                                  Illinois Official Reports

                                          Appellate Court



  American Federation of State, County & Municipal Employees (AFSCME), Council 31 v.
                       Illinois Labor Relations Board, State Panel,
                                 2014 IL App (1st) 123426



Appellate Court              AMERICAN FEDERATION OF STATE, COUNTY and
Caption                      MUNICIPAL EMPLOYEES (AFSCME), COUNCIL 31, Petitioner,
                             v. THE ILLINOIS LABOR RELATIONS BOARD, STATE PANEL,
                             and THE DEPARTMENT OF CENTRAL MANAGEMENT
                             SERVICES (Illinois Commerce Commission), Respondents.


District & No.               First District, Third Division
                             Docket No. 1-12-3426


Filed                        August 13, 2014


Held                         The decision of the Illinois Labor Relations Board finding that
(Note: This syllabus         administrative law judges III and IV working at the Illinois Commerce
constitutes no part of the   Commission were managerial employees and were barred by the
opinion of the court but     managerial employee exception in section 3(n) of the Illinois Public
has been prepared by the     Labor Relations Act from engaging in collective bargaining was
Reporter of Decisions        affirmed by the appellate court, since the Commission’s policies on
for the convenience of       utility regulation are directly effectuated through the orders
the reader.)                 recommended by the administrative law judges and those orders are
                             almost always adopted by the commissioners.



Decision Under               Petition for review of order of Illinois Labor Relations Board, State
Review                       Panel, Nos. S-RC-10-034, S-RC-10-036.



Judgment                     Affirmed.
     Counsel on                   Cornfield & Feldman LLC, of Chicago (Melissa J. Auerbach, of
     Appeal                       counsel), for petitioner.

                                  Lisa Madigan, Attorney General (Michael A. Scodro, Solicitor
                                  General, and Sharon Purcell, Assistant Attorney General, of counsel),
                                  and Laner Muchin, Ltd. (Joseph M. Gagliardo and Lawrence Jay
                                  Weiner, Special Assistant Attorneys General, of counsel), both of
                                  Chicago, for respondents.



     Panel                        JUSTICE NEVILLE delivered the judgment of the court, with
                                  opinion.
                                  Presiding Justice Hyman and Justice Mason concurred in the
                                  judgment and opinion.


                                                    OPINION

¶1         This case involves the application of the managerial employee exception codified in
       section 3(n) of the Illinois Public Labor Relations Act (Act) (5 ILCS 315/3(n) (West 2010)).
       The Illinois Labor Relations Board (Board) certified the American Federation of State, County
       and Municipal Employees, Council 31 (AFSCME), as the sole bargaining representative for
       eight administrative law judges (ALJs), 1 all of whom work at the Illinois Commerce
       Commission (Commission). The Department of Central Management Services (CMS) filed a
       petition in the appellate court seeking review of the Board’s order certifying AFSCME as the
       exclusive representative of the eight ALJs. The appellate court reversed the Board’s
       certification order and remanded the case to the Board for an evidentiary hearing to determine
       whether the subject ALJs III and IV are managerial employees. Department of Central
       Management Services/Illinois Commerce Comm’n v. Illinois Labor Relations Board, State
       Panel, 406 Ill. App. 3d 766 (4th Dist. 2010). On remand, the Board conducted a two-day
       evidentiary hearing and determined that the ALJs fell within the Act’s definition for
       managerial employees. 5 ILCS 315/3(j) (West 2010).
¶2         We find that the evidence supports the Board’s finding that ALJs III and IV fall within
       section 3(j), the Act’s definition for managerial employees, and, therefore, the ALJs are barred
       by the managerial employee exception in section 3(n) of the Act from engaging in collective
       bargaining. Accordingly, we affirm the Board’s decision.

