                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court



Department of Central Management Services/Department of Public Health v. Illinois Labor
                Relations Board, State Panel, 2012 IL App (4th) 110209




Appellate Court            THE DEPARTMENT OF CENTRAL MANAGEMENT
Caption                    SERVICES/DEPARTMENT OF PUBLIC HEALTH, Petitioners, v. THE
                           ILLINOIS LABOR RELATIONS BOARD, STATE PANEL; JACALYN
                           J. ZIMMERMAN, MICHAEL HADE, MICHAEL COLI, ALBERT
                           WASHINGTON, and JESSICA KIMBROUGH, the Members of Said
                           Board and Panel in Their Official Capacity Only; JOHN BROSNAN,
                           Executive Director of Said Board in His Official Capacity Only; and THE
                           AMERICAN FEDERATION OF STATE, COUNTY, and MUNICIPAL
                           EMPLOYEES, COUNCIL 31, Respondents.


District & No.             Fourth District
                           Docket No. 4-11-0209


Filed                      November 30, 2012
Rehearing denied           December 28, 2012


Held                       A decision of the Illinois Labor Relations Board, State Panel, finding that
(Note: This syllabus       three employees of the Department of Public Health classified as senior
constitutes no part of     public administrators and referred to as regional supervisors were
the opinion of the court   “employees” with the right to bargain collectively within the meaning of
but has been prepared      the Illinois Public Labor Relations Act was upheld, since the supervisors
by the Reporter of         did not “direct” their subordinates by overseeing their work, conducting
Decisions for the          evaluations or making the work schedule, they did not devote any time
convenience of the         exercising supervisory authority, and they were not “supervisors” for
reader.)
                           purposes of section 3(r) of the Act.

Decision Under             Petition for review of order of Illinois Labor Relations Board, State Panel,
Review                     No. S-RC-09-036.
Judgment                   Affirmed.


Counsel on                 Joseph M. Gagliardo and Lawrence Jay Weiner (argued), Special
Appeal                     Assistant Attorneys General, of Chicago, for petitioners.

                           Jacob Pomeranz (argued), of Cornfield & Feldman, of Chicago, for
                           respondent American Federation of State, County and Municipal
                           Employees.

                           Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
                           Solicitor General, and Carl J. Elitz, Assistant Attorney General, of
                           counsel), for respondent Illinois Labor Relations Board.


Panel                      JUSTICE APPLETON delivered the judgment of the court, with opinion.
                           Justice Knecht concurred in the judgment and opinion.
                           Justice Cook dissented, with opinion.




                                             OPINION

¶1           On September 9, 2008, the American Federation of State, County and Municipal
        Employees, Council 31 (union), filed with the Illinois Labor Relations Board, State Panel
        (Board), a majority-interest petition to represent three regional supervisors employed by the
        Illinois Department of Public Health (Department) in the job title or classification of senior
        public administrator, option 8H. On September 7, 2010, after an administrative hearing
        conducted on February 2, 2010, the administrative law judge (ALJ), Sylvia Rios, issued a
        recommended decision and order granting the petition. On January 28, 2011, the Board
        decided the ALJ was correct and ordered the Board’s Executive Director, John Brosnan, to
        certify the union as the exclusive representative of the three petitioned-for regional
        supervisors. On February 3, 2011, Brosnan issued a certification of representation, stating
        that the three senior public administrators, option 8H, were within the existing bargaining
        unit designated as RC-63.
¶2           The Department appeals on the ground that the petitioned-for individuals were
        supervisory employees within the meaning of section 3(r) of the Illinois Public Labor
        Relations Act (Act) (5 ILCS 315/3(r) (West 2008)). We find no clear error in the Board’s
        decision that the individuals at issue were “employees” with the right to bargain collectively.
        See 5 ILCS 315/3(n) (West 2008). Therefore, we affirm the Board’s decision.

