                          NO. 4-09-0721            Filed 12/28/10

                     IN THE APPELLATE COURT

                           OF ILLINOIS

                         FOURTH DISTRICT

THE DEPARTMENT OF CENTRAL MANAGEMENT   ) Direct Administrative
SERVICES/THE ILLINOIS HUMAN RIGHTS     ) Review of Illinois
COMMISSION,                            ) Labor Relations Board,
          Petitioner-Appellant,        ) State Panel,
          v.                           ) No. S-RC-09-132
THE ILLINOIS LABOR RELATIONS BOARD,    )
STATE PANEL; JACKIE GALLAGHER, MICHAEL )
HADE, REX PIPER, MICHAEL COLI, and     )
ALBERT WASHINGTON, the Members of Said )
Board and Panel in Their Official      )
Capacity Only; JOHN F. BROSNAN, in His )
Official Capacity Only as ILRB         )
Executive Director; Administrative Law )
Judge ELLEN MAUREEN STRIZAK, in Her    )
Official Capacity Only; and the        )
AMERICAN FEDERATION OF STATE, COUNTY, )
AND MUNICIPAL EMPLOYEES, COUNCIL 31,   )
          Respondents-Appellees.       )
_________________________________________________________________

          JUSTICE McCULLOUGH delivered the opinion of the court:

          Petitioner, the Illinois Department of Central Manage-

ment Services/the Illinois Human Rights Commission (CMS), seeks

administrative review of a decision of the Illinois Labor Rela-

tions Board, State Panel (Board), that permitted inclusion of

employees with the classification of public service administrator

(PSA), option 8L, Administrative Law Judge (ALJ), into an exist-

ing bargaining unit, RC-10, and certified the American Federation
of State, County, and Municipal Employees, Council 31 (union), as

their exclusive representative.    CMS argues it was improperly and

unfairly denied an evidentiary hearing and due process, and ALJs

are "managerial employees" under the Illinois Public Labor

Relations Act (Act) (5 ILCS 315/1 through 27 (West 2008)) and,

therefore, excluded from engaging in collective bargaining.    We

reverse, finding the ALJs in the case at bar to be "managerial

employees" as a matter of law.

          On April 8, 2009, the union filed a representation-

certification petition with the Board, alleging that a majority

of CMS's employees in an appropriate unit wished to be repre-

sented by the union for purposes of collective bargaining.

Specifically, it asserted there was an existing board-certified,

collective-bargaining unit and seven employees holding the

position of PSA, option 8L, ALJ wished to be included in that

existing bargaining unit.

          On May 14, 2009, CMS filed a position statement in

response to the union's petition, asserting the petitioned-for

bargaining unit was inappropriate because its ALJs were "manage-

rial employees" as defined by the Act.   Specifically, it argued

(1) the ALJs at issue rendered decisions based upon and effecting

management policy and (2) the ALJs were managerial employees as a

                                 - 2 -
matter of law.    CMS requested dismissal of the petition.

          On June 12, 2009, the Board, through its agent, sent a

letter to the parties, requesting CMS "cite specific facts in

support of its assertion."    On July 15, 2009, CMS responded.   It

argued the ALJs regularly made determinations directly related to

the policies of the Human Rights Commission (Commission) as

dictated by the Human Rights Act (775 ILCS 5/1-101 through 10-104

(West 2008)).    Further, it noted "a two-tier decision-making

process in which the ALJs make recommended decisions."    CMS

alleged that the decisions of the ALJs were "given much defer-

ence."

          On August 13, 2009, the Board's agent sent a letter to

CMS, stating its responses had been reviewed and no issues of law

or fact were found.    The agent stated she intended to recommend

that the petitioned-for unit be certified.    On August 17, 2009,

the Board's Executive Director issued a certification of repre-

sentative, designating the union as the exclusive representative

of the PSA, option 8L, ALJs for collective-bargaining purposes

and adding those employees to the existing bargaining unit.

