state of illinois illinois labor relations board local … · 2018-05-23 · state of illinois...
TRANSCRIPT
STATE OF ILLINOIS
ILLINOIS LABOR RELATIONS BOARD
LOCAL PANEL
Cook County Health & Hospitals System, )
)
Petitioner, )
) Case No. L-UC-17-002
and )
)
Chicago Joint Board, Local 200, )
RWDSU, United Food and Commercial )
Workers International Union, )
)
Employer. )
ADMINISTRATIVE LAW JUDGE’S RECOMMENDED DECISION AND ORDER
On October 28, 2016, Cook County Health & Hospital System (Petitioner or CCHHS) filed
a Unit Clarification (UC) Petition (Petition) in Case No. L-UC-17-002 with the Local Panel of the
Illinois Labor Relations Board (Board) pursuant to Section 1210.170(a)(1) of the Board’s Rules.
80 Ill. Adm. Code § 1210.170(a)(1). The Petitioner seeks to exclude three Residency Program
Coordinator (RPC) positions, employed by CCHHS, from collective bargaining. The Petitioner
asserts that the positions are excluded from coverage under the Illinois Public Labor Relations Act,
5 ILCS 315/1 et seq. (2014), as amended (Act), pursuant to the exemption for supervisory and
managerial employees.
On November 22, 2016, Chicago Joint Board, Local 200, RWDSU, United Food and
Commercial Workers International Union (Respondent or Local 200) filed a response to the
Petition, stating that Petitioner failed to demonstrate a substantial change in the duties and
functions of the RPCs and also that Petitioner had not made a sufficient showing that the RPCs
should be statutorily excluded. Thereafter, Petitioner amended the Petition to clarify that it now
sought to exclude the two RPCs assigned to the Internal Medicine Department and no longer
sought to exclude the one RPC assigned to the Pediatrics Department.
In accordance with Section 9(a) of the Act, an authorized Board agent investigated and
determined that there was reasonable cause to believe that a question concerning representation
existed. Administrative Law Judge (ALJ) Kenyatta Beverly conducted a hearing on this matter on
March 22nd and 23rd, 2017.. Both parties filed timely post-hearing briefs. After full consideration
2
of the parties’ stipulations, evidence, arguments, and briefs, and upon the entire record of this case,
I recommend the following:
I. PRELIMINARY FINDINGS
The parties stipulate and I find:
1. Cook County Health and Hospital System is a public employer within the meaning of
Section 3 (o) of the Act.
2. Local 200, Chicago Joint Board, RWDSU is an exclusive representative within the
meaning of Section 3(f) of the Act.
3. Local 200, Chicago Joint Board, RWDSU is a labor organization within the meaning
of Section 3(i) of the Act.
4. The Local Panel of the Illinois Public Labor Relations Board has proper jurisdiction to
hear this matter and issue a decision on the merits.
II. ISSUES AND CONTENTIONS
The issues are as follows: 1) whether substantial changes occurred in the RPCs’ duties that
render the UC Petition procedurally appropriate; 2) whether the RPCs are supervisory employees
within the meaning of Section 3(r) of the Act; and 3) whether the RPCs are managerial employees
within Section 3(j) of the Act.
Petitioner argues that the Petition is appropriate because after the RPCs inclusion in the
bargaining unit, substantial changes occurred in the duties and functions of the RPCs due to an
increase in industry regulations and a change in the Internal Residency Program leadership. The
Respondent asserts that the Petition should not be considered because the unit in question was only
recently certified and Petitioner provided no evidence that any of the Board’s requirements for a
unit clarification were satisfied.
Next, Petitioner argues that the RPCs should be excluded from the bargaining unit because
they are supervisory employees. Petitioner claims that the RPCs’ principal duties are substantially
different from the work of their subordinates and the RPCs have the authority to perform some or
all of the 11 supervisory functions enumerated in Section 3(r) of the Act. Respondent argues that
the RPCs are not supervisory employees because there is no evidence that the nature of the RPCs’
job responsibilities differs from that of other clerical employees on their team. Respondent also
argues that: the RPCs participation on a hiring panel is not a supervisory function; there is no
evidence that the RPCs played any role in discipline; and there is no evidence that the RPCs used
3
independent judgement when directing their subordinates. Furthermore, Respondent argues that
the RPCs cannot reward or punish their subordinates and that Petitioner has not demonstrated the
RPCs spend a preponderance of time performing any alleged supervisory duties.
Finally, Petitioner alleges that the RPCs should be excluded from the bargaining unit
because they are managerial employees. Petitioner contends that the RPCs are managerial
employees because they possess final responsibility and independent authority in directing the
effectuation of management policies. Specifically, Petitioner states that the RPCs create policies
to ensure compliance with accrediting agencies and effectuate attendance policies. Petitioner
further argues that RPCs oversee effective and efficient operations of the Residency Program by
participating in compliance meetings, Clinical Competence Committee meetings, and promotions
committee meetings in addition to representing the program by meeting with and communicating
with outside agencies. Respondent argues that there is no evidence that RPCs are responsible for
the establishment or direction of any significant CCHHS function. Respondent contends that the
RPCs’ duties are not distinguishable from the duties of their subordinates in this regard.
III. FINDINGS OF FACT
1. The Bargaining Unit
The Internal Medicine Residency Program at CCHHS has two RPCs and 4 Administrative
Assistants. All of these employees are currently included in the same bargaining unit. The RPCs
were certified in the bargaining unit in or around October 2015.
2. The Internal Medicine Residency Program
CCHHS has multiple residency programs that provide specialized medical training to
doctors who are known as “residents.” One program, the Internal Medicine Residency Program
(Residency Program), provides three years of post-medical school training for residents who seek
to be eligible for board certification by the American Board of Internal Medicine (ABIM). The
Residency Program is the largest residency program in the hospital, accepting approximately 45
residents per year, and authorized by the Accreditation Council for Graduate Medical Education
(ACGME) to train up to 144 physicians. For each new resident cohort, the Residency Program
begins on July 1 and ends three years later on June 30.
Dr. Suja Mathew (Dr. Mathew) is employed by CCHHS as the Chairman for the
Department of Medicine at Stroger Hospital and oversees the provision of internal medicine
services throughout CCHHS and its facilities. Dr. Mathew supervises 14 divisions within the
4
Department of Medicine at Stroger Hospital. Each division has a chair who reports to Dr. Mathew.
Zoraida Calderon (Calderon), CCHHS’s Business Manager, reports to Dr. Mathew, as do
additional direct reports at Provident Hospital.
3. Dr. Acob’s Arrival and Changes to the Residency Program
In March 2016, Dr. Christine Acob (Dr. Acob) became the Residency Program’s Interim
Program Director. According to testimony at hearing, Dr. Acob’s role is to “basically run the
program” and she is involved in “anything that has to do with education, curriculum, the cycle of
those three-year residency training, any disciplinary actions with residents’ performance, running
the support staff as well, but anything and everything to do with the program.” Dr. Acob is one of
the 14 chairs that reports to Dr. Mathew. The RPCs report to Dr. Acob.
When Dr. Acob became the Interim Program Director she implemented new initiatives
within the Residency Program. In addition to Dr. Acob’s new initiatives, the Residency Program
also became subject to increased ACGME, graduate medical education office, ABIM, and
institutional requirements. RPC Talath Alikhan (RPC Alikhan) stated that Dr. Acob’s new
initiatives, combined with the new regulatory requirements, recently increased the RPCs’ level of
responsibility, workload, and delegation of duties to Administrative Assistants (AAs).
The two at-issue RPC positions were certified and included in the bargaining unit in
October 2015. Dr. Acob testified that, after she became Interim Program Director in March 2016,
the role of the RPC changed because she “started redoing some of the protocols that we have in
place to make it more efficient, and the expectation has gotten to be much more.” For example,
Dr. Acob now expects the turnover time of the RPCs’ tasks to be much faster. Whereas previously
it was acceptable for several weeks to pass before an RPC fulfilled a request for credentialing and
verification, Dr. Acob now expects turnover to occur within a week of a request.
Dr. Acob also noted the changes to regulatory reporting requirements which now require
RPCs to submit reports regarding residents’ rotations, attendance, conference compliance, and
module compliance to ACGME every six months. If the RPCs fail to submit the required reports,
the program will lose its accreditation. The Residency Program currently has 132 residents whose
reports must be submitted to ACGME every six months. Additionally, for the graduating class,
the same report must also be submitted to the ABIM so that the residents can be eligible to sit for
board examinations.