                                                  -2-
¶3                                    I. BACKGROUND
¶4        Three regional supervisors, John Smet of Peoria, Clayton Simonson of Rockford, and
     Mary Lynne Williams of Edwardsville, are employed by the Department in the division of
     environmental health. Each has the job title or classification of senior public administrator
     and each is responsible for the inspection of and ensuring the safety of public places such as
     swimming pools, beaches, and other facilities. The union filed a petition with the Board to
     represent these three individuals. However, the Department contends they should not be
     included in the union because they are supervisory employees as defined in the Act. The
     union contends they are not supervisory employees because they do not “meaningfully with
     independent judgment impact the terms and conditions of their subordinates.”
¶5        On February 2, 2010, the ALJ conducted a hearing and considered the testimony of David
     Culp, the deputy director of the Department’s office of health protection. He oversees four
     divisions, one of which is the division of environmental health. The division chief, Ken
     Runkle, reports to Culp at a minimum of twice weekly. The division, under Runkle, consists
     of seven regional supervisors, three of whom are the employees at issue. Culp testified he
     was aware that some regional supervisors under Runkle were in the union though he could
     not provide specifics on how such a decision was made. Culp further testified that the duties
     of the regional supervisors can be classified as a “50/50 proposition,” with half of his or her
     time spent in the field doing “hands-on work,” and the other half spent “supervising,
     ensur[ing] work assignments[,] and ensuring that those personnel are completing the work
     needed to be done.”
¶6        The ALJ also considered the testimony of Runkle, who was the acting division chief, as
     well as the division’s senior toxicologist. His base title was public service administrator,
     option 4, and his acting title was senior public service administrator, option 8H. He said he
     was a member of the union. Runkle generally communicates with the regional supervisors
     weekly by e-mail or telephone, with “intense programmatic meetings” conducted quarterly.
¶7        The regional supervisors have several employees working under them. (Simonson has
     6 subordinate employees, Smet has 11, and Williams has 9.) Each regional supervisor
     completes an annual performance evaluation for each subordinate employee. Each evaluation
     consists of four sections: (1) appraisal of objectives, (2) general appraisal of employee
     performance, (3) remarks by supervisor, and (4) employee objectives for next reporting
     period. The regional supervisor (1) prepares the objectives, (2) determines whether each
     objective was met, (3) completes the general appraisal of the employee’s performance by
     indicating whether he or she exceeds expectations, meets expectations, or needs
     improvement in the areas indicated, and (4) devises, with the assistance of the employee, the
     objectives for the next reporting period.
¶8        Runkle testified he reviews the regional supervisors’ employee evaluations before he
     signs them, but generally does not overrule an entry. He looks only for “red flags.” He said
     there are situations where the regional supervisor is not the immediate supervisor of an
     employee, so the regional supervisor does not conduct the evaluation, but must sign off on
     it as the next highest supervisor. On that occasion, the regional supervisor has the authority


                                              -3-
       to overrule the evaluation. Each evaluation is signed by the employee, the immediate
       supervisor, the next highest supervisor, and Damon T. Arnold, the Director of the
       Department. Theoretically, a negative evaluation could be used to begin or continue
       disciplinary proceedings. However, an evaluation does not affect the employee’s pay since
       each employee is a member of the union.
¶9         Runkle further testified that if an employee applies for a four-day workweek, the regional
       supervisor is the one to decide whether that request is approved, as he or she “knows best the
       work that needs to be done and the most efficient way for it to be done.” The regional
       supervisor is also the “final decision-maker” on an employee’s request for time off, utilizing
       his or her judgment. However, the Department’s personnel staff gives supervisors directives
       regarding what conditions qualify for approving certain time-off requests. Other than those
       directives, the regional supervisor makes the decision based on “coverage,” meaning the
       supervisor will determine if he has enough employees to cover the demand for the requested
       time off.
¶ 10       According to Runkle, if an employee requires discipline, the regional supervisor will
       consult with his supervisors and the personnel department. Only one disciplinary action had
       been initiated in the 13 months prior to the hearing. It consisted of a written reprimand issued
       by the regional supervisor after consultation with superiors. Runkle did not know what role
       the regional supervisors played in the process of promoting employees. He testified on cross-
       examination that an employee’s request for a four-day work schedule would not be
       implemented until the request received final approval from the director’s office.
¶ 11       After considering the parties’ posthearing briefs, the ALJ entered a recommended
       decision and order, finding the petitioned-for employees were not supervisors within the
       meaning of section 3(r) of the Act (5 ILCS 315/3(r) (West 2008)). The ALJ recommended
       granting the union’s petition. The Board agreed.

