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                                    Appellate Court                          Date: 2017.08.22
                                                                             10:36:57 -05'00'



     Service Employees International Union, Local 73 v. Illinois Labor Relations Board,
                          State Panel, 2017 IL App (4th) 160347



Appellate Court        SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 73,
Caption                Petitioner, v. THE ILLINOIS LABOR RELATIONS BOARD,
                       STATE PANEL; and THE ILLINOIS SECRETARY OF STATE,
                       Respondents.



District & No.         Fourth District
                       Docket Nos. 4-16-0347, 4-16-0372 cons.



Filed                  June 27, 2017
Modified upon denial
of rehearing           July 31, 2017



Decision Under         Petition for review of order of Illinois Labor Relations Board, State
Review                 Panel, Nos. S-UC-12-034, S-UC-14-006.



Judgment               Confirmed.


Counsel on             Tyson B. Roan, of Service Employees International Union, Local 73,
Appeal                 of Chicago, for petitioner.

                       Lisa Madigan, Attorney General (David L. Franklin, Solicitor
                       General, and Sharon A. Purcell, Assistant Attorney General, of
                       counsel), and Kathryn M. Zeledon Nelson, General Counsel, of
                       Illinois Labor Relations Board, both of Chicago, for respondent
                       Illinois Labor Relations Board, State Panel.
                              Laner, Muchin, Dombrow, Becker, Levin & Tominberg, of Chicago
                              (Mark W. Bennett, Joseph M. Gagliardo, Lawrence J. Weiner, and
                              Sara P. Yager, Special Assistant Attorneys General, of counsel), for
                              other respondent.



     Panel                    JUSTICE POPE delivered the judgment of the court, with opinion.
                              Presiding Justice Turner and Justice Knecht concurred in the judgment
                              and opinion.


                                               OPINION

¶1          Pursuant to Illinois Supreme Court Rule 335 (eff. Feb. 1, 1994) and section 9(i) of the
       Illinois Public Labor Relations Act (Labor Act) (5 ILCS 315/9(i) (West 2012)), petitioner,
       Service Employees International Union, Local 73 (Union), seeks direct review of a decision of
       respondent, the Illinois Labor Relations Board, State Panel (Board), finding employees under
       the jurisdiction of respondent, the Illinois Secretary of State (Secretary), titled Executive I,
       Executive II, Drivers Facility Manager I (DFM I), and Drivers Facility Manager II (DFM II),
       were not public employees within the meaning of section 3(n) of the Labor Act (5 ILCS
       315/3(n) (West 2012)).
¶2          On review, the Union (1) challenges the Board’s interpretation of section 3(n) of the Labor
       Act (5 ILCS 315/3(n) (West 2012)) and (2) argues the Executive I, Executive II, DFM I, and
       DFM II positions did not meet the requirements for exclusion under section 3(n) of the Labor
       Act. We confirm.

¶3                                         I. BACKGROUND
¶4                                        A. Procedural History
¶5         On February 7, 2012, the Union filed a unit clarification petition with the Board, seeking to
       have the Board include all unrepresented Executive I and Executive II titled employees of the
       Secretary in an existing collective bargaining unit. On July 26, 2012, the Board granted the
       Union’s petition. Service Employees International Union, Local 73 & Illinois Secretary of
       State, 29 PERI ¶ 28 (ILRB State Panel 2012). On August 28, 2012, the Secretary filed a
       petition for direct administrative review of the Board’s decision with this court. While the
       appeal was pending, the legislature amended the Labor Act, excluding from the definition of
       “public employee” or “employee,” for purposes of the Labor Act, “a person who is a State
       employee under the jurisdiction of the Secretary of State who holds the position classification
       of Executive I or higher, whose position authorizes, either directly or indirectly, meaningful
       input into government decision-making on issues where there is room for principled
       disagreement on goals or their implementation, or who is otherwise exempt under the
       Secretary of State Merit Employment Code.” 5 ILCS 315/3(n) (West 2012). Accordingly, this
       court remanded the case to the Board with directions to enter an order vacating the prior
       decision and order, revoke the prior certification, and conduct further proceedings applying the


