There is some evidence that the attendings' activities on the committees and in the department meetings could constitute performance of executive and management functions. However, an element to be considered in determining an employee's managerial status is whether his "policymaking role is advisory or subordinate since 'it is the final responsibility and independent authority to establish and effectuate policy that determines managerial status under the Act.' " Village of Elk Grove Village, 245 Ill. App. 3d at 122, 613 N.E.2d at 320, quoting City of Evanston, 227 Ill. App. 3d at 975, 592 N.E.2d 415. Although "effective recommendation or control rather than final authority" over employer policy is the relevant consideration, the employee must still " ' "formulate and effectuate management policies by expressing and making operative the decisions of their employer." ' " Chief Judge of the Sixteenth Judicial Circuit, 178 Ill. 2d at 340, 687 N.E.2d at 798, quoting National Labor Relations Board v. Bell Aerospace Co., Division of Textron, Inc., 416 U.S. 267, 288, 40 L.Ed. 2d 134, 150, 94 S. Ct. 1757, 1768 (1974). Such is not the case with the attendings here.

The attendings' role on the committees and in department meetings is merely advisory. The recommendations resulting from the attendings' participation in the committee and department meetings are not implemented as a matter of course. Depending on whether a recommendation originated from a committee or a department and from which committee, it is subject to review and possible veto by the medical director, the COO, the medical executive committee, the joint conference committee and/or, in many instances, the Board. Ultimately, the Board is responsible for assessing all recommendations from the Bureau chief, the COO and the medical director/chief medical officer. In no way do the attendings have the authority to "make operative" the policies of the hospital. They can recommend policies but they cannot institute polices without approval of those recommendations by others. As Madhu Malhotra, M.D., the medical director, testified, attendings can take any policy recommendation to various people, such as herself or the president of the medical staff, but only then can "further action [ ] be taken" on the recommendation. Moreover, Joyce Gertzen, M.D., the chair of the department of medicine, testified that attendings limit their input to matters concerning attendings.

Although managerial status is not limited to only the highest levels of the governmental entity (Salaried Employees of North America (SENA) v. Illinois Local Labor Relations Board, 202 Ill. App. 3d 1013, 1021, 560 N.E.2d 926, 932 (1990), quoting Board of Regents of the Regency Universities System v. Illinois Educational Labor Relations Board, 166 Ill. App. 3d 730, 742, 520 N.E.2d 1150, 1158 (1988)), it does require sufficient independent authority and discretion to broadly effect a department's goals or means of achieving its goals (Village of Elk Grove Village, 245 Ill. App. 3d at 122, 613 N.E.2d at 320; City of Evanston, 227 Ill. App. 3d at 975, 592 N.E.2d at 428). Here, the only discretion the attendings exercise is in providing patient care and results from their professional and technical expertise. They have no independent authority to do anything besides practice medicine, let alone the authority to broadly effect a department's or the hospital's goals.

The evidence shows that, even though a majority of the attendings' recommendations are ultimately accepted and implemented, it is not without a thorough examination through a many-layered approval process. First, a committee or department must reach consensus on an attendings' suggestion. Second, if consensus is reached, a recommendation is forwarded for review, revision and possible approval to the medical director, the COO or the medical executive committee and, in many cases, all three. For example, Dr. Gertzen testified that Dr. Malhotra must approve all proposed department policies, including department staffing, and, on occasion, Dr. Malhotra has revised a recommendation and sent it back to the department or committee, which then accepts her changes. Third, depending on the subject of the recommendation, if approved it may be implemented (usually limited to recommendations with department-only impact) or forwarded on to the joint conference committee (recommendations with hospital-wide impact). Lastly, the Board must approve many of the recommendations, including any affecting medical staff rules and regulations, appointment or termination of medical staff, budget, finances and overall policies for operation of the hospital. Recommendations originating from the committee and department meetings are not approved as a matter of course. Consequently, the attendings do not have the power of "effective recommendation or control," as shown by the significant lack of independent authority, as well as a lack of final authority, to effect goals or means of achieving those goals and their role in running the departments and hospital is clearly advisory rather than managerial.