5
Prior to ACGME’s recent change to the new accreditation system requiring six-month
reporting, the old model expected training reports every 36 months; therefore, reporting occurred
after the residents completed training. ACGME’s new accreditation system was implemented in
2012; however, the Residency Program was not required to submit reports on the individual
performance of residents until approximately 2016. Dr. Acob testified that RPCs are heavily
involved in the reporting process. RPCs compile the reports, ensure the accuracy of the reports,
communicate with the ACGME and ABIM, and ensure residents are approved to take board
examinations.
In addition to ACGME’s new accreditation system, Dr. Acob testified that the RPCs’ duties
have increased due to a change in the residents’ rotations policy. The reports that they submit to
ACGME have nearly doubled in size because, one and a half years prior to hearing, the program
went from having three years of one-month rotations (totaling 13 rotations per year) to allowing
two-week rotations. Thus, whereas the Residency Program previously covered 39 rotations over
three years, that number doubled due to the shorter two-week rotations. Dr. Acob stated that this
impacted the RPCs’ duties because “instead of you just having one evaluation for a month, that
may require now two.”
4. The Residency Program Coordinator
Dr. Mathew is familiar with the RPC position because she helped to create the RPCs’ job
descriptions, participated in the hiring process for the RPCs, and participated in the hiring process
for individuals who applied for the role in other CCHHS residency programs. Dr. Acob is
knowledgeable about the RPC position because she trained in the Residency Program and “is
familiar with the way things are run.” Dr. Acob also helped to define the expectations of the RPC
role. The Residency Program has two RPCs – RPC Alikhan and RPC Shanta Reynolds-Woods
(RPC Reynolds-Woods).
Dr. Mathew testified that the RPCs’ job duties require them to “manage, essentially, all
administrative aspects of the Residency Program. That involves the on-boarding management
through those three years, the off-boarding management of those residents at the end, assisting in
managing the evaluation process, and evaluation and assisting in the scheduling process.”
Similarly, Dr. Acob stated that the RPCs’ job duties are vast and require them to oversee on-
boarding, licensing, Visas, rotations, ensuring residents comply with various policies and
regulations, ensuring resident reports and evaluations are submitted internally and externally,
6
generally ensuring that the Residency Program meets regulatory standards, and off-boarding of
residents after they complete the program.
RPCs are involved in resident recruitment season and arrange the agenda for the Residency
Program tour, interact with residents, and collect residents’ paperwork. RPC Alikhan testified that
her duties include “overseeing and evaluating residents as well as administrating responsibilities
to staff, delegating, overseeing projects, ensuring time lines are met and kept, adhering to the
American College of Graduate Medical Education . . . also working with . . . the internal medicine
board to ensure that the residents complete their requirements so they can take their boards in order
to graduate in a timely fashion.”
Regarding on-boarding, once the RPCs receive matched residents, they assist them with
licensing, visas, provide them with information required to start the Residency Program, and
ensure that the residents’ contracts with CCHHS are properly executed. While residents train in
the Residency Program, RPCs “help facilitate their evaluation process, help do compliance, ensure
that they’re meeting all the requirements – institutional based as well as per ACGME standards.”
RPCs participate in the off-boarding process by ensuring that the residents meet all educational
requirements, complete evaluations, and meet ACGME, ABIM, and Residency Program
standards.
RPC Alikhan stated that she represents the Residency Program at ACGME meetings and
is listed as one of the program’s main contacts. RPCs also represent the Residency Program before
the ABIM. RPC Alikhan testified that AAs do not represent the Residency Program before outside
agencies. To ensure that residents are meeting their requirements, RPCs attend Clinical
Competence Committee (CCC) compliance meetings. RPCs also attend meetings to monitor
residents’ performance. RPCs attend promotions committee meetings to evaluate various
improvement plans for residents. Additionally, RPCs assist residents with requests ranging from
finding housing to ensuring they complete their rotations in a timely fashion.
Dr. Mathew stated that RPCs have staff that support the body of work that RPCs are
responsible for, “[s]o they are also expected to supervise and manage the individuals that report to
them and coordinate their activities for completion of that entire body of work.” According to Dr.
Mathew, RPCs exercise substantial independent decision-making authority within the Residency
Program and allocate duties to their staff. RPC Alikhan assigns the AAs “tasks and certain
responsibilities that are sort of routine, and then there’s other special projects that come up
7
throughout the year.” RPC Alikhan reviews AA’s work and AAs often approach her with
questions – sometimes daily – regarding projects, payroll, and scheduling. Overall, RPC Alikhan
ensures “that our program runs as smoothly as possible.”
Dr. Mathew testified that RPCs communicate with agencies including: ACGME; the
ABIM; the Educational Commission for Foreign Medical Graduates (ECFMG); the United States
Citizenship and Immigration Service (USCIS); and the Illinois Department of Professional and
Financial Regulation (IDPFR). RPCs prepare all documents for ACGME on site visits. On the
day of the visit, RPCs assist in ensuring that the Residency Program is meeting all ACGME
requirements.
RPCs participate in the recruitment of residents through the National Residency Matching
Program. Every year, the Residency Program receives approximately 5,500 applications that must
be considered for the Residency Program’s 45 available spots. RPCs review these applications
and prepare them for additional review by the program directors and the admissions committee.
RPCs also arrange the resident interview process and assist with ranking applicants for the
National Residency Matching Program. Once the Residency Program receives its “matched
resident list”, the on-boarding process of new residents begins.
Dr. Mathew testified that RPCs possess the authority to alter the resident-intake process;
however, because this process is a collaborative effort between three different departments, the
RPCs must negotiate with the other departments if they desire to change the process. RPC Alikhan
is involved in resident document collection management, and she altered the process for how
documents come into the Residency Program, specifically regarding the Visa acquisition process.
RPC Alikhan communicates with IDPFR, the Residency Program’s licensing entity, regarding
securing residents’ licenses. RPC Alikhan interacts with, and responds to, inquiries from IDFPR
“independent of any other program leadership.”
Dr. Mathew testified that RPCs participate in the Residency Program’s resident promotions
committee by setting up evaluations, organizing evaluations, ensuring evaluations are completed,
and preparing the evaluations for review at the resident promotions committee’s meetings. If a
resident fails to complete an evaluation, Dr. Mathew stated that RPCs are responsible for
communicating this issue to a program director. RPCs are expected to understand the residency
review committee standards for the Residency Program.
8
The Residency Program has policies to ensure compliance with various accrediting
agencies. Dr. Matthew and Dr. Acob testified that RPCs effectuate some of these policies. For
example, the Residency Program has a policy that relates to ACGME’s limits and guidelines
regarding the number of hours that residents spend at work and in other related duties. To ensure
that ACGME’s requirements are met, the Residency Program “developed an expectation list as
well as policies that allow for work within the structure that’s defined by ACGME. And we are
expected to monitor that we are in compliance with that requirement.” Compliance is achieved
through residents self-reporting and the RPCs are responsible for tracking the residents’ duty hours
and ensuring that self-reporting is completed. If self-reporting is not occurring, the RPCs must
report the non-compliance. RPCs also collate self-reporting results and present them as necessary
to requesting parties. Dr. Acob stated that RPCs effectuate policies when they ensure that residents
complete all required infection control modules and adhere to all related policies.
RPC Alikhan testified that, generally, she can change policies related to timekeeping,
recruitment, and delegation of responsibilities. RPC Alikhan stated that she changed one of the
Residency Program’s policies when she reorganized and reassigned responsibilities after a member
of the staff was displaced, decreasing the number of AA staff from five to four.
RPC Alikhan asserted that she is responsible for providing recommendations to develop
policies for the Residency Program. For example, RPC Alikhan made changes to the Residency
Program’s swipe policy, explaining that she “streamlined it more to be more effective . . . by
making it less stringent.” Under RPC Alikhan’s more streamlined approach, residents were
required to call in two hours before they were due to report for training, as opposed to four hours
as previously required. This change was vocalized to residents and not presented in writing.
While ACGME certifies the Residency Program based on residents meeting reporting
requirements, the ABIM is the certifying body for individual trainees. Residents must meet the
ABIM’s requirements for board certification, including rotational and reporting requirements. Dr.
