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National Union of Hospital and Health Care Employees v. County of Cook

Illinois Appellate Court


March 20, 1998

NATIONAL UNION OF HOSPITAL AND HEALTH CARE EMPLOYEES, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO (DOCTORS' COUNCIL OF COOK COUNTY HOSPITAL), PETITIONERS-APPELLANTS,
v.
COUNTY OF COOK (COOK COUNTY HOSPITAL) AND ILLINOIS LOCAL LABOR RELATIONS BOARD, RESPONDENTS-APPELLEES.

No. L-RC-95-017

The opinion of the court was delivered by: Justice Hartman

Petition for Review of an Order of the Illinois Local Labor Relations Board.

This case is before us on direct review *fn1 of an administrative order entered by respondent Illinois Local Labor Relations Board (Board), dismissing a petition seeking union representation. In 1987, respondent Board had concluded that attending physicians *fn2 (Attendings) in practice at Cook County Hospital (Hospital) were "supervisors" within the meaning of the Illinois Public Labor Relations Act (Act) (Ill. Rev. Stat. 1986, ch. 48, par. 1603(r)) and, therefore, were not eligible for union membership. After similar, subsequent Union representation efforts failed, on February 24, 1995, petitioner National Union of Hospital and Health Care Employees (Union) (formerly identified as American Federation of State, County and Municipal Employees, AFL-CIO), again petitioned the Board, seeking to represent Attendings, among others not involved in this appeal, and claiming a substantial change in the duties performed by Attendings and a change in case law. Respondent County of Cook (Employer), which owns and operates the Hospital, challenged the petition.

A hearing was conducted before an administrative law Judge (ALJ), who concluded that Attendings were not supervising employees within the meaning of the present statute, section 3(r) of the Act (5 ILCS 315/3(r) (West 1994)) (section 3(r)), and recommended to the Board that an election be ordered. As authorized by section 1210.100(n) of the Illinois Administrative Code (80 Ill. Adm. Code sec. 1210.100(n) (Supp. 1996)), to "adopt all, part or none of the [ALJ's] recommendation depending upon the extent to which it is consistent with the record and the applicable law," the Board adopted only the ALJ's findings of fact, but differed with his factual and legal Conclusions and ruled that Attendings were indeed statutory supervising employees, and dismissed the 1995 petition, holding that there was no change in fact or law that required reexamination of its 1987 decision. The Union seeks administrative review.

The principal issue presented for review in the instant proceedings is whether the Board erred in concluding that Attendings are "supervisors" within the meaning of section 3(r) *fn3 of the Act, as a matter of fact or law. Section 9(i) of the Act (5 ILCS 315/9(i) (West 1994)) makes the Board's dismissal order reviewable under the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 1994)). Administrative review extends to all questions of law and fact presented by the record. The Board's findings and Conclusions must be considered prima facie true and correct. 735 ILCS 5/3-110 (West 1994).

The Board's determination cannot be impeded absent a showing that its expertise and authority has been exercised arbitrarily and capriciously; it can be overturned only when, after viewing the evidence in a light most favorable to the Board, it can be said that no rational trier of fact could have arrived at the Conclusion reached by the Board. Chief Judge of the Circuit Court of Cook County v. American Federation of State, County and Municipal Employees, Council 31, AFL-CIO, 153 Ill. 2d 508, 514, 607 N.E.2d 182 (1992) (Chief Judge). To neutralize the possibility that a pro-union bias might impair a supervisor's ability to apply the employer's policies to subordinates in accordance with the employer's best interests, the Act provides that a bargaining unit may not contain both supervisors and nonsupervisors. 5 ILCS 315/3(s)(1) (West 1994); Chief Judge, 153 Ill. 2d at 515; City of Freeport v. Illinois State Labor Relations Board, 135 Ill. 2d 499, 505-06, 554 N.E.2d 155 (1990) (City of Freeport).

From the record the following facts appear. Respondent Employer owns and operates the subject institution, a 918-bed acute-care teaching hospital, in Chicago. Under the Hospital's corporate bylaws, the Cook County Board of Commissioners (CCBC) is responsible for the management, control, and operation of the Hospital. The Hospital director, its chief operating officer, is responsible for the Hospital's day-to-day affairs. The medical director is charged with supervising medical affairs. The Executive Medical Staff (EMS) is obligated to oversee patient care and the ethical conduct and professional practices of its members, and is accountable to the CCBC and the Hospital administration. A Joint Conference Committee (JCC), whose twelve members represent equally each entity, acts as liaison between CCBC and the EMS. JCC serves as a forum for policy and practice matters that require agreement between CCBC, the Hospital administration, and the Medical Staff, and provides the formal means for the Medical Staff to participate in the development of Hospital policies relative to both Hospital management and patient care.

Administratively, the Hospital is comprised of eleven clinical departments, which are further divided into divisions and sections. At the relevant time, the Hospital employed almost six thousand full-time employees, of whom approximately 200 were Attendings, and 530 were residents. A resident is a medical school graduate and "physician in training."

Among the documents filed in the 1995 proceedings were the Hospital corporate bylaws, which set up the structure for management, control and operation of the Hospital, and assigns certain powers and responsibilities of the Hospital Director, the Medical Director, and the Medical Staff. Also filed in the present proceedings were the Hospital Medical Staff Bylaws, which set forth parameters for the management of patient care at the Hospital. Attendings receive and are required to read copies of the Medical Staff Bylaws and rules and regulations upon their employment as Attendings, and follow them.

Under the corporate bylaws, the Hospital's chief operating officer receives recommendations from the Medical Staff regarding appointments, reappointments, and determinations of clinical privileges, and transmits them to the JCC.

All Attendings employed by the Hospital are members of the Medical Staff. Residents are not. Under the Medical Staff Bylaws, residents are appointed to a graduate training program at Cook County Hospital, and participate in patient care under the direction of licensed practitioners. The Medical Staff Attendings are required to adopt bylaws, rules and regulations for governing the Hospital's medical practice, as deemed appropriate by the County Board, for the care of Hospital patients and for the furtherance of the Hospital's objectives in the community.