¶ 12                                      II. ANALYSIS
¶ 13                                  A. Standards of Review
¶ 14       The Administrative Review Law (735 ILCS 5/3-101 to 3-113 (West 2008)) governs the
       judicial review of a decision by the Board certifying a labor organization as the exclusive
       bargaining representative of a group of employees. 5 ILCS 315/9(i) (West 2008); County of
       Cook v. Illinois Labor Relations Board-Local Panel, 351 Ill. App. 3d 379, 385 (2004).
       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 2008).
¶ 15       Our standard of review depends on the nature of the question we are considering. If the
       question is one purely of fact, we deem the Board’s resolution of that question to be “prima
       facie true and correct.” 735 ILCS 5/3-110 (West 2008). The statutory phrase “prima facie
       true and correct” means that we uphold the factual finding unless it is against the manifest
       weight of the evidence. Carpetland U.S.A., Inc. v. Illinois Department of Employment
       Security, 201 Ill. 2d 351, 369 (2002). A factual finding is against the manifest weight of the
       evidence only if a proposition opposite to that finding is clearly apparent from the evidence

                                                 -4-
       or only if the finding is unreasonable, arbitrary, or not based on evidence. Bazydlo v. Volant,
       164 Ill. 2d 207, 215 (1995).
¶ 16        If the question, by contrast, is one purely of law, we give no deference at all to the Board
       unless it resolved a genuine ambiguity in a statute or regulation that it was charged with
       administering (see Illinois Bell Telephone Co. v. Illinois Commerce Comm’n, 362 Ill. App.
       3d 652, 656 (2005)). We decide legal questions de novo. Carpetland, 201 Ill. 2d at 369; City
       of St. Charles v. Illinois Labor Relations Board, 395 Ill. App. 3d 507, 509 (2009).
¶ 17        As in this case, sometimes a question does not fall entirely into the category of either fact
       or law but instead is a question of both fact and law, a question of what is “ ‘the legal effect
       of a given set of facts.’ ” AFM Messenger Service, Inc. v. Department of Employment
       Security, 198 Ill. 2d 380, 391 (2001) (quoting City of Belvidere v. Illinois State Labor
       Relations Board, 181 Ill. 2d 191, 205 (1998)). A hybrid question of fact and law “is one ‘in
       which the historical facts are admitted or established, the rule of law is undisputed, and the
       issue is whether the facts satisfy the statutory standard, or *** whether the rule of law as
       applied to the established facts is or is not violated.’ ” AFM, 198 Ill. 2d at 391 (quoting
       Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19 (1982)). When reviewing an
       administrative agency’s resolution of a hybrid question of fact and law, we apply an
       intermediate standard of review, a standard in between manifest weight and de novo. AFM,
       198 Ill. 2d at 392. We give some deference to the agency’s decision but not as much
       deference as we would give if the question were one purely of fact. AFM, 198 Ill. 2d at 392.
       We give this diminished amount of deference by asking whether the agency’s decision is
       clearly erroneous. AFM, 198 Ill. 2d at 392. 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 that the finding is a mistake. AFM, 198
       Ill. 2d at 393. Again, in this context, the finding is that the undisputed facts do or do not
       satisfy the statutory standard, the meaning of which likewise is undisputed. AFM, 198 Ill. 2d
       at 391. If there could be two reasonable but opposing views of whether the facts satisfy the
       statutory standard, the agency cannot have committed clear error by choosing between those
       views. Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985).

