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

Fifth Division

March 20, 1998

1-96-2690

NATIONAL UNION OF HOSPITAL AND HEALTH CARE ) Petition for Review of an
EMPLOYEES, AMERICAN FEDERATION OF STATE, ) Order of the Illinois Local
COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO ) Labor Relations Board.
(DOCTORS' COUNCIL OF COOK COUNTY )
HOSPITAL), )
)
Petitioners-Appellants, )
) No. L-RC-95-017
v. )
)
COUNTY OF COOK (COOK COUNTY HOSPITAL) )
and ILLINOIS LOCAL LABOR RELATIONS BOARD, )
)
Respondents-Appellees. )

JUSTICE HARTMAN delivered the opinion of the court:
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 "[i]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 [residents] covered by this
Agreement, the County will ensure that adequate numbers of Attending staff are
available at all times to supervise [residents] 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. [Residents] 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[s].'" 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 [A]ttendings is obviously and visibly different from that of
their subordinates for [A]ttendings, unlike residents, perform little direct
patient care and perform no nursing care." He also found that "as compared to
1986, [A]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 judgment 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 [A]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 judgment 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 [residents]
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
judgment 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 [a] densely populated count[y]" 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[ring] 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. *** [T]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 judgment 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 in-
structions to residents and nurses without guidelines or review by others," acts
to satisfy the independent judgment 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 judgment
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 judgment '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 judgment 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 profes-
sional 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.

[fn1]Pursuant to Supreme Court Rule 335 (155 Ill. 2d R. 335); 735 ILCS 5/3-
113 (West 1994).
[fn2]Appointed positions occupying 50% or more of their time, which were
found to mean those who work 20 hours or more per week in such appointments.
[fn3]The Act defines a "supervisor" as:
"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 *** [T]he term
"supervisor" includes only those individuals who devote
a preponderance of their employment time to exercising
that authority ***.
5 ILCS 315/3(r) (1994).
[fn4]The ALJ found that, given the testimony as a whole, approximately 80%
of an Attending's time was spent instructing, monitoring, and reviewing the
efforts of residents and nursing staff in providing patient care, including case
presentations and other discussions with residents regarding patient care,
signing off on medical orders and charges, and periodically reviewing patient
charts. Another 10% of an Attending's time was spent in committee work, didactic
lectures, medical research and preparations for such activities, and the
remaining 10% was spent on direct patient care.
[fn5]In 1988, the Board dismissed a similar representation petition by the
Union, finding that the petitioner had not demonstrated any change in
circumstances justifying reconsideration of Attendings' supervisory status. Cook
County Hospital, 4 PERI para. 3017, at XI-111 (1988). In 1992, the Board again
was asked to re-examine Attendings' supervisory status, this time in the context
of an unfair labor practice matter. There, the Union argued that certain
Attendings' conduct was not imputable to their employer because they could not
be considered "supervisors" after the Illinois Supreme Court decided City of
Freeport. The Board disagreed with the assertion that City of Freeport had
changed the "preponderance" requirement of section 3(r) as previously interpreted
by the Board. County of Cook, 10 PERI para. 3008, at XI-31 (1994).
[fn6]"[T]each -- 'to direct, instruct, or train by precept, example, or
experience;'
'to direct as an instructor: guide the studies of: conduct through a
course of studies: give instruction to.'" Webster's Third New International
Dictionary 2346 (1981).
[fn7]For example, Article VIII, section 3 of the Agreement, provides, inter
alia:
"Each [resident] shall be evaluated *** by completion of a written and oral
evaluation by the immediate supervisory Attending Physician, followed by
placement in the [resident's] official file a written evaluation ***. It will
not be responsibility of the [resident] to secure the evaluations from the
supervising attending staff physician and the [resident] shall not be required
to seek out his supervising attending staff physician for evaluation."
[fn8] Attendings perform the evaluations and predominate and play the major
role on the committees reviewing resident performance for disciplinary purposes.
Examples in the record of discipline that resulted from negative Attending
evaluations include a written reprimand; suspension of the resident--although
later reduced as part of a subsequent grievance settlement; a resident having to
repeat a substantial part of the year; having to repeat rotations due to
Attending recommendations; having to repeat a year and losing a year of
promotional pay due to Attendings' negative evaluations; being put on probation;
and the termination of a resident.
[fn9]Not only do the above-described documents manifest and reflect the
Employer's interest in Attendings' supervisory activities, but witnesses also so
testified. One such witness, the Emergency Medicine Department Chair, Dr.
Robert Simon, explained the reason that the Hospital assigns Attendings to
supervise residents is "to ensure *** that the institution is delivering good
quality care. They don't want the reputation of Cook County Hospital in the
community to be negative *** because patients are coming there and only getting
taken care of by residents, by doctors in training." Dr. Simon also noted that
the Hospital has liability concerns as well. Another witness, Dr. Robert
Berktold, testified that the increased supervision of the residents in the past
several years "absolutely" benefits the Hospital: "*** it cuts down on *** very
high profile publicity mistakes and *** it protects the hospital against
lawsuits."
[f10]The ALJ found that Attendings' ultimate authority over patient care
is due to their greater skill and experience. Of course, virtually all
supervisors have authority over their portion of an operation because of their
Employer's conclusion that they have greater skill and experience. That is why
an Employer gives them such authority. The ALJ's conclusion that the Hospital
assigns highly paid Attendings to spend from 80-to-90 percent of their time
overseeing, training, and instructing residents-in-training but does not confer
supervisory authority upon them in the Hospital's interest is counter to the
record and is untenable. The conclusion urged, that Attendings merely function
as professionals training other professionals, ignores the express purposes,
directives and raison d'etre of a Hospital to provide quality care to its
patients through its Attendings-residents staff.

The record also shows that supervision is an ongoing daily process that
typically starts during what is called "morning report," and continues throughout
the day on the inpatient wards, in the operating rooms, and in the outpatient
clinics. During this time residents collect patient histories, examine patients
and propose treatment plans. Attendings review patient histories and
examinations by residents and oversee the residents as they perform these
functions. The evidence reveals that Attendings make countless changes in the
treatment plans proposed by the residents, utilizing sophisticated independent
judgment due to the complexity of the practice of medicine, the life-and-death
nature of the decisions, and because residents are not yet qualified to make
these judgments and decisions.