          This appeal followed.

          On appeal, CMS argues the Board improperly failed to

conduct an evidentiary hearing, violating its due-process rights.

                                - 3 -
Further, it contends its ALJs could not have appropriately been

included in the petitioned-for unit because they were managers

under the Act and not public employees.

          When a petition to certify a labor organization as the

exclusive representative of a group of public employees has been

filed, the Board must investigate the petition and, "if it has

reasonable cause to believe that a question of representation

exists," must provide for an appropriate hearing.     5 ILCS

315/9(a) (West 2008).   Addressing the issue of whether the Board

improperly failed to conduct a hearing, the First District has

recently stated as follows:

          "[T]he Act 'on its face provides for the

          evaluation of the evidence gathered and a

          determination of its sufficiency before an

          appropriate hearing must be held.'

          [Citation.] 'This interpretation is fully

          consistent with and borne out by the Board's

          own regulations promulgated to implement

          section 9(a) of the Act.' [Citations.]     These

          regulations provide a procedure under which a

          petition may be either dismissed or certified

          without a hearing."   City of Chicago v.

                                - 4 -
          Illinois Labor Relations Board, Local Panel,

          396 Ill. App. 3d 61, 71-72, 918 N.E.2d 1103,

          1113 (2009), quoting Illinois Council of

          Police v. Illinois Labor Relations Board,

          Local Panel, 387 Ill. App. 3d 641, 659, 899

          N.E.2d 1199, 1214 (2008).

          The Board's regulations provide that the Board or its

agent must investigate a petition.    80 Ill. Adm. Code

§1210.100(b)(6), as amended by 28 Ill. Reg. 4172, 4191 (eff.

February 19, 2004).

               "A) After the investigation, the

          Executive Director shall dismiss a petition,

          or the [ALJ] shall recommend to the Board

          that a petition be dismissed, when a petition

          has been filed untimely; when the bargaining

          unit is clearly inappropriate; when the

          showing of interest is not adequate; when the

          employer is not covered by the Act; when the

          employees are not covered by the Act; or for

          any other reason there is no reasonable cause

          to believe that a question of representation

          exists.   ***

                              - 5 -
                B) Where there are no unit

          appropriateness or exclusion issues, or any

          other issues necessitating a hearing, the

          Executive Director will prepare a tally of

          the finding of majority support and certify

          the petitioner as the unit's exclusive

          representative within 20 days after the

          service of the petition. ***

                C) If the investigation discloses that

          there is reasonable cause to believe that

          there are unresolved issues relating to the

          question concerning representation, the Board

          shall set the matter for hearing before an

          [ALJ].   ***."   80 Ill. Adm. Code

          §1210.100(b)(7), as amended by 28 Ill. Reg.

          4172, 4192 (eff. February 19, 2004).

          "Under the Administrative Review Law [(735 ILCS 5/3-110

(West 2008))], the scope of judicial review extends to all

questions of law and fact presented by the record before the

court."   AFM Messenger Service, Inc. v. Department of Employment

Security, 198 Ill. 2d 380, 390, 763 N.E.2d 272, 279 (2001).    On

review, this court must determine whether the agency's findings

                                - 6 -
of fact are against the manifest weight of the evidence.    Exelon

Corp. v. Department of Revenue, 234 Ill. 2d 266, 272, 917 N.E.2d

899, 904 (2009).   Questions of law are subject to de novo review.

Exelon, 234 Ill. 2d at 273, 917 N.E.2d at 904.    Finally, "[a]n

agency's conclusion on a mixed question of fact and law is

reviewed for clear error."    Exelon, 234 Ill. 2d at 273, 917

N.E.2d at 905.

           CMS first argues it was deprived of due process when

the Board issued a certification of representative without a

hearing.   This issue presents a question of law and is subject to

de novo review.