                                                   -2-
     standards and definitions set forth in the amendment. Illinois Secretary of State v. Illinois
     Labor Relations Board, State Panel, No. 4-12-0796 (May 7, 2013) (unpublished summary
     order under Supreme Court Rule 23(c)).
¶6       On August 15, 2013, the Secretary filed a unit clarification petition with the Board, seeking
     to have it clarify whether employees titled Executive I, Executive II, DFM I, and DFM II,
     under the jurisdiction of the Secretary, were no longer public employees within the meaning of
     the Labor Act and should be excluded from collective bargaining and the bargaining units at
     issue as of the effective date of the amendment, April 5, 2013.
¶7       By agreement of the parties, the Board entered an order consolidating the cases filed by the
     Union and the Secretary. Following multiple preliminary hearings and attempted mediation of
     the consolidated cases, the administrative law judge (ALJ) entered an order on June 25, 2014,
     limiting the scope of the anticipated July 29, 2014, hearing on the petitions. First, she found the
     Executive I and II titled employees were no longer “public employee[s]” for purposes of the
     Labor Act following the amendment on April 5, 2013, and thus, there was “no question of law
     or fact necessitating a hearing regarding the propriety of the unit clarification petition with
     respect to the Executives I and II.” She then limited the scope of the July hearing to the issue of
     “whether the DFMs I and II meet one of the three criteria under the amended definition in 3(n)
     such that they are no longer public employees.”

¶8                                       B. DFM I and DFM II
¶9      According to the “Office of the Secretary of State, Department of Personnel, Position
     Description,” the “Complete, Current and Accurate Statement of Position Duties and
     Responsibilities” for the position titled DFM I are as follows:
            “Under direction of the Regional Manager, plans, supervises, coordinates and
            evaluates the activities of facility staff engaged in providing service to the public in a
            small to medium Downstate Driver Services Field Facility; responsible for the
            accounting, auditing and depositing of all monies collected; administers road and/or
            written examinations; performs cashier functions; reviews and completes motor
            vehicle title and registration applications; attends meetings; prepares and submits
            reports; monitors the maintenance and cleanliness of facility. Requires valid Illinois
            Drivers License, ability to lift/carry 0-25 lbs. and travel to other facilities and/or mobile
            locations to perform assigned duties.
                1. Plans, supervises coordinates and evaluates staff involved in a variety of
            activities associated with a Driver Services Field Facility, including all drivers
            license/identification card and motor vehicle services assigned to the facility;
            supervises staff activities relating to all aspects of facility operations including, but not
            limited to, coordinating all staff activities relating to processing applicants, facilitates
            and expedites processing of applicants, closely monitors staff engaged in processing
            and testing applicants to ensure adherence to Secretary of State policies, including
            uniformity and consistency of instructions given to applicants, etc.; determines work
            schedules and priorities; approves and/or denies time-off; assigns and/or denies
            overtime and travel assignments; handles special problems and answers questions
            concerning staff functions; provides, arranges for and/or supervises the training of
            employees as directed or needed; administers progressive discipline; participates in
            resolution of grievances; handles employee complaints.

                                                  -3-
                     2. Maintains responsibility for accounting, auditing and depositing all monies
                collected by the facility.
                     3. Administer road examinations to applicants for all classes of driver’s licenses;
                administers and grades written drivers examinations; performs cashier functions for
                driver’s license fees; reviews and completes motor vehicle title and registrations
                applications.
                     4. Prepares and submits reports relative to facility operations to supervisor
                including, but not limited to, weekly, monthly and periodic reports such as the
                Consumables Inventory & Order Report, the Monthly Road Test Report, the Monthly
                Motor Vehicle Title & Registration Report, Accident/Incident Reports & Statements,
                etc.
                     5. Attends meetings and/or training sessions; responsible for monitoring the
                maintenance and cleanliness of the facility, as well as general appearance.
                     6. Performs other duties as assigned.”
       The position duties and responsibilities for the position titled DFM II are identical, except the
       DFM II works under the direction of the regional manager and “through subordinate
       supervisory staff.” In addition, the DFM II is not restricted to work in a small to medium
       downstate driver services field facility. The DFM II may provide services in any downstate
       facility.