Assuming arguendo that the attendings' work on the committees and in the department meetings does constitute performance of executive and management functions, the attendings do not engage predominantly in such executive and management functions as required for exclusion under the Act. The evidence shows that, typically, the committees meet once a month, if that, and the two types of department meetings, although held more often, generally last only half an hour to one hour and attendings appear to spend approximately 10% of their work time on committee and department meeting activities.⁽²⁾ Attending Dr. Jahan serves on four committees and 90% to 95% of her work time is engaged in providing direct patient care. Attending Dr. George serves on three committees and 90% of his work time is engaged in patient care. Attending Dr. Jolepalem testified that he is on two committees and devotes 95% of his work time to direct patient care. Attending Dr. Mirza serves on no committees and 99% of her work time is spend on direct patient care. Attending Dr. Begum serves on no committees and spends 90% of her work time in patient care. Rehabilitation attending Dr. Neerukonda has assumed some of the duties of her absent department chair yet still spends 75% of her time on providing direct patient care. Prior to assuming the chair duties, she served on two committees and spent 90% of her time in patient care. Senior attending Dr. Makar serves on five committees and spends 75% of his work time on patient-care activities. Attending Dr. Ashenhurst is the aberration, spending only 50% of her work time on patient care, in the form of hematology consultations. However, the remaining 50% of her work time is primarily devoted to staffing the employee health service rather than to committee and department work.

As the testimony shows, the attendings engage predominantly in activities related to patient care. Even though patient-care activities include issuing orders regarding medication, treatment and therapy and directing nurses and other support personnel, they do not constitute executive or management functions. The attendings are merely exercising their "professional discretion and technical expertise" in order to provide the best care for their patients. We do not find, as the County argues, that the attendings' direction of patient care "encompasses innumerable responsibilities and functions normally not handled by physicians" such that their patient-care duties are not separate from their management duties. In providing patient care, the attendings are not doing anything different from similarly situated attendings in other hospitals. The evidence does not show, as the County asserts, that the hospital's bylaws endow the attendings with "particular patient care responsibilities different from any other doctor's routine practice of medicine." The attendings' patient-care responsibilities are the same as any other doctor's. As the attendings do here, all doctors routinely perform their patient-care responsibilities in the best interest of the patient, within a framework of rules, regulations, policies and budget constraints. The fact that the attendings have some input into those policies through their work in the committee and department meetings does not change the fact that, in performing their patient-care activities, their decisions are significantly circumscribed by predetermined requirements and procedures established by the hospital, the Bureau and the Board.

The attendings' patient-care activities do nothing to "run" their department, to set the department's goals, to establish and effectuate policies or procedures, to determine hours, wages and schedules or to create budgets. As Drs. Jolepalem, Begum, Jahan, Mirza and Neerukonda testified, attendings have no role in scheduling support staff such as nurses and technicians, choosing patients, setting fees and hours, buying equipment or setting budgets. As several attendings testified, it is up to each attending to determine how he or she practices medicine within guidelines suggested by the hospital, although they may exercise their professional discretion to vary their treatment plans if absolutely necessary.

Attendings work in treatment teams with support staff such as nurses and technicians. However, the attendings' direction of the support staff does not amount to performance of a managerial or executive function. It is no more than the exercise of the attendings' professional discretion and technical expertise in aid of providing the best patient care. As the head of the team, an attending must determine the best course of treatment and issue treatment orders to that effect. Although nurses and technicians carry out treatment orders, typically such orders are written into a patient's chart and a nurse or technician then carries them out as predetermined by his or her own scheduling, training and supervisory lines of authority. As several of the attendings testified, an attending cannot select a particular nurse to carry out an order and cannot schedule a nurse or order him to stay overtime. The support staff have their own lines of authority, and if an attending has a complaint about a nurse or technician, he must report that to the nurse's supervisor. Although an attending has the final decision and ultimate responsibility regarding patient care, she cannot overrule a technician or social worker; only recommend a treatment plan and, if the plan is not followed, pursue the issue with the support person's supervisor. The Board did not err in finding that the attendings' discretionary patient-care actions are not executive and managerial activities. Accordingly, since the attendings engage predominantly in patient care, the ILRB was correct in finding that the attendings are not managerial employees on this basis.