           "The fundamental requirements of due process are notice

of the proceeding and an opportunity to present any objections."

People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 201, 909

N.E.2d 783, 796 (2009).   However, "[t]he due[-]process clauses of

the fifth and fourteenth amendments were enacted to protect

'persons,' not States."   People v. Williams, 87 Ill. 2d 161, 166,

429 N.E.2d 487, 489 (1981).    The State is not a "person" and

cannot benefit from due-process protection.    Williams, 87 Ill. 2d

at 166, 429 N.E.2d at 489.

           Here, CMS is a state agency and not entitled the

protections of due process.    Moreover, in this instance, the

                                - 7 -
fundamental requirements of due process were met because CMS

received notice of the proceedings at issue and an opportunity

for its objections to be heard.   The record reflects CMS filed

two responses to the union's petition and both were reviewed by

the Board's agent during her investigation of the petition.

CMS's argument that it was denied due process is without merit.

          Additionally, neither the Act nor the Board's

regulations require a hearing following the filing of a majority-

interest petition.   As stated, the Act provides for a hearing

only when there is reasonable cause to believe a question of

representation exists.   See 5 ILCS 315/9(a) (West 2008).

          CMS, however, also contends "the undisputed facts

contained in its position statements [were] sufficient to raise

questions of representation and exclusions."   It argued before

the Board, and argues on appeal, that its ALJs are "managerial

employees" under the Act and may not engage in collective

bargaining.

          "While the test to determine whether a

          hearing is required under the Act is a legal

          one, involving whether the Board had 'no

          reasonable cause' to believe that a question

          of representation existed [citation], that

                               - 8 -
          test must be applied to and depends upon the

          sufficiency of facts presented to the Board

          during its investigation of the

          representation petition. [Citations.]    As

          such, this court reviews the Board's finding

          that a hearing was not required under the

          clearly erroneous standard.    [Citation.]"

          City of Chicago, 396 Ill. App. 3d at 72, 918

          N.E.2d at 1113-14.

An agency's decision "will be deemed 'clearly erroneous' only

where the reviewing court, on the entire record, is 'left with

the definite and firm conviction that a mistake has been

committed.'"    AFM Messenger, 198 Ill. 2d at 395, 763 N.E.2d at

282, quoting    United States v. United States Gypsum Co., 333 U.S.

364, 395, 92 L. Ed. 746, 766, 68 S. Ct. 525, 542 (1948).

          One of the Act's purposes is "to regulate labor

relations between public employers and employees."      5 ILCS 315/2

(West 2008).    The Act defines a "public employee" as "any

individual employed by a public employer," excluding "managerial

employees."    5 ILCS 315/3(n) (West 2008).   "'Managerial employee'

means an individual who is engaged predominantly in executive and

management functions and is charged with the responsibility of

                                - 9 -
directing the effectuation of management policies and practices."

5 ILCS 315/3(j) (West 2008).   "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, 687 N.E.2d 795, 797 (1997).

           Two tests are used to determine whether an employee is

a "managerial employee" for purposes of the Act.    Department of

Central Management Services v. Illinois Labor Relations Board,

State Panel, 388 Ill. App. 3d 319, 330, 902 N.E.2d 1122, 1130

(2009).   The first test is "the traditional test, which considers

whether the employee is a managerial employee as a matter of

fact."    Department of Central Management Services, 388 Ill. App.

3d at 330, 902 N.E.2d at 1130.    The second test is "the

alternative test, which considers whether the employee is a

managerial employee as a matter of law [citation]."    Department

of Central Management Services, 388 Ill. App. 3d at 330, 902

N.E.2d at 1130.