¶ 10                                       C. The Hearing
¶ 11       On July 29, 2014, the ALJ commenced the hearing on the consolidated cases. The
       following is a brief summary of the relevant evidence since the parties are familiar with the
       facts of this case.

¶ 12                                  1. Stephen Roth’s Testimony
¶ 13       At the July 29, 2014, evidentiary hearing on the consolidated petitions, Stephen Roth
       testified he is the director of personnel for the Secretary. The Secretary employs 3700
       individuals in 23 departments. The 23 departments include Drivers Services Metro and Drivers
       Services Downstate. The Executive I and Executive II titled positions are found in the Drivers
       Services Metro department (Chicago and the collar counties) and the DFM I and DFM II titled
       positions are found in the Drivers Services Downstate department. The titles serve only to
       distinguish between those individuals managing facilities in the Chicago area and those
       individuals managing facilities in the downstate area. Their duties and responsibilities are the
       same. According to Roth, the “functionality of the job” and the classification of the Executive
       I, Executive II, DFM I, and DFM II are the same. The Executive I and DFM I titled positions
       receive the same compensation, and the Executive II and DFM II titled positions also receive
       the same compensation.
¶ 14       Roth confirmed “[t]he DFM title is usually associated with someone who is the top person
       at a driver’s facility.” The various individuals who report to the DFM are generally titled
       public service representative and public service clerk.




                                                   -4-
¶ 15                                   2. Michael Mayer’s Testimony
¶ 16        Michael Mayer testified he is the director of the Drivers Services Downstate department.
       Mayer oversees approximately 86 downstate drivers services facilities. The DFM is the highest
       ranking employee at each of the facilities. The facilities are divided into 10 regions. DFMs
       report to 1 of 10 regional managers, and the regional managers presently report to Mayer. (In
       the past, regional managers reported to an administrator in the Field Service Bureau, who
       reported to Mayer, but according to Mayer, the position has been vacant for several years.)
       Mayer reports to the chief of staff and Secretary.
¶ 17        Mayer testified the difference between the DFM I and DFM II titled positions reflects the
       size of the facility and volume of work. Generally, a facility operating under the management
       of a DFM I employs six to nine individuals and a facility operating under the management of a
       DFM II employs more than nine individuals.
¶ 18        According to Mayer, the DFM is the “captain of the ship *** in charge of [the] operation,”
       with complete oversight of his employees. Specifically, he testified the DFM is responsible for
       employee training, employee discipline, employee adherence to “the proper procedures and
       policies,” and implementation and maintenance of uniform policies. Mayer testified the DFM
       is encouraged to contribute to the development of drivers facilities procedures “to make us the
       best we can be” and exercises discretion when accommodating the requests of those
       individuals in need of drivers facilities services. Additionally, the DFM performs accounting
       functions for the facility, reconciles cash receipts with daily transactions, and maintains
       records and statistics for the facility. The DFM also handles special problems concerning
       applicants for the various services offered by the facility and may alter the physical layout of
       the facility to promote greater efficiency.
¶ 19        Mayer testified a DFM has complete discretion to grant overtime, if necessary, to
       accommodate a customer or customers’ needs. With regard to employee discipline, the DFM
       may engage in oral counseling with an employee, complete a written warning if necessary, and
       initiate formal disciplinary action. Mayer testified the DFMs “have full reign as to what takes
       place in that facility *** they are in charge of that facility.”
¶ 20        Mayer characterized a 3000 page facilities operation manual as a “tool” to assist in all
       aspects of facility operation and the “red book” as a reference manual for emergency
       situations. He emphasized all DFMs work alongside their public service representatives during
       the course of their day. Mayer explained, “they need to stay involved to where they understand
       the process.” Even Mayer will “jump on a counter and work on the counter” when in the
       drivers facilities. The amount of time a DFM spends working at the counter varies depending
       on the facility, customer needs, and staffing. They may help with lunch hours and breaks but
       spend approximately 95% of their day “doing their paperwork and getting things resolved.”

¶ 21                                   3. Jay Morgan’s Testimony
¶ 22       Jay Morgan testified he has worked as a DFM I in Vienna, Illinois, for 17 years. He also
       serves as chief steward for the Union. Morgan described his “major duties” as follows:
               “I oversee the daily operations as far as the reconciling the monies, depositing the
               monies from Driver Services, Vehicles, stickers, do daily reports, reporting of Drivers
               work, Vehicles work, cash receipts.”



