                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court



   Department of Central Management Services/Pollution Control Board v. Illinois Labor
                 Relations Board, State Panel, 2013 IL App (4th) 110877




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


District & No.             Fourth District
                           Docket No. 4-11-0877


Filed                      January 11, 2013


Held                       Attorney-assistant employees of the Pollution Control Board who provide
(Note: This syllabus       advice and direction to the members of the Board regarding legal issues
constitutes no part of     related to the Board’s functions are managerial employees as a matter of
the opinion of the court   law; therefore, the decision of the Illinois Labor Relations Board, State
but has been prepared      Panel, that they were not managerial employees and should be included
by the Reporter of         in a proposed bargaining unit was reversed.
Decisions for the
convenience of the
reader.)


Decision Under             Petition for review of order of Illinois Labor Relations Board, State Panel,
Review                     No. S-RC-10-196.


Judgment                   Reversed.
Counsel on                 Joseph M. Gagliardo and Lawrence Jay Weiner (argued), Special
Appeal                     Assistant Attorneys General, of Chicago, for petitioner Department of
                           Central Management Services.

                           Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
                           Solicitor General, and Eric Truett (argued), Assistant Attorney General,
                           of counsel), for respondent Illinois Labor Relations Board, State Panel.

                           Gail E. Mrozowski (argued) and Andrew B. Epstein, both of Cornfield &
                           Feldman, of Chicago, for respondent American Federation of State,
                           County, and Municipal Employees.


Panel                      PRESIDING JUSTICE STEIGMANN delivered the judgment of the
                           court, with opinion.
                           Justices Pope and Knecht concurred in the judgment and opinion.




                                            OPINION

¶1           In February 2010, respondent, the American Federation of State, County, and Municipal
        Employees, Council 31 (AFSCME), filed a majority interest representation petition under
        the Illinois Public Labor Relations Act (Act) (5 ILCS 315/1 to 27 (West 2010)) with the
        Illinois Labor Relations Board (Board), seeking to include attorney-assistant employees of
        the petitioner, the Department of Central Management Services (CMS), in AFSCME’s
        existing RC-10 bargaining unit.
¶2           In August 2011, the Board, in a 3 to 2 decision, issued a ruling, rejecting CMS’s
        argument that the positions in question–namely, public service administrators, option 8s
        (hereinafter, PSA 8s), which is a designation assigned to state employees who, in this case,
        are employed as attorney-assistants by the Pollution Control Board (PCB)–were managerial
        under the Act.
¶3           CMS appeals, arguing that the Board erred by (1) concluding that the disputed PSA 8s
        (1) were not managerial under the Act and (2) finding that employees who are exempt from
        the Illinois Personnel Code under section 4d(1) (20 ILCS 415/4d(1) (West 2010)) should be
        included in the bargaining unit. Because we agree with CMS that the Board’s determination
        that the disputed PSA 8s were not managerial employees was clearly erroneous, we reverse.

¶4                                  I. BACKGROUND
¶5         In February 2010, AFSCME filed a majority interest representation petition under the Act