           In Cook County State's Attorney v. Illinois Local Labor

Relations Board, 166 Ill. 2d 296, 304, 652 N.E.2d 301, 305

(1995), the supreme court found that, as a matter of law,

                               - 10 -
assistant State's Attorneys were "managerial employees" under the

Act due to (1) the close identification of a State's Attorney

with the actions of his or her assistants, (2) the unity of their

professional interests, and (3) the power of the assistants to

act on behalf of the State's Attorney.   Sufficient grounds for

determining the issue as a matter of law existed because of

statutes and case law that articulated the powers and duties of

the State's Attorney's office and of the assistant State's

Attorneys.   Cook County State's Attorney, 166 Ill. 2d at 305, 652

N.E.2d at 305.   In reaching its decision, the court noted that

"[t]he authority to make independent decisions and the consequent

alignment of the employee's interests with management's are

hallmarks of managerial status for purposes of labor law."    Cook

County State's Attorney, 166 Ill. 2d at 301, 652 N.E.2d at 303.

          In Chief Judge, 178 Ill. 2d at 343, 687 N.E.2d at 799,

the supreme court also found that assistant public defenders were

"managerial employees" as a matter of law.   It referenced the

three factors relied upon by the court in Cook County State's

Attorney and found "assistant public defenders possess

significant authority and discretion to discharge the mission of

the public defender's office." Chief Judge, 178 Ill. 2d at 344,

687 N.E.2d at 800.   In effect, the assistants acted "as



                              - 11 -
surrogates for the public defender."     Chief Judge, 178 Ill. 2d at

344, 687 N.E.2d at 800.

            Here, the powers and duties of the Commission and its

ALJs are defined in the Illinois Human Rights Act (775 ILCS 5/1-

101 through 10-104 (West 2008)).    The Commission consists of 13

members appointed by the Governor with the advice and consent of

the Senate.    775 ILCS 5/8-101(A) (West 2008).   It has the power

to hear and decide complaints filed by the Illinois Department of

Human Rights based upon civil-rights violations.     775 ILCS 5/7A-

102(C), (F), 8-102(G) (West 2008).      The Commission also has the

power to hire and train attorneys to act as ALJs and preside over

hearings.    775 ILCS 5/8-102(D), 8A-102 (West 2008).

            The ALJs hear testimony, make findings of fact, and

issue recommended orders.    775 ILCS 5/8A-102(G), (I) (West 2008).

If the parties agree to proceed with the alternative hearing

procedure set forth in the Human Rights Act, the ALJ's decision

is final and cannot be appealed.    775 ILCS 5/8A-102.5 (West

2008).   Under regular hearing procedures, the ALJ's recommended

order becomes the final order of the Commission when no party

files written exceptions within 30 days of receipt of service of

the recommended order.    775 ILCS 5/8A-103(A) (West 2008).   Once

exceptions are filed, the Commission may decline to review the



                               - 12 -
recommended order, making it the order of the Commission.      775

ILCS 5/8A-103(E) (West 2008).    It also may accept the case for

review and "adopt, modify, or reverse in whole or in part" the

ALJ's findings and recommendations.      775 ILCS 5/8A-103(E)(1)

(West 2008).    On review, the Commission must adopt the ALJ's

factual findings which are not contrary to the manifest weight of

the evidence.    775 ILCS 5/8A-103(E)(2) (West 2008).

           Here, the ALJs preside over hearings and render

decisions in cases that involve alleged civil-rights violations.

They act with discretion and with the purpose of carrying out the

policies of the Commission.    Their recommended orders become the

final decision of the Commission.    Although parties in the

underlying action may seek review of an ALJ's recommended order,

the Commission is highly deferential to the ALJ's findings of

fact.   As in Cook County State's Attorney and Chief Judge, the

ALJs' actions are closely identified with those of the

Commission, a unity of professional interests exists between the

two, and the ALJs have the power to act on behalf of the

Commission.    Under the circumstances presented, the ALJs are

"managerial employees" as a matter of law.

           For the reasons stated, we reverse the Board's

determination.



                                - 13 -
Reversed.

KNECHT, P.J., and TURNER, J., concur.




                    - 14 -