The County lastly asserts that the attendings are managerial employees as a matter of law. Traditionally, whether an employee met the definition of managerial depended on a fact-based analysis that emphasized the particular duties of the individual employees. American Federation of State, County & Municipal Employees v. Illinois State Labor Relations Board, 333 Ill. App. 3d 177, 185, 775 N.E.2d 1029, 1034 (2002). Then, in 1995, our supreme court determined that public employees could be managerial employees as a matter of law. Office of the Cook County State's Attorney v. Illinois Local Labor Relations Board, 166 Ill. 2d 296, 305, 652 N.E.2d 301, 305 (1995), followed in, Chief Judge of the Sixteenth Judicial District, 178 Ill. 2d 333, 687 N.E.2d 795. However, our supreme court limited application of the "managerial as a matter of law doctrine" to publicly employed attorneys whose activities are specifically circumscribed by statute such that their statutorily defined duties, in effect, cause them to be the surrogates for their employers, the office holder under whom they serve. Chief Judge of the Sixteenth Judicial District, 178 Ill. 2d at 347, 687 N.E.2d at 801 (assistant public defenders); Office of the Cook County State's Attorney, 166 Ill. 2d 296, 652 N.E.2d 301 (1995) (assistant State's Attorneys); see also American Federation of State, County & Municipal Employees, 333 Ill. App. 3d 177, 775 N.E.2d 1029 (2002) (assistant state appellate defenders); Salaried Employees of North America, 202 Ill. App. 3d 1013, 560 N.E.2d 926 (attorneys employed by City of Chicago law department).

Patient care is the business of the hospital, and, in attending to the needs of patients, the hospital's customers, the attendings are acting in the interest of their employer and making decisions on behalf of their employer. National Labor Relations Board v. Health Care & Retirement Corp. of America, 511 U.S. 571, 577, 128 L. Ed. 2d 586, 594, 114 S. Ct. 1778, 1782 (1994). However, the attendings are not surrogates for the Board, the County or the hospital such that their interests cannot be separated from those of their employer. See Salaried Employees of North America, 202 Ill. App. 3d at 1022, 560 N.E.2d at 932, citing Yeshiva, 444 U.S. at 688, 63 L. Ed 2d at 129, 100 S. Ct. at 865. It is not the case that the hospital functions "as a single cohesive unit in which tasks are assigned in a team fashion without any concern for, or recognition of, a formal management/union division between [the attendings]" such that it could not operate efficiently if divided into union/nonunion attendings. Salaried Employees of North America, 202 Ill. App. 3d at 1022, 560 N.E.2d at 933. Unlike the publicly employed attorneys, the attendings do not exercise a "tremendous amount of discretion" on behalf of their employer. Salaried Employees of North America, 202 Ill. App. 3d at 1023, 560 N.E.2d at 933. Even putting aside the fact that the attendings do not represent the office of a particular person such as the State's Attorney, it is clear that they do not " 'exercise some portion of the sovereign power' " of their employer, possess the power of their employer " 'in the same manner and to the same effect' " as their employer and are not " 'clothed with all the powers and privileges' " of their employer. Office of the Cook County State's Attorney, 166 Ill. 2d at 303-04, 652 N.E.2d at 304, quoting People v. Tobias, 125 Ill. App. 3d 234, 242 (1984), and People v. Nohas, 9 Ill. App. 3d 570, 575 (1973), respectively. Accordingly, unlike the publicly-employed attorneys, allowing the attendings to participate in collective bargaining will not require them to divide their loyalty between their employer and the collective bargaining unit. We find the Board's application of the traditional fact-finding analysis to be correct. Accordingly, the Board's determination that the attendings are not managerial employees subject to exclusion from collective bargaining is not clearly erroneous.