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       with the Board, seeking to include certain CMS employees in AFSCME’s existing RC-10
       bargaining unit.
¶6          In March 2010, CMS filed its initial position statement, in which it asserted that the
       employees at issue should be excluded from the bargaining unit as (1) managerial and/or
       confidential employees or (2) exempt as at-will employees under section 4d(1) of the
       Personnel Code.
¶7          The case proceeded to a hearing before an administrative law judge (ALJ) at which the
       parties entered stipulations as to several employees and sought a determination on the
       remainder. The parties presented the following background (1) at that September 2010
       hearing and (2) through their posthearing briefs.
¶8          The employees at issue were employed by the PCB, which is a quasi-judicial and quasi-
       legislative body. The PCB’s quasi-judicial functions involve implementing environmental
       regulations through enforcement, adjustment, and appeals. The PCB’s quasi-legislative
       functions involve drafting and issuing the state’s environmental regulations and governing
       the actions of the Illinois Environmental Protection Agency.
¶9          The PCB is comprised of five full-time members. Each PCB member is permitted to hire
       at least one assistant and a secretary. Although they are not required to be, the assistants to
       the PCB members have traditionally been attorneys. Those attorneys assist the PCB by
       providing advice and direction with respect to legal issues involving the PCB’s functions,
       given that the PCB members have traditionally not been attorneys.
¶ 10        The following four PCB attorney assistants are the PSA 8s at issue: (1) Timothy Fox, (2)
       Daniel Robertson, (3) Marie Tipsord, and (4) Richard McGill. Each of these attorney-
       assistants or, as the Board would later describe them, “clerks,” works closely with the PCB
       members to, among other duties, draft and issue administrative adjudicatory decisions.
¶ 11         On this description of employment, the ALJ entered a recommended decision and order,
       finding that “[n]one of the petitioned-for employees” were confidential or managerial
       employees under the Act.
¶ 12        In May 2011, CMS filed its exceptions to the ALJ’s decision, and AFSCME responded.
       In August 2011, the majority of the Board entered a written order, adopting the ALJ’s
       rationale and concluding as follows: “The attorney[-]assistants work very closely with the
       true managers–the PCB members–but the evidence fails to establish that they were
       themselves managerial employees.” Two Board members dissented, opining that they would
       have concluded that the PCB members’ attorney-assistants were managerial employees
       because they “collaborate one-on-one with their PCB members, not only in authoring
       decisions, but in arriving at decisions.”
¶ 13        This appeal followed.

¶ 14                                      II. ANALYSIS
¶ 15      CMS argues that the Board erred by (1) concluding that the disputed PSA 8s (1) were not
       managerial under the Act and (2) finding that employees who are exempt from the Personnel
       Code under section 4d(1) (20 ILCS 415/4d(1) (West 2010)) should be included in the


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       bargaining unit. Because we agree with CMS that the Board’s conclusion that the disputed
       PSA 8s were not managerial employees was clearly erroneous, we reverse and remand.

¶ 16                                  A. The Standards of Review
¶ 17        Initially, we note that the standard of review that we employ when reviewing a Board’s
       findings depends on the nature of the question we are considering. We review questions of
       fact under the familiar manifest-weight-of-the-evidence standard. Department of Central
       Management Services v. Illinois Labor Relations Board, State Panel, 2011 IL App (4th)
       090966, ¶ 127, 959 N.E.2d 114 (hereinafter Public Service Administrator, Option 2)
       (involving a representation petition seeking to add to existing bargaining unit RC-62 disputed
       employees in public service administrator, option 2 (PSA 2), positions (Department of
       Revenue, Department of Aging, CMS Internal Auditor Unit, Illinois Department of Natural
       Resources, Illinois Department of Employment Security, Department of Human Services,
       Illinois Department of Financial and Professional Regulation, Public Health, State Employee
       Retirement System, Illinois State Police, Veterans Affairs, Illinois Department of Health and
       Family Services, Department of Corrections, and other CMS departments)). When, of course,
       the question is purely one of law, our review is de novo. Public Service Administrator,
       Option 2, 2011 IL App (4th) 090966, ¶ 128, 959 N.E.2d 114.
¶ 18        However, sometimes the question cannot be accurately characterized as either one purely
       of fact or one purely of law because it is a mixed question. In such a circumstance, we
       employ an intermediate standard of review. We recently outlined this intermediate standard
       in Public Service Administrator, Option 2 as follows:
            “A mixed question of fact and law is one that involves the examination of the legal effect
            of a particular set of facts. [Citation.] Put another way, ‘a mixed question is one “in
            which the historical facts are admitted or established, the rule of law is undisputed, and
            the issue is whether the facts satisfy the statutory standard, or *** whether the rule of law
            as applied to the established facts is or is not violated.” ’ [Citation.] When reviewing
            these mixed questions, we give a diminished amount of deference by asking whether the
            Board’s decision is clearly erroneous. [Citation.] In this context, a finding is clearly
            erroneous if, despite the existence of some evidence to support the finding, the evidence
            in its entirety leaves the reviewing court with the definite and firm conviction that the
            finding is a mistake. [Citation.] Again, the finding is that the undisputed facts do or do
            not satisfy the statutory standard, the meaning of which likewise is undisputed.
            [Citation.] If there could be two reasonable but opposing views of whether the facts
            satisfy the statutory standard, the Board cannot have committed clear error by choosing
            between those views. [Citation.]” Public Service Administrator, Option 2, 2011 IL App
            (4th) 090966, ¶ 129, 959 N.E.2d 114.



