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                                       Appellate Court                           Date: 2018.04.17
                                                                                 13:07:26 -05'00'




        American Federation of State, County & Municipal Employees, Council 31 v. State,
                                   2018 IL App (1st) 140656



Appellate Court           AMERICAN FEDERATION OF STATE, COUNTY AND
Caption                   MUNICIPAL EMPLOYEES, COUNCIL 31, Petitioner, v. STATE
                          OF ILLINOIS; DEPARTMENT OF CENTRAL MANAGEMENT
                          SERVICES (ILLINOIS COMMERCE COMMISSION); and
                          ILLINOIS LABOR RELATIONS BOARD, STATE PANEL,
                          Respondents.



District & No.            First District, First Division
                          Docket No. 1-14-0656



Filed                     January 22, 2018



Decision Under            Petition for review of order of Illinois Labor Relations Board, State
Review                    Panel, No. S-RC-11-078.



Judgment                  Affirmed.


Counsel on                Cornfield & Feldman LLP, of Chicago (Mark Stein and Gail E.
Appeal                    Mrozowski, of counsel), for petitioner.

                          Lisa Madigan, Attorney General, of Chicago (David L. Franklin,
                          Solicitor General, and Linda Boachie-Ansah, Assistant Attorney
                          General, of counsel), for respondents.
     Panel                    JUSTICE MIKVA delivered the judgment of the court, with opinion.
                              Presiding Justice Pierce and Justice Harris concurred in the judgment
                              and opinion.


                                                OPINION

¶1         This is a direct appeal from a final order of the Illinois Labor Relations Board, State Panel
       (Board), finding that six directors at the Illinois Commerce Commission (Commission) are
       managerial employees excluded from collective bargaining. The Board denied a representation
       petition filed by the American Federation of State, County and Municipal Employees, Council
       31 (Union), seeking to include the employees in one of its existing bargaining units, and the
       Union now appeals. For the reasons that follow, we affirm the Board’s decision and order with
       respect to each of the six directors that the Union seeks to represent.

¶2                                          I. BACKGROUND
¶3         The Commission is a quasi-judicial body, charged under the Public Utilities Act (220 ILCS
       5/1-101 et seq. (West 2016)) with regulating public utilities in the state. Id. §§ 2-101, 3-105,
       4-101, 4-201, 13-101. The Commission is engaged in, among other things, rate setting, the
       certification of private entities seeking to provide public utilities, safety oversight, and the
       investigation and resolution of complaints against utility companies. American Federation of
       State, County, & Municipal Employees (AFSCME), Council 31 v. State of Illinois, 2014 IL
       App (1st) 130655, ¶ 3 (hereinafter AFSCME). The Commission is comprised of five
       commissioners, who appoint an executive director to oversee its day-to-day operations. 220
       ILCS 5/2-101, 2-105(a) (West 2016). The executive director is authorized to organize the
       Commission into bureaus or other subunits and to delegate the supervision and direction of
       those bureaus to staff members. Id. § 2-105(a). Bureaus are typically headed by chiefs and
       subdivided into divisions headed by directors. At present, six bureaus and an Office of Retail
       Market Development report to the executive director.
¶4         On October 5, 2010, the Union filed a representation petition with the Board seeking to
       include nine directors in its RC-63 bargaining unit. The Commission opposed the petition,
       arguing that the directors are excluded from collective bargaining for three reasons: because
       they are managerial employees pursuant to section 3(j) of the Illinois Public Labor Relations
       Act (Labor Relations Act) (5 ILCS 315/3(j) (West 2010)); the directors are supervisory
       employees, pursuant to section 3(r) (id. § 3(r)); and the directors are confidential employees,
       pursuant to section 3(c) (id. § 3(c)). The Commission alternatively argued that, even if the
       directors are not excluded from collective bargaining, the RC-63 unit is not the appropriate
       bargaining unit for those employees. The Union ultimately stipulated that three of the nine
       directors should be excluded from the bargaining unit, leaving the status of only six directors in
       dispute. They are (1) Torsten Clausen, director of the Office of Retail Market Development;
       (2) Jerry Oxley, director of Information Technology Services in the Bureau of Planning and
       Operations; (3) Peter Muntaner, director of Consumer Services in the Bureau of External
       Affairs; and (4) Harry Stoller, Joy Nicdao-Cuyugan, and Jim Zolnierek, the directors,



                                                   -2-
       respectively, of the Energy, Financial Analysis, and Telecommunications Divisions of the
       Bureau of Public Utilities.
¶5         At an evidentiary hearing in June 2011, the administrative law judge (ALJ) in this case
       heard testimony primarily from the Commission’s executive director and the bureau chiefs to
       whom these six directors report. In her recommended decision and order issued on February
       27, 2013, the ALJ recommended that the Board find that three of the directors (Mr. Clausen,
       Mr. Oxley, and Mr. Muntaner) were managerial employees excluded from collective
       bargaining and that the remaining three directors (Mr. Stoller, Ms. Nicdao-Cuyugan, and Mr.
       Zolnierek) were public employees with full collective bargaining rights. Both the Union and
       the Commission filed exceptions to the ALJ’s recommendations.
¶6         The Board agreed in part with the ALJ, finding in its February 14, 2014, decision and order
       that all six directors were managerial employees. The Union appealed directly to this court. To
       avoid repetition, where we discuss the Board’s finding as to each of the directors below, we
       include in that discussion a summary of the relevant evidence and the ALJ’s recommendations.
¶7         Briefing in this case was stayed pending decisions by the Fourth District in Department of
       Central Management Services/The Illinois Commerce Comm’n v. Illinois Labor Relations
       Board, State Panel, 2015 IL App (4th) 131022, and by this district in American Federation of
       State, County, & Municipal Employees (AFSCME), Council 31 v. State, 2016 IL App (1st)
       133866-U. The stay was lifted in January 2017.

¶8                                         II. JURISDICTION
¶9         The Board entered its final order, dismissing the Union’s petition in this matter on
       February 14, 2014, and the Union timely filed its petition for review on March 10, 2014.
       Orders of the Board dismissing representation petitions are final orders and may, in accordance
       with provisions of the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2012)), be
       appealed directly to the appellate court for the district in which the aggrieved party resides or
       transacts business. 5 ILCS 315/9(i) (West 2010). We have jurisdiction over this matter
       pursuant to section 9(i) of the Labor Relations Act (id.), section 3-113 of the Code of Civil
       Procedure (735 ILCS 5/3-113 (West 2012)), and Illinois Supreme Court Rule 335 (eff. Feb. 1,
       1994).