Supervisory Employees

The County also argues that the ILRB's determination that the rehabilitation attendings are not supervisors within the meaning of section 3(r) of the Act is against the manifest weight of the evidence. The ILRB affirmed the ALJ's finding that the rehabilitation attendings are not supervisors without comment in a footnote of its decision. Accordingly, we are left with the ALJ's findings to consider. The ALJ determined that the rehabilitation attendings were not supervisors because he disagreed with the County's argument that the rehabilitation attendings have the supervisory authority to direct and discipline the residents. The County contests this finding, arguing that (1) the ALJ mistakenly believed that in all cases the program director, rather than the rehabilitation attendings, made the final decisions regarding the evaluation and discipline of the residents; and (2) even if the ALJ was correct in this regard, his legal conclusion was wrong because the attendings spend a preponderance of their time assigning, reviewing, monitoring, teaching and instructing the residents. We review this mixed question of law and fact under the clearly erroneous standard. AFM Messenger Service, Inc., 198 Ill. 2d at 391, 395, 763 N.E.2d at 279, 282.

The Act excludes supervisors from participation in the same collective bargaining units as nonsupervisors in order to ensure employers that " 'pro-union bias will not impair the supervisor's ability to apply the employer's policies to subordinates according to the employer's best interests.' " Chief Judge of the Circuit Court of Cook County v. American Federation of State, County & Municipal Employees, 153 Ill. 2d 508, 515, 607 N.E.2d 182, 186 (1992), quoting City of Freeport v. Illinois State Labor Relations Board, 135 Ill. 2d 499, 506, 554 N.E.2d 155, 159 (1990). The Act seeks "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, 554 N.E.2d at 164. "The potential for a conflict of interest lies in the supervisor's authority to influence or control personnel decisions in areas most likely to affect the employment of subordinates and, thus, most likely to fall within the scope of union representation." (Emphasis in original.) City of Freeport, 135 Ill. 2d at 518, 554 N.E.2d at 164.

Section 3(r) of the Act, in relevant part, defines a "supervisor" as:

"an employee [1] whose principal work is substantially different from that of his or her subordinates and [2] 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, [3] if the exercise of that authority is not of a merely routine or clerical nature, but requires the consistent use of independent judgment. [4] Except with respect to police employment, the term 'supervisor' includes only those individuals who devote a preponderance of their employment time to exercising that authority, State supervisors notwithstanding." (Emphasis added.) 5 ILCS 315/3(r) (West 2002).

In order to be deemed a supervisor, an employee must meet all four parts of the Act's supervisory definition. Chief Judge of the Circuit Court of Cook County, 153 Ill. 2d at 515, 607 N.E.2d at 186. Performance of any one of the 11 indicia of supervisory authority stated in the second prong of the definition, accompanied by independent judgment, is sufficient to support a finding of supervisory status. National Union of Hospital & Health Care Employees, 295 Ill. App. 3d at 1021, 692 N.E.2d at 1258, citing Chief Judge of the Circuit Court of Cook County, 153 Ill. 2d at 516, 607 N.E.2d at 186. "Independent judgment" means that "the employee makes choices between two or more significant courses of action without substantial review by superiors." National Union of Hospital & Health Care Employees, 295 Ill. App. 3d at 1021, 692 N.E.2d at 1258, citing Chief Judge of the Circuit Court of Cook County, 153 Ill. 2d at 516, 607 N.E.2d at 186.⁽³⁾

The union's failure to contest the ILRB's affirmance of the ALJ's finding that the rehabilitation attendings' principal work is substantially different from the residents' and its stipulation that attendings are professional employees, defined in the Act as any employee engaged in work that is "predominantly intellectual and varied in character rather than routine * * * [and] involving the consistent exercise of discretion and adjustment in its performance" (5 ILCS 315/3(m) (West 2002)), admits that the rehabilitation attendings satisfy the first and third prongs of the definition. The question, therefore, is whether the rehabilitation attendings meet the second prong of the definition, whether they have the "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." 5 ILCS 315/3(r) (West 2002). Given that the County only argues that the rehabilitation attendings have the supervisory authority to "discipline" and "direct" the residents and to "effectively recommend such action," we will confine ourselves to an examination of those indicia of supervisory authority and need not discuss the other nine indicia stated in section 3(r) of the Act. Only if the rehabilitation attendings have such supervisory authority will we address the last prong of the definition, whether they devote a preponderance of their employment time to exercising that authority.