                                                  -5-
       He reported working alongside the public service representatives approximately 75% of his
       time and completing reports approximately 25% of his time. His facility employs three
       individuals in addition to Morgan.
¶ 23       Morgan testified he had provided an employee “oral counseling” on four occasions in his
       17-year career as a DFM I. On each occasion, he was advised to do so by his regional manager.
       He did not believe it was appropriate to provide an employee oral counseling without a
       directive from his regional manager. Morgan recalled two occasions where an employee was
       formally disciplined. Although he reported the conduct, he did not participate in determining
       the appropriate consequences. He was told by an administrator in 1998 he did not have
       authority to “pass out discipline.” Morgan testified he grants overtime only when a customer
       comes into the facility at the last minute. He was told by his regional manager overtime must
       be preapproved.

¶ 24                                   4. Lora Wolters’s Testimony
¶ 25       Lora Wolters testified she has worked as a regional manager for Drivers Services
       Downstate for 15 years. Wolters manages region I, which includes Anna, Belleville, Cairo,
       Carbondale, Marion, Metropolis, Nashville, Pinckneyville, Sparta, Vienna (Morgan’s drivers
       services facility), and Mobile 299. Wolters identified multiple occasions where a DFM could
       authorize overtime without preapproval. She does ask the DFM to notify her of the overtime
       “at the 15 minute mark,” just so she is not surprised when she receives the overtime report.

¶ 26                                   D. ALJ and Board Decisions
¶ 27       On December 30, 2015, the ALJ issued her recommended decision and order, concluding
       Executive I, Executive II, DFM I, and DFM II titled employees were not public employees
       within the meaning of section 3(n) of the Labor Act and thus not eligible for inclusion in a
       collective bargaining unit. (The order is 34 pages long and includes comprehensive findings of
       fact and a detailed legal analysis.) The ALJ found section 3(n) provided three exclusions to the
       definition of “public employee” or “employee” for purposes of the Labor Act. She enumerated
       the three exclusions as follows:
               “Under the applicable provision, ‘a person who is a State employee under the
               jurisdiction of the Secretary of State’ is excluded from the definition of ‘public
               employe[e]’ if he meets one of the following:
                       (1) who holds the position classification of Executive I or higher;
                       (2) whose position authorizes either directly or indirectly, meaningful input into
                   government decision-making on issues where there is room for principled
                   disagreement on goals or their implementation; or
                       (3) who is otherwise exempt under the Secretary of State Merit Employment
                   Code.”
¶ 28       With regard to the Executive I and Executive II titled positions, the ALJ found the
       language of the statute clear, noting the Labor Act excludes from the definition of public
       employee “a person who is a State employee under the jurisdiction of the Secretary of State
       who holds the position classification of Executive I or higher.” 5 ILCS 315/3(n) (West 2012).
       Thus, the ALJ found the Executive I and Executive II titled employees were not public
       employees for purposes of the Labor Act.