¶3                                           BACKGROUND
¶4                                           The 2010 Appeal
¶5         On July 28, 2009, AFSCME filed two majority interest petitions with the Board seeking to
       be certified as the exclusive representative for eight ALJs (one ALJ IV and seven ALJ IIIs) of

             1
              Only six ALJs participated in this appeal.

                                                           -2-
       the Commission. In each of the petitions, AFSCME stated that there was an existing
       Board-certified collective bargaining unit and the ALJs wished to be included in the bargaining
       unit.
¶6         On August 14, 2009, CMS filed a position statement in response to AFSCME’s petition,
       asserting that the ALJs should be excluded from the bargaining unit because they were
       “managerial” employees as defined by section 3(j) of the Act (5 ILCS 315/3(j) (West 2008))
       and, as such, were ineligible to participate in collective bargaining.
¶7         On August 14, 2009, the ALJ assigned to the case sent a letter to the parties, stating that she
       had reviewed CMS’s position statement and had found nothing therein necessitating a hearing.
       The ALJ ordered CMS to show cause why AFSCME should not be certified as the bargaining
       representative of the eight ALJs.
¶8         On September 9, 2009, in response to the Board’s order to show cause, CMS filed a
       supplemental position statement and asserted that the ALJs had a direct hand in formulating
       policy through the preparation of orders for the Commission. According to CMS, the chief
       ALJ had estimated that the Commission adopted the ALJs’ recommendations 95% of the time,
       that substantive modifications were rare, and outright reversals were even rarer.
¶9         After CMS submitted its supplemental position statement, the ALJ wrote the parties and
       stated that she found “no issues of law or fact in these matters” and that she would recommend
       that the Board’s Executive Director certify AFSCME as the bargaining representative for the
       eight ALJs. On September 10, 2009, the Board’s Executive Director certified AFSCME as the
       exclusive representative of the eight ALJs and ordered their inclusion in the existing RC-10
       bargaining unit.
¶ 10       CMS filed a petition seeking a review of the Board’s order in the Appellate Court, Fourth
       District, and argued that the ALJs were exempt from collective bargaining because they were
       managerial employees and that the Board erred when it certified AFSCME as the exclusive
       representative of the ALJs without holding an oral hearing.
¶ 11       The appellate court found that the ALJs were not managerial employees as a matter of law
       because members of the Commission retained the power and duty to issue their own decisions
       after receipt of the ALJs’ recommended orders. Department of Central Management Services,
       406 Ill. App. 3d at 782. The appellate court also found that the Board’s decision to certify
       AFSCME as the exclusive representative for the ALJs without an oral hearing was clearly
       erroneous because there was still “a live question” as to whether the eight ALJs were
       managerial employees. Department of Central Management Services, 406 Ill. App. 3d at 767.
       Therefore, the appellate court remanded the case to the Board for further proceedings on
       whether the ALJs are managerial employees. Department of Central Management Services,
       406 Ill. App. 3d at 783.

¶ 12                                   The Evidentiary Hearing
¶ 13       On remand, the Board held an evidentiary hearing on January 18 and 19, 2012. The
       following is a summary of the relevant evidence presented at the hearing.

¶ 14                              The Commission’s Structure
¶ 15     The testimony and exhibits revealed that there are five commissioners employed by the
       Commission and they have extensive expertise in utility regulation. The duties of the

                                                    -3-
       Commission are defined by statute. The purpose of the Commission is to regulate public
       utilities, including gas, electricity, water, telephone and sewer. The Commission employs
       ALJs and assistants. The assistants may be attorneys, economists or analysts and they assist the
       commissioners with their review of the ALJs’ recommendations. Each commissioner has at
       least one assistant. The Executive Director oversees the Commission’s day-to-day operations.
       Mike Wallace is the chief ALJ and ALJ Glennon Dolan is the assistant director. At the
       evidentiary hearing, Wallace testified that there were five ALJ IIIs (Katina Baker, Bonita
       Benn, Ethan Kimbrel, Sonya Teague and Stephen Yoder) and one ALJ IV (John Riley).

¶ 16                                          Types of Cases
¶ 17       Between 2002 and 2012, the Commission decided approximately 775 cases,2 divided into
       the following categories: 20 rate cases; 125 certificate cases; 125 consumer complaint cases;
       40 negotiated agreement cases; 5 reorganization cases; 20 electric supplier act cases; 60
       citation cases; 40 reconciliation cases; 60 gas miscellaneous cases; 60 electric miscellaneous
       cases; 30 water miscellaneous cases; 20 rulemaking cases; 120 confidentiality cases, and 50
       miscellaneous cases. In addition to the aforementioned cases, Wallace testified that the
       Commission also hears approximately 10 to 15 new legislation cases each year. The
       Commission’s orders on each case effectuate a Commission policy, though not every order
       announces a policy.
¶ 18       Wallace also testified that rate cases and cases arising from new legislation are the two
       main areas where the Commission formulates new policies. ALJs preside over rate cases
       where regulated utilities seek to increase the rates that they charge their customers. Rate cases
       involve creating new riders, which utilities use to collect revenue, determining rate design, and
       assessing the types of adjustments that must be made to the rate base. Wallace further testified
       that in hearing and deciding rate cases, the ALJs sometimes break new ground and advance
       “new scenario[s] for public utility regulation.” In cases that arise from new legislation, the
       ALJs’ recommendations assist the Commission in setting up new ways of procuring
       electricity.