The ALJ found that the rehabilitation attendings' role in disciplining residents does not rise to the level of supervisory authority because they do not have the authority to impose or formally recommend any disciplinary action be taken against a resident. The ALJ determined that, although a rehabilitation attending may complain to the residency program chair/director about a resident's behavior, it is the chair/director who will determine whether any remedial action or discipline should be imposed on a resident, and then only after conducting an independent inquiry and speaking with the resident. The evidence bears out this finding.

Residents in the rehabilitation department perform two-month rotations through the department under a contract the hospital has with Rush-Presbyterian-St. Luke's Hospital (Rush). The residents are in residency at Rush and are employed by Rush. They are paid by Rush, although the County reimburses Rush for the residents' time at the hospital. While at the hospital, residents are assigned to a rehabilitation attending for instruction and evaluation. Dr. Neerukonda, a rehabilitation attending, testified that she has the authority to verbally reprimand a resident regarding patient care or treatment of coworkers in order to ensure that the best possible patient care is provided. However, she also stated that, other than patient care, she has no control over the residents. Dr. Neerukonda testified that she performs an evaluation at the end of a resident's rotation. She considered the evaluation "additional information" and could recommend discipline therein but did not know what impact her evaluation had on a resident's progress in the residency program

Theresa McCarthy, M.D., chair of the rehabilitation department, testified that, at the end of the two-month rotation, a "supervising" rehabilitation attending evaluates the resident in his charge. The evaluation is submitted to the director of the residency program at Rush. Dr. McCarthy meets monthly with the program staff at Rush to discuss the residents working in her department and brings up any issues she has at those meetings. However, Dr. McCarthy can only provide input. Discipline decisions are up to the Rush program chair who, after hearing any issues raised by Dr. McCarthy or in an evaluation, meets individually with the resident to discuss those issues. Dr. McCarthy testified that, although a rehabilitation attending's evaluation is considered "highly" because a resident must successfully complete the rehabilitation rotation in order to progress in residency, it is the Rush department chair who determines how a resident progresses. She stated that a resident is put on probation or terminated on the basis of a "multitude" of evaluations, not just the one from the rehabilitation attending. The program chair makes an independent inquiry into any disciplinary recommendations; discusses the evaluations with the resident; and, if a problem exists, may decide to put the resident on probation, extend his residency or remove him from the program. Clearly Dr. McCarthy, let alone a rehabilitation attending, cannot discipline a resident or effectively recommend such discipline since her recommendations regarding discipline are not adopted as a matter of course by the Rush program chair. The ALJ's finding that the rehabilitation attendings do not have the supervisory authority to discipline or effectively recommend discipline of a resident is not clearly erroneous. Consequently, the Board's affirmance of that determination is not clearly erroneous.

The ALJ also found that the rehabilitation attendings' direction of the residents does not rise to the level of supervisory authority. It is uncontested that the rehabilitation attendings direct the residents by assigning the residents patient-care duties, instructing and teaching them how to perform those duties and reviewing and monitoring the residents' work. However, such direction must be performed "in the interest of the employer." 5 ILCS 315/3(r) (West 2002). The rehabilitation attendings direct the residents in order to provide good patient care and are, therefore, performing this direction in the interest of their employer to a certain extent. However, the ALJ found that the rehabilitation attendings' authority to direct residents is not supervisory direction within the meaning of the Act because, absent an ability to discipline or make an effective disciplinary recommendation, a rehabilitation attending has no authority to affect the residents' terms and working conditions, i.e., areas likely to fall within the scope of union representation, such as wages, discipline, transfer, promotion, hire or other working conditions. We agree.