The Medical Staff Attendings provide continuing professional education, shaped primarily by needs identified through review and evaluation activities; on-going monitoring of patient care practice; and retrospective review and evaluation of the quality of patient care. They supervise clinical affairs, which includes enforcing Medical Staff Bylaws, rules and regulations, clinical policies and consultation requirements; initiating disciplinary action; and providing surveillance over requirements for monitoring and for the exercise of clinical privileges.

A collective bargaining agreement (Agreement) presently exists between the Hospital and the residents represented by the Union, which reflects the supervisory relationship between the Attendings and residents. Article III, section 1 of the Agreement provides that residents may advance through the residency program after satisfactory completion of each year of service at a given level unless the hospital or resident wishes to terminate the resident's employment in a given department. Article VIII, section 3 requires evaluation of each resident on each rotation of duty, but not less than every 2 months, by completion of a written and oral evaluation by the immediate supervisory Attending, followed by placement in the resident's official file a written evaluation for the subject period. Disciplinary actions authorized in Article IX, section 1 include verbal and written reprimand, suspension, discharge, transfer from a given patient area in response to complaints of a supervisor against a resident, assignment to more than the customary time in the patient care area because of poor performance, curtailment of customary privileges and responsibilities in a given area, probation and/or demotion.

Article X, section 5 of the Agreement provides that "n order to make available the highest quality of medical care for patients and to provide and maintain a suitable learning and work environment for covered by this Agreement, the County will ensure that adequate numbers of Attending staff are available at all times to supervise who are on duty. Attendings supervising ward services will arrive promptly on the end of call periods and conduct rounds in a timely fashion. Cook County Attending staff will be present at all hours in the emergency areas. are responsible for keeping their Attending physicians apprised of the patient's conditions and any changes thereof. However, it is understood that the attending physicians are ultimately responsible for the care of the patients."

In the 1995 action, the Union maintained that Attendings' duties and responsibilities had changed since the Board's prior decisions, citing a statement from the Hospital's policy manual that the Attendings shall "provide more specific documentation of 'the participation and supervision of the care given to the patient by the Attending.'" The Union also insisted that the rationale of the Board's 1987 decision conflicted with the reasoning in a case decided by the supreme court in 1990, City of Freeport, because the time Attendings spent on actual patient contact, such as initial examinations, had increased since the Board's prior decisions. The Employer (County) opposed the petition. The ALJ ordered a new hearing. The parties filed certain stipulated findings of fact and presented documents and the testimony of numerous witnesses. Approximately 1600 pages of documents and other evidence were filed by the parties who, following the hearing, submitted briefs. The ALJ filed the recommended decision and order, referenced earlier in this opinion, on October 5, 1995.

The ALJ rejected the Union's contention that Attendings' work was no different, factually or legally, from that of residents, concluding that "the principal work of ttendings is obviously and visibly different from that of their subordinates for ttendings, unlike residents, perform little direct patient care and perform no nursing care." He also found that "as compared to 1986, ttendings spend more time with residents and they more closely observe the activity of residents and other staff." *fn4

Nevertheless, the ALJ recommended that Attendings be found not to exercise supervisory "direction" over their subordinates within the meaning of the Act, because the Attendings were not acting out of concern for the Hospital's interest as an employer or of an Attending's standing as an employer representative, but their performance was based on superior skills and technical expertise; therefore, no statutory supervisory authority was exercised in the interest of the Employer.

Because the Board referred to its 1987 decision in dismissing the present petition, that decision will be reviewed briefly. The 1987 Board decision followed extensive hearings at which 42 witnesses were heard and documentary evidence considered. The Board there found that Attendings were responsible for seeing that the residents' direct care of patients was adequate and proper, which could be achieved by "active intervention with such subordinate personnel, and through example, gentle guidance, silent observation, and, if necessary, through formal discipline." Attendings were "supervising" those within their oversight responsibility not only when interacting overtly to instruct, correct, or reprimand them, but also when teaching or training them, spending more than half their time performing these functions. The Board found that Attendings had "individual and combined responsibilities to the patients, the institution and the requirements of their professions," and recognized "the special relationship" between Attendings and their subordinates, concluding that Attendings were "supervisors" within the meaning of the Act. *fn5 Cook County Hospital, 3 PERI para. 3032, at IX-187 (1987).

The Board heard argument in the present, 1995, proceedings and, as earlier noted, thereafter adopted the ALJ's findings of fact, but differed in the Conclusions to be drawn therefrom, ruling that Attendings are supervisory employees, in accordance with section 3(r) and its earlier decisions. The Board reviewed the evidence in the present record and found that the "facts *** are essentially unchanged from those established in 1987," when it first determined that Attendings' subordinates provided direct patient care while Attendings instructed, monitored, reviewed, and corrected their subordinates to ensure that the care provided was necessary and appropriate. The Board concluded that Attendings' principal work continued to be substantially different from that of their subordinates, observing that "the only significant difference" in the facts underlying its 1987 decision was that Attendings now spent even more of their time on these oversight functions.

Also rejected by the present Board was the ALJ's view that the Board had not addressed whether Attendings' direction was based solely on superior skill rather than on true supervisory direction exercised in the Employer's interest. In its 1987 decision, the present Board explained, it had recognized that the purpose of Attendings' oversight of their subordinates was to ensure the health and safety of the Employer's patients as well as to train and instruct residents in proper medical knowledge, skills, and conduct. The Board reasoned that it was in the Hospital's interest to train residents, which helped them become productive employees; optimum patient care is a strong employer interest; and its 1987 decision had been based on the Conclusion that Attendings' oversight of their subordinates' work ensured this level of care. Furthermore, the Board observed, Attendings also assessed the residents' compliance with Hospital directives, and Attendings' interaction with residents was not limited to handling medical situations. Because their functions were closely identified with the Hospital's interests, the Board concluded, Attendings are "key members of the Hospital management team," and consistently use independent judgment in determining how best to accomplish the necessary training and evaluation of their subordinates.