¶ 19                                     The Decision Making Pro
¶ 20                                          ALJ Decisions
¶ 21       The ALJs spend approximately 90% of their time conducting hearings and issuing
       recommendations on matters that arise under the Public Utilities Act (220 ILCS 5/1-101 et seq.
       (West 2010)) and other statutes administered by the Commission. “Employer exhibit[s]” 1 and
       2 outline the duties of ALJ IIIs and IV and state, in part, that the ALJs are responsible for
       conducting “hearings in cases involving generic and rulemaking matters, rates, citations ***
       and all other matters, required under statutes affecting or administered by the Commission,
       including federal legislation, the Public Utilities Act and the Illinois Administrative Procedure
       Act.” Exhibits 1 and 2 indicate that the ALJs must present recommended orders to the
       Commission for decisions, which requires developing and maintaining the requisite



          2
           “[E]mployer exhibit 3” indicates that there were 755 cases. We counted the cases and there were
       775 cases (excluding the 10 to 15 new legislation cases).

                                                    -4-
       knowledge of other disciplines involved in regulation. Wallace testified that every ALJ order
       effectuates a Commission policy.
¶ 22       The ALJs do not have the power to dispose of a case and no case may be completed until
       the Commission enters a final order. However, Wallace testified that in telephone arbitration
       cases, where the commissioners fail to act on a case within a specified period of time, the
       ALJ’s order automatically becomes the Commission’s order.
¶ 23       The cases that come before the Commission may be contested or uncontested. In a
       contested case, the ALJ may schedule prehearing conferences, set hearings, examine
       pleadings, analyze issues, interrogate witnesses, rule on motions and on the admissibility of
       evidence, and otherwise manage the case. After the parties have submitted their evidence and
       briefed the relevant issues, the ALJ prepares an order containing his recommended disposition
       of the case. If the recommended disposition is adverse to any party, the order takes on the form
       of a proposed order. Each proposed order is reviewed by either Dolan or Wallace for
       scrivener’s errors, but they are not reviewed substantively. The proposed order is then given to
       the parties, who may choose to file exceptions to the proposed order. The ALJ reviews the
       exceptions, replies and the parties’ corresponding briefs and, if necessary, modifies the
       proposed order. The ALJ then issues the postexceptions proposed order. The order is then
       posted on the Commission’s e-docket along with a memorandum explaining its salient points
       to the commissioners, and the full evidentiary record is also available on the Commission’s
       e-docket.
¶ 24       In uncontested cases, the ALJs may hold evidentiary hearings. Some uncontested cases do
       not require a hearing if the parties settle or if a party fails to appear at the hearing. An
       uncontested case does not involve an adverse ruling. In uncontested cases, such as negotiated
       agreements, certificate and confidentiality cases, the ALJs often rely on the staff’s expertise to
       make their recommendations to the commissioners. However, the ALJ is not required to accept
       the staff’s recommendations and is expected to apply his/her own knowledge of the relevant
       discipline to the issue.
¶ 25       From 2009 through 2011, the subject ALJs III and IV drafted proposed orders in 82 of the
       993 cases that they resolved.3 The remaining 911 cases did not contain contested issues and
       therefore did not require a proposed order. Of the 82 proposed orders, the commissioners
       changed 3 and overturned 1. Wallace testified that in 99% of the cases, the commissioners
       agreed with the ALJs’ dispositions.