¶ 10                                          III. ANALYSIS
¶ 11       The issue before us is whether the Board properly classified each of these six Commission
       directors as managerial. By law, an employee’s classification determines his or her right to
       engage in collective bargaining. The Labor Relations Act, which allows public employees to
       bargain collectively (5 ILCS 315/2.5(1) (West 2010)), specifically excludes “managerial
       employees” from the definition of a “[p]ublic employee” (id. § 3(n)). As our supreme court has
       explained, “[t]he exclusion is intended to maintain the distinction between management and
       labor and to provide the employer with undivided loyalty from its representatives in
       management.” Chief Judge of the Sixteenth Judicial Circuit v. Illinois State Labor Relations
       Board, 178 Ill. 2d 333, 339 (1997). In accordance with these goals, “managerial status is not
       limited to those at the very highest level of the governmental entity.” (Internal quotation marks
       omitted.) Office of the Cook County State’s Attorney v. Illinois Local Labor Relations Board,
       166 Ill. 2d 296, 301 (1995). Rather, “it is enough if the functions performed by the employee[s]
       sufficiently align [them] with management such that the employees should not be in a position

                                                   -3-
       requiring them to divide their loyalty to the administration *** with their loyalty to an
       exclusive collective-bargaining representative.” (Internal quotation marks omitted.) Id.
¶ 12       On review from this final order by the Board, we apply different levels of deference
       depending on the nature of the question presented. Although we consider an agency’s ruling on
       issues of law de novo, we deem its findings on issues of fact to be prima facie correct unless
       they are against the manifest weight of the evidence. Speed District 802 v. Warning, 242 Ill. 2d
       92, 111-12 (2011); 735 ILCS 5/3-110 (West 2012). We also defer to an agency’s experience
       and subject-matter expertise when considering mixed questions of law and fact and will
       reverse the agency’s findings on mixed questions only if they are clearly erroneous. City of
       Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205 (1998). A finding is
       clearly erroneous when “the reviewing court, on the entire record, is ‘left with the definite and
       firm conviction that a mistake has been committed.’ ” AFM Messenger Service, Inc. v.
       Department of Employment Security, 198 Ill. 2d 380, 395 (2001) (quoting United States v.
       United States Gypsum Co., 333 U.S. 364, 395 (1948)).
¶ 13       Here, the Union does not challenge the Board’s findings of fact, but contends both that the
       Board applied incorrect legal standards and that its ultimate conclusions—that each of the six
       directors were managerial employees—were clearly erroneous. We first consider the proper
       legal standards.

¶ 14                    A. Whether the Board Applied the Correct Legal Standards
¶ 15        The Union contends that the Board applied an improper legal standard in two respects. It
       first argues that the Board should not have relied on this court’s recent interpretation in
       AFSCME, 2014 IL App (1st) 130655, ¶ 29, of the word “predominantly” in section 3(j) of the
       Labor Relations Act to mean “superiority in importance or numbers.” According to the Union,
       AFSCME improperly introduced an alternative, qualitative, definition of predominance that
       contradicts other decisions of this court, which the Union contends look only to whether the
       employee spends most of his or her time on managerial activities. According to the Union, this
       interpretation “threatens to make [the predominance] requirement a nullity.”
¶ 16        The Union also argues—this time relying on our decision in AFSCME—that the Board
       applied an improper legal standard when it concluded that two of the directors, Torsten
       Clausen and Harry Stoller, were managerial employees based solely on their function as
       informational “gatekeepers.” In making this determination, the Union argues that the Board
       improperly relied on one of its own prior decisions, which was subsequently reversed by this
       court in AFSCME, 2014 IL App (1st) 130655, ¶¶ 42-43. We consider each of these arguments
       in turn, in the context of the legal framework for determining whether a particular employee is
       managerial.
¶ 17        Section 3(j) of the Labor Relations Act establishes a two-part test to determine if an
       individual is a “[m]anagerial employee.” 5 ILCS 315/3(j) (West 2010). The person must be
       both (1) “engaged predominantly in executive and management functions” and (2) “charged
       with the responsibility of directing the effectuation of management policies and practices.” Id.
¶ 18        Courts have construed the phrase “executive and management functions” in the first part of
       the test to mean those functions that “relate to running a department,” including “formulating
       department policy, preparing the budget, and assuring efficient and effective operations of the
       department.” Village of Elk Grove Village v. Illinois State Labor Relations Board, 245 Ill. App.
       3d 109, 121-22 (1993). An employee is not managerial simply because he or she “exercise[s]

                                                   -4-
       *** professional discretion and technical expertise” (County of Cook v. Illinois Labor
       Relations Board-Local Panel, 351 Ill. App. 3d 379, 386 (2004)) or performs duties that are
       “essential to the employer’s ability to accomplish its mission” (Department of Central
       Management Services/The Department of Healthcare & Family Services v. Illinois Labor
       Relations Board, State Panel, 388 Ill. App. 3d 319, 331 (2009)). And an employee whose
       policymaking role is merely “advisory and subordinate” will generally not be considered
       managerial (Village of Elk Grove Village, 245 Ill. App. 3d at 122) unless he or she makes
       “effective recommendations” (internal quotation marks omitted), i.e., recommendations that
       are almost always adopted by management (Department of Central Management
       Services/Illinois Commerce Comm’n v. Illinois Labor Relations Board, State Panel, 406 Ill.
       App. 3d 766, 775-77 (2010) (hereinafter CMS/ICC)). Managerial employees “possess and
       exercise authority and discretion which broadly effects [sic] a department’s goals and means of
       achieving its goals.” (Internal quotation marks omitted.) County of Cook, 351 Ill. App. 3d at
       386.
¶ 19        The second part of the statutory test emphasizes that a managerial employee’s authority
       “extends beyond the realm of theorizing and into the realm of practice.” CMS/ICC, 406 Ill.
       App. 3d at 774. In other words, “[a] managerial employee not only has the authority to make
       policy but also bears the responsibility of making that policy happen.” Id. at 774-75. Such an
       individual “oversees or coordinates policy implementation through [the] development of
       means and methods of achieving policy objectives, determines the extent to which the
       objectives will be achieved, and is empowered with a substantial amount of discretion to
       determine how policies will be effected.” Department of Central Management Services v.
       Illinois State Labor Relations Board, 278 Ill. App. 3d 79, 87 (1996).
¶ 20        We reject the Union’s first argument that it was improper for the Board to construe the
       word “predominantly” in section 3(j) of the Labor Relations Act to mean either “superiority in
       importance or numbers.” As the Union acknowledges, that construction was recently
       articulated by this court in AFSCME, 2014 IL App (1st) 130655, ¶¶ 28-29, where we were
       asked to consider the managerial status of three attorneys working in the Commission’s
       solicitor section. Noting that the “strict numerical approach” had been rejected in similar cases
       (see Secretary of State v. Illinois Labor Relations Board, State Panel, 2012 IL App (4th)
       111075, ¶ 110; Department of Central Management Services, 278 Ill. App. 3d at 86) and that
       the word “predominant” can mean “superiority in importance or numbers,” we concluded that
       the amount of time an employee spends on managerial tasks is not determinative of the
       employee’s managerial status. (Internal quotation marks omitted.) AFSCME, 2014 IL App
       (1st) 130655, ¶¶ 29, 31.
¶ 21        The Union insists that this definition of “predominantly” is at odds with statements in
       certain of our prior opinions. In CMS/ICC, 406 Ill. App. 3d at 774, for example, we noted that
       the first part of section 3(j) of the Labor Relations Act “describes the nature of the work to
       which the individual devotes most of his or her time.” (Emphasis added.) However, the focus of
       that case was whether the Commission’s ALJs were effective decisionmakers because their
       recommendations were accepted by the Commission almost all of the time, not what
       percentage of the time the ALJs were engaged in any particular activities. Id. at 779.
¶ 22        The Union has failed to persuade us that a few apparently contradictory words in an earlier
       case require us to reject the well-reasoned construction of the word “predominantly” presented
       in AFSCME. And the Union’s reference to section 3(r) of the Labor Relations Act, defining a