I.

As its principal argument, the Union insists that the Board was wrong as a matter of law in concluding that Attendings are "statutory supervisors" within the meaning of the Illinois Public Labor Relations Act, relying substantially upon the supreme court decision in City of Freeport. Specifically, the Union maintains that the Employer has not vested Attendings with the authority to discipline, reward, lay-off, recall, award, or grant overtime to those who work with their patients, and asserts that instructing, monitoring, reviewing, and correcting the work of such other employees are not statutory supervisory functions, nor does the fact that a doctor is responsible to his patient for medical care fall under this statutory requirement. The necessary test, the Union argues, requires that a distinction be drawn between an Attending who functions as a professional and one who is a supervisor of professionals.

A four-part test has been articulated by the supreme court to determine whether an employee is a supervisor under section 3(r) of the Act, as follows:

"(1) the supervisory employee must perform principal work substantially different from that of [his or] her subordinates; (2) the supervisory employee must have authority to perform some or all of the 11 functions enumerated in section 3(r); (3) the supervisory employee must consistently use independent Judgement in the performance of these 11 enumerated functions; and (4) generally, the supervisory employee must devote a preponderance of [his or] her time to exercising the authority to handle these 11 functions." Chief Judge, 153 Ill. 2d at 515. The facts, Conclusions to be drawn therefrom and the law applicable to this case demonstrate that the Board justifiably concluded that Attendings were supervisors, in contemplation of the above-quoted requirements.

A. Since the record supports the ALJ's finding and the Board's conclusion that "the principal work of ttendings is obviously and visibly different" from that performed by residents, the first criterion need not be analyzed here.

B. The next standard, that Attendings must possess authority to perform some or all of the 11 functions set forth in section 3(r), or to effectively recommend such action, in the interest of the employer, with the consistent use of independent judgment, also has been met and supports the Board's decision, as shown in the following Discussion.

The term "preponderance" means that the employee spends more time on supervisory functions than on any one nonsupervisory function. City of Freeport, 135 Ill. 2d at 532. The presence of even one of the 11 indicia of supervisory authority accompanied by independent Judgement is sufficient to support a finding of supervisory status, "independent judgment" meaning that the employee makes choices between two or more significant courses of action without substantial review by superiors. Chief Judge, 153 Ill. 2d at 516.

The record shows that Attendings overwhelmingly fulfill at least one of the statutory criteria, in that they clearly and continually "direct" the activities of their subordinates. For example, the ALJ concluded that "attendings spend more time with residents and they more closely observe the activities of residents and other staff." The job description of an Attending expressly provides that their duties include "the direction and training of under their jurisdiction as a means of insuring the quality of care falling within their respective assignments." Minimum qualifications for Attendings expressly include the "ability" to assign and supervise the work of residents. Other official Hospital documents, policies, rules, bylaws, and directives make it even clearer that the Hospital authorizes and relies upon Attendings to supervise and direct residents.

This Hospital policy also prescribes that each of the 11 departments have written guidelines for resident supervision, which must be approved by the institution and communicated throughout the applicable department. These departmental policies must insure that residents are provided with prompt communication and appropriate involvement of supervisory Attendings and that Attendings "must be available at all times to participate in management decisions." Further, each of the Hospital's departmental resident supervisory policies denotes that Attendings are the employees assigned to direct and supervise residents as the latter, as physicians in training, learn to deliver and do deliver patient care on behalf of the Hospital.

As all parties acknowledge, the Hospital is an acute-care teaching institution in which the Attendings are the teachers. It is commonly understood that to "teach" is to "direct." *fn6 The ALJ and the Union do not dispute the teaching role fulfilled by the Attendings, but somehow attempt to separate teaching from supervisory activities. There is evidence in the record to support the Board's differing Conclusion, that teaching is an integral part of ongoing supervision. Dr. Avery Hart testified that clinical teaching and supervision are related activities performed simultaneously by the Attendings. He explained that supervision through teaching includes modeling (cognitive) skills as well as guided practice. Dr. John Barrett explained that the purpose of Attendings' teaching of residents is to educate them so that they will be able to deliver better medical care to the Hospital's patients. Dr. James Markey concurred that teaching and supervision occur simultaneously. Although didactic lectures are part of the teaching process, they also are designed to "enable residents to take care of the patients better" and to "familiarize residents with what he or she is going to be working with when they go into the clinic." Attendings determine the content of such lectures, prepare and present them, track residents' attendance and tardiness at the lectures, and evaluate the residents' performance at these sessions at which the Attendings are in charge.

Another function of Attendings' direction of residents involves evaluation, which is regarded as an important component of teaching, promotion, and discipline. It appears from the record that virtually all first-hand evaluations of residents are made by Attendings. On a monthly basis Attendings complete and submit all the resident evaluation forms, which also contain disciplinary or other personnel-related recommendations. According to Dr. Margaret M. Dolan, an associate medical director of the Hospital, this is done because the Hospital regards the Attendings as the residents' supervisor. The parties' collective bargaining agreement makes it clear that the Hospital and the residents' collective bargaining representative, the same labor organization as the Union here attempting to represent the Attendings, both recognize that Attendings are the residents' supervisor. *fn7

The Attendings' evaluations of residents are then reviewed by the particular department's promotions and selection committee. As noted by the ALJ, some of those committees have division chairs and section chiefs appointed to them and some do not; however, it appears that Attendings' members predominate on those committees. Division chairs or section chiefs, who sometimes sit on these committees, play a less active committee role because the Attendings are much more familiar with the residents; to the extent that they have interacted with a resident while functioning as an Attending, the division chair or section chief functions in the committee meetings like any other Attending. Further, the committee bases its decisions on the Attendings' evaluations and reports. The Attendings' recommendations generally are followed by the department chair. If the committee utilizes a fact-finder, usually it is an Attending on the committee. As Dr. Dolan testified, the evaluations are used for promotion, graduation, counseling, and frequently are the first step in the disciplinary process, which are section 3(r) indicia of supervisor. The ALJ's Conclusion that Attendings' evaluation of residents is not a supervisory function under these circumstances was contrary to law and need not have been sustained by the Board. Also, that these evaluations and the Hospital's elaborate evaluation process were established and are performed to further the Hospital's interest are supported by substantial evidence and common sense.