¶ 26                                    Commission Decisions
¶ 27       The commissioners generally meet three times each month to review the orders that the
       ALJs have posted to their e-docket. Prior to the meeting, each commissioner is provided with
       the ALJs’ proposed orders and the accompanying memorandums for each case set for that
       meeting’s agenda. In uncontested cases, the commissioners and their assistants review only the
       memorandums and the orders that the ALJs proffer. In contested cases, the commissioners
       review the parties’ testimony, the ALJs’ proposed orders and the memorandums. The
       commissioners do not have to accept the ALJs’ findings of fact or legal conclusions.



          3
           The cases for ALJ Riley were for the years 2010 and 2011 only.

                                                   -5-
¶ 28       In reviewing the ALJs’ recommended orders, the commissioners may request the
       assistance of technical staff in nonroutine cases and sometimes send written questions to the
       ALJ assigned to the case. If the commissioners intend to make changes to an ALJ’s order, they
       draft proposed language with their assistants and circulate it to the other commissioners’
       assistants. The assistants share the recommended changes with their commissioners and obtain
       their feedback. Once the commissioners have reached a consensus, the assistants draft
       language to reflect the commissioners’ desired outcome. Wallace testified that the
       commissioners generally adopt the ALJs’ ”proposed” orders verbatim. However, if the
       commissioners revise an ALJ’s order, the revised order is voted on by the commissioners.
       Once the commissioners rule on the ALJ’s order, the order is designated a Commission order
       and served on the parties.

¶ 29                                The ALJ’s Recommended Decision
¶ 30       The Board’s ALJ found that (1) the subject ALJs are the “whole game” because they help
       run the agency by hearing and making recommendations on every type of case that comes
       before the Commission; (2) the ALJs’ orders are the main avenue by which the Commission
       carries out its statutory duty to enforce laws related to public utilities; and (3) the ALJs
       predominantly perform management and executive functions, spending 90% of their time
       issuing recommendations through which they exercise independent judgment that broadly
       affects the Commission’s goals. The ALJ also found that the ALJs’ proposed orders in rate
       cases clearly qualify as managerial because they “innovate” rather than merely “nudge” the
       law in a particular direction within established standards.
¶ 31       Finally, the ALJ recommended that the subject ALJs III and IV be found to be managerial
       employees within the meaning of the Act and that the Board dismiss the petitions for
       representation.

¶ 32                                      The Board’s Decision
¶ 33       The Board stated that the issue was whether the subject ALJs were managerial employees
       under the Act’s traditional fact based test. The Board concluded that the ALJ’s determination
       that the ALJs were managerial employees was supported by the evidence and consistent with
       the appellate court’s analysis in Department of Central Management Services, 406 Ill. App. 3d
       at 778-79. Accordingly, the Board adopted the ALJ’s recommended decision and dismissed
       the petitions for representation. This appeal followed.

¶ 34                                           ANALYSIS
¶ 35        In this appeal, we must determine whether the ALJs are managerial employees within the
       meaning of the Act. Judicial review of a board’s decision is governed by the Administrative
       Review Law. 735 ILCS 5/3-102 (West 2010). The deference given to an agency’s decision
       depends upon whether the question is one of fact, one of law, or a mixed question of fact and
       law. Marconi v. Chicago Heights Police Pension Board, 225 Ill. 2d 497, 532 (2006). The
       Board’s findings of fact are given considerable deference, and they are subject to reversal only
       if they are against the manifest weight of the evidence. Kouzoukas v. Retirement Board of the
       Policemen’s Annuity & Benefit Fund, 234 Ill. 2d 446, 463 (2009). While questions of law are
       reviewed de novo, mixed questions of fact and law are reviewed under the clearly erroneous