Mathew stated that RPCs identify and address deficiencies in residents meeting these
requirements. Overall, RPCs are expected to ensure that residents comply with CCHHS mandates,
required certifications, and trainings.
According to Dr. Mathew, RPCs represent the Residency Program at CCHHS’s Graduate
Medical Education Committee (GMEC) meetings and ACGME annual meetings. The most recent
annual ACGME meeting was in Orlando, Florida, and both RPCs attended. Additionally, RPCs
9
represent the Residency Program, as necessary, when the IDFPR meets with program coordinators
to review resident licensing requirements.
RPC Alikhan is involved in “employment exiting” and “training exiting,” and uses multiple
documents to facilitate the exiting process. One of these documents is a checklist that she signs
when completed. Regarding training exiting, Alikhan stated that she has the authority to change
requirements in the program’s documents that are used to facilitate the process. RPCs do not have
authority to change ACGME requirements; however, Dr. Mathew testified that no one outside
ACGME has the authority to change the requirements.
The only difference in the roles of the Residency Program’s two RPCs, Alikhan and
Reynolds-Woods, is that, operationally, RPC Alikhan has direct responsibility for the program and
management of the staff while RPC Reynolds-Woods assumes this responsibility on assigned
special projects or when RPC Alikhan is absent.
5. Residency Program Coordinators Compared to Administrative Assistants
The RPCs supervise four Administrative Assistants (AAs): Queenie Mendonca
(Mendonca), Cecilia Griffin (Griffin), Margie Miranda (Miranda), and Sharon Barnes (Barnes).
The AAs and RPCs are all represented by Local 200. Dr. Acob testified that the AAs are charged
with tasks such as payroll, scheduling appointments, room reservations, making copies for
conferences, and issuing resident identification.
Dr. Mathew and Dr. Acob testified that, in the future, RPCs would be involved in
developing the AAs’ job description and are expected to participate on the interview panel to hire
new AAs. The interview panel is comprised of two to five members of the Residency Program.
Each member holds various positions in the program and their input holds equal weight. Thus far,
an opportunity to hire new AAs has not presented itself; however, RPC Alikhan testified that the
Residency Program will need to hire an AA in the near future to fill an expected vacancy. RPC
Alikhan stated that, when the new AA position is posted, she expects to participate in the interview
process as well as on the selection committee.
According to Dr. Mathew, the role of the RPCs is different than the role of the AAs because
RPCs “have oversight and supervise and have ultimate responsibility for the program. The AAs
assist them in that complete body of work by doing the duties assigned to them by the RPCs.”
Additionally, RPCs monitor AAs and delegate duties to them. RPC Alikhan and Dr. Acob testified
that the RPCs do not need their supervisor’s permission to assign the AAs tasks.
10
Dr. Acob stated that there are certain tasks that cannot be handled by the AAs. For
example, when Dr. Acob was recently out of town the RPCs, not the AAs, covered calls regarding
Residency Program business. Dr. Acob also noted that RPCs supervise the residents’ compliance
with various policies, such as the swiping policy. AAs are tasked with reporting issues to RPCs,
but the RPCs decide how to address the issues.
The four AAs perform different duties and are not expected to delegate to anyone else. Dr.
Mathew testified that they are not supervisors and “complete job duties as assigned to them by
their job description or other duties as assigned by their supervisor, which is the program
coordinator.” RPC Alikhan stated that her job is multifaceted and that she not only works with the
residents but also oversees the work of the AAs to ensure that all work is completed. RPC Alikhan
stated that RPCs oversee the program and “the ultimate responsibility lies with myself and my co-
coordinator, Shanta Reynolds-Woods.”
Dr. Mathew testified that RPCs are expected to discipline AAs and recounted an incident
in which RPC Alikhan addressed AA Mendonca’s performance deficiencies through a “Program
Feedback Session” and follow-up email (Exhibit Nos. 9 and 10). AA Mendonca’s deficiencies
were brought to RPC Alikhan’s attention by Dr. Acob and involved failing to meet timelines and
poor time management. To address this issue, RPC Alikhan, Business Manager Calderon, Dr.
Acob, Carrie Bird (Labor Relations), and George Leonard (Union President) held a Program
Feedback Session with AA Mendonca and “reviewed sort of her processes, how to adhere to
certain tasks, and gone through that step by step just to ensure that we could try and help – help
her manage her time so projects could be completed in a timely fashion.” After the Program
Feedback Session, RPC Alikhan and AA Mendonca developed a plan of action to effectively meet
AA Mendonca’s duties. AA Mendonca was not reprimanded or suspended. RPC Alikhan testified
that the Program Feedback Session was not a pre-disciplinary meeting.
Dr. Mathew testified that RPCs play a role in the suspension or termination of AAs. In the
two years prior to hearing, the RPCs had not had an opportunity to suspend or terminate an AA.
However, RPC Alikhan testified that she was trained “with the employment plan for the
disciplinary process as a manager” and would be expected to participate in the suspension or
termination process, initially as a fact-finder, and thereafter by following the disciplinary steps
outlined in the AAs’ collective bargaining agreement.
11
The RPCs have never received a formal grievance from the Union; however, RPC Alikhan
testified that she is expected to resolve grievances. In the two years prior to hearing, RPC Alikhan
was not aware of any AAs filing grievances. The closest incident related to a grievance occurred
when RPC Alikhan had an AA that did not want to complete a task because she did not have
enough time, “so she had a bit of a grievance regarding that . . .” and came to RPC Alikhan to
figure out how to address the issue. RPC Alikhan responded by delegating the responsibility to
more than one person so that the deadline could be met within the allotted timeline. RPC Alikhan
testified that this incident did not comprise a formal grievance.
Dr. Acob testified that an AA filed a grievance within the last six years, and that the
grievance was addressed by an employee who served in a role that was the equivalent of the RPC
position, although the role was titled “program coordinator” at that time. When the grievance was
filed, the current RPC roles did not exist within the Residency Program, and only the “program
coordinator” title existed. CCHHS Business Manager Calderon served as the program coordinator
at that time and responded to the grievance.
RPCs are expected to regularly monitor and evaluate the performance of AAs and thus are
the first individuals to identify a performance deficiency. The AAs have not received performance
evaluations by the RPCs; however, RPC Alikhan testified that she communicates with the AAs
regarding their performance. Dr. Mathew explained that “there has not been system-wide
evaluations done since Ms. Alikhan has been in the position” and RPC Alikhan testified that
performance evaluations are not performed annually, although she believes performance
evaluations occurred prior to her becoming an RPC. Dr. Acob testified that, when AAs do receive
performance evaluations, the RPCs will oversee them.
If an AA performance deficiency is identified, Dr. Mathew testified that RPCs are expected
to work with the AA and “make an independent judgment about how to handle that deficiency.”
If an RPC determines that an AA needs to participate in the discipline process – anywhere from
counseling to reprimand and on up the progressive discipline process, including resolving
grievances – Dr. Mathew testified that RPCs are expected to work with Human Resources and
Labor Relations throughout the disciplinary process. According to Dr. Mathew, RPCs
independently make decisions regarding AAs without conferring with her or Dr. Acob.
Dr. Mathew testified that RPCs create, oversee, and make changes to the policies that
govern the staff that report to them and “effectuate the policies of attendance reporting” of the
12
Residency Program. RPCs have changed the management of call-in procedures for staff that call
in sick or are unable to work for other reasons. Regarding specific changes to call-in procedures
made by the RPCs, Dr. Mathew testified that “initially it was a very loose process. Someone would
call . . . like one particular clinical supervisor . . . but it wasn’t following a chain, and all individuals
who needed to be notified of an absence were not being notified[.]” Dr. Mathew stated that the
RPCs changed the call-in procedure process by requiring documentation of an absence and altering
the method in which individuals “throughout the organization are notified and who is responsible
for that notification[.]”
While there have been no collective bargaining or labor relations issues to which the RPCs
have had to respond, Dr. Mathew testified that, if such issues occurred, she would “invite the
comment of the residency program coordinators.” RPCs also have access to residents’ personnel
documents and training files, which include resident evaluations, schedules, licenses, visa
documents, ranking documents, and letters of recommendation.