¶ 19       B. Employees Excluded From the Statutory Right To Bargain Collectively
¶ 20      Section 6 of the Act outlines the statutory right of state employees to organize and
       bargain collectively. 5 ILCS 315/6 (West 2010). “[E]mployee[s]” are “individual[s]

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       employed by a public employer ***[,] excluding *** managerial employees; *** confidential
       employees; *** and supervisors.” 5 ILCS 315/3(n) (West 2010). CMS contends only that the
       attorney-assistants at issue in this case should be excluded as managerial employees.
       Accordingly, a discussion only of what constitutes a managerial employee is warranted.

¶ 21                                  1. Managerial Employees
¶ 22       We utilize two tests to determine whether an employee is a managerial employee: (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, 902 N.E.2d 1122, 1130 (2009) (hereinafter Department of Healthcare & Family
       Services) (representation proceeding seeking to add all public service administrators, option
       8L, attorneys in the Bureau of Administrative Litigation in the office of the Inspector General
       within the Department of Healthcare and Family services (six attorneys)).

¶ 23             a. The Traditional Test: Managerial Employees as a Matter of Fact
¶ 24        Managerial employees under the traditional test are those employees who are “engaged
       predominately in executive and management functions and [are] charged with the
       responsibility of directing the effectuation of management policies and practices.” 5 ILCS
       315/3(j) (West 2010). Therefore, managerial-employee status requires two parts: (1) the
       employee must be “engaged predominately in executive and management functions” and (2)
       the employee must be “charged with the responsibility of directing the effectuation of [such]
       management policies and practices.” 5 ILCS 315/3(j) (West 2010).
¶ 25        The Act does not define “executive and management” functions but we have noted that
       these functions amount to, among other things, running a department by assuring that the
       department operates effectively. Department of Central Management Services/Illinois
       Commerce Comm’n v. Illinois Labor Relations Board, State Panel, 406 Ill. App. 3d 766,
       774, 943 N.E.2d 1136, 1143 (2010) (hereinafter Illinois Commerce Comm’n) (involving
       certification of union as representative of one ALJ IV and seven ALJ IIIs, all of whom work
       at the Illinois Commerce Commission). Put another way, managers run the department by,
       for example, formulating policies and procedures. Id.
¶ 26        The second part of the statutory definition of managerial employee relates to how the
       department is run. This court described this second part of the statutory definition of
       managerial employee in Public Service Administrator, Option 2 as follows:
            “ ‘A managerial employee not only has the authority to make policy but also bears the
            responsibility of making that policy happen.’ [Citation.] That is, 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.’ [Citation.]
            The touchstone of such status is the independent authority to establish and effectuate
            policy. [Citation.] However, managerial status can also include those who make
            ‘effective recommendations’–that is, those employees who make recommendations that

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          are almost always implemented. [Citation.]” Public Service Administrator, Option 2,
          2011 IL App (4th) 090966, ¶ 135, 959 N.E.2d 114.

¶ 27           b. The Alternative Test: Managerial Employees as a Matter of Law
¶ 28       Managerial employees under the alternative test are those employees who are “generally
       clothed with all the powers and privileges” of their management supervisor. (Internal
       quotations marks omitted.) Department of Healthcare & Family Services, 388 Ill. App. 3d
       at 332, 902 N.E.2d at 1132 (quoting Office of the Cook County State’s Attorney v. Illinois
       Local Labor Relations Board, 166 Ill. 2d 296, 303, 652 N.E.2d 301, 304 (1995)). Such
       employees are considered managerial as a matter of law because they have independent
       authority as assistants to the management supervisor, and they, in effect, act as surrogates.
       Department of Healthcare & Family Services, 388 Ill. App. 3d at 333, 902 N.E.2d at 1132.