                                                   -5-
       “supervisor” as someone who, among other things, “devote[s] a preponderance of their
       employment time to exercising [supervisory] authority” (emphasis added) (5 ILCS 315/3(r)
       (West 2010)), merely highlights language that could have been, but was not, included in
       section 3(j)’s definition of a managerial employee. Thus, we reject the Union’s first complaint
       about the Board’s legal analysis.
¶ 23       In reference to its second legal argument, we agree with the Union that it would have been
       incorrect for the Board to conclude that an employee who functions as an informational
       gatekeeper must necessarily be a managerial employee. In AFSCME, 2014 IL App (1st)
       130655, ¶¶ 42-43, we held that a Commission lawyer who merely flagged issues for her
       supervisors to review was not a managerial employee, absent other responsibilities bringing
       her within the statutory definition. We rejected the Board’s argument in that case that the
       employee effectively decided whether the Commission would act on a particular issue because
       issues not flagged by her would not be considered by the Commission. We concluded that such
       policymaking “through omission,” by an employee who did not “even recommend a particular
       course of action,” was a “limited” and “tenuous” form of influence that could only result from
       the employee’s inadequate performance of her duties, i.e., her failure to identify issues of
       import to the Commission.
¶ 24       In this case, however, as discussed in more detail later in this opinion, we conclude that the
       Board’s findings that Torsten Clausen and Harry Stoller were managerial employees should be
       upheld. Although the Board relied on Mr. Clausen’s role as an informational gatekeeper, its
       conclusion that he was a managerial employee can be upheld on the alternative basis that the
       statute that created his job makes it clear that he is a manager as a matter of law. And this court
       may affirm the decision of an administrative agency when justified in law “for any reason
       disclosed by the record.” Pedersen v. Village of Hoffman Estates, 2014 IL App (1st) 123402,
       ¶ 48. Although the Board also cited Mr. Stoller’s “gatekeeping” functions, its determination
       that he was a managerial employee was based on the fact that Mr. Stoller has ultimate
       responsibility for making certain Commission decisions and is furthermore supported by other
       evidence of his managerial functions. Thus, while we accept the Union’s point that
       gatekeeping is, on its own, insufficient to classify an employee as a manager, that point
       ultimately does not provide a basis for overturning any part of the Board’s decision here.

¶ 25                                     B. The Board’s Findings
¶ 26       Within this legal framework, we review for clear error the Board’s findings that each of the
       six directors that the Union seeks to bring within the bargaining unit is a managerial employee.

¶ 27                                       1. Torsten Clausen
¶ 28       Torsten Clausen is the Director of the Commission’s Office of Retail Market Development
       (Office). Tim Anderson, the Commission’s executive director, testified that the Office was
       created by the Retail Electric Competition Act of 2006 (Act) (220 ILCS 5/20-101 et seq. (West
       2012)), and that Mr. Clausen is the first person to serve as its director. Unlike other directors,
       who report to their respective bureau chiefs, Mr. Clausen reports directly to Mr. Anderson.
¶ 29       After considering the testimony and other evidence regarding Mr. Clausen’s duties, the
       ALJ determined that his role within the Commission was, in many ways, advisory. But the ALJ
       nevertheless concluded that Mr. Clausen was a managerial employee because the statutory
       provisions creating the Office authorize him to propose, directly to the General Assembly and

                                                    -6-
       to the governor, those legislative actions he deems necessary to address barriers to competition
       in the retail electric market. In this role, the ALJ found that Mr. Clausen “exercises sufficient
       authority and discretion in discharging the [Commission]’s mission” to be considered a
       managerial employee as a matter of law.
¶ 30       The parties, the ALJ, and the Board all refer to two separate tests for determining whether
       an employee is managerial: the “traditional” two-part statutory test and an “alternative”
       “matter of law” test purportedly established by our supreme court in Cook County State’s
       Attorney, 166 Ill. 2d 296, and Chief Judge of the Sixteenth Judicial Circuit, 178 Ill. 2d 333,
       pursuant to which an employee may be considered managerial as a matter of law if the
       employee is authorized to act as a surrogate for the employer. Some of the previous decisions
       of this court have also referred to two separate tests. See, e.g., Department of Central
       Management Services/Pollution Control Board v. Illinois Labor Relations Board, State Panel,
       2013 IL App (4th) 110877, ¶ 22 (noting the appellate court’s use of the two tests). However,
       the supreme court itself does not refer to an “alternative test,” and a close reading of those two
       supreme court cases confirms that its findings, though made as a “matter of law,” were still
       based on the statutory definition of a managerial employee found in section 3(j) of the Labor
       Relations Act (5 ILCS 315/3(j) (West 2010)). See Cook County State’s Attorney, 166 Ill. 2d at
       302 (holding as a matter of law that “assistant State’s Attorneys must be regarded as
       managerial employees, as that term is defined in the [Labor Relations Act]” (emphasis
       added)); Chief Judge of the Sixteenth Judicial Circuit, 178 Ill. 2d at 347 (holding as a matter of
       law that “assistant public defenders meet the definition of managerial employee under the Act”
       (emphasis added)). We believe that in these two cases our supreme court simply recognized the
       fact that a statute that creates a public office and case law regarding the duties of the public
       employees at issue may make it apparent that the employees are managerial, eliminating any
       need to examine a factual record. See Cook County State’s Attorney, 166 Ill. 2d at 305 (holding
       that “statutes and case law articulating the powers and duties” of an office may “provide
       sufficient grounds for determining this issue as a matter of law”).
¶ 31       Here, the Board did not adopt the ALJ’s finding that Mr. Clausen was managerial as a
       matter of law, but instead determined that Mr. Clausen was a managerial employee based on
       evidence that he performed a gatekeeping function. As we discussed above, we adhere to our
       holding in AFSCME, 2014 IL App (1st) 130655, ¶¶ 42-43, that gatekeeping alone is
       insufficient to establish managerial status. However, we agree with the ALJ that—like
       assistant state’s attorneys and assistant public defenders, whom our supreme court has found to
       be managerial as a matter of law—Mr. Clausen’s statutorily defined duties make it apparent
       that he is a manager.
¶ 32       The Office of Retail Market Development was created in 2006 by the Act. 220 ILCS
       5/20-101 et seq. (West 2012). The Act provides that the Office’s director is to “oversee” the
       Office and has authority to employ at least two professional staff members to help carry out its
       mission. Id. § 20-110. The Act establishes the director as the individual in charge of
       researching, developing, and presenting—not just to the Commission, but also to the General
       Assembly and to the governor—an initial “detailed plan designed to promote, in the most
       expeditious manner possible, retail electric competition for residential and small commercial
       electricity consumers.” Id. § 20-120. Where this initial plan calls for the Commission to take
       action, the Commission is required to expeditiously do so. See id. (“To the extent the plan calls
       for Commission action, the Commission shall initiate any proceeding or proceedings called for