Dr. Mathew testified that RPCs are held accountable for AAs’ performance deficiencies
and accordingly address them when they arise. Dr. Mathew provided an example where an RPC
assigned an AA the task of scheduling resident in-training exams and the task was not completed.
In that instance, the assigning RPC was held responsible for the AA’s deficiency and expected to
complete an investigation to hold others accountable as well.
IV. DISCUSSION AND ANALYSIS
1. The Unit Clarification Petition is Appropriate
Use of the unit clarification procedure to add employees to an existing bargaining unit
circumvents the regular representation procedures, thereby denying the employees an opportunity
to choose their representative. Accordingly, the Board limits the circumstances in which the unit
clarification procedure may appropriately be invoked. City of Chicago, 9 PERI ¶ 3026 (IL LLRB
1993); City of Chicago, 2 PERI ¶ 3014 (IL LLRB 1986).
There are five circumstances in which a unit clarification petition is appropriately filed.
Section 1210.170(a) of the Board’s Rules identifies three of the five circumstances: (1) substantial
changes occur in the duties and functions of an existing title, raising an issue as to the title’s unit
placement; (2) an existing job title that is logically encompassed within the existing unit was
inadvertently excluded by the parties at the time the unit was established; and (3) a significant
13
change takes place in the statutory or case law that affects the bargaining rights of employees. 80
Ill. Admin. Code §1210.170(a).
Additionally, a unit clarification petition is appropriate to include newly created job
classifications entailing job functions already covered in the unit. City of Evanston v. State Labor
Rel. Bd., 227 Ill. App. 3d 955, 969-70 (1st Dist. 1992), citing State of Ill. (Dep’t of Cent. Mgmt.
Servs. & Public Aid), 2 PERI ¶ 2019 (IL SLRB 1986). It may also be used to include titles that
the Board excluded as objected-to when certifying a majority interest petition that had majority
support without consideration of the objected-to titles. 80 Ill. Admin. Code §1210.100(b)(7)(B);
City of Washington v. Ill. Labor Rel. Bd., 383 Ill. App. 3d 1112 (3d Dist. 2008); Treasurer of the
State of Ill., 30 PERI ¶ 53 (IL LRB-SP 2013) rev’d on other grounds, Am. Fed’n of State, Cty. &
Mun. Employees, Council 31 v. Ill. Labor Rel. Bd., 2014 IL App (1st) 132455. A unit clarification
petition may also be used to exclude statutorily exempt positions. See Chief Judge of Circuit Court
of Cook Cty. v. Am. Fed’n of State, Cty & Mun. Employees, Council 31, 153 Ill. 2d 508, 521
(1992) (employer could file unit clarification petition to remove statutorily exempt employee from
bargaining unit at any time).
In this case, the at-issue RPC positions were certified into the bargaining unit in October
2015. CCHHS alleges that a substantial change occurred in their duties and functions rendering a
unit clarification petition appropriate pursuant to Section 1210.170(a) of the Board’s Rules. I
agree.
The record demonstrates that two substantial changes occurred in 2016, affecting the duties
and functions of the RPC titles: (1) ACGME changed its regulatory standards, resulting in the
Residency Program increasing its internal requirements, and resident reports significantly
increasing in size and nearly doubling in volume; and (2) there was a change in hospital leadership
when Dr. Acob became Interim Program Director and implemented new initiatives. Each of these
occurrences directly impacted the RPCs’ duties and functions.
The RPCs’ job description states that the RPCs’ job duties include, but are not limited to
the following:
• the preparation of required documents for regulating or accrediting agencies;
• preparing reports for ACGME, ABIM, and other accrediting bodies;
• managing the data management for residents, fellows, and teaching faculty
including scheduling, evaluations, and record retention;
14
• collecting, entering, and assigning evaluations to respective residents and attending
physicians;
• notifying the Program Director or Department Chairman when residents or
attending physicians are within substandard compliance;
• tracking duty hours through New Innovations and submitting reports regarding this
to the GMEC on a regular basis or as requested.” (Exhibit Nos. 1 and 2)
ACGME’s new accreditation system, as well as Dr. Acob’s new initiatives, impacted each of these
tasks.
The duties of RPCs, as performed when they were included in the bargaining unit in 2015,
are not the same as those performed at the time of hearing. Prior to the change in ACGME
requirements, the resident performance reports were submitted every 36 months – essentially after
the resident completed the three-year program. After ACGME changed its requirements, RPCs
were required to submit the reports every six months. As earlier noted, the Residency Program
currently has 132 residents whose reports must be submitted to ACGME. This change alone
comprises a considerable increase in the RPCs’ workload as they are responsible for this task.
Exhibit Nos. 1 and 2. While ACGME implemented its updated reporting requirements in 2012,
CCHHS only began reporting the individual performance of residents in response to these changes
in 2016. Therefore, a change in the RPCs duties was not realized until 2016.
In addition to more frequent reports to ACGME, the Residency Program increased its
internal requirements regarding resident rotations reports. This further increased the RPCs’
workload because the Residency Program now allowed two-week specialty rotations compared to
the prior one-month rotations. This change increased the RPCs’ expected generation of rotation
reports from one report to two reports per month, essentially doubling the number of rotation
reports prepared by RPCs.
Finally, when the RPCs were certified in 2015, Dr. Acob was not the Residency Program’s
Interim Program Director. She assumed that role in March 2016, after the RPCs were already
certified into the bargaining unit. While Dr. Acob’s acceptance of a new role is not a substantial
change when considered alone, the record demonstrates that Dr. Acob made changes when she
assumed the Interim Program Director position, and these actions impacted the breadth of duties
assigned to RPCs.
15
Testimony from multiple witnesses consistently indicates that Dr. Acob implemented new
initiatives that required the RPCs to complete projects on a more expedited timeline and delegate
more tasks to the AAs when compared to pre-2016. The RPCs report to Dr. Acob, and she has the
authority to assign them other duties as necessary, on top of the RPCs’ duties already affected by
ACGME’s and the hospital system’s updated requirements. Dr. Acob’s arrival and
implementation of new initiatives caused a substantial change in the duties and functions of the
RPCs.
For these reasons, I conclude that the RPCs’ positions experienced a substantial change in
duties since being certified in 2015, and, therefore, the unit clarification petition is appropriate.
2. The Supervisory Exclusion
CCHHS argues that RPCs are supervisors within the meaning of Section 3(r) of the Act.
The purpose of the supervisory exclusion is to avoid the conflict of interest that may arise 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 v. Illinois State Labor Relations
Board, 135 Ill. 2d 499, 517 (1990).
Under Section 3(r), employees are supervisors if they (1) perform principal work that is
substantially different from that of their subordinates; (2) have the authority, in the interest of their
employer, to perform any of the enumerated supervisory functions or effectively recommend such
action; (3) consistently use independent judgment in performing those functions; and (4) spend a
preponderance of their time exercising that authority. Chief Judge of Circuit Court of Cook Cnty.
v. Am. Fed’n of State, Cnty. & Mun. Emps., Council 31, AFL-CIO, 153 Ill. 2d 508, 515 (1992).
Under Section 3(r), the eleven enumerated supervisory functions are: “hire, transfer,
suspend, lay off, recall, promote, discharge, direct, reward, or discipline employees, or to adjust
their grievances, or to effectively recommend such action, if the exercise of such authority is not
of a merely routine or clerical nature, but requires the consistent use of independent judgment.” 5
ILCS 315/3(r)
A. Principal Work
In determining whether the principal work requirement has been met, the initial question
is whether the work of the alleged supervisor and that of her subordinate is obviously and visibly
different. City of Freeport, 135 Ill. 2d at 514. If the answer is yes, the principal work requirement
is satisfied. Id. If the answer is no, the determinative factor is whether the “nature and essence” of
16
the alleged supervisor’s principal work is substantially different than the “nature and essence” of
her subordinates’ principal work. Id. This requires consideration of the supervisory authority and
the ability to exercise it at any time, and identifying the point at which an employee’s supervisory
obligation conflicts with her participation in union activity with the employees she supervises. Id
at 518. However, the “mere possession of any supervisory indicia is insufficient to change the
nature and essence of substantially similar principal work.” Village of Burr Ridge, 23 PERI ¶ 102
(IL LRB-SP 2007).
In this case, CCHHS argues that the RPCs’ principal work is different from the principal
work of the AAs. The testimony and documentary evidence supports CCHHS’s position. Dr.
