Press Release
05/23/00 -
Illinois Appellate Court Holds Eemployed Attending Physicians May Not Unionize
As physicians around the nation continue their efforts to unionize for purposes of collective bargaining, a union organizing attempt by employed Attending Physicians at Cook County Hospital has been rebuffed by the Illinois Appellate Court. By a vote of 21, the Court affirmed a ruling of the Illinois Local Labor Relations Board that Cook County Hospital Attendings meet the definition of "supervisor" under the Illinois Public Labor Relations Act and so are exempt from the coverage of the Act. As a result, the Union seeking to represent them, the National Union of Hospital and Health Care Employees, an affiliate of the American Federation of State, County and Municipal Employees, could not petition the Board to hold a union representation election among the Attendings.
Cook County Hospital is a 918-bed acute care teaching hospital operated by Cook County and located on the near west side of the City of Chicago. Residents employed by the Hospital and participating in the Hospital's graduate medical education programs provide most of the Hospital's direct patient care. The approximately 200 Attending Physicians employed by the Hospital provide very little direct patient care, although they are ultimately responsible for the care provided all patients of the Hospital. Roughly 80% of their time is spent in teaching the Hospital's roughly 530 Residents, monitoring and directing the care they provide and guiding their professional development.
After extensive evidentiary hearings, an Administrative Law Judge of the Board held that the direction the Attendings provided Residents was not supervisory in character because the Attendings were not acting out of their concern for the Hospital's interests as an employer or their standing as an employer representative but based on their superior skills and technical expertise. The Board reversed the ALJ by a 21 vote, and the Union appealed to the Appellate Court.
The Appellate Court ruled that Attendings met the test for supervisory status under the Illinois law, a test which is more demanding than that contained in the National Labor Relations Act, which applies to private employers. The Court— noting that "virtually all supervisors have authority over their portion of an operation because of their Employer's conclusion that they have greater skill and experience"— rejected the Union's theory that Attendings, in fulfilling their responsibilities toward Residents, were not acting out of the Hospital's interest. The Court held that the Union's theory did not acknowledge the Hospital's role as a teaching hospital or the importance of the graduate medical education programs in producing quality Residents and attracting new Residents to serve the Hospital's large patient population. The Court concluded that the Hospital had specifically assigned the teaching function to the Attendings and that, by the Attendings' direction of Residents as they provide patient care and in the Hospital's education programs, the Hospital was able to fulfill its mission of providing efficient and economical health care to the indigent. Thus, ruled the Court, the direction Attendings provide Residents is in the Employer's interest and makes them supervisory employees exempt from the coverage of the Act. The Union's election petition was therefore dismissed.
The Cook County Hospital decision, while decided under Illinois law, has potentially broader application. It recognizes that the supervisory position of physicians with respect to other personnel (potentially including employees such as nurses and techs) does not rest solely on their superior skill and experience but instead can derive from responsibilities given the physicians by their employers, even where in carrying out those responsibilities the physicians act based upon their superior skills and experience and not their sense of professional responsibility.
A cautionary note— while residents are employees under the Illinois law as the result of an express provision of the statute, they have been ruled to be students under the National Labor Relations Act (though recent efforts have been made to overturn that ruling). As a result, at a private hospital covered by the NLRA, physicians playing the same role Cook County Hospital Attendings play with respect to its Residents would not be preforming a statutory function because, at the private, NLRA-covered hospital, residents would be considered students, not employees.
Cook County Hospital was represented by Vedder Price attorneys Larry Casazza (312/609-7770) and Mike Cleveland (312/609-7860). Should you desire further information about the case or the subject of physician union organizing, please contact either of them.
National Union of Hospital and Health Care Employees, American Federation of State County and Municipal Employees (Doctors' Council of Cook County Hospital)v. County of Cook (Cook County Hospital) and Illinois Local Labor Relations Board, No. 1-96-2690 (March20, 1998).
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