                                                   -7-
       in the final plan within 60 days after receipt of the final plan and complete those proceedings
       within 11 months after their initiation.” (Emphasis added.)). And as the ALJ pointed out, on an
       ongoing basis, the REC Act requires the director to submit an annual report to the
       Commission, the General Assembly, and the governor, describing the office’s
       accomplishments and issuing recommendations for “administrative and legislative action
       necessary to promote further improvement in retail electric competition.” Id. § 20-110.
¶ 33       Although we rely on different reasoning than that employed by the Board, we agree with its
       determination that Mr. Clausen, the Director of the Office of Retail Market Development, is a
       managerial employee excluded from collective bargaining.

¶ 34                                          2. Jerry Oxley
¶ 35       Jerry Oxley is the director of Information Technology Services, one of three divisions
       within the Commission’s Bureau of Planning and Operations. Kenneth Hundreiser, the
       bureau’s chief, testified that Mr. Oxley’s division develops all of the software used by the
       Commission and is responsible for “[t]he network, the web, intranet, internet, [and] things of
       that nature.” Nine positions currently report directly to Mr. Oxley, and eight others do so
       indirectly. All but one of the individuals in those positions are members of a bargaining unit.
¶ 36       By Mr. Hundreiser’s estimate, Mr. Oxley spends approximately 24% of his time on
       personnel tasks, including conducting employee evaluations and performance reviews for his
       staff. Mr. Hundreiser testified that, although he reviews these evaluations and has made
       corrections for minor things like spelling, he approves the content of Mr. Oxley’s evaluations
       “100 percent” of the time. However, Mr. Oxley’s own testimony, supported by e-mail
       exchanges submitted by the Union, indicated that Mr. Hundreiser sometimes disagreed or even
       “extremely disagreed” with the substance of the evaluations Mr. Oxley prepared, resulting in
       “some necessary adjustments.” Although Mr. Oxley can independently approve or reject his
       staff’s requests for time off or for flexible work schedules, overtime requests for
       nonemergencies must be approved by both Mr. Hundreiser and Mr. Anderson. But, according
       to Mr. Hundreiser, “whatever Jerry recommends” in this regard “is always approved” because
       “[i]t’s obviously needed if he proposes it.” Mr. Oxley has authority to discipline his
       subordinates and, according to Mr. Hundreiser, has exercised this authority to issue an oral
       reprimand placing a subordinate on quarterly review. Mr. Oxley has yet to participate in the
       hiring process as a director because no new employees have been hired in his division.
       According to Mr. Hundreiser, although hiring decisions must ultimately be approved by the
       executive director, recommendations from directors like Mr. Oxley are generally accepted.
¶ 37       Mr. Oxley also has the authority to resolve first-level grievances and recommend that staff
       within his division be promoted. However, on the two occasions when he recommended that
       certain employees receive promotions to conform their job titles to the tasks they were
       performing, his recommendations were not followed. Mr. Oxley testified that, as a result, he
       was unable to resolve a grievance later filed on this basis. When Mr. Oxley was asked if he
       agreed with Mr. Hundreiser’s statement that Mr. Oxley had the authority to grant back pay in
       response to a grievance, Mr. Oxley stated “[a]bsolutely not.”
¶ 38       Mr. Oxley conducts both on-the-job and formal training for his staff and directs them to
       perform specific tasks. He is also involved with IT training for Commission employees outside
       of his division. Although he has authority to disseminate standard electronic equipment to