                                                   -6-
¶ 29       With regard to the DFM I and DFM II titled positions, the ALJ rejected the Secretary’s first
       argument the DFMs are not public employees within the meaning of section 3(n) of the Labor
       Act because they perform “nearly identical duties” as an “Executive I or higher.” The ALJ
       reasoned the legislature could have included language referencing employees who exercise
       substantially similar duties as an Executive I or higher, but it did not. DFMs did not hold the
       position classification of Executive I or higher.
¶ 30       However, the Secretary argued, in the alternative, the DFM positions authorize, either
       directly or indirectly, meaningful input into government decision-making on issues where
       there is room for principled disagreement on goals or their implementation, and thus, based on
       the second exclusion, they are not public employees within the meaning of section 3(n) of the
       Labor Act. The ALJ agreed, finding “room for principled disagreement in the decisions
       reached by the DFMs and their supervisors,” and further, “[t]he DFMs authorize meaningful
       direct or indirect input into the decision-making process.” The ALJ noted, “[n]o manual, no
       matter how extensive, can anticipate every situation a drivers facility may face.” Specifically,
       she found the DFMs “empowered to rearrange the schedule of intermittent employees, assign
       overtime, or seek additional staff in order to accommodate the influx of customers.” According
       to the ALJ, these “discretionary decisions *** leave ample room for principled disagreement.”
       She noted further, the DFM is the only individual authorized to exercise discretion when an
       individual lacks the required documentation for a service offered by the facility. In addition,
       the DFM may authorize (without preapproval) overtime in a variety of circumstances, choose
       appropriate disciplinary measures, and is responsible for “addressing attendance issues,
       identifying performance deficiencies, and optimizing staff talents,” all of which require the
       DFM to exercise discretion. The ALJ also found the record showed the Secretary “not only
       authorizes the DFMs to have direct input in the decision-making process, but specifically seeks
       it out.” The ALJ concluded Executive I, Executive II, DFM I, and DFM II titled employees
       were not public employees within the meaning of the Labor Act.
¶ 31       On January 14, 2016, the Union filed its exceptions to the ALJ’s recommended decision
       and order. On January 25, 2016, the Secretary filed its exceptions and brief in response to the
       Union’s exceptions and in support of its cross-exceptions. On January 29, 2016, the Union
       filed its response to the Secretary’s cross-exceptions.
¶ 32       Following argument on February 9, 2016, the Board upheld the ALJ’s recommended
       decision and order. The Board then directed the issuance of a certification excluding Executive
       I, Executive II, DFM I, and DFM II titled positions from the collective bargaining unit.
¶ 33       This direct appeal followed.

¶ 34                                        II. ANALYSIS
¶ 35                                    A. Standard of Review
¶ 36       Our review of the Board’s decision is governed by the Administrative Review Law (735
       ILCS 5/3-101 to 3-113 (West 2012)). American Federation of State, County & Municipal
       Employees, Council 31 v. Illinois State Labor Relations Board, State Panel, 216 Ill. 2d 569,
       577, 839 N.E.2d 479, 485 (2005). According to section 3-110 of the Administrative Review
       Law, our “hearing and determination shall extend to all questions of law and fact presented by
       the entire record.” 735 ILCS 5/3-110 (West 2012).



                                                  -7-
¶ 37        This court may apply three standards of review when reviewing the Board’s decision,
       depending on the nature of the question we are considering. If the question is one purely of
       fact, we deem the Board’s findings and conclusions to be “prima facie true and correct” (735
       ILCS 5/3-110 (West 2012)), and we will overturn such findings only if they are against the
       manifest weight of the evidence. Cinkus v. Village of Stickney Municipal Officers Electoral
       Board, 228 Ill. 2d 200, 210, 886 N.E.2d 1011, 1018 (2008). A factual determination is against
       the manifest weight of the evidence if the opposite conclusion is clearly evident or if the
       finding is unreasonable, arbitrary, or not based on evidence. Cinkus, 228 Ill. 2d at 210, 886
       N.E.2d at 1018.
¶ 38        If, however, the question is one purely of law, we give the Board no deference unless it
       resolved a genuine ambiguity in a statute or regulation it was charged with administering. See
       Illinois Bell Telephone Co. v. Illinois Commerce Comm’n, 362 Ill. App. 3d 652, 656, 840
       N.E.2d 704, 708 (2005). We decide legal questions de novo. Department of Central
       Management Services/The Department of Public Health v. Illinois Labor Relations Board,
       State Panel, 2012 IL App (4th) 110013, ¶¶ 50-51, 979 N.E.2d 603.
¶ 39        We review mixed questions of fact and law by asking whether the agency’s decision is
       clearly erroneous. AFM Messenger Service, Inc. v. Department of Employment Security, 198
       Ill. 2d 380, 392, 763 N.E.2d 272, 280 (2001). A finding is clearly erroneous if, despite the
       existence of some evidence to support the finding, the evidence in its entirety leaves the
       reviewing court with the definite and firm conviction the finding is a mistake. AFM, 198 Ill. 2d
       at 393, 763 N.E.2d at 280-81.
¶ 40        Here, the Union first challenges the Board’s interpretation of section 3(n) of the Labor Act,
       a legal question we review de novo. In its second argument, the Union contends the Board
       erred in its application of the facts to the law. As the Union’s second argument raises a mixed
       question of fact and law, we apply a clearly erroneous standard of review.