Additionally, contrary to the ALJ's understanding, the record shows that Attendings do assign and schedule work to residents as part of their supervisory activities. For example, on behalf of the Hospital, Attendings determine what patient care residents are capable of providing, given their progression, skills and the complexity of the problem, as well as what care to give and how to deliver it; cancel surgery; recommend reassignment of residents who disobey instructions and procedures; tell residents where and when to be; approve breaks and schedules; grant or deny time off; and decide whether or not to accept or refuse to let a resident from another department to work on their patient. These aspects of the Attendings' function are substantial elements of independent Judgement and supervision in furtherance of the Hospital's mission, not simply professionals supervising other professionals in some imaginary vacuum.

The ALJ's Conclusions with respect to hiring, another section 3(r) standard to be satisfied, stops short of the evidence. Resident applicants are interviewed and ranked by Attendings, who are also involved in the recruitment and hiring of residents. Attendings do virtually all of the interviewing of resident candidates and they predominate as members on the selection committees. The Attendings rank the candidates and their committees make the hiring recommendations that are uniformly followed without any superior's independent review. Attendings also frequently submit letters of recommendation regarding the hiring of residents and other positions. It is clearly in the Hospital's interest to recruit and hire capable residents. The fact that an Attending does not shove an employment contract in front of a resident candidate for signature does not diminish the important role that Attendings play in the hiring process.

The Union asserts that the Employer has not vested the Attendings with authority to discipline those who work with their patients, another of the indicia of statutory supervisors set forth in section 3(r). The ALJ noted that discipline of residents takes both traditional forms and forms more relevant for and related to professionals in training, but concluded, as does the Union, that Attendings have no actual authority to do so or to recommend effectively such action. Record evidence shows, however, that Attendant-generated discipline consists of counseling, oral reprimand, discharge, repeating training, work and rotations, remediation, assignment to extra work, having residents' physician privileges and/or responsibilities curtailed, not being promoted, being placed on probation, and being demoted; however, because residents are highly educated and motivated professionals, suspension and discharge are rare. *fn8 In light of the foregoing, the ALJ's conclusion and the Union's assertion that Attendings have no authority for running the institution and its various departments, is akin to the proverbial "failure to see the forest for the trees."

C. The ALJ's Conclusion, that "whatever alleged supervisory authority attendings possess and/or exercise that authority is not supervisory authority within the meaning of the Act as it is not principally derived from the Employer as required by the Act," is unsupportable and inexplicable, as has been demonstrated by the previous discussion. *fn9

Our supreme court recently considered a similar argument, in deciding whether assistant public defenders represent the interests of their indigent clients but, at the same time, do not represent the interests of the state or chief Judge, in Chief Judge of the Sixteenth Judicial Circuit v. Illinois State Labor Relations Board, 178 Ill. 2d 333, 687 N.E.2d 795 (1997). That decision quoted with approval an analysis by the United State's Supreme Court, which is particularly applicable here:

"In National Labor Relations Board v. Health Care & Retirement Corp. of America, 511 U.S. 571, 114 S. Ct. 1778, 128 L. Ed. 2d 586 (1994), the Court was required to determine whether certain nurses should be considered 'supervisors' within the meaning of the National Labor Relations Act. The National Labor Relations Board argued that the nurses were not supervisors because they acted in their own professional interests, not in the interests of their employer. The Court rejected that argument and noted that such an argument had also been rejected in Yeshiva:

'The Board's interpretation, that a nurse's supervisory activity is not exercised in the interest of the employer if it is incidental to the treatment of patients, is similar to an approach the Board took, and we rejected in NLRB v. Yeshiva Univ., 444 U.S. 672 [100 S. Ct. 856, 63 L. Ed. 2d 115] (1980). There we had to determine whether faculty members at Yeshiva were "managerial employees." *** Like suspervisory employees, managerial employees are excluded from the Act's coverage. [Citation.] The Board in Yeshiva argued that the faculty members were not managerial, contending that faculty authority was "exercised in the faculty's own interest rather than in the interest of the university." [Citation.] ***

The Board's reasoning fares no better here than it did in Yeshiva. As in Yeshiva, the Board has created a false dichotomy-in this case, a dichotomy between acts taken in connection with patient care and acts taken in the interest of the employer. That dichotomy makes no sense. Patient care is the business of a nursing home, and it follows that attending to the needs of the nursing home patients, who are the employer's customers, is in the interest of the employer. [Citation.] We thus see no basis for the Board's blanket assertion that supervisory authority exercised in connection with patient care is somehow not in the interest of the employer." Health Care, 511 U.S. at 577-78, 114 S. Ct. at 1782, 128 L. Ed. 2d at 593-94.' See also Chief Judge, 229 Ill. App. 3d at 187-88, *** (rejecting the Board's argument that Cook County guardians ad litem represented the many individual wards of the court instead of representing the interest of their employer). For similar reasons, we reject the purported distinction as meaningless." 178 Ill. 2d at 345-46. (Emphasis added.)

We agree. *fn10

From the foregoing it is clear that the Board's Conclusion denominating Attendings as supervisors within the meaning of section 3(r) of the Act is supported by the record and must be affirmed.

II.