                                                  -8-
       Commission employees, Mr. Oxley must obtain approval before granting requests for
       “extras,” like second monitors.
¶ 39       In addition to these duties, Mr. Oxley frequently fills in for his staff when needed and
       presently spends a significant portion of his time staffing the IT help desk. Help desk
       employees respond to e-mails and telephone calls from users with computer problems. Mr.
       Oxley assists when a difficult problem arises or when the volume of requests is too high for the
       three dedicated call center employees to manage. Mr. Oxley described his duties relating to the
       help desk as “[e]xtensive[ ].” Although he generally spends upwards of 20-25% of his time
       there, he testified that in the three months leading up to the hearing in this matter, he spent
       closer to 75% of his time on tasks related to the call center. Although he does not generally
       program, Mr. Oxley testified that he will sometimes “make small applications” as temporary
       fixes until other staff can develop permanent solutions.
¶ 40       Mr. Hundreiser testified that, within the area of information technology, Mr. Oxley has the
       authority to establish policies that affect the entire agency and that he does so by assessing both
       the Commission’s current needs and trends in the industry, then drafting policies based on
       CMS guidelines, best practices, or “what [Mr. Oxley] knows in the field.” Mr. Hundreiser
       testified that he generally accepts the substance of Mr. Oxley’s policy proposals. Mr.
       Hundreiser could recall three agency-wide policies that Mr. Oxley drafted: a policy governing
       website enhancements; a revision to an existing internet, e-mail, and computer use policy,
       which was approved but not implemented; and a policy governing the submission and
       processing of IT requests by Commission staff. Mr. Oxley also drafts all of the division’s desk
       procedures—what Mr. Hundreiser described as policies regarding “[h]ow to do something
       within the [IT] division”—and these are not reviewed by Mr. Hundreiser or Mr. Anderson.
¶ 41       The Commission’s “Position Description” for the director of information technology states
       that the director “[e]stablishes [IT] Program objectives consistent with Commission practice
       and policy,” “[s]ets the substantive agenda for the Program by generating and/or reviewing
       project proposals *** and recommending their adoption,” including “review and
       recommendation of associated budgets,” prepares “one and five-year Strategic Information
       Plan[s],” “represents the [Commission] in negotiations with [CMS] for related purchases and
       contracts,” “[a]ssists the Bureau Chief in the formulation and implementation of Division
       policy and administrative matters,” “[e]valuates the performance of staff assigned to the [IT]
       Program on a periodic basis and recommends compensation adjustments,” “[r]ecruits
       applications for approved staff positions within the Program and makes recommendations ***
       on candidate selection,” and “[d]evelops the Program’s professional training and development
       policy.”
¶ 42       In a performance evaluation, Mr. Hundreiser noted that Mr. Oxley “plays an integral part in
       the development of the annual IT Projects and Priorities Plan *** as well as *** the IT Steering
       Committee” and that he developed a “Case Management Document Library.”
¶ 43       Based on this evidence, the ALJ concluded that Mr. Oxley was a managerial employee.
       She determined that he met the first part of the statutory definition because he exercised
       authority and independent judgment to broadly affect the Commissions operations. The ALJ
       noted that Mr. Oxley formulated two important policies—one for website changes and one for
       IT requests—that, although they related only to information technology systems, broadly
       affected the Commission’s operations. The ALJ also found it significant that, although Mr.
       Oxley could not unilaterally make policy changes, he was an effective decisionmaker because

                                                    -9-
       the policies he proposed were consistently approved by his bureau chief. Mr. Oxley also had
       the authority to implement desk procedures to solve routine IT problems without first
       obtaining approval. The ALJ determined that Mr. Oxley also met the second part of the
       statutory definition because he was directly involved in implementing the Commission’s IT
       policies and running its IT programs, as evidenced by the fact that he frequently developed
       short-term solutions necessary for the agency to run until long-term solutions were developed.
¶ 44       The Board agreed with the ALJ. It concluded that, “even though he ha[d] only formulated
       two policies over a span of 10 years,” Mr. Oxley still “predominantly perform[ed] executive
       and management functions” because “he perform[ed] additional functions which satisf[ied] the
       [statutory] test,” including “helping determine the IT means by which the agency achieves its
       objectives.” The Board found it significant that Mr. Oxley created a case management system
       and performance evaluations that were used throughout the Commission. The Board further
       concluded that, as head of the IT division, Mr. Oxley “likely [wa]s ultimately responsible for
       deployment of the division’s resources.” Like the ALJ, the Board considered Mr. Oxley to be
       an effective decisionmaker, as the Commission had accepted all of his policy
       recommendations. The Board did not feel that the recent need for Mr. Oxley to spend a
       significant portion of his time manning the IT help desk precluded this finding.
¶ 45       On appeal, the Union argues that the Board’s determination is clearly erroneous because it
       “was largely based on the assumption that anyone who is the top IT employee for a State
       agency is a manager.” The Union contends that this conclusion is based on a misreading of the
       Fourth District’s decision in CMS/ICC, 406 Ill. App. 3d at 778. According to the Union, that
       case stands for the proposition that an employee is managerial if he has “job functions that
       encompass the whole of an agency’s mission.” It is true that the court in CMS/ICC concluded
       that the Commission’s ALJs were managerial by “compar[ing] the job functions of th[e] ALJs
       to the overall mission of the [Commission],” but the court clearly stated that this was but
       “[o]ne way of approaching” the relevant question, which is whether “the responsibilities of a
       job title encompass the agency’s entire mission, or a major component of its mission.”
       (Emphasis added.) Id. Here, the Board concluded that Mr. Oxley’s job responsibilities
       encompass a major component of the agency’s mission because he “helps determine the ‘IT
       means’ by which the Commission achieves its objectives.” This conclusion is not clearly
       erroneous.
¶ 46       We affirm the Board’s finding that Mr. Oxley, the director of Information Technology
       Services, is a managerial employee excluded from collective bargaining.

¶ 47                                         3. Peter Muntaner
¶ 48       Peter Muntaner is the director of the Consumer Services Division of the Commission’s
       Bureau of External Affairs. Randy Nehrt, the bureau’s chief, testified that Mr. Muntaner’s
       division “primarily handles constituent complaints and sets policy matters that balance the
       interests of consumers and utilities.” Four positions currently report directly to Mr. Muntaner,
       and fifteen others do so indirectly. Each of Mr. Muntaner’s reports is part of a bargaining unit.
¶ 49       Mr. Muntaner approves requests for time off and is authorized to discipline his
       subordinates at certain levels without approval. Although he exercised this authority to
       conduct a pre-disciplinary hearing that led to an employee’s five-day suspension, it is not clear
       that Mr. Muntaner is the one who made the decision to issue the suspension. Mr. Muntaner also
       has authority to hear first-level employee grievances, though Mr. Nehrt could not recall him