Mathew, the Chairman for the Residency Program, testified that “[n]one of [the AAs] would be
expected to delegate to anyone else. None of them are supervisory. They complete job duties as
assigned to them either as determined by their job description or other duties as assigned by their
supervisory which is the [RPC.]” Examples of specific tasks that are assigned to AAs include:
scheduling, making room reservations, payroll tasks, and making copies. For the most part, these
tasks are found in the AAs’ job description but not in the RPCs’ job description. Exhibit Nos. 1-
4. Additionally, RPCs delegate tasks to the AAs, review their work, answer their payroll and
scheduling questions, and ensure that the Residency Program runs smoothly. AAs do not delegate
work to anyone.
CCHHS contends that, unlike the AAs’ role, the RPCs’ role is multifaceted, and they are
required not only to work with the residents, but also to oversee the work of the AAs and ensure
that all work is completed. RPC Alikhan testified that, unlike the AAs, RPCs assign tasks to
subordinate staff, review AAs’ work, participate in resident promotions committee meetings,
attend resident compliance meetings, attend resident performance meetings, and represent the
Residency Program at external meetings. Dr. Acob and Dr. Mathew provided similar testimony
regarding the differences between the work of the RPCs and the AAs.
As earlier stated, the job descriptions of the RPCs and AAs identify duties that are
obviously different between the two roles. Exhibit Nos. 1-4. Unlike AAs, RPCs are tasked with
communicating with high-level personnel such as the Program Director and Department Chair
when residents or attending physicians are not in compliance with Residency Program and outside
regulatory agency standards. RPCs are also tasked with instituting remedial action to address
resident or attending physician deficiencies. The same cannot be said for AAs. The RPC job
17
description states that RPCs are expected to prepare and submit required documents for regulating
or accrediting agencies. AAs do not have this duty, although RPCs have testified that they delegate
various tasks to AAs to assist RPCs in meeting this requirement.
The AAs’ job description demonstrates that their typical duties include tasks such as
maintaining the Residency Program’s website, managing online access to student information,
providing administrative support to student program directors, planning and coordinating meetings
and conferences, preparing correspondence, and communicating scheduling and time-keeping
information within the Residency Program and to other departments. These are not tasks that are
found in the RPCs’ job description or typically performed by RPCs, but documentary evidence
and testimony from multiple witnesses indicate that these duties are performed by AAs.
For the foregoing reasons, I find that the principal work requirement has been met because
the work of the RPCs and AAs is obviously and visibly different.
B. Supervisory Indicia and Independent Judgment
Having established that RPCs perform principal work that is substantially different from
that of their subordinates, I now turn to the second prong of the 4-part supervisory test – whether
the alleged supervisor possesses the authority to perform one or more of the 11 supervisory indicia,
or to effectively recommend such performance. Additionally, CCHHS must address the third
prong of the 4-part supervisory test by demonstrating that RPCs perform or effectively recommend
any of the 11 supervisory indicia with “independent judgment.” 5 ILCS 315/3(r).
Employees use independent judgment when they choose “between two or more significant
courses of action.” Vill. of Bolingbrook, 19 PERI ¶ 125 (IL LRB-SP 2003). Decisions which are
“routine or clerical in nature or made on the basis of an individual’s superior skill, experience or
knowledge” are not indicative of independent judgment. Id. When determining whether an alleged
supervisor consistently uses independent judgment, the critical inquiry is how many times
independent judgment may be required in performing a particular supervisory function, not the
number of times it is actually used. City of Freeport, 135 Ill. 2d at 520-521.
Additionally, an alleged supervisor’s recommendation is “effective” only if it is adopted
as a matter of course with very little, if any, independent review. Cty. of Cook (Health and Hosp.
Sys.), 32 PERI ¶ 55 (IL-LRB-LP 2015). However, this does not mean that the recommendation
must simply be “rubber-stamped,” as “the term recommendation implies some form of review by
the person to whom the recommendation is made.” City of Peru, 167 Ill. App. 3d at 290. The
18
extent of the review by the superior determines whether the recommendation is considered
effective. State of Illinois, Department of Central Management Services, 25 PERI 1161.
In this case, CCHHS asserts that RPCs exercise supervisory authority under the Act to
direct, discipline, adjust grievances, and hire.
Supervisory Authority to Direct
The term “direct” encompasses several different functions such as scheduling shifts,
approving time off and overtime, assigning duties, overseeing and reviewing work, providing
instruction on how work is to be performed, evaluating work performance, training if a supervisor
is choosing between discipline or training, and completing performance evaluations if the
evaluations are used to affect the employees’ pay or employment status. Chief Judge of Circuit
Court of Cook County, 153 Ill. 2d at 518-19; City of Freeport, 135 Ill. 2d at 513; Vill. of
Bolingbrook, 19 PERI ¶125; Peoria Housing Auth., 10 PERI ¶2020 (IL SLRB 1994).
To “direct” means more than simply being responsible for a shift. City of Chi., 10 PERI ¶
3017 (IL LRB 1994). In the vast majority of circumstances, the day to day direction of
subordinates, such as the oversight and review of their work and delegation of tasks does not, by
itself, amount to supervisory direction. Vill. of Bolingbrook, 19 PERI ¶ 125. Alleged supervisors
must “also possess significant discretionary authority to affect their subordinates’ employment in
areas likely to fall within the scope of union representation, such as discipline, transfer, promotion
or hire.” Cty. of Lake, 16 PERI ¶ 2036 (IL SLRB 2000). Put another way, to “direct” employees
within the meaning of the Act, supervisors must have the authority to affect the employees’ terms
and conditions of employment. Dep’t of Cent. Mgmt. Serv. V. Ill. Labor Rel. Bd., State Panel,
2012 IL App. (4th) 110209. CCHHS alleges that RPCs “direct” AAs without consulting with their
supervisor. RPC Alikhan testified that she disciplines, delegates, oversees, trains, and conducts
performance evaluations for AAs. RPC Alikhan and Dr. Mathew testified that RPCs have AAs to
support the body of work that RPCs are responsible for. According to Dr. Mathew, there are even
times when RPCs must complete AAs’ duties because, ultimately, the RPC is responsible for the
duties being completed.
In this case, RPCs review AAs’ work. Testimony from multiple witnesses supports
CCHHS’s contention that RPCs are responsible for reviewing the work of AAs and ultimately
ensuring all work is completed. When AA Mendonca was not meeting expectations, RPC Alikhan
set up a Program Feedback Session to address AA Mendonca’s observed deficiencies and
19
formulated a plan to remedy them. Thereafter, RPC Alikhan sent AA Mendonca a follow-up email
memorializing the meeting and providing a list of expectations that AA Mendonca should meet in
the future to avoid future deficiencies. Exhibit Nos. 10 and 11.
Documentary evidence of RPCs monitoring and directing an AA’s work is found in an
email that RPC Alikhan sent to Business Manager Calderon, noting that AA Mendonca was always
unable to meet deadlines. In the email, RPC Alikhan shared that AA Mendonca’s usual reply to
questions about meeting deadlines was “I will hold off on my scheduling work.” RPC Alikhan
noted that “compliance is a continuous issue” with AA Mendonca. This email supports the fact
that RPC Alikhan continuously monitored AA Mendonca’s work because the RPC could note a
pattern of the AA not meeting deadlines. Exhibit No. 8.
The RPCs’ review and monitoring of the AAs’ work constitutes direction; however, that
determination alone is not enough to qualify as supervisory direction. As earlier noted, the Illinois
Appellate Court ruled “that to ‘direct’ employees within the meaning of the Act, supervisors also
must have the authority to affect the employees' terms and conditions of employment.” Dep’t of
Cent. Mgmt. Serv. v. Ill. Labor Rel. Bd., State Panel, 2012 IL App. (4th) 110209. This includes
overseeing functions in areas likely to fall within the scope of union representation. Id. Without
such discretionary authority, the responsibility to direct subordinates in the performance of job
duties does not conflict with membership in a bargaining unit. Id.
Here, CCHHS has provided evidence that the RPCs have the authority to affect the AAs’
terms and conditions of employment. “Discipline” is a term and condition of employment that is
likely to fall within the scope of union representation. The record establishes that RPCs have
authority to discipline AAs and enforce remedial action to address deficiencies in performance.