The Union, as did the ALJ, places substantial reliance upon the supposition that City of Freeport has shifted the law somehow so as to have changed the standards for identifying supervisory status of Attendings in the present case. Having concluded that the role of Attendings at the Hospital when directing residents engaged in patient care activities is the same as that of Village of Wheeling fire department lieutenants at a fire scene, the ALJ found, and the Union argues, that Attendings do not exercise independent supervisory judgment in the interest of the employer, under the circumstances prescribed by City of Freeport. We disagree.

Comparison of the role of the Wheeling fire lieutenants at a fire scene with Attendings at the Hospital demonstrates that the latter do perform their function of independently directing residents' patient care activities in the interest of the employer. In City of Freeport, the court concluded that Wheeling fire lieutenants did not possess statutory authority to direct subordinates because, "any direction which the lieutenants give to firefighters at a fire scene is derived from their superior skill, experience and technical expertise and therefore does not require the use of independent judgment 'in the interest of the employer' as required by the statute." 135 Ill. 2d at 532.

The role of fire lieutenants at a fire scene, as described by the City of Freeport opinion, was as follows:

"The first engine company officer to arrive at the scene, normally a lieutenant, is in command. The engine company officer determines and directs a plan for extinguishing a fire. The lieutenant and firefighters then work together to extinguish the fire. 'Still alarms' (fires that do not involve buildings) account for approximately 70% of the fires. At these fires, the lieutenant and a pipeman apply a stream of water onto the fire, while the engineman operates the pump and connects a water line from the engine to a nearby water source. When a building is on fire (a 'structural alarm'), the engine company officer and pipeman enter the burning structure together pulling a hose line. The pipeman applies the water to the fire and the engine company officer helps to handle the hose." 135 Ill. 2d at 525.

As the foregoing shows, Wheeling fire lieutenants at a fire scene do not function in the same way as do Attendings at the Hospital in directing patient care, nor have they been charged with the same responsibilities as Attendings. The fire lieutenant brings to bear upon his task all his experience, specialized training and skills that he has acquired as a firefighter, not as a member of the employer's management team. His concern is focused upon the nature of the fire he is fighting, not his employer's management policies. See The Village of Elk Grove Village v. Illinois State Labor Relations Board, 245 Ill. App. 3d 109, 120-21, 613 N.E.2d 311 (1993). The sole responsibility of fire lieutenants at a fire scene is, essentially, to function as a lead firefighter in extinguishing the fire, and they play an active hands-on role in extinguishing each fire.

The responsibility of Attendings at the Hospital is significantly different. Pursuant to published Hospital policies, by-laws and rules, Attendings are responsible for ensuring that the Hospital provides quality patient care, not by providing the care themselves, which they may do rarely, but through residents, who Attendings are responsible for training and developing through cumulative, hands-on case experience and elucidation, into becoming fully accredited physicians. This is done by utilizing a resident case presentation during which an Attending provides comment, teaching, criticism, direction, questioning and observation, during the course of diagnosis and treatment, concurrently with the delivery of health care to the Hospital's patients. As previously noted, Attendings' evaluations also serve as the bases for resident promotion decisions and disciplinary or remedial action being taken with respect to the residents. Attendings are specifically charged with these responsibilities by the Employer.

There is no suggestion that residents meet Attendings at the Hospital by happenstance or are driven to pursuing the highly organized, sophisticated, rigorous training program merely as one professional being trained by another in the exercise of "professional/technical discretion," as the Union insists. The Employer here does not purport simply to provide some convenient meeting place for professionals to share techniques and knowledge with other professionals; rather, the Employer, through the Hospital, pursues legislative intent by maintaining an institution where an "efficient and economical system[] of public health care delivery in densely populated count" can be provided "to the indigent in a proficient and compassionate manner." 55 ILCS 5/5-37002 (West 1994). The requisite quality patient care can be provided (and liability avoided) only through the supervision of residents by Attendings. Clearly, the direction they provide is in the Employer's interests, in pursuit of the stated legislative interest. Without the extensive supervision and oversight provided by Attendings, the record demonstrates, the Hospital could not function effectively.

The ALJ's Conclusions, and the Union's contentions, as to the Employer's interest here does not fully acknowledge the Hospital's dual role as a teaching hospital and as a vehicle of providing, concurrently, quality patient care. The instruction and medical specialty programs offered there attract residents who are critical to the Hospital's ability to serve its large patient population. The programs provided in various medical specialties all have particular requirements which must be met. The maintenance of quality resident training programs is necessary to attract new residents. In performing their role as faculty, Attendings help to produce capable medical graduates and make it possible to attract more. The supervision they provide ineluctably advances the Employer's interest.

Each resident-patient interaction is an opportunity for the Attending to direct, train, assess and evaluate the resident's development, while ensuring the delivery of necessary medical attention. In contrast to the fire scene, the need for ongoing supervision, direction, and review of residents' involvement of medical care for every patient is the hallmark of a teaching hospital. The maintenance of an acute-care teaching institution is distinctly different from the mechanical and routinized task of putting out a fire; it requires the application of both the art and science of modern medicine in the management and the delivery of patient care and in the training of new doctors. In performing these tasks, the Attending is actuated not just by the condition of the specific patient presented but also by his adherence to the Employer's interests as a member of the Employer's management team, as the Board here concluded.

Complying with the supreme court's admonition in Chief Judge, 153 Ill. 2d at 522, that an employee's supervisory status is fact-based and should not succumb to irrelevant resemblances which lead "to compa apples to oranges," we hold that the legal prerequisites of City of Freeport are met in this case. The Board's Conclusion that Attendings are section 3(r) supervisors is not against the manifest weight of the evidence, is not contrary to law, and must be affirmed.

Affirmed.

HOURIHANE, J., concurs.