                                                  - 10 -
       ever having to do so. Although Mr. Muntaner can request overtime for his subordinates, such
       requests must be approved by Mr. Anderson. Mr. Muntaner has in the past requested
       compensatory time for employees who traveled to a hearing, and those requests were approved
       by Mr. Nehrt. Mr. Muntaner is responsible for conducting performance evaluations for his
       staff, which he submits to Mr. Nehrt for approval. Mr. Nehrt testified that he has never rejected
       one of Mr. Muntaner’s proposed evaluations. Mr. Muntaner has authority to interview and
       recommend individuals for hire but has not yet done so, although he did start the process
       recently to replace someone who retired.
¶ 50       Mr. Nehrt estimated that Mr. Muntaner spends about 50% of his time directing and
       supervising the work of his subordinates. He has also been heavily involved in the rulemaking
       process with respect to the statutory provisions governing the customer service, billing and
       payment, and discontinuance of service practices of public utilities. Mr. Muntaner also has
       refined practices regarding consumer complaints “to make [the complaint] process more
       effective and efficient.” According to Mr. Nehrt, Mr. Muntaner drafts new procedures and
       policies when necessary, and “[w]hen emerging issues arise or new issues come up, Mr.
       Muntaner will also update procedures to provide to counselors *** for how to handle those
       new or emerging issues.”
¶ 51       When Mr. Muntaner took over as director of the Commission’s Consumer Services
       Division, he reviewed the procedures for investigating consumer complaints; sought input
       from the relevant managers, administrative staff, and policy analysts; and updated those
       policies, forwarding them to Mr. Nehrt for review. To standardize investigations, Mr.
       Muntaner also formulated a list of information that his division’s counselors would seek from
       public utility providers during the course of their investigations, which was approved by Mr.
       Nehrt. Mr. Muntaner also drafted, and Mr. Nehrt approved, a policy to ensure that informal
       complaints were processed in time to notify customers if the limitations period for filing a
       formal complaint was approaching.
¶ 52       The ALJ was persuaded that Mr. Muntaner was a managerial employee by his
       establishment of policies and procedures for his division, which, she noted, “serves as the face
       of the ICC for the average citizen, thus establishing its importance within the agency.”
       Although Mr. Muntaner lacks authority to make unilateral policy changes, the ALJ concluded
       that the first part of the statutory definition was satisfied because Mr. Muntaner makes
       effective recommendations; all three of the procedures he drafted were approved and
       implemented. And his role in training customer service counselors to follow those new policies
       satisfied the second part of the definition as well. The Board agreed with the ALJ that Mr.
       Muntaner was “a managerial employee based on his effective recommendation of policies and
       procedures concerning the response and processing of consumer complaints.”
¶ 53       In support of its argument on appeal that the Board’s finding is clearly erroneous, the
       Union seizes on the Board’s statement in its decision and order that “Muntaner is likely
       predominantly engaged in such managerial functions by virtue of his position as head of the
       Consumer Affairs Division.” The Union insists that this statement demonstrated that the
       Board’s conclusion was improperly based on speculation concerning what someone with his
       job title probably does, rather than the facts concerning his actual role at the Commission. We
       do not agree. In support of the statement, the Board cited its prior decision in American
       Federation of State, County & Municipal Employees, Council 31 v. State of Illinois, 30 PERI
       ¶ 38 (ILRB State Panel 2013), in which it concluded that an individual’s position as the top

                                                  - 11 -
       employee in an agency’s IT department, “together with” several concrete examples of the
       employee’s authority to broadly affect the agency’s operations and his coordination of policy
       implementation, “strongly suggest[ed]” that the employee was predominantly engaged in
       management functions. Id. There, as here, the employee’s title was merely one piece of
       relevant evidence; it was not the sole basis for the Board’s determination regarding the
       employee’s status. Although we agree with the Union that an employee’s managerial status
       cannot be determined from his title alone, there was ample evidence of Mr. Muntaner’s ability
       to initiate and implement Commission policy.
¶ 54       The Union also focuses on Mr. Nehrt’s estimate that Mr. Muntaner spends a “combined”
       50% of his time on personnel-related duties, reviewing the work of his subordinates, and
       researching and updating policies and procedures. The Union reasons that this means that Mr.
       Muntaner necessarily spends less than 50% of his time influencing policy and cannot be said to
       be “engaged predominantly in executive and management functions.” 5 ILCS 315/3(j) (West
       2010). For the reasons discussed above, we adhere to our decision in AFSCME, 2014 IL App
       (1st) 130655, ¶ 29, in which we rejected this purely quantitative construction of the word
       “predominantly” as it is used in section 3(j) of the Labor Relations Act.
¶ 55       We thus affirm the Board’s finding that Mr. Muntaner, the director of the Consumer
       Services Division, is a managerial employee excluded from collective bargaining.

¶ 56                                 4. The Public Utilities Directors
¶ 57       Gene Beyer, chief of the Bureau of Public Utilities, testified that his bureau is divided into
       three divisions. Energy, headed by Harry Stoller, is concerned with issues affecting the electric
       and gas industries; Financial Analysis, headed by Joy Nicdao-Cuyugan, is primarily involved
       in rate design, individual rate cases, and utility audits; and Telecommunications, headed by
       Jim Zolnierek, deals with state-level regulation of telephone companies and some aspects of
       the provision of wireless cable and internet services. These three employees are the three
       remaining directors that the Union seeks to bring within the bargaining unit.

¶ 58               a. Common Duties and Responsibilities of the Public Utilities Directors
¶ 59       The three public utilities directors share many of the same responsibilities. All three work
       with Mr. Beyer in Springfield and attend biweekly bureau meetings with Mr. Beyer and the
       Commission’s executive director, Mr. Anderson. And each serves as the spokesperson for his
       or her division when the bureau’s overall budget is allocated.
¶ 60       According to Mr. Beyer, “from time to time,” each of the directors appears before and
       makes presentations to the Commission, the legislature, or various outside groups, although
       this function is also sometimes performed by the directors’ subordinates. Although directors
       sometimes prepare written testimony or provide live testimony at hearings in docketed cases
       before the Commission, more often than not that is done by the managers and analysts that
       make up the directors’ staffs.
¶ 61       The Commission’s Legislative Affairs Office may request a position paper outlining the
       Commission’s position on particular proposed legislation. Such requests generally go to the
       director of the division, who prepares the paper or supervises its preparation, and circulates it
       for review to other interested divisions. Mr. Stoller and Ms. Nicdao-Cuyugan have each
       drafted such a position paper. And Mr. Zolnierek has attended several meetings with