                                                  -6-
       standard. Kouzoukas, 234 Ill. 2d at 463. Because this case involves an examination of the legal
       effect of a given set of facts, it involves a mixed question of fact and law, and the clearly
       erroneous standard of review applies. City of Belvidere v. Illinois State Labor Relations Board,
       181 Ill. 2d 191, 205 (1998). The supreme court has held that an administrative decision is
       clearly erroneous only where the reviewing court, based upon the entire record, is “left with the
       definite and firm conviction” that a mistake has been made. (Internal quotation marks omitted.)
       AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 395
       (2001).
¶ 36       AFSCME maintains that the ALJs are not managerial employees and therefore not
       excluded from collective bargaining. Employees of the state of Illinois have and are protected
       in the exercise of the right of self organization and may form, join or assist any labor
       organization to bargain collectively through representatives of their own choosing on
       questions of wages, hours and other conditions of employment. 5 ILCS 315/6(a) (West 2010).
       The Act defines an employee as “any individual employed by a public employer, *** but
       excluding *** managerial employees.” 5 ILCS 315/3(n) (West 2010). “Managerial employee”
       is defined as “an individual who is engaged predominantly in executive and management
       functions and is charged with the responsibility of directing the effectuation of management
       policies and practices.” 5 ILCS 315/3(j) (West 2010). The 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).
¶ 37       The Illinois courts employ two tests to determine whether an employee is a managerial
       employee for purposes of the Act: (1) “the traditional test, which considers whether the
       employee is a managerial employee as a matter of fact,” and “(2) the alternative test, which
       considers whether the employee is a managerial employee as a matter of law.” Department of
       Central Management Services/The Department of Healthcare & Family Services v. Illinois
       Labor Relations Board, State Panel, 388 Ill. App. 3d 319, 330 (2009). In the first appeal, the
       appellate court found that the ALJs were not managerial employees as a matter of law but
       remanded the case for further administrative proceedings to determine whether the ALJs are
       managerial employees. Department of Central Management Services, 406 Ill. App. 3d at
       782-83. CMS did not appeal the appellate court’s finding and, therefore, the appellate court’s
       conclusion that the ALJs were not managerial employees as a matter of law became the law of
       the case. See In re Christopher K., 217 Ill. 2d 348, 365 (2005). Accordingly, we can only
       consider the traditional test to determine whether the facts presented at the evidentiary hearing
       support the Board’s finding that the ALJs in question are managerial employees as a matter of
       fact.
¶ 38       The traditional test considers the facts to determine whether an employee comes within the
       purview of the definition of a managerial employee in section 3(j) of the Act. Although the Act
       does not define “executive and management functions,” we note that these functions amount to
       running an agency or department, such as by establishing policies and procedures, preparing
       the budget, or otherwise assuring the agency or department operates effectively. Department of
       Central Management Services, 406 Ill. App. 3d at 774. However, the managerial exclusion is
       not limited to employees who have the potential to affect labor relations matters, such as
       wages, hours, and other terms and conditions of employment. Board of Regents of the Regency
       Universities System v. Illinois Educational Labor Relations Board, 166 Ill. App. 3d 730,


                                                   -7-
       740-41 (1988). “The employee must possess and exercise authority and discretion which
       broadly effects a department’s goals and means of achieving its goals.” Department of Central
       Management Services v. Illinois State Labor Relations Board, 278 Ill. App. 3d 79, 87 (1996).
¶ 39        A managerial employee not only has the authority to make policy but also bears the
       responsibility of effectuating that policy. Department of Central Management Services, 406
       Ill. App. 3d at 774-75. In other words, managerial employees do not merely recommend
       policies or give advice to those higher up the employment chain, they actually direct the
       governmental enterprise in a hands-on way. Department of Central Management Services, 406
       Ill. App. 3d at 775. Managerial employees are those involved in the direction of the
       governmental enterprise or a major unit thereof, and who possess authority to broadly affect its
       mission or fundamental methods. Salaried Employees of North America (SENA) v. Illinois
       Local Labor Relations Board, 202 Ill. App. 3d 1013, 1020 (1990).
¶ 40        If the employee’s role is advisory and subordinate, the employee is not a managerial
       employee. Department of Central Management Services, 278 Ill. App. 3d at 87. However, as
       explained in Chief Judge, “ ‘the relevant consideration is effective recommendation or control
       rather than final authority’ over employer policy.” Chief Judge, 178 Ill. 2d at 339-40 (quoting
       National Labor Relations Board v. Yeshiva University, 444 U.S. 672, 683 n.17 (1980)). As
       such, an advisory employee who makes effective recommendations can be managerial. See
       Chief Judge, 178 Ill. 2d at 339-40. To be effective means to produce a decided, decisive or
       desired effect. Department of Central Management Services, 406 Ill. App. 3d at 775.
       Therefore, recommendations are effective if they are almost always implemented or followed.
       Department of Central Management Services/Pollution Control Board v. Illinois Labor
       Relations Board, State Panel, 2013 IL App (4th) 110877, ¶ 26; Department of Central
       Management Services, 406 Ill. App. 3d at 775.
¶ 41        Our supreme court explained in Chief Judge that the managerial exclusion in the Act was
       adopted from decisions of the National Labor Relations Board and the United States Supreme
       Court. Chief Judge, 178 Ill. 2d at 339. The Chief Judge court held that the definition of
       managerial employee in section 3(j) of the Act is very similar to the exclusion for managerial
       employee the Supreme Court read into the National Labor Relations Act (29 U.S.C. § 151
       et seq. (1994)) in National Labor Relations Board v. Yeshiva University, 444 U.S. 672 (1980).
       Chief Judge, 178 Ill. 2d at 339. In addition, the Chief Judge court made it clear that the concept
       of effective recommendations, which the Supreme Court held to be applicable to the
       managerial exclusion in Yeshiva, applies with equal force to the managerial exclusion under
       the Illinois statute. See Chief Judge, 178 Ill. 2d at 339-40.
¶ 42        In Yeshiva, the union filed a petition to represent the faculty members of a university by
       arguing that the faculty’s authority was merely advisory. The Yeshiva Court explained that a
       managerial employee recommends discretionary actions that effectively control or implement
       employer policy. Yeshiva, 444 U.S. at 683. The Yeshiva Court found that the faculty at each
       school made recommendations to the dean or director in every case of faculty hiring, tenure,
       sabbaticals, termination and promotion. And although the final decision was reached by the
       central administration on the advice of the dean or director, the overwhelming majority of the
       faculty recommendations were implemented. Yeshiva, 444 U.S. at 677. The Supreme Court
       noted that the fact the administration held a rarely exercised veto power did not diminish the
       faculty’s effective power in policymaking and implementation. Yeshiva, 444 U.S. at 683 n.17.
       Accordingly, the Yeshiva Court held that the faculty members were managerial employees and