While Dr. Mathew was unsure if an AA had been terminated since the RPCs were certified, RPC
Alikhan initiated the aforementioned “Program Feedback session meeting” with AA Mendonca,
in which she used independent judgment to recommend remedial action. Exhibit Nos. 9 and 10.
The meeting did not result in a reprimand or suspension, but RPC Alikhan followed up the meeting
with an email to Mendonca, listing expectations that Mendonca should meet going forward. In
this way, Alikhan directed AA Mendonca’s work.
CCHHS also argued that RPCs direct AAs through the assignment of tasks, conducting
performance evaluations, and training. While assignment of tasks to AAs is sometimes routine in
nature, the record establishes that RPCs are responsible for monitoring these assignments, ensuring
20
that they are completed, and that they have authority to rearrange assignments if necessary to meet
the demands of the program. Decisions which are “routine or clerical in nature or made on the
basis of an individual’s superior skill, experience or knowledge” are not indicative of independent
judgment. See Vill. of Bolingbrook, 19 PERI ¶ 125 (IL LRB-SP 2003). However, the record
establishes that the RPCs’ responsibility in assigning work, training, and directing the specific
tasks of the AAs are performed with independent judgment because they evaluate the needs of the
program as they address specific situations. Indeed, when an AA position became vacant, RPCs
Alikhan and Reynolds-Woods reassigned the duties of the AAs in order to ensure that the work of
the program was performed adequately.
Testimony indicates that RPCs had not had the opportunity in the two years since their
certification to perform AA performance evaluations. However, to the extent that the RPCs have
authority to evaluate the AAs’ performance, this indicates that they are responsible for determining
whether AAs’ performance rises to the employer’s expectations. Moreover, the process of
evaluating performance undoubtedly bears on the terms and conditions of employment. Indeed,
when RPC Alikhan discussed performance issues with AA Mendonca, Alikhan directed her to
perform her duties in a particular way so as to address her deficiencies, thereby directly impacting
the conditions of her employment.
Therefore, I find that RPCs direct their subordinates through monitoring and evaluating
their work and by addressing deficiencies in performance utilizing independent judgment. Thus,
RPCs exercise supervisory authority through direction.
Supervisory Authority to Discipline
“Discipline” within the meaning of Section 3(r) of the Act is defined by its likely effect on
an employee’s employment. Cook County Medical Examiner, 6 PERI ¶3011 (IL LLRB 1990).
This includes verbal and written reprimands. Vill. of Bolingbrook, 19 PERI ¶ 125 (IL LRB-SP
2003)
In this case, the record is admittedly devoid of evidence documenting RPCs actually
imposing discipline on AAs. As previously discussed, the closest incident related to discipline
occurred in October of 2016. The October 2016 incident involved RPC Alikhan holding a
“Program Feedback Session” with AA Mendonca and other parties after the AA was deficient in
performing her duties. After the meeting, RPC Alikhan sent AA Mendonca a follow-up email,
outlining expectations for her continued performance.
21
RPC Alikhan testified that this meeting was not a pre-disciplinary meeting or a grievance,
but rather a “discussion.” Dr. Acob attended the meeting and stated that she “just wanted to work
with Queenie to see what we could do.” Business Manager Calderon also attended the meeting
and stated that “we’re here to work with you.” RPC Alikhan’s follow-up email to AA Mendonca
memorialized the meeting and informed the AA that “[t]here are many training tools available in
house that can assist with improvement in your deficient performance areas . . . Please feel free to
reach out to leadership for direction and guidance.”
Prior to the October 2016 incident with AA Mendonca, RPC Alikhan had another incident
with AA Mendonca around August 4, 2016. RPC Alikhan transcribed detailed notes regarding
this incident that CCHHS offered into evidence at hearing. Exhibit No. 7. The August 2016
incident involved AA Mendonca raising her voice at RPC Alikhan, and the RPC stated that AA
Mendonca also “became angry and told me that she can’t respond because she has too much to do
and it is not her job to do so, it’s the program coordinator’s job to respond.” Additionally, AA
Mendonca “became irate and waved her hands and asked me “what do you want me to do?” RPC
Alikhan’s notes detail how AA Mendonca continued to yell at her and behave in an insubordinate
manner. RPC Alikhan’s response to AA Mendonca was that they “would complete the discussion
another time.”
While neither of the 2016 incidents with AA Mendonca resulted in formal discipline, the
authority to recommend discipline also includes the authority to decide not to recommend
discipline for an employee. Although Dr. Mathew testified that neither at-issue RPC has ever
recommended that an employee be terminated, suspended, or issued a reprimand, RPCs have
authority to recommend – or to refrain from recommending – disciplinary action depending on
whether it is warranted by the circumstances. Therefore, the record demonstrates that RPCs have
the authority to discipline or recommend discipline for AAs.
Supervisory Authority to Adjust Grievances
The term “grievance” as used in Section 3(r) of the Act refers to any complaint by an
employee concerning any aspect of the employment relationship. City of Freeport, 135 Ill. 2d 499,
530. However, where the adjustment of grievances extends only to minor matters of a routine
nature, the exercise of that authority does not require the consistent use of independent judgment.
Id.; see also, Village of Bolingbrook, 11 PERI ¶2020 (IL SLRB 1995).
22
Dr. Mathew and RPC Alikhan testified that RPCs are expected to resolve grievances,
although neither of the two RPCs had received or resolved an contract grievance at the time of
hearing. RPC Alikhan testified that she once “had a member of staff who didn’t want to complete
the work because she didn’t have adequate time to complete the work, so she had a bit of a
grievance regarding that.” RPC Alikhan responded to this issue by speaking “with her a little
further and delegated the responsibility to a few people so we could try and meet the timeline or
the deadline within that time.” During cross-examination, RPC Alikhan stated that this incident
was not a grievance, and that she was just “using a lay term, but there was no formal grievance
filed over that issue.”
Dr. Acob testified that, within the last six years, prior to the at-issue RPCs assuming their
roles, there was a period when the employer had no RPC titles. Instead, the Residency Program
had a “Program Coordinator.” At that time, the Program Coordinator was Business Manager
Calderon. According to Dr. Acob, years ago, when Business Manager Calderon was the Program
Coordinator, she received a formal union grievance regarding an AA. Dr. Acob stated that the
Program Coordinator position that handled the grievance is identical to the at-issue RPC positions.
In this case, while the current RPCs have not had an opportunity to adjust grievances, the
record demonstrates that they have authority to do so with independent judgment. Indeed,
testimony by Dr. Acob shows that their predecessor, the “program coordinator”, did have authority
to adjust and process grievances and that this individual performed this duty. The fact that the
RPCs have not had an opportunity to perform this duty does not diminish their authority to perform
it. Therefore, I find that the RPCs have supervisory authority to adjust grievances.
Supervisory Authority to Hire
In this case, the RPCs have not had occasion to hire AAs in the last two years. However,
the employer anticipates an upcoming AA vacancy, and RPC Alikhan testified that the Residency
Program must hire a replacement AA soon. Dr. Mathew stated that RPCs “would be expected to
participate on the interview panel for the AAs” and that the composition of the panel could include
herself, Dr. Acob, an AA, as well as other program leadership. Dr. Mathew testified that, despite
seniority levels, members of the interview panel’s input would be afforded equal weight.
At the time of hearing, the current RPCs had not had an opportunity to hire any employees,
but testimony indicates that they expect to participate in hiring an AA soon as part of a hiring panel
in which all participants’ input would be afforded equal weight, regardless of seniority. However,
23
it is difficult to determine if the RPC’s hiring recommendation would be effective, or to gauge the
recommendation’s influence, when an employee is participating on a panel including multiple
members of the Residency Program. Additionally, independent judgment is not used when a hiring
panel’s decision results from the average score of all the panelists. State of Ill. Dep’t of Cent.
Mgmt. Serv., 30 PERI ¶ 38 (IL LRB-SP 2013). Moreover, the Board has held that hiring decisions
reached by consensus do not qualify as the supervisory authority to hire. Pike Cnty. Hous. Auth.,
28 PERI ¶ 13 (IL LRB-SP 2011). It is unclear from the record to what extent the RPCs
recommendations in this regard would be effective; therefore, I do not find that they possess
supervisory authority to hire.