¶ 18                           B. Supervisory Status as a Matter of Law
¶ 19        “In order to ensure that a pro-union bias will not impair a supervisor’s ability to apply the
       employer’s policies to subordinates in accordance with the employer’s best interests, the Act
       provides that a bargaining unit may not contain both supervisors and nonsupervisors.”
       Department of Central Management Services v. Illinois State Labor Relations Board, 278
       Ill. App. 3d 79, 83 (1996). Section 3(r) defines a “supervisor” as follows:
            “ ‘Supervisor’ is an employee whose principal work is substantially different from that
            of his or her subordinates and who has authority, in the interest of the employer, to hire,
            transfer, suspend, lay off, recall, promote, discharge, direct, reward, or discipline
            employees, to adjust their grievances, or to effectively recommend any of those actions,
            if the exercise of that authority is not of a merely routine or clerical nature, but requires
            the consistent use of independent judgment. Except with respect to police employment,


                                                  -5-
           the term ‘supervisor’ includes only those individuals who devote a preponderance of
           their employment time to exercising that authority, State supervisors notwithstanding.”
           5 ILCS 315/3(r) (West 2008).
       Thus, under section 3(r), an individual is a supervisor if all three of these propositions are
       true: (1) the individual has principal work substantially different from that of his or her
       subordinates; (2) the individual has authority on the employer’s behalf to perform at least 1
       of the 11 indicia of supervisory authority–i.e., hiring, transferring, suspending, laying off,
       recalling, promoting, discharging, directing, rewarding, or disciplining employees or
       adjusting their grievances–or to effectively recommend any of those actions, and the
       individual consistently uses independent judgment in exercising such authority; and (3) the
       individual spends a preponderance of his or her time in the job performing supervisory tasks.
       City of Freeport v. Illinois State Labor Relations Board, 135 Ill. 2d 499, 512 (1990).
¶ 20       The ALJ and the Board found that all of the regional supervisors performed principal
       work that was “obviously and visibly different from that of their subordinates.” Therefore,
       the only elements of supervisory status that are at issue in this appeal are the second and third
       ones.

¶ 21                            1. Indicia of Supervisory Authority
¶ 22       As the party seeking to exclude the regional supervisors from the union, the Department
       had the burden of proving, by a preponderance of the evidence, that they were “supervisors.”
       See Department of Central Management Services v. Illinois Labor Relations Board, 382 Ill.
       App. 3d 208, 220-21 (2008). To carry that burden, the Department had to prove the regional
       supervisors had the authority to perform 1 or more of the 11 supervisory functions listed in
       section 3(r), while exercising independent judgment in performing these functions. An
       employee uses independent judgment whenever he or she must choose between two or more
       significant courses of action. See Freeport, 135 Ill. 2d at 521.
¶ 23       The Board found the regional supervisors did not have the authority to discipline, direct,
       or promote the employees using the required independent judgment. The Department
       challenges the findings related to the two functions of disciplining and directing employees,
       claiming the regional supervisors perform at least one of these tasks with independent
       judgment.

¶ 24                                 a. Disciplining Employees
¶ 25        At the hearing, the Department presented evidence, via the testimony of Runkle and the
       introduction of a memorandum referencing a written reprimand to one division employee,
       that the division had only one disciplinary action in the 13 months immediately preceding
       the hearing. Runkle testified the decision to issue this written reprimand was made jointly
       between him and the regional supervisor, only after consultation with and approval from the
       offices of the deputy director and personnel. It was apparent from his testimony that
       disciplinary decisions are reached as a collaborative effort among several levels of
       supervisors and the personnel office. The Department did not present evidence of who
       initiates disciplinary proceedings, how such proceedings are conducted, and the precise role

                                                 -6-
       the regional supervisor plays in the proceedings. Thus, the fact that this one particular
       disciplinary proceeding was part of a collaborative effort among several levels of supervisors
       suggests that disciplinary decisions are not functions performed by the regional supervisors
       at the required level of independent judgment. That is, it does not appear the regional
       supervisors have the authority to choose between two or more significant courses of action
       when disciplining a subordinate employee becomes an issue.