                                                   - 12 -
       legislators to answer their questions and provide the Commission’s perspective when the
       telecommunications laws were rewritten.
¶ 62        By Mr. Beyer’s estimate, Mr. Stoller, Ms. Nicdao-Cuyugan, and Mr. Zolnierek each spend
       approximately 20-30% of their time on personnel issues. Each has the authority to recommend
       overtime for members of his or her staff, although such requests must also be approved by Mr.
       Beyer. Mr. Stoller and Ms. Nicdao-Cuyugan have each submitted such requests, but Mr.
       Zolnierek never has. The requests are usually granted. Mr. Beyer testified that he recalled
       denying a request only once, when the overtime was not approved in advance and did not
       involve an emergency. Each of the directors also prepares annual performance evaluations for
       his or her subordinates, which are reviewed and approved by Mr. Beyer. Although Mr. Beyer
       has, on occasion, suggested changes in the way an evaluation is worded, he stated that he
       “never make[s] changes to [the directors’] overall performance ratings” or “to their comments
       on a person’s performance.” The directors also have the authority to make recommendations
       regarding disciplinary action—so long as it falls within what is contemplated by the
       Commission’s employee manual and any applicable union contract—and first-level employee
       grievances. However, these recommendations must be reviewed by the human resources
       department and approved by Mr. Beyer. To Mr. Beyer’s knowledge, Mr. Stoller, Ms.
       Nicdao-Cuyugan, and Mr. Zolnierek have never had occasion to discipline an employee or
       resolve a grievance.
¶ 63        Each of the public utilities directors also plays a role in the hiring process, by assessing and
       articulating their division’s needs, interviewing candidates, and—as members of a hiring
       panel—making hiring recommendations to Mr. Beyer and Mr. Anderson. Mr. Beyer testified
       that he was not aware of any instance in which a hiring recommendation of Mr. Stoller or Ms.
       Nicdao-Cuyugan had ever been rejected. And Mr. Zolnierek has had no opportunity to make
       such recommendations, as the telecommunications division is relatively small and has had no
       open positions since he became its director. Additionally, on one occasion when Ms.
       Nicdao-Cuyugan’s first and second choice candidates for a position declined a job offer, her
       recommendations that the position be reposted and, as an interim measure, that additional
       training be provided for existing employees in other divisions were followed.
¶ 64        Each of these three directors is also responsible for directing and supervising the work of
       subordinates and overseeing their training. Training within Mr. Stoller’s division is, in large
       part, formal training presented by the federal government relating to pipeline safety, but there
       is also informal on-the-job training and sometimes other formal training seminars. Any special
       requests for training or work involving travel must be approved by Mr. Stoller. Ms.
       Nicdao-Cuyugan conducts in-house training on how to handle rate cases for all new employees
       in her division, which Mr. Beyer described as “one of the greater responsibilities in that
       division.” In recent years she also arranged for a “rate making tutorial” to explain the
       ratemaking process to employees in other divisions within the Commission. Because of its
       small size, training in Mr. Zolnierek’s division focuses on familiarizing staff members with
       each other’s work.

¶ 65              b. Specific Duties and Responsibilities of the Public Utilities Directors
¶ 66      In addition to this evidence regarding their shared authority and responsibilities, evidence
       was also presented at the administrative hearing regarding the specific roles played by the three


                                                    - 13 -
       public utilities directors.

¶ 67                                            i. Harry Stoller
¶ 68        Mr. Beyer testified that Mr. Stoller, as director of the Energy Division, works with his staff
       to review new cases as they are filed in order to identify issues affecting the electric and gas
       industries. The decision as to whether a particular matter warrants the division’s involvement
       may be made, without Mr. Beyer’s approval, either by Mr. Stoller or by one of his
       subordinates. Mr. Beyer acknowledged that “some of those issues and cases are somewhat
       routine.”
¶ 69        However, according to Mr. Beyer, Mr. Stoller “represent[s] the division at times as only a
       division director can in speaking on policies and on methods *** that affect his division as a
       whole” and “that wouldn’t be appropriate for his direct reports to address.” For example, Mr.
       Stoller is the official contact for communications between the Energy Division and public
       utility companies regarding docketed matters, including the division’s position on proposed
       settlements. Mr. Stoller has also recommended, on at least two occasions, that citation cases be
       brought against noncompliant companies, and those recommendations were adopted by the
       Commission, following approval by Mr. Beyer and the executive director.
¶ 70        A performance review of Mr. Stoller also indicates that he is “occasionally called to the
       legislature to testify about legislation or to meet with legislators about legislative proposals and
       has always been an excellent and effective representative for the [Commission] in that role.”
¶ 71        Mr. Beyer also testified that Mr. Stoller “has authority to draft policy for his division” and,
       as its representative, has participated in the drafting of policies, like a case management policy,
       that affects multiple divisions within the Commission. The Commission’s job description for
       Mr. Stoller’s position also indicates that he “formulates and interprets policies of the Agency
       as pertains to [his] Division’s operation”; “[i]nitiates and establishes policies, standards, and
       procedures for all operations within the general policy framework of the agency”; and
       “[d]evelops the Division’s professional training and development policy.”
¶ 72        Through its Federal Energy Program (FEP), the Commission sometimes intervenes on
       behalf of Illinois retail energy consumers in Federal Energy Regulatory Commission (FERC)
       proceedings. According to a performance review, Mr. Stoller “is ultimately responsible for the
       agenda of the [FEP], assuring that it focuses on issues of economic significance to Illinois
       electric and natural gas retail customers.”
¶ 73   The ALJ concluded that Mr. Stoller did not meet the statutory definition of a managerial
       employee. In the ALJ’s view, although the record established that Mr. Stoller played a role in
       the drafting of policies and in the Commission’s rulemaking process, there was “no basis to
       determine whether [that role was] merely perfunctory and advisory or whether it [wa]s
       sufficient to satisfy the first prong of the statutory definition.”
¶ 74        The Board disagreed, concluding that Mr. Stoller was a managerial employee excluded
       from collective bargaining. The Board reasoned that “Stoller [wa]s a managerial employee
       within the meaning of the Act because he act[ed] as a gatekeeper by making the final decision
       as to which [FERC] proceedings warrant[ed] the Commission’s attention and participation.”
¶ 75        On appeal, the Union urges us to reverse the Board’s finding that Mr. Stoller is a
       managerial employee because the Board’s determination hinged on Mr. Stoller’s role as a
       “gatekeeper.” The Union relies on our recent opinion in AFSCME, 2014 IL App (1st) 130655,


                                                    - 14 -
       ¶¶ 42-43, where we held that an attorney who served as a gatekeeper by flagging issues of
       potential interest for review by her superiors was not a managerial employee. But here the
       Board found that Mr. Stoller was a gatekeeper in the sense that he makes the “final decision” as
       to which FERC proceedings the FEP recommends for Commission participation. This is the
       inverse of the function of the gatekeeping lawyer in AFSCME, who could influence policy only
       by omission, i.e., by failing to flag matters that were of interest to her superiors. Id. We agree
       with the Board that this is an important distinction. In addition, as the Board points out, there is
       evidence in the record both that Mr. Stoller has represented the Commission before the
       legislature and that he has the authority to establish policies and procedures for his division.
       We are not “left with the definite and firm conviction that a mistake has been committed”
       (internal quotation marks omitted) (AFM Messenger Service, 198 Ill. 2d at 395) and cannot
       conclude that the Board’s finding was clearly erroneous.
¶ 76       We affirm the Board’s finding that Mr. Stoller, the director of Energy, is a managerial
       employee excluded from collective bargaining.