PRESIDING JUSTICE HOFFMAN, Dissenting:

In this case, we are called upon to decide whether the Illinois Local Labor Relations Board (Board) erred in determining that attending physicians employed at Cook County Hospital (Hospital) are supervisors within the meaning of section 3(r) of the Illinois Public Labor Relations Act (Act) (5 ILCS 315/3(r) (West 1994)). Unlike the majority, I find that whatever direction the attending physicians give to subordinates at the Hospital is derived from their superior professional skills, experience, and medical expertise, and does not rise to the level of supervision within the meaning of section 3(r) of the Act. See City of Freeport v. Illinois State Labor Relations Board, 135 Ill. 2d 499, 554 N.E.2d 155 (1990). I, therefore, respectfully Dissent.

The majority concisely stated its reasons for affirming the Board. I believe the reasons for my Dissent to be no less concise, but I am limited to five pages of published opinion to state my position. See Official Reports Advance Sheet No. 15 (July 20, 1994), R. 23, eff. July 1, 1994, and administrative order MR No. 10343, eff. July 1, 1994. In most cases, five pages is sufficient to set forth the reasons for a dissenting opinion; however, I find that adherence to that limitation in this case would prevent me from adequately presenting my position. Rather than stating the reasons for my Dissent in conclusory terms, I will publicly register my disagreement with the Conclusion reached by the majority, and set forth the reasons for that disagreement in the unpublished portion of this opinion.

[The following material is nonpublishable under Supreme Court Rule 23]

The Act (5 ILCS 315/1, et seq. (West 1994)) is a comprehensive statutory scheme affording those public employees who fall within its scope the right to organize and engage in collective bargaining. However, supervisory employees do not enjoy those same rights, except at the sufferance of the employer. 5 ILCS 315/3(s)(2) (West 1994). Section 3(r) of the Act defines a "supervisor" as follows:

" 'Supervisor' is an employee whose principal work is substantially different from that of his or her subordinates and who has authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, direct, reward, or discipline employees, to adjust their grievances, or to effectively recommend any of those actions, if the exercise of that authority is not of a merely routine or clerical nature, but requires the consistent use of independent judgment. *** he term 'supervisor' includes only those individuals who devote a preponderance of their employment time to exercising that authority. ***" 5 ILCS 315/3(r) (West 1994). According to our supreme court in The Chief Judge of the Circuit Court of Cook County v. American Federation of State, County and Municipal Employees, Council 31, AFL-CIO (hereinafter Chief Judge), 153 Ill. 2d 508, 607 N.E.2d 182 (1992), the determination of whether an employee is a supervisor within the meaning of the Act is made by application of a four part test. "The test requires that (1) the supervisory employee must perform principal work substantially different from that of her subordinates; (2) the supervisory employee must have authority to perform some or all of the 11 functions enumerated in section 3(r); (3) the supervisory employee must consistently use independent Judgement in the performance of these 11 enumerated functions; and (4) generally, the supervisory employee must devote a preponderance of her time to exercising the authority to handle these 11 functions." Chief Judge, 153 Ill. 2d at 515. In order for an employee to be a supervisor under the Act, he or she must meet all four parts of the test. Chief Judge, 153 Ill. 2d at 515.

In this case, the administrative law Judge (ALJ) determined that attending physicians at the Hospital do not perform any of the functions enumerated in section 3(r) of the Act, and therefore, concluded that they are not supervisors within the meaning of the Act. The Board adopted the ALJ's findings of fact, but, relying on its 1987 decision in Cook County Hospital, 3 Pub. Employee Rep. (Ill.) par. 3032 (1987), concluded that the attending physicians are supervisors. In its Decision and Order, the Board stated:

"The petition before us again raises the issue of the supervisory status of the Attendings. The crux of this case, both in 1987 and at present, is whether the interaction between the Attendings and their subordinate physicians and nursing staff constitutes supervisory 'direction' within the meaning of Section 3(r). This question was answered in the affirmative in 1987 by the Board majority, which, as previously discussed, found that the Attendings' oversight responsibility for the performance of the Residents and the nursing staff constituted supervisory direction within the meaning of the Act. Clearly, this interaction occupied the majority of the Attendings' time in 1987, and it occupies even more time today."

I make three observations about the Board's reliance upon its 1987 decision in Cook County Hospital. First, unlike the present case, the hearing officer in Cook County Hospital determined that attending physicians satisfied the first three statutory criteria of supervisory status. Second, the issue before the Board in Cook County Hospital was "whether they [the attending physicians] devote a preponderance of their work time to supervisory activities" (Cook County Hospital, 3 Pub. Employee Rep. (Ill.) par. 3032 (1987)); whereas, the issue in this case is whether the oversight activities of attending physicians constitute supervision within the meaning of the Act. Third, in Cook County Hospital, the Board created a special rule for determining supervisory status "in the exceptional context of the delivery of health care by physicians and other highly skilled professionals" (Cook County Hospital, 3 Pub. Employee Rep. (Ill.) par. 3032 (1987)) -- a questionable holding in light of the fact that the Act makes no such distinction. See NLRB v. Health Care & Retirement Corporation of America, 511 U.S. 571, 114 S. Ct. 1778, 1783-84, 128 L. Ed. 2d 586 (1994). Nevertheless, our task in this appeal is to determine if the Board's decision that attending physicians are supervisors within the meaning of the Act is against the manifest weight of the evidence. Chief Judge, 153 Ill. 2d at 515.