¶ 26                                    b. Directing Employees
¶ 27       The Department contends the regional supervisors “direct” their employees, as
       demonstrated by the evidence presented at the hearing, by conducting annual performance
       evaluations, final probationary evaluations, processing work-schedule requests, and
       considering time-off requests. To “direct” employees within the meaning of the Act,
       supervisors must have the authority to affect the employees’ terms and conditions of
       employment. Department of Central Management Services, 382 Ill. App. 3d at 224.
       Overseeing functions in areas likely to fall within the scope of union representation, such as
       wages, discipline, transfer, promotion, hiring, or other working conditions, is insufficient to
       constitute supervisory “direction” within the meaning of the Act.
¶ 28       According to the binding precedent set forth in Department of Central Management
       Services, 382 Ill. App. 3d at 224, the employer maintained that telecommunications
       supervisors were supervisors within the meaning of section 3(r) (5 ILCS 315/3(r) (West
       2006)) because they directed their subordinates in seven ways: (1) monitoring and correcting
       their performance, (2) establishing work schedules, (3) assigning work, (4) determining the
       need for overtime, (5) granting leave and imposing proof status, (6) training employees, and
       (7) evaluating their performance. We responded:
           “It is not enough, however, merely to point out these functions of direction; ‘the alleged
           supervisor must have both the authority to make operational decisions and exercise
           significant discretionary authority that impacts his subordinates’ employment status in
           areas most likely to fall within their terms and conditions of employment’ (emphases
           added) (State of Illinois, Department of Central Management Services, 21 Pub.
           Employee Rep. (Ill.) par. 46, at 216, No. S-RC-04-038 (Illinois Labor Board, State Panel,
           March 25, 2005)). As an ALJ explained in a recommended decision with which the
           Board agreed:
                    ‘The authority to direct involves functions relating to overseeing an employer’s
                operations or which indicate responsibility for the performance of a subordinate’s
                work. [Citations.] These functions include reviewing and monitoring work activities,
                instructions on how work is to be performed, scheduling work hours, assigning work,
                and approving requests for leave or overtime[,] and completing performance
                evaluations. [Citations.] The Board has also previously held that these and any other
                function of direction are not supervisory direction absent evidence that the alleged
                supervisor possesses significant discretion to affect or impact the[ ] subordinates[‘]
                employment in areas likely to fall within the scope of union representation, such as
                wages, discipline, transfer, promotion, hir[ing,] or other working conditions.’ Service


                                                 -7-
               Employees International Union, Local 73-HC, 19 Pub. Employee Rep. (Ill.) par. 58,
               at 265, No. L-RC-02-014 (Illinois Labor Board, Local Panel, April 15, 2003).
           See also City of Sparta, 9 Pub. Employee Rep. (Ill.) par. 2029, at X-150, No. S-RC-92-
           100 (Illinois State Labor Relations Board, June 21, 1993). The reasoning is that ‘absent
           such discretionary authority, an individual’s responsibility to direct subordinates in the
           performance of their job duties does not conflict with his membership in a bargaining
           unit.’ City of Bloomington, 13 Pub. Employee Rep. (Ill.) par. 2041, at X-236, No. S-UC-
           97-30 (Illinois State Labor Relations Board, August 25, 1997).” Department of Central
           Management Services, 382 Ill. App. 3d at 224-25.
¶ 29       Here, the Board concluded that such general oversight was basically the function of the
       regional supervisors and that they did not actually have significant discretionary authority to
       affect or impact a subordinate employee’s status of employment. The annual evaluations and
       final probationary evaluations were subject to “several levels of review.” Indeed, the regional
       supervisors filled out the evaluations, but the evaluations were not completed until they
       received final approval from higher-ranking supervisors. The Department did not present
       evidence that the regional supervisors exercised any significant authority in determining
       consequences from a poor annual evaluation or in determining whether a probationary
       employee becomes a certified employee.
¶ 30       The same can be said for the regional supervisors’ role related to subordinate employees’
       schedules. Apparently, independent judgment is not utilized to decide whether an employee’s
       request for a four-day workweek or time off is granted. Runkle testified that the personnel
       office provides the division with guidelines that should be used to determine whether an
       employee’s time-off request should be approved or denied. Likewise, the deputy director
       provides guidelines for the lower-level supervisors to determine an employee’s work
       schedule. That is, the regional supervisor does not possess the supervisory authority to make
       such an independent judgment, as the decision is subject to final approval from the director.
       The regional supervisors may make recommendations in these areas, but in order to qualify
       as a supervisory function under the Act, those recommendations “ ‘must be adopted as a
       matter of course, without independent review.’ ” Department of Central Management
       Services, 382 Ill. App. 3d at 225 (quoting International Union of Operating Engineers, Local
       No. 150, 23 PERI ¶ 130, at 561 (ILRB State Panel 2007)).
¶ 31       Section 3(r) provides that a supervisor must perform at least 1 of the 11 functions “or to
       effectively recommend any of those actions.” 5 ILCS 315/3(r) (West 2008). As the
       Department explains in its brief, a recommendation is “effective” within the meaning of
       section 3(r) only if the superiors adopt it as a matter of course. Department of Central
       Management Services, 382 Ill. App. 3d at 229. The Board could reasonably have found
       insufficient proof that the regional supervisors’ recommendations regarding a subordinate
       employee’s discipline, work schedule, annual evaluation, or final probationary evaluation
       were effective recommendations. Just because the Department accepted the regional
       supervisors’ recommendations on these topics in the exhibits provided, it does not
       necessarily follow that the Department accepted his or her recommendations as a matter of
       course. The evidence simply did not demonstrate the regional supervisors possess the
       authority to exercise the independent judgment as required under the Act.