¶ 29            2. Managers as a Matter of Law and Managers as a Matter of Fact
¶ 30        On December 28, 2010, separate panels of this court issued opinions in cases involving
       ALJs from (1) the Illinois Human Rights Commission (Department of Central Management
       Services/The Illinois Human Rights Comm’n v. Illinois Labor Relations Board, State Panel,
       406 Ill. App. 3d 310, 316, 943 N.E.2d 1150, 1158 (2010) (hereinafter Illinois Human Rights
       Comm’n) (involving a representation petition seeking to add seven PSA, option 8Ls (ALJs),
       at the Human Rights Commission to an existing bargaining unit, RC-10)) and (2) the Illinois
       Commerce Commission (Illinois Commerce Comm’n, 406 Ill. App. 3d 766, 943 N.E.2d
       1136) who were seeking to unionize. In the former case, this court reversed the Board’s
       decision to certify the Human Rights Commission ALJs, concluding that the ALJs were, as
       a matter of law, managers under the Act. In the latter, this court reversed the Board’s decision
       to certify the Commerce Commission ALJs, remanding the cause for an oral hearing to
       determine whether, as a matter of fact, the ALJs were managers for purposes of the Act. A
       brief examination of the facts of these two cases sheds light on the managerial status of the
       attorney-assistants in this case.

¶ 31               a. The Case Involving the Human Rights Commission ALJs
¶ 32       In the case involving the Human Rights Commission ALJs, this court concluded that
       because the ALJs were vested with the authority to hear testimony, make findings of fact, and
       issue recommended orders, those ALJs were managers as a matter of law. Illinois Human
       Rights Comm’n, 406 Ill. App. 3d at 316-17, 943 N.E.2d at 1156-57. Specifically, this court
       concluded as follows:
           “[T]he 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.
           *** [T]he ALJs’ actions are closely identified with those of the Commission, a unity of


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          professional interests exists between the two, and the ALJs have the power to act on
          behalf of the Commission.” Illinois Human Rights Comm’n, 406 Ill. App. 3d at 316-17,
          943 N.E.2d at 1156-57.

¶ 33                 b. The Case Involving the Commerce Commission ALJs
¶ 34       In the case involving the Commerce Commission ALJs, this court explained that it did
       not conclude that the ALJs were managers as a matter of law because the administrative
       procedures utilized by the two agencies–the Human Rights Commission and the Commerce
       Commission–were different. Illinois Commerce Comm’n, 406 Ill. App. 3d at 781, 943
       N.E.2d at 1149. Specifically, the ALJs at the Commerce Commission, unlike the ALJs at the
       Human Rights Commission, did not become “surrogate[s]” of the commission members
       because of the way the Commerce Commission handled the written arguments against the
       recommendations that the Commerce Commission ALJ issued. Illinois Commerce Comm’n,
       406 Ill. App. 3d at 782, 943 N.E.2d at 1150. In so concluding, the court remanded the case
       for further administrative proceedings on the question of whether the ALJs were managerial
       as a matter of fact. Illinois Commerce Comm’n, 406 Ill. App. 3d at 783, 943 N.E.2d at 1150.

¶ 35                         C. The Attorney-Assistants in This Case
¶ 36       In this case, the attorney-assistants work closely with the PCB members, providing
       advice and direction with respect to legal issues involving the PCB’s functions. Each of the
       attorneys works closely with–and, at times, on behalf of–the PCB members to, among other
       duties, draft and issue administrative adjudicatory decisions. In other words, the PCB
       members and the attorney-assistants share a unity of professional interests. In this regard,
       these attorneys perform strikingly similar functions to that of judicial law clerks. When so
       viewed, we conclude that the attorneys in this case are more