C. Preponderance
Under the fourth and final prong of the supervisory test, CCHHS must prove that the RPCs
devote a preponderance of their employment time to exercising supervisory authority. 5 ILCS
315/3(r). Illinois courts have developed two tests to prove this element. Under the first test,
CCHHS must demonstrate that the RPCs “spend [s] more time on supervisory functions than on
any one nonsupervisory function.” City of Freeport, 135 Ill. 2d at 533; see also Dep ' t of Cent.
Mgmt. Servs. v . Ill. State Labor Relations Bd., 249 Ill. App. 3d 740, 746-747 (4th Dist. 1993)
(holding supervisory employees must spend more than 50 percent of their time on supervisory
functions). Under this quantitative test, the only consideration is the time spent actually exercising
the authority. Vill. of Downers Grove v. Ill. State Labor Relations Bd., 221 Ill. App. 3d 47, 56 (2d
Dist. 1991).
The second test rejects the mathematical approach and instead focuses on the significance
of the employee's duties. Dep ' t of Cent. Mgmt. Servs. v . Ill. State Labor Relations Bd., 278 Ill.
App. 3d 79, 85-87 (4th Dist. 1996). Specifically, the Illinois Appellate Court stated that “[w]hether
a person is a ‘supervisor’ should be defined by the significance of what that person does for the
employer, regardless of the time spent on particular types of functions.” Id. Therefore, the RPCs
will meet the second test if their supervisory functions are more “significant” than their non-
supervisory functions.
The record does not reflect an estimate regarding how much time the RPCs spend on
alleged supervisory functions. RPC Alikhan, Dr. Acob, and Dr. Mathew did not provide any
estimation of the time an RPC spends on any alleged supervisory function. The RPCs’ job
descriptions do not include estimates regarding the amount of time RPCs spend on any of their
24
enumerated duties. Therefore, with regard to the quantitative test, CCHHS did not provide
evidence that RPCs spend more than 50% of their time on supervisory functions.
However, turning to the second test, the mathematical quantitative approach is rejected,
and the focus is on the significance of the employee’s duties. This test is often referred to as the
quantitative test, and considers whether RPCs supervisory functions are more significant than their
non-supervisory functions. As discussed above, RPCs possess supervisory authority to direct,
discipline, and adjust grievances. Moreover, the record reflects that RPCs are uniquely responsible
for monitoring the performance of the AAs and taking steps to remedy deficiencies. Indeed, the
record also reflects that the RPCs are held accountable for the performance of the AAs. The record
demonstrates that, although the RPCs have important responsibilities in ensuring that residents
comply with hospital and accreditation policy, their role in supervising the AAs, who contribute
to these compliance efforts, is more significant. Indeed, the record indicates that the RPCs are
uniquely in a position to supervise the AAs. Accordingly, I find that RPCs spend a preponderance
of their time exercising supervisory authority.
Based on the foregoing, CCHHS has met its burden of providing sufficient evidence in
support of excluding RPCs as supervisory employees. 80 Ill. Adm. Code § 1210.107(a).
3. The Managerial Exclusion
CCHHS asserts that the RPC positions are subject to the “managerial” exclusion found in
Section 3(j) of the Act. According to the Act, a “managerial employee” is one who “is engaged
predominately in executive and management functions and is charged with the responsibility of
directing the effectuation of such managerial policies and practices.” 5 ILCS 315/3(j).
The Act excludes managerial employees from the class of employees who are entitled to
engage in collective bargaining. Chief Judge of the 16th Judicial Circuit v. Ill. Labor Rel. Bd.,
178 Ill. 2d 333 (1997). The burden falls on CCHHS, as the party seeking to exclude the RPCs
from collective bargaining, to prove by a preponderance of the evidence that the positions are
excluded from the Act’s protections. State of Illinois, Dep’t. of Cent. Mgmt. Serv. v. Illinois Labor
Rel. Bd., 382 Ill. App. 3d 208 (2008); Chief Judge of the Cir. Court of Cook Cty., 18 PERI ¶2016
(IL LRB-SP 2002). CCHHS “cannot satisfy its burden by relying on vague, generalized
testimony.” State of Ill. Dep't of Cent. Mgmt. Serv., 26 PERI ¶ 116 (IL LRB-SP 2010). Rather, it
must “support its arguments with specific examples of the alleged supervisory, managerial, or
confidential status.” Id.
25
Two tests have been developed to determine if an employee falls into the managerial
exclusion: the traditional test, which considers whether the petitioned-for employees are
managerial employee as a matter of fact, and the alternative test, which considers whether the
petitioned-for employees are managerial as a matter of law. State of Ill., Dep’t. of Cent. Mgmt.
Serv. v. Ill. Labor Rel. Bd., 388 Ill. App. 3d 319, 330 (4th Dist. 2009). In this case, CCHHS’s
objection to the inclusion of the RPCs in the bargaining unit appears to be based solely on the
traditional test.
A. The Traditional Managerial Employee Test
The traditional test considers whether the RPCs conform to the definition of a “managerial
employee” in Section 3(j) of the Act, which defines a “managerial employee” as “an individual
who is engaged predominantly in executive and management functions and is charged with the
responsibility of directing the effectuation of management policies and practices.” 5 ILCS
315/3(j). Therefore, to meet the traditional test, the Employer must demonstrate that (1) the RPCs
are engaged predominantly in executive and management functions, and (2) the employees are
charged with the responsibility of directing the effectuation of management policies and
procedures. Dept. of Cent. Mgt. Serv./Dept. of Healthcare and Fam. Serv. v. Illinois Lab. Rel.
Bd., State Panel, 388 Ill.App.3d at 330.
Regarding the first element of the traditional test, the Act does not define “executive and
management functions.” However, the Board and the Illinois Appellate Court have explained that
these functions “relate to running a department and include such activities as formulating
department policy, preparing the budget, and assuring the efficient and effective operations of the
department.” Village of Elk Grove Village v. Illinois State Lab. Rel. Bd., 245 Ill.App.3d 109, 121-
22 (2nd Dist. 1993). Managers run a department through their performance of these managerial
functions.
Turning to the second element of the traditional managerial employee test, a managerial
employee must not only have the authority to make policy, but also bear the responsibility of taking
action to reach the policy objectives. The Illinois Appellate Court has held that an individual
directs the effectuation of management policies and practices if she “. . . oversees or coordinates
policy implementation through development of means and methods of achieving policy objectives,
determines the extent to which the objectives will be achieved, and is empowered with a substantial
26
amount of discretion to determine how policies will be effected.” State of Ill., Dep’t. of Cent.
Mgmt. Serv. v. Ill. Labor Rel. Bd., 278 Ill. App. 3d 79, 87 (4th Dist. 1996).
Additionally, a managerial employee does not simply serve in an advisory and subordinate
capacity. A managerial employee does not merely recommend policies or provide advice that a
superior can take or leave. A managerial employee is hands-on and actually directs an agency or
department. Id. However, an advisory employee who makes “effective recommendations” may
still be deemed managerial. Ill. Dep’t of Cent. Mgmt. Serv./Ill. Commerce Comm’n v. Ill. Labor
Relations Bd. (CMS/ICC), 406 Ill. App. 3d 766 (4th Dist. 2010).
In CMS/ICC, the managerial status of Illinois Commerce Commission administrative law
judges was evaluated under the traditional managerial employee test. The CMS/ICC court
addressed the first prong of the traditional test, holding that an employee may be managerial even
if he does not formulate policy because policy formation is only one of many possible managerial
functions. Id. The CMS/ICC court stated that it is more important to determine whether the
employee helps “run” an agency. Id. The court continued, emphasizing that the “procedure by
which the ALJs hold hearings and issue recommended orders, which the Commission adopts
almost all the time, is the primary . . . if not the exclusive means, by which the Commission fulfills
its statutory mandate of regulating public utilities.” Id. Therefore, the ICC ALJs helped run the
ICC through their “effective recommendations” that are encompassed in their recommended
orders.
The CMS/ICC court also addressed the second prong of the traditional managerial
employee test, stating that, “by their recommended orders, which the Commission almost always
accepts without modification, the ALJs appear to be directing the effectuation of the State’s
policies regarding public utilities.” Id. As a result, while courts traditionally have addressed the
two prongs of the traditional managerial test separately, the CMS/ICC holding indicates that an
employee’s effective recommendation can satisfy both prongs if the recommendations are the
means by which the agency fulfills its statutory functions. Id. at 1149. An effective
recommendation satisfying the Act’s managerial requirements is one that is almost always
implemented. Dep’t of Cent. Mgmt. Servs. v. Ill. Labor Rel. Bd., State Panel, 2011 IL App 4th
090966 ¶ 193 (4th Dist. 2011).