                                                -8-
¶ 32       We adhere to our reasoning in Department of Central Management Services and
       conclude that, absent significant discretion to affect their subordinates’ employment in areas
       likely to fall within the scope of union representation, such as wages, discipline, transfer,
       promotion, hiring, or other working conditions, the regional supervisors do not “direct” their
       subordinates, within the meaning of section 3(r), by overseeing their work, conducting
       evaluations, and making the work schedule.

¶ 33                             c. Preponderance of Time Factor
¶ 34       Finally, the Act requires that a “supervisor” devote a preponderance of his or her work
       time exercising his or her supervisory authority. Because we agree with the Board’s finding
       on each of the above factors, that the regional supervisors are not “supervisors” within the
       meaning of section 3(r), we agree they do not devote any of their time exercising their
       supervisory authority. There can be no analysis regarding the amount of time spent
       performing supervisory functions unless there is first a determination that we have before us
       a “supervisor” within the meaning of the Act. This is not such a case.

¶ 35                                  III. CONCLUSION
¶ 36      For the foregoing reasons, we affirm the Board’s decision.

¶ 37      Affirmed.

¶ 38       JUSTICE COOK, dissenting.
¶ 39       Ken Runkle, the division chief of the division of environmental health, oversees seven
       regional offices headed by senior public service administrators, regions including Rockford,
       Edwardsville, and Peoria. The testimony in this case focused on the Peoria region, headed
       by John Smet. Smet has 11 subordinates. Dr. David Culp, the Deputy Director of the office
       of health protection, testified that “[Runkle] of course cannot supervise close to a hundred
       personnel himself, so he then depends on those section chiefs. So he depends on the regional
       supervisors out at the various regional offices to supervise the people at those regional
       offices.” “So it is only up to the regional supervisor to ensure, quote, the work gets done.”
       Smet completes his subordinates’ performance evaluations as he sees fit and ranks the
       employee as he deems appropriate. Smet does not consult Runkle before filling out his
       subordinates’ performance evaluations. Runkle could not recall having ever vetoed,
       overruled, or sent back a single performance evaluation received from Smet. Smet has the
       authority to discipline subordinates, and Smet issued a written reprimand once during
       Runkle’s 13-month tenure, after contacting Runkle prior to issuing the reprimand.
¶ 40       Section 3(r) lays out three requirements for a “supervisor.” First, his or her “principal
       work is substantially different from that of his or her subordinates.” 5 ILCS 315/3(r) (West
       2008). Second, he or she must have authority to do such things as suspend, lay off, direct,
       reward or discipline employees “or to effectively recommend any of those actions, if the
       exercise of that authority is not of a merely routine or clerical nature, but requires the

