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

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 ...


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