                                                   -8-
       therefore excluded from collective bargaining under the National Labor Relations Act.
       Yeshiva, 444 U.S. at 682, 686.
¶ 43        The duties of the Commission are set forth in sections 4-101 and 4-201 of the Public
       Utilities Act. 220 ILCS 5/4-101, 4-201 (West 2010). Section 4-101 provides “[t]he Commerce
       Commission shall have general supervision of all public utilities.” 220 ILCS 5/4-101 (West
       2010). Section 4-201 makes it “the duty of the Commission to see that the provisions of the
       Constitution and statutes of this State affecting public utilities *** are enforced and obeyed.”
       220 ILCS 5/4-201 (West 2010). The functions of the ALJs III and IV are outlined in CMS’
       Exhibits 1 and 2, which provide that the ALJs are responsible for conducting “hearings in cases
       involving generic and rulemaking matters, rates, citations *** and all other matters, required
       under statutes affecting or administered by the Commission, including federal legislation, the
       Public Utilities Act and the Illinois Administrative Procedure Act.” The ALJs assist the
       commissioners with their recommended orders and the commissioners review and approve the
       recommended orders drafted by the ALJs. The evidence establishes that the ALJs have a
       prominent role in the fulfillment of the Commission’s duties and are the “whole game” with
       regard to the agency’s mission. Therefore, when we compare the job functions of the ALJs to
       the overall mission of the Commission, and when we consider that the ALJs are the whole
       game when it comes to utility regulation–just as the faculty members in Yeshiva were the
       whole game when it came to academic policy–we find that the ALJs are managerial
       employees. See Yeshiva, 444 U.S. at 682-86; Chief Judge, 178 Ill. 2d at 339-47.
¶ 44        We also note that although the ALJs’ recommended orders are reviewed by the
       commissioners and their assistants, the review does not diminish the ALJs’ effective power in
       directing the effectuation of the Commission’s policies and practices. See Yeshiva, 444 U.S. at
       683 n.17. The test is not the presence or absence of review. Department of Central
       Management Services, 406 Ill. App. 3d at 777. Rather, the test is the effectiveness, power, or
       influence of the recommendations. Department of Central Management Services, 406 Ill. App.
       3d at 777. The determining factor is the influence of the recommendations and whether they
       almost always persuade the superiors. See Yeshiva, 444 U.S. at 677.
¶ 45        Here, CMS maintains that the Commission rarely makes any substantive modification of
       the ALJs’ recommended orders and that outright reversals are even rarer. Wallace testified that
       the Commission adopts the ALJs’ recommendations 99% of the time. Specifically, the ALJs at
       issue wrote 82 proposed orders between 2009 and 2011 and the commissioners accepted all but
       1 order and only 3 orders were amended. Like the faculty members in Yeshiva, the ALJs issue
       recommended orders in every case that comes before the Commission relating to public
       utilities and, although the final decision is reached by the commissioners on the advice of their
       assistants, the overwhelming majority of the ALJs’ recommended orders are implemented.
       Yeshiva, 444 U.S. at 677.
¶ 46        As this court noted in Department of Central Management Services, the procedure by
       which the ALJs hold hearings and issue recommended orders, which the Commission adopts
       almost all the time, is the primary means, if not the exclusive means by which the Commission
       fulfills its statutory mandate of regulating public utilities. Department of Central Management
       Services, 406 Ill. App. 3d at 779. Therefore, the ALJs, through the issuance of their
       recommended orders, are engaged predominantly in executive and managerial functions and
       are charged with directing the effectuation of management policies and practices within the
       purview of section 3(j) of the Act because the commissioners (1) almost always accept the