¶ 41                                   B. Section 3(n) of the Labor Act
¶ 42        The first issue raised by the Union is one of statutory interpretation. Our primary objective
       is to ascertain and give effect to the intent of the legislature. Harrisonville Telephone Co. v.
       Illinois Commerce Comm’n, 212 Ill. 2d 237, 251, 817 N.E.2d 479, 488 (2004). The most
       reliable indicator of such intent is the language of the statute, which is to be given its plain and
       ordinary meaning. Harrisonville Telephone Co., 212 Ill. 2d at 251, 817 N.E.2d at 488. Words
       and phrases should not be considered in isolation; rather, they must be interpreted in light of
       other relevant provisions and the statute as a whole. Williams v. Staples, 208 Ill. 2d 480, 487,
       804 N.E.2d 489, 493 (2004). In addition to the statutory language, the court may consider the
       purpose behind the law and the evils sought to be remedied, as well as what consequences
       might result from construing the law one way or the other. Williams, 208 Ill. 2d at 487, 804
       N.E.2d at 493.
¶ 43        Section 3(n) states the following, in relevant part:
               “ ‘Public employee’ or ‘employee’, for the purposes of this Act, means any individual
               employed by a public employer, *** but excluding *** a person who is a State
               employee under the jurisdiction of the Secretary of State who holds the position
               classification of Executive I or higher, whose position authorizes, either directly or
               indirectly, meaningful input into government decision-making on issues where there is
               room for principled disagreement on goals or their implementation, or who is otherwise

                                                    -8-
                exempt under the Secretary of State Merit Employment Code ***.” 5 ILCS 315/3(n)
                (West 2012).
       Employees excluded from the definition of “public employee” under section 3(n) of the Labor
       Act may not engage in collective bargaining. See 5 ILCS 315/6(a) (West 2012).
¶ 44        The Union argues this portion of section 3(n) contains two different ways in which an
       individual employed by the Secretary is excluded from the definition of “public employee.” It
       contends an employee must first “hold the position of Executive I or higher” and meet one of
       the two following phrases joined by the “or.” The Board interprets the relevant portion of
       section 3(n) as containing a list of three circumstances in which an employee is excluded from
       the definition of “public employee,” with each of the three phrases beginning with the relative
       pronoun “who” or “whose,” and each phrase separated by a comma. We agree with the Board
       and note the language is not ambiguous, so we have not looked to legislative history in
       reaching our conclusion. Under the plain language of section 3(n), and by properly treating the
       initial language as an independent clause (“ ‘Public employee’ or ‘employee’, for purposes of
       this Act, means any individual employed by a public employer *** but excluding *** a person
       who is a State employee under the jurisdiction of the Secretary of State”) and the three
       following clauses as dependent clauses, an employee is excluded (1) “who holds the position
       classification of Executive I or higher, [(2)] whose position authorizes, either directly or
       indirectly, meaningful input into government decision-making on issues where there is room
       for principled disagreement on goals or their implementation, or [(3)] who is otherwise exempt
       under the Secretary of State Merit Employment Code.” (Emphases added.) 5 ILCS 315/3(n)
       (West 2012). Moreover, unlike the Union’s interpretation, our interpretation does not require
       this court to insert an additional conjunction between the first and second dependent clauses or
       add numerals and additional punctuation affecting the scope and operation of the statute.
¶ 45        The Union also asserts we should interpret the second means of exclusion (“whose position
       authorizes, either directly or indirectly, meaningful input into government decision-making on
       issues where there is room for principled disagreement on goals or their implementation” (5
       ILCS 315/3(n) (West 2012))) the same as in patronage cases. The Union notes the language of
       the “policymaking exception” in section 3(n) of the Labor Act (5 ILCS 315/3(n) (West 2012))
       is the same language used by the Seventh Circuit in Nekolny v. Painter, 653 F.2d 1164, 1169
       (7th Cir. 1981).
¶ 46        In Nekolny, the Seventh Circuit established a functional test to determine whether the State
       may constitutionally make party affiliation an appropriate employment consideration. The
       issue was whether the power inherent in any given office or position authorizes a person in the
       position to provide, “either directly or indirectly, meaningful input into government
       decisionmaking on issues where there is room for principled disagreement on goals or their
       implementation.” Nekolny, 653 F.2d at 1170. The instant legislation does not concern political
       patronage and the “policymaker exception” to the first amendment’s protection of public
       employees. Instead, section 3(n) identifies positions excluded from the definition of “public
       employee,” including those individuals employed by the Secretary in a “policymaking”
       position. 5 ILCS 315/3(n) (West 2012). If the legislature intended the aforementioned
       language to mean “Nekolny exception” (or as more commonly stated, “Rutan-exempt”), as
       applied in political patronage cases, it could have stated “Nekolny exception” or
       “Rutan-exempt.” It did not, and we decline to revise the legislature’s language to read as such.