As stated previously, it is the conflict of interest created by the "supervisor's authority to influence or control personnel decisions in areas most likely to affect the employment of subordinates and, thus, most likely to fall within the scope of union representation" which the Act seeks to avoid by excluding supervisors from collective bargaining in the same unit as their subordinates. (Emphasis in original.) City of Freeport, 135 Ill. 2d at 518, 554 N.E.2d at 164. Accordingly, the ALJ's and, necessarily, the ILRB's interpretation of the statute as requiring that the attendings' direction affect the residents' terms and working conditions, areas likely to fall within the scope of union representation, is entirely in line with the purpose of the Act. The attendings' direction of the residents must be in the interest of their employer in areas which are likely to be addressed by union representation, areas in which the interests of the employer and the employees are likely to diverge and a conflict of interest created. Such is not the case. Notwithstanding that the business of the attendings is the same as the hospital's, to provide the best patient care, any direction the rehabilitation attendings give the residents in assigning, instructing, monitoring and evaluating them during their rotation derives from the attendings' superior skill, experience and technical expertise and such direction, therefore, does not require the use of independent judgment "in the interest of the employer" as required by the Act. See City of Freeport, 135 Ill. 2d at 532, 554 N.E.2d at 171 (supreme court held that fire lieutenants' direction of firefighters at fire scene is solely derived from lieutenants' superior skill, experience and technical expertise and does not require use of independent judgment in the interest of the employer).

In National Union of Hospital & Health Care Employees, 295 Ill. App. 3d 1012, 692 N.E.2d 1253, the court determined that the attendings at Cook County Hospital (Cook County) were supervisors under the Act because they directed the residents at Cook County. We find National Union of Hospital and Health Care Employees distinguishable. The residents at Cook County are employed by Cook County and their residency program is at Cook County while the residents here are employed by Rush, not the hospital, and their residency program is at Rush. At Cook County, the attendings dominate the committees overseeing the residency program and their recommendations regarding residents are generally followed. As a result, the court found that the attendings have the authority to discipline, promote, demote and discharge the residents. In contrast, as previously discussed, all such direction activities in the case at bar are performed by the residency program staff at Rush. Unlike the Cook County attendings, the rehabilitation attendings have no say in recruitment and hiring of residents, scheduling them, approving their breaks and time off, disciplining them or deciding their progress in the residency. The only areas in which the rehabilitation attendings have the authority to direct the residents do not concern areas which might fall within the scope of union representation. The only time a rehabilitation attending may possibly impact a resident's term or working conditions is when he writes a negative evaluation and recommends discipline, but even then, the final decision as to such discipline is made by the Rush program chair after he has looked into the matter independently. Accordingly, the Board's affirmance of the ALJ's determination that the rehabilitation attendings do not have the supervisory authority to direct residents as required under the Act is not clearly erroneous. Because the ALJ's and the ILRB's findings that the rehabilitation attendings do not have the supervisory authority to direct and discipline the residents or effectively recommend such action were not clearly erroneous, the rehabilitation attendings do not meet the second prong of the statutory definition and cannot be supervisory employees under the Act.

For the reasons stated above, we affirm the ILRB's decision.

Affirmed.

SOUTH and HALL, JJ., concur.

1. As our supreme court noted, the managerial exclusion in the Act was adopted from decisions of the National Labor Relations Board and the United States Supreme Court and the Supreme Court's application of the managerial exclusion provides guidance to our analysis of the exclusion. Chief Judge of the Sixteenth Judicial Circuit, 178 Ill. 2d at 339, 687 N.E.2d at 797, citing Yeshiva, 444 U.S. 672, 63 L. Ed. 2d 115, 100 S. Ct. 856, and National Labor Relations Board v. Bell Aerospace Co. Division of Textron, Inc., 416 U.S. 267, 40 L. Ed. 2d 134, 94 S. Ct. 1757 (1974). However, the Act's definition is narrower than the Supreme Court's, adding the requirement that the employee be engaged predominantly in executive and management functions (5 ILCS 315/3(j) (West 2002)) and the federal cases are, therefore, of limited use in determining whether the attendings are managerial employees under the Act.