The issues raised by the parties, their stipulations, and the text of the Board's Decision and Order, all act to narrow the scope of our analysis in this case. As stated earlier, the Board adopted the ALJ's findings of fact, disagreeing only with his Conclusion that the oversight responsibilities of the attending physicians do not rise to the level of supervisory direction within the meaning of the Act. Consequently, I, unlike the majority, find no need to discuss the other 10 indicia of supervisory authority set forth in section 3(r) which the ALJ found nonexistent under the facts of this case. By failing to contest the finding that attending physicians perform principal work substantially different from that of the residents and nursing staff at the Hospital, the Union has conceded that the attending physicians satisfy the first factor for consideration under the four part test for determining supervisory status set forth in Chief Judge, 153 Ill. 2d at 515. The parties' stipulation that attending physicians are "professional employees" within the meaning of section 3(m) of the Act (5 ILCS 315/3(m) (West 1994)), coupled with the ALJ's finding that they are actively involved in "checking, correcting and giving instructions to residents and nurses without guidelines or review by others," acts to satisfy the independent Judgement component of the test for supervisory status set forth in Chief Judge. See 153 Ill. 2d at 516. Further, no attention need be paid to the preponderance of time component of the test as the Union has not contested the Board's finding that attending physicians spend approximately 80% of their work time instructing, monitoring, and reviewing the efforts of residents and nurses.

We are left then only with the question of whether the oversight responsibilities of the attending physicians rise to the level of supervisory direction. Resolution of this issue depends in large measure upon the meaning of the phrase "in the interest of the employer" as contained within the statute. Unfortunately, neither the Act nor the cases reviewing the application of section 3(r) provide any test for determining when an employee's authority to direct the work of others rises to the level of supervisory direction or is derived solely from superior skill, experience, and technical expertise.

The language contained within each section of a statute must be examined in light of the entire statute. Stone v. Department of Employment Security Board of Review, 151 Ill. 2d 257, 602 N.E.2d 808 (1992). In construing statutory language, we presume that the legislature drafted the statute so that each part would be in harmony with the general purpose of the act as a whole. Harvel v. City of Johnston City, 146 Ill.2d 277, 586 N.E.2d 1217 (1992).

The public policy of Illinois as set forth in the Act is to "grant public employees full freedom of association, self-organization, and designation of representatives of their own choosing for the purpose of negotiating wages, hours and other conditions of employment or other mutual aid or protection." 5 ILCS 315/2 (West 1994). The purpose of the Act is to "regulate labor relations between public employers and employees." 5 ILCS 315/2 (West 1994). Excluded from the statutory definition of a "public employee" are, inter alia, managerial employees and supervisors except as provided in the Act. 5 ILCS 315/3(n) (West 1994). Although the Act defines a "professional employee" (see 5 ILCS 315/3(m) (West 1994)), it does not exclude them from the definition of a "public employee" (see 5 ILCS 315/3(n) (West 1994)), nor does it otherwise exclude them as a class from its protection. Consequently, unless a group of professional employees is excluded from coverage by reason of the application of some specific provision of the Act, they cannot be denied the right to organize and engage in collective bargaining by reason of their professional status.

A tension exists between the Act's failure to exclude professional employees from coverage as a class and section 3(r) which excludes supervisors from the Act's protection. Professionals, by definition, exercise independent Judgement in the performance of their work (see 5 ILCS 315/3(m) (West 1994)), and most have authority to assign tasks to other employees and direct those employees in the manner in which those tasks are to be completed. See NLRB v. Res-Care, Inc. 705 F.2d 1461, 1465 (7th Cir. 1983). In a common usage sense, any professional employee who directs the tasks of other employees is a supervisor. The Act, however, specifies that the authority to direct is an indicium of supervision only when exercised "in the interest of the employer." 5 ILCS 315/3(r) (West 1994).

The majority, relying in part upon our supreme court's decision in Chief Judge of the Sixteenth Judicial Circuit v. Illinois State Labor Relations Board, 178 Ill. 2d 333, 687 N.E.2d 795 (1997), and the majority opinion in Health Care & Retirement Corporation of America, 511 U.S. at 577-78, rejects as meaningless any distinction between supervision exercised in the interest of the employer and the right to supervise less skilled employees derived from superior skill, experience, and technical expertise. No doubt the position is logical in a literal sense. However, the same reasoning could be applied to the fire lieutenants at issue in City of Freeport, 135 Ill. 2d 499. At the scene of a fire, a fire lieutenant's job and the business of the fire department is the same -- to put out the fire; yet our supreme court found that "any direction which the lieutenants give to firefighters at the fire scene is derived from their superior skill, experience and technical expertise and therefore does not require the use of independent Judgement 'in the interest of the employer' as required by the statute." City of Freeport, 135 Ill. 2d at 532; see also Elk Grove Village v. Illinois State Labor Relations Board, 245 Ill. App. 3d 109, 613 N.E.2d 311 (1993). There is little question that the majority's citation to the opinion in Chief Judge of the Sixteenth Judicial Circuit, 178 Ill. 2d at 345-46, is accurate. However, the court in Chief Judge of the Sixteenth Judicial Circuit failed to mention, much less distinguish or reconcile, its prior holding on this issue as set forth in City of Freeport. Absent some indication to the contrary, I must assume that the holding in City of Freeport is still the law in Illinois and, therefore, must be reconciled with the decision in Chief judge of the Sixteenth Judicial Circuit.

Clearly, City of Freeport and Chief Judge of the Sixteenth Judicial Circuit are factually distinguishable. The former case addressed itself to the question of whether the subject employees were outside of the protection of the Act by reason of their status as supervisors, while the latter case addressed the Act's managerial employee exclusion. The instant case does not involve a claim that the attending physicians are managerial employees; it addresses the question of whether they are supervisors. Assuming that both City of Freeport and Chief Judge of the Sixteenth Judicial Circuit are current and viable statements of the law in this State, I believe that the holding in City of Freeport is controlling as the court in City of Freeport construed the very section of the Act which is at issue in this case.