                                                   -9-
¶ 47       We note the language immediately following the exclusionary language at issue in this
       case identifies as excluded from the definition of “public employee” those “employees in the
       Office of the Secretary of State who are completely exempt from jurisdiction B of the
       Secretary of State Merit Employment Code and who are in Rutan-exempt positions on or after
       [April 5, 2013 (the effective date of Public Act 97-1172)].” (Emphasis added.) 5 ILCS
       315/3(n) (West 2012). Our reading of the statute is consistent with our supreme court’s
       statement, “ ‘[w]hen the legislature uses certain language in one part of a statute and different
       language in another, we may assume different meanings were intended.’ ” State Bank of
       Cherry v. CGB Enterprises, Inc., 2013 IL 113836, ¶ 56, 984 N.E.2d 449 (quoting People v.
       Hudson, 228 Ill. 2d 181, 193, 886 N.E.2d 964, 972 (2008)).

¶ 48                                    C. The Positions at Issue
¶ 49                                 1. Executive I and Executive II
¶ 50        Nothing in the language of the exclusion, “a person who is a State employee under the
       jurisdiction of the Secretary of State who holds the position classification of Executive I or
       higher” (5 ILCS 315/3(n) (West 2012)), requires a factual determination. The exclusion from
       the definition of “public employee” is expressly dependent upon a position under the
       jurisdiction of the Secretary being titled Executive I or higher. To hold otherwise would be
       contrary to the clear wording of the statute. Given the plain and ordinary meaning of section
       3(n), the Board did not err in finding an individual employed by the Secretary in positions
       titled Executive I and Executive II was excluded from the definition of “public employee.” See
       5 ILCS 315/3(n) (West 2012).

¶ 51                                      2. DFM I and DFM II
¶ 52        In finding the DFM I and DFM II titled positions authorize, either directly or indirectly,
       meaningful input into government decision-making on issues where there is room for
       principled disagreement on goals or their implementation, the Board noted a broad scope of job
       duties and responsibilities associated with the position of DFM.
¶ 53        The phrase “whose position authorizes, either directly or indirectly, meaningful input into
       government decision-making on issues where there is room for principled disagreement on
       goals or their implementation” is not defined by section 3(n) of the Labor Act (5 ILCS 315/3(n)
       (West 2012)), nor any other relevant statute. Because the phrase is not defined, “ ‘we must
       assume that the legislature intended the term to have its ordinary and popularly understood
       meaning.’ ” People v. Beachem, 229 Ill. 2d 237, 244, 890 N.E.2d 515, 520 (2008) (quoting
       People v. Maggette, 195 Ill. 2d 336, 349, 747 N.E.2d 339, 349 (2001)). The legislative history
       of section 3(n) provides insight into its purpose to foster efficiency in state government where
       previously “everybody who works in State Government is a member of the collective
       bargaining unit and there is nobody in charge.” 97th Ill. Gen. Assem., House Proceedings, May
       31, 2011, at 297 (statements of Representative Currie). A sponsor characterized the individuals
       to be excluded from the definition of “public employee” as “policy people” and
       “management.” 97th Ill. Gen. Assem., House Proceedings, May 31, 2011, at 305 (statements
       of Representative Currie and Representative Franks). She noted the proposed amendments
       were an “effort to make sure that management people, management supervisory people in
       Illinois State Government *** are, in fact, able to serve as managers and not be members of