                                                -9-
       consistent use of independent judgment.” 5 ILCS 315/3(r) (West 2008). “[O]nly one
       indicium of supervisory authority accompanied by independent judgment is sufficient to
       indicate supervisory status ***.” Chief Judge of the Circuit Court v. American Federation
       of State, County & Municipal Employees, Council 31, 153 Ill. 2d 508, 516, 607 N.E.2d 182,
       186 (1992). Third, the term “supervisor” includes only those individuals who devote a
       preponderance of their employment time to exercising that authority. 5 ILCS 315/3(r) (West
       2008).
¶ 41        The ALJ found that “[i]n this case, the record demonstrates that the work of the
       petitioned-for employees is obviously and visibly different from that of their subordinates.
       There is evidence in the record that the Regional Managers must address time-off requests,
       complete annual performance evaluations, review final probationary evaluations, answer
       work schedule change requests, issue disciplinary documents and sign off on personnel
       transaction requests.” The ALJ decided the case on the second requirement, authority to
       direct and discipline, et cetera, and did not reach the third requirement, the preponderance
       requirement. The Supreme Court has defined “preponderance” as follows: “the most
       significant allotment of the employee’s time must be spent exercising supervisory functions.
       [Citation.] In other words, the employee must spend more time on supervisory functions than
       on any one nonsupervisory function.” City of Freeport, 135 Ill. 2d at 532, 554 N.E.2d at 171.
       If the second requirement is met here, it seems clear that the third requirement has also been
       met.
¶ 42        The ALJ found it significant that “[t]here has been only one disciplinary action against
       a Division employee in the thirteen months prior to the hearing.” That emphasis is mistaken,
       “because it improperly assigns dispositive weight to the number of times the [supervisors]
       have exercised their supervisory authority.” Village of Maryville v. Illinois Labor Relations
       Board, State Panel, 402 Ill. App. 3d 369, 374-75, 932 N.E.2d 558, 563-64 (2010). “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. “[I]t is the existence of the supervisory
       authority *** that is essential, not the amount of time such authority is exercised.” City of
       Peru v. Illinois State Labor Relations Board, 167 Ill. App. 3d 284, 292, 521 N.E.2d 108, 114
       (1988). A good supervisor, who makes it clear what is expected of employees, may rarely be
       forced to resort to disciplinary actions.
¶ 43        The ALJ found it significant that Smet had contacted Runkle before issuing the written
       reprimand. We have previously rejected that criticism:
            “The Board’s decision in this respect, however, is yet another example of its improper
            view that the term ‘independent judgment’ means that employees cannot involve anyone
            else in their disciplinary decision-making process.
                Here, the Board again ignores the third option of the second prong of the Act’s
            definition of a supervisor. That is, if employees, such as these section managers,
            effectively recommend such discipline with independent judgment, that is sufficient to
            meet the Act’s definition of a supervisor.” Department of Central Management Services


                                                -10-
            v. Illinois Labor Relations Board, State Panel, 2011 IL App (4th) 090966, ¶¶ 208, 209,
            959 N.E.2d 114.
       As Culp testified, Runkle cannot supervise close to 100 personnel himself, particularly when
       they are scattered at various locations around the State, locations which Runkle rarely visits.
       The section chiefs are the only supervisors familiar with the employees and the only
       supervisors able to effectively direct employees or effectively recommend discipline.
¶ 44        This court was critical of AFSCME’s position in our 2011 case: only “the Governor and
       his policy team” would be excluded from the tens of thousands of State executive branch
       employees subject to collective bargaining under the Act. Department of Central
       Management Services, 2011 IL App (4th) 090966, ¶ 224, 959 N.E.2d 114. I agreed with that
       criticism in our 2008 case: “In this case, as in Freeport, if the telecommunications
       supervisors are not statutory ‘supervisors,’ the telecommunications centers operate ‘entirely
       without supervision a large part of the time.’ ” Department of Central Management Services,
       382 Ill. App. 3d at 231, 888 N.E.2d at 583 (Cook, J., dissenting). I continue to believe that
       our 2008 decision was wrongfully decided and should not be followed in this case. I would
       reverse the Board’s decision.




                                                -11-