The majority has adopted reasoning similar to that advocated by the majority opinion in Health Care & Retirement Corp. See Health Care & Retirement Corp., 114 S.Ct. at 1782-83. The Dissenting opinion in Health Care & Retirement Corp., however, made several observations that are equally applicable to the issue before us:

"The categories 'supervisor' and 'professional' necessarily overlap. Individuals within the overlap zone -- those who are both 'supervisor' and 'professional' -- are excluded from the Act's coverage. For that reason, the scope accorded the Act's term 'supervisor' determines the extent to which professionals are covered. If the term 'supervisor' is construed broadly, to reach everyone with any authority to use 'independent judgment' to assign and 'responsibly ... direct' the work of other employees, then most professionals would be supervisors, for most have some authority to assign and direct others' work. If the term 'supervisor' is understood that broadly, however, *** inclusion of professionals within the Act's protections would effectively be nullified." Health Care & Retirement Corp., 114 S.Ct. at 1786 (Ginsburg, J., Dissenting, joined by Blackmun, Stevens and Souter, JJ.). Further, the refusal of our supreme court in City of Freeport to find the direction given by fire lieutenants to firefighters at the scene of a fire to be supervisory direction within the meaning of the Act demonstrates to me that the phrase "in the interest of the employer" contained in section 3(r) is to be construed much more narrowly than the same phrase contained in section 2(11) of the National Labor Relations Act (NLRA) (29 U.S.C. §152(11)), interpreted by the majority in Health Care & Retirement Corp., 114 S.Ct. at 1782-83.

I believe that any determination of whether a professional employee's authority to direct the work of others is "in the interest of the employer," and, therefore, supervisory direction within the meaning of the Act, can only be made by analyzing the specific authority exercised by such an employee in light of the policy reason behind the exclusion of supervisors from bargaining units. "Supervisors are excluded from bargaining units under the Act to avoid the conflict of interest which arises when supervisors, who must apply the employer's policies to subordinates, are subject to control by the same union representing those subordinates." City of Freeport, 135 Ill. 2d at 517. Authority to direct the work of less skilled co-employees, derived from superior skill or expertise, presents little or no risk of a conflict of interest on the part of a professional employee. When exercising independent Judgement concerning the proper methods to be employed in performing a given task and directing others in its performance, a professional employee is not forced to choose between the interests of the employer and those of the other employees. The fact that the professional's authority to direct others in the interest of providing high quality service is consistent with the entrepreneurial goals of the employer does not detract from the professional nature of that authority. By contrast, when a professional employee's authority to direct subordinates extends to areas involving conditions of employment, the possibility exists that the interests of the employer and the employees may conflict, and the employer has a right to demand the loyalty of the professional. In other words, when the professional's authority to direct the work of others is not merely incidental to the discharge of his or her duties pursuant to relevant professional standards, but involves matters as to which the interests of the employer and the employees diverge, the professional is placed in a conflict of interest.

To my mind, the distinction between authority derived from superior skill, experience, or expertise exercised as an incident to the discharge of professional duties, and authority which flows from management in areas involving employer prerogatives, is central to a determination of whether a professional employee's authority to direct the work of subordinates is "in the interest of the employer" and rises to the level of supervisory direction within the meaning of section 3(r) of the Act. I believe that my Conclusion in this regard is in keeping with the public policy embodied in the Act and the purpose behind the exclusion of supervisors from its protection. Although my position is contrary to the U.S. Supreme Court's interpretation of a similar phrase contained in section 2(11) of the NLRA (see Health Care & Retirement Corp., 114 S.Ct. at 1782-83), and is facially at odds with a portion of the majority's analysis in Chief Judge of the Sixteenth Judicial Circuit, 178 Ill. 2d at 344-45, I, nevertheless, believe that my position is consistent with the supreme court's interpretation of section 3(r) of the Act as set forth in City of Freeport.

Resolution of the question of whether the oversight activities of the attending physicians at the Hospital constitutes supervision "in the interest of the employer" requires a review of the ALJ's findings as to their duties and functions in relation to the residents and nurses -- findings which the Board adopted.

Attending physicians are responsible for the medical care of the Hospital's patients. To that end, they are also responsible for the care provided to their patients by residents and nurses. In the in-patient setting, each attending physician heads a team of employees which consists of residents and may include other Hospital personnel. Generally, only an attending physician may authorize the implementation of medical treatment. They review their patients' charts containing orders and notes written by residents and either sign them to indicate agreement or make appropriate changes. Those orders are then carried out by the nursing staff, residents, and other hospital personnel. The ALJ noted one department in the Hospital where residents may write orders for patient care without prior approval from an attending physician so long as an attending physician reviews the order or sees the patient within 24 hours. Additionally, in some areas of the Hospital, senior residents will consult with an attending physician prior to prescribing treatment only if the senior resident is unsure of his or her diagnosis.

If a resident refuses to obey an instruction from an attending physician which he or she believes to be harmful to the patient, the resident and the attending physician present the case to the department or program chairman for review. If an attending physician consults with a resident relating to the treatment of another attending physician's patient, the resident would need authorization from the attending physician to whom the patient is assigned before any recommended treatment could be instituted.

In out-patient clinic situations, attending physicians customarily treat patients without the aid of residents. When residents are assigned to an out-patient clinic from time to time, an attending physician will oversee the medical care provided to patients by a resident.

Attending physicians are expected to oversee the work of residents and other Hospital personnel to assure that their patients receive quality medical care. They are also expected to train and instruct the residents in proficiently addressing and managing medical problems. The attending physicians and the residents view their relationship as mentor/student. Attending physicians do not schedule the work time of residents or other personnel, nor do they dictate the rotation or assignment of the residents.

I find nothing in the oversight responsibilities of the attending physicians which impacts upon the employment conditions of the residents or nurses. Any direction given by the attending physicians to the residents and nurses in this case is incidental to their treatment of patients as professional employees, and as a consequence, does not rise to the level of supervisory direction exercised "in the interest of the employer" as required by section 3(r) of the Act.

For the foregoing reasons, I believe the Board's determination that the attending physicians are supervisors within the meaning of the Act is against the manifest weight of the evidence. Consequently, I would reverse the Board's decision in this case, and remand this matter to the Board with directions to enter an order directing an election in accordance with the Act.


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