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       collective bargaining units.” 97th Ill. Gen. Assem., House Proceedings, May 31, 2011, at 296
       (statements of Representative Currie).
¶ 54       We note the Board examined, and the parties on appeal all have looked to, federal cases
       interpreting the “policymaking exception” to the first amendment’s protection of public
       employees from politically motivated dismissals. See Nekolny, 653 F.2d at 1169-70. As the
       Board found, although these cases may provide some guidance, they are not determinative of
       the issues here.
¶ 55       This case does not involve violations of first amendment freedoms of political belief and
       association. Rather, section 3(n) identifies positions excluded from the definition of “public
       employee,” including those individuals employed by the Secretary in a “policymaking”
       position. See 5 ILCS 315/3(n) (West 2012). The test to determine whether an individual
       employed by the Secretary should be excluded from the definition of “public employee” is
       whether the position “authorizes, either directly or indirectly, meaningful input into
       government decision-making on issues where there is room for principled disagreement on
       goals or their implementation.” 5 ILCS 315/3(n) (West 2012). The facts concerning the
       responsibilities of the DFM I and DFM II positions are clear and indicate the positions are the
       very type the legislature intended to exclude from the definition of “public employee.”
¶ 56       Specifically, Mayer testified the DFM is the highest ranking employee at each of the
       drivers services facilities and has complete oversight of his or her employees. According to
       Mayer, the DFM is responsible for employee training, employee discipline, employee
       adherence to procedures and policies, and implementation and maintenance of uniform
       policies. The DFM is encouraged to contribute to the development of drivers facilities
       procedures and exercise discretion when accommodating the requests of those individuals in
       need of drivers facilities services. The DFM also handles special problems concerning
       applicants for the various services offered by the facility and may alter the physical layout of
       the facility to promote greater efficiency. Mayer testified the DFMs “have full reign as to what
       takes place in that facility *** they are in charge of that facility.”
¶ 57       Substantial evidence presented by both parties demonstrated the DFM exercises
       considerable independence and responsibility and has been provided the authority to impose
       the final decision as to a settled course of action to be followed within his or her facility.
¶ 58       Accordingly, we find the Board’s determination the DFM I and DFM II positions
       authorize, either directly or indirectly, meaningful input into government decision-making on
       issues where there is room for principled disagreement on goals or their implementation, was
       not clearly erroneous.
¶ 59       Because our review of the entirety of the record does not leave us with a definite and firm
       conviction a mistake has been committed, we find the Board properly certified the positions at
       issue as excluded from collective bargaining under section 3(n) of the Labor Act.

¶ 60                                D. Constitutionality of Section 3(n)
¶ 61       In its final argument, the Union challenges the Board’s interpretation of section 3(n) as
       special legislation (Ill. Const. 1970, art. IV, § 13) or as violative of equal protection (U.S.
       Const., amend. XIV; Ill. Const. 1970, art. I, § 2). Specifically, defendant argues “it is arbitrary,
       illogical, and unconstitutional to automatically deny Executives bargaining rights as a result of
       their title alone while affording greater rights and protections to DFMs where the only


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       difference between the two positions turns on where the person holding the position is
       geographically located.”
¶ 62        On July 25, 2017, the Union filed a petition for rehearing in our court, and we have
       examined the petition. The Union admits “constitutional issues not raised before an
       administrative agency are waived.” See Carpetland U.S.A., Inc. v. Illinois Department of
       Employment Security, 201 Ill. 2d 351, 396-97, 776 N.E.2d 166, 192 (2002). The Union
       provides citations, for the first time, to the record where the Union “raised” the preceding
       constitutional arguments. Waiver aside, the Union’s constitutional arguments fail. This court
       has found the Board did not err in finding individuals employed by the Secretary in positions
       titled Executive I and Executive II, throughout the State, were excluded from the definition of
       public employee. Similarly, we have found the Board did not err in finding individuals
       employed by the Secretary in positions titled DFM I and DFM II, throughout the State, were
       excluded from the definition of public employee. Accordingly, we find the Union has not met
       its burden of establishing the statute is unconstitutional.

¶ 63                                      III. CONCLUSION
¶ 64      For the reasons stated, we confirm the Board’s decision.

¶ 65      Confirmed.




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