¶ 77                                    ii. Joy Nicdao-Cuyugan
¶ 78       The ALJ concluded that Ms. Nicdao-Cuyugan, director of the Financial Analysis Division,
       was not a managerial employee. In the ALJ’s view, the record failed to establish that Ms.
       Nicdao-Cuyugan had any authority to draft policies or played any role in the Commission’s
       rulemaking process.
¶ 79       The Board disagreed, noting several examples of Ms. Nicdao-Cuyugan’s “self-initiated,
       broadly-applicable policy changes,” including the steps she took to propose and help develop
       an intranet site used by employees throughout the Commission to access important documents,
       her identification and implementation of an internal e-mail policy saving the Commission
       thousands of dollars annually in network storage costs, and her recommendation to reject an
       overly restrictive policy concerning staff data requests. For the Board, the fact that Ms.
       Nicdao-Cuyugan initiated and implemented all of these changes in the span of one employee
       evaluation period “strongly suggest[ed] that she [wa]s predominantly engaged in executive
       and management functions.”
¶ 80       On appeal, the Union characterizes the examples relied on by the Board as nothing more
       than “IT solutions to IT problems.” The Union’s argument appears to be that these examples
       do not establish Ms. Nicdao-Cuyugan’s management of the Financial Analysis Division. This
       argument is not persuasive. In an age where employees use technology to communicate, store
       and retrieve data, and create their work product, it makes sense that much, if not most,
       policymaking involves an IT component. The Union has provided no authority suggesting that
       “executive and management functions” do not include the effective coordination between
       departments to devise broad-based solutions.
¶ 81       We affirm the Board’s finding that Ms. Nicdao-Cuyugan, the director of Financial
       Analysis, is a managerial employee excluded from collective bargaining.

¶ 82                                         iii. Jim Zolnierek
¶ 83       Although Mr. Zolnierek, the director of the Telecommunications Division, has authority to
       draft policies for his division, Mr. Beyer could not recall any specific policies he has drafted.
       Mr. Beyer added, however, that Mr. Zolnierek has recently worked with staff from other


                                                    - 15 -
       divisions to develop a policy for tracking and coordinating action taken with respect to
       noncompliant telephone companies. He has also participated in the rulemaking process, in that
       “he initiated a project to review all of the administrative code parts of [the Commission’s] rules
       that apply to telecommunications to determine whether or not they needed to be revised or
       eliminated.” Without prior approval by Mr. Beyer or the executive director, Mr. Zolnierek
       reached out to Commission employees in other divisions and bureaus, including to other
       bureau chiefs, for assistance with these efforts. That process is ongoing and Mr. Beyer did not
       know whether any of the specific changes proposed by Mr. Zolnierek had been approved. The
       Commission did, however, act on Mr. Zolnierek’s recommendation to begin formal
       rulemaking to edit and eliminate certain rules that had been affected by recent changes in
       federal telecommunications laws.
¶ 84       Although she acknowledged that it was a closer case than for the other public utilities
       directors, the ALJ ultimately concluded that the record also fails to establish that Mr. Zolnierek
       was a managerial employee under the first part of the statutory test. In the ALJ’s view, Mr.
       Zolnierek’s efforts to coordinate the establishment of an agency-wide database tracking the
       compliance of telecommunications providers with statutes and regulations demonstrated only
       that he was charged with implementing policy changes, and not that he was the one actually
       formulating those policies. And Mr. Zolnierek’s efforts to revise the ICC’s
       telecommunications regulations in response to statutory changes were, according to the ALJ,
       merely responsive to policy changes dictated by statute.
¶ 85       The Board again disagreed, viewing Mr. Zolnierek’s initiation of the telecommunications
       database project as a “broad-reaching solution” to a “systemic problem” faced by the
       Commission. The Board dismissed the ALJ’s concerns that Mr. Zolnierek’s e-mails, referring
       to “our proposed plan” (emphasis added) and actions “we have been taking” (emphasis added),
       cast doubt on his role in the project. In the Board’s view, the fact that Mr. Zolnierek may have
       collaborated with others did not undermine the conclusion that he played a significant role in
       identifying the problem and formulating a solution. The Board was also persuaded by Mr.
       Zolnierek’s proposals that staff hold informal workshops to address the effective use of low
       income assistance programs and that individual proceedings be conducted in which new
       market entrants would seek the Commission’s approval to participate in a low income subsidy
       program. The Board reasoned that the Commission’s acceptance of these recommendations,
       for projects of considerable magnitude, established that Mr. Zolnierek’s recommendations
       were effective. Finally, the Board noted that the Union chose not to file an exception to the
       ALJ’s finding that Mr. Zolnierek met the second part of the statutory definition because he
       implemented Commission policies.
¶ 86       On appeal, the Union focuses on Mr. Beyer’s inability to name any policies that Mr.
       Zolnierek drafted on his own, criticizing the Board for relying on projects and policies that Mr.
       Zolnierek worked on with other Commission employees. As with Ms. Nicdao-Cuyugan, we
       reject this notion that managerial functions cannot also be collaborative ones. We have held
       that it is unimportant whether an employee functions as a manager independently or in
       collaboration with others, as “the [Labor Relations] Act does not require *** independence in
       management functions.” Department of Central Management Services v. Illinois Labor
       Relations Board, State Panel, 2011 IL App (4th) 090966, ¶ 187. Mr. Beyer’s testimony makes
       clear that, in each instance relied on by the Board, Mr. Zolnierek either initiated the project in
       question or played a significant part in its development and implementation. The only other


                                                   - 16 -
       argument the Union makes is one we have already rejected: that there is no indication in the
       record that those projects took up more than 50% of Mr. Zolnierek’s time. The evidence
       presented established that Mr. Zolnierek initiated and was significantly involved in expansive
       projects affecting the operation of his division. On this record, we cannot conclude that the
       Board’s finding that Mr. Zolnierek is engaged predominantly in executive and managerial
       functions was clearly erroneous.
¶ 87       We affirm the Board’s finding that Mr. Zolnierek, the Director of Telecommunications, is
       a managerial employee excluded from collective bargaining.

¶ 88                                       IV. CONCLUSION
¶ 89       As we have noted before, the “key inquiry” in cases interpreting the managerial exclusion
       in section 3(j) of the Labor Relations Act “is whether the duties and responsibilities of the
       employees in question are such that the employees should not be placed in a position requiring
       them to divide their loyalty between the employer and the collective bargaining unit.” Salaried
       Employees of North America (SENA) v. Illinois Local Labor Relations Board, 202 Ill. App. 3d
       1013, 1021 (1990). Based on the record as a whole, and affording the Board due discretion, we
       cannot say that any part of the Board’s determination that the six Commission directors at issue
       in this case are managerial employees statutorily excluded from collective bargaining is clearly
       erroneous.

¶ 90      Affirmed.




                                                  - 17 -