                                                   -9-
       ALJs’ recommended orders, and (2) make and implement policy through the issuance of
       orders which are recommended by the ALJs. Yeshiva, 444 U.S. at 682, 686; Chief Judge, 178
       Ill. 2d at 339-47.
¶ 47        AFSCME contends that although the ALJs are involved in carrying out the existing
       policies of the Commission, they neither formulate policy nor direct the effectuation of policy.
       But, it is not absolutely necessary that a managerial employee formulate policy. Department of
       Central Management Services, 406 Ill. App. 3d at 780. “Formulating policy is merely one
       example of running an agency.” Department of Central Management Services, 406 Ill. App. 3d
       at 780. Running a department might not entail the creation of new policies, but it will always
       entail directing the effectuation of existing policies. Department of Central Management
       Services, 406 Ill. App. 3d at 780. We note that Wallace testified that formulating policy is not a
       major part of the Commission’s function, but that the Commission’s orders always direct the
       effectuation of its existing policies. The evidence shows that the ALJs help formulate policy
       through their recommended orders in rate cases and in cases that arise from new legislation.
       Because the ALJs’ recommended orders assist the commissioners, it logically follows that the
       ALJs assist the commissioners in formulating policy. Therefore, because the Commission
       almost always adopts the ALJs’ recommended orders, the ALJs direct the effectuation of the
       State’s policies regarding public utilities.
¶ 48        AFSCME relies on the Act’s definition of “professional employee,” which provides:
       “ ‘[p]rofessional employee’ means any employee engaged in work predominantly intellectual
       and varied in character rather than routine mental, manual, mechanical or physical work;
       involving the consistent exercise of discretion and adjustment in its performance.” 5 ILCS
       315/3(m) (West 2010). AFSCME also contends that the Act includes professional employees
       in the class of employees entitled to collective bargaining rights. Here, although the Board
       could have concluded that ALJs III and IV fit within this definition, it did not, and we would be
       substituting our judgment for that of the Board to reverse on that basis. Cinkus v. Village of
       Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 210 (2008) (a reviewing court
       should not substitute its judgment or reweigh the evidence in reviewing an agency’s factual
       findings).
¶ 49        After a review of the record, we find that we are not left with a definitive and firm
       conviction that the Board’s decision was clearly erroneous. Therefore, we hold that the
       evidence supports the Board’s finding that the ALJs are managerial employees as defined by
       section 3(j) of the Act and are barred by the managerial employee exception in section 3(n) of
       the Act from engaging in collective bargaining.

¶ 50                                         CONCLUSION
¶ 51       We find that the ALJs direct the effectuation of the Commission’s policies on utility
       regulation through their recommended orders and that the commissioners almost always adopt
       the ALJs’ recommended orders. Therefore, we hold that the ALJs are managerial employees as
       defined by section 3(j) of the Act and are barred by the managerial exception in section 3(n) of
       the Act from engaging in collective bargaining. Accordingly, the Board’s order finding that the
       ALJs were managerial employees was not clearly erroneous.

¶ 52      Affirmed.


                                                   - 10 -