27
B. The RPCs’ Alleged Managerial Functions
CCHHS argues that the RPCs should be excluded from the bargaining unit because they
act in a managerial capacity. According to CCHHS, the RPCs possess final responsibility and
independent authority in directing the effectuation of management policies as “there are some
policies that the RPCs would help to create along with other program leadership.” CCHHS argues
that RPCs make changes regarding resident duty hours, timekeeping, recruitment, and delegation
of responsibilities. RPC Alikhan testified consistent with CCHHS’s claim. The following are
examples of policy changes that CCHHS alleges RPCs implemented:
• Dr. Mathew testified that RPCs create policies to track the self-reported duty hours of
residents to ensure compliance with ACGME requirements.
• Regarding timekeeping policy changes, RPC Alikhan testified that she “reviewed the
swipe policy and changed the way we did our swipe policy” and “streamlined it to be
more effective . . . by making it less stringent.”
• RPC Alikhan alleges that she changed the Residency Program’s recruitment policy,
testifying that “we’ve had to change the policy because we have less members of staff
now. We had initially five, and now we have four. So the policy for that had to change.
Shanta and I had to assign other responsibilities to our members of staff.”
• Dr. Mathew alleges that RPC Alikhan has changed the resident exiting “program
document.”
In addition to RPC Alikhan’s alleged changes to the Residency Program’s policies,
CCHHS also states that RPCs participate in resident compliance, competence, and promotions
committee meetings. Additionally, “RPCs communicate in a representative capacity with outside
agencies” and represent the Residency Program at external agency meetings.
CCHHS contends that the aforementioned activities of RPCs are executive and
management functions that relate to the management of the Residency Program, formulating
policy, and overseeing effective and efficient operations.
C. RPCs are Not Managerial Employees
CCHHS’s case at hearing focused primarily on the activities of RPC Alikhan, who testified
at hearing. However, CCHHS contends that the roles of RPC Alikhan and the second RPC, Shanta
Reynolds-Woods, are similar, except that, operationally, RPC Alikhan has direct responsibility for
the program and management of the staff, and RPC Reynolds-Woods assumes this responsibility
28
on assigned special projects or when RPC Alikhan is absent. However, RPC Alikhan is not a
managerial employee, and, thus, RPC Reynolds-Woods, who arguably exercises less responsibility
in this regard, is also not a managerial employee.
CCHHS argues that RPCs are managerial employees and should be excluded from
collective bargaining because they are engaged predominantly in executive and management
functions – specifically that the RPCs change Residency Program policies and possess the
independent authority to direct the effectuation of these policies. This claim is not supported by
the record.
First, CCHHS argues that RPCs create policies to track the self-reported duty hours of
residents to ensure compliance with ACGME requirements. However, CCHHS did not provide
evidence regarding what the duty hours policy was, nor did CCHHS demonstrate how the RPCs
created or altered it. Regarding duty hours, Dr. Mathew testified that “compliance is done through
self-report for the most part by our residents. The residency program coordinators are ultimately
responsible for making sure that reporting is being done and requesting residents to report if they
fail to report for some reason. Also collating those results and presenting it as necessary to
whomever needs to see it.” This testimony was provided by Dr. Mathew when asked how RPCs
create and effectuate policies. Dr. Mathews did not explain how the duty hours reporting policy
was changed. Dr. Mathew only described what the RPCs are explicitly required to do via their job
description – that they are charged with tracking duty hours and ensuring resident compliance with
the standards of the Residency Program and outside regulatory agencies. Exhibit Nos. 1 and 2.
CCHHS did not provide a copy of the duty hours policy or demonstrate that the RPCs created or
substantially changed this policy.
Second, CCHHS alleges that RPCs make timekeeping policy changes. RPC Alikhan
provided testimony regarding her alleged changes to the timekeeping policy, stating that she
streamlined the timekeeping policy to be more effective by requesting that residents who needed
time off call in two hours before their shift versus four hours before their shift. RPC Alikhan
testified that this “policy” change was not made in writing and that “this was a policy that was
vocalized to the residents.” The alleged policy change was “vocalized” and appears to amount to
RPC Alikhan requesting AAs call in two hours later to inform the Residency Program that they
would not report to duty for that day. The record does not show that RPC Alikhan permanently
changed the employer’s stated policy in this regard.
29
Third, CCHHS alleges that RPC Alikhan changed the Residency Program’s recruitment
policy. However, this allegation is not supported by sufficient evidence. RPC Alikhan testified
that she changed the recruitment policy, but CCHHS did not provide evidence regarding what the
policy was and how RPC Alikhan changed it. RPC Alikhan testified that she and RPC Reynolds-
Woods simply reallocated the division of job duties between AAs when the Residency Program
lost an AA. RPC Alikhan testified that “because we have less members of staff . . . the policy for
that had to change. Shanta and I had to assign other responsibilities to our members of staff.” This
change is not indicative of a policy change, but rather demonstrates adjustments to the workload
of the AAs when the staff decreased.
Next, CCHHS alleges that RPC Alikhan changed the resident exiting “program document.”
However, CCHHS did not provide this document to show RPC Alikhan’s alleged changes.
Furthermore, Dr. Mathew’s testimony was vague and did not explain what exactly RPC Alikhan
changed about the program document or how the changes affected the program.
Finally, CCHHS states that RPCs’ participation in resident compliance, competence, and
promotions committee meetings and communications with outside regulatory agencies are
executive and management functions. The RPCs’ job descriptions make it clear that they are
expected to represent the Residency Program on select institutional committees and at various
meetings. However, the record does not demonstrate that the role of the RPCs at these committees
and meetings is anything more than advisory, nor does it reflect how often RPCs attend meetings
with outside agencies and the exact role and contribution of RPCs at the meetings. In addition,
mere attendance at outside agency meetings alone is not sufficient evidence to conclude RPCs
participate in executive and management functions.
CCHHS has not met its burden of providing sufficient evidence in support of excluding
RPCs as managerial employees. 80 Ill. Adm. Code § 1210.107(a). Accordingly, I find that the
RPCs are not managerial employees within the meaning of Section the meaning of Section 3(j) of
the Act.
V. CONCLUSIONS OF LAW
The petitioned-for RPCs are supervisors within the meaning of Section 3(r) of the Act. The
petitioned-for RPCs are not managers within the meaning of Section 3(j) of the Act.
VI. RECOMMENDED ORDER
The petition is granted in part and denied in part.
30
VII. EXCEPTIONS
Pursuant to Section 1200.135 of the Board’s Rules, parties may file exceptions to the
Administrative Law Judge’s Recommended Decision and Order and briefs in support of those
exceptions no later than 14 days after service of this Recommendation. Parties may file responses
to exceptions and briefs in support of the responses no later than 10 days after service of the
exceptions. In such responses, parties that have not previously filed exceptions may include cross-
exceptions to any portion of the Administrative Law Judge’s Recommendation. Within five days
from the filing of cross-exceptions, parties may file cross-responses to the cross-exceptions.
Exceptions, responses, cross-exceptions and cross-responses must be filed with Helen Kim,
General Counsel of the Illinois Labor Relations Board, 160 North LaSalle Street, Suite S-400,
Chicago, Illinois 60601-3103, or to the Board’s designated email address for electronic filings, at
[email protected]. All filings must be served on all other parties. Exceptions, responses, cross-
exceptions and cross-responses will not be accepted at the Board’s Springfield office. The
exceptions and/or cross-exceptions sent to the Board must contain a statement listing the other
parties to the case and verifying that the exceptions and/or cross-exceptions have been provided to
them. The exceptions and/or cross-exceptions will not be considered without this statement. If no
exceptions have been filed within the 14-day period, the parties will be deemed to have waived
their exceptions.
Issued at Springfield, Illinois, this 21st day of May, 2018.
STATE OF ILLINOIS
ILLINOIS LABOR RELATIONS BOARD
LOCAL PANEL
/S/ Kimberly F. Stevens______________________________
Kimberly F. Stevens
Executive Director, Acting Administrative Law Judge