievant from the WSUPG. The potential grievant left and went to another University as vice-chair of his new department.
As part of the agreement, the Union agreed not to employ the alter ego legal argument for five years. That agreement expired almost a year ago. Presently, we are basing our demand to bargain on the assumption that the WSUPG and the SOM are indeed the same entity. There is more than ample evidence that personnel and other practice plan policies are coordinated by the same administrators in both the WSUPG and the SOM.
Pediatrics: A Different Problem
There is a special case for the faculty of Department of Pediatrics. The President assures me that, “There are no negotiations that would require that any member of the Medical School faculty to give up his or her university status.” According to the latest data provided the Union by the Administration, there are 103 clinicians in the Department. There are another 28 regular faculty members who are not clinicians. The faculty of the Department practice at Children’s Hospital of Michigan (CHM), part of the Detroit Medical Center (DMC), which is owned by the Tenet Corporation whose headquarters is in Dallas, Texas. The only offices that these faculty members have are in CHM. The clinical faculty receive their pay for the patient services they provide through their practice plan, University Pediatricians (UP). The UP is not similar to the WSUPG in that it is not an alter egoof the SOM. The UP is established as a 501 (c) 3 non-profit corporation managed by a board of directors elected by the membership of the corporation. According to the UP bylaws, the members of the corporation are those clinicians appointed 50% or more as faculty members in the Department of Pediatrics.
A complicating factor is that the UP bylaws provide that the membership of the corporation may be expanded, “… so long as the number of Members who are not faculty members is insubstantial and in no event shall exceed ten percent (10%) of the total membership.” (AMENDED BYLAWS OF UNIVERSITY PEDATRICIANS (2008) (a non-profit corporation) (as amended by the Board through March 13, 2013), Article III, Members, 3,2-1.) The Board of the UP has violated this provision of its bylaws and expanded the membership of the corporation far beyond the ten additional members allowed. Various figures have been given me for the number of members in this expansion, from 70 to 100. That nobody seems to have an accurate number of illegitimate members is illustrative of the messiness of the situation in Pediatrics. In any case, it is apparent that the Board of the UP is in violation of its own bylaws and has taken improper measures to consolidate its power.
However, if there is to be a merger of the practice plans of the SOM and the HFHS, it is likely that a new Department of Pediatrics would be proposed within the SOM in which members of the present Department would be offered membership in it and those who chose to remain as members of the UP, and continue practicing at CHM, would have no place on the faculty of the SOM. How this would fit with President Wilson statement that no Medical School faculty would lose their jobs is most unclear.
The Situation Demands Negotiation
As of April, 2018, there were 325 clinicians on the faculty of the SOM. Of these, 103 were in Pediatrics. If there is to be a merger with HFHS, it would involve first, the accommodation of the 222 clinicians who are employed in the WSUPG and the other minor practice plans. Second, it would involve some plan for the almost one-third of the SOM clinicians who are in Pediatrics. These are complex problems and are not the only ones facing the Medical School linked to the broader problems of the University.
How are these problems to be solved? Is it by Vice President David Hefner, in consultation with President Wilson, conducting secret negotiations with Henry Ford? The question us is: how can we insure that there will be real consultation with the members of the faculty of the University, and more particularly, the Medical School, whose terms and conditions of employment will be deeply affected by any future arrangements, including a merger, with HFHS? Consultation is not a threat: it is vital if one cares at any level about faculty support for any new relationship with HFHS. The Union’s demand to bargain these matters is the only path that is evident at this point to protect the rights of the faculty, the interests of the Medical School and the broader concerns of the University in these negotiations. These are not matters that can be left solely to the tender mercies of Vice President Hefner and President Wilson.
In pursuit of the goal of appropriate representation of the faculty in these matters, we are undertaking the formation of a Union negotiating team representing the Medical School faculty leadership. The question that is left is whether the Wilson Administration will commit to meeting with that team at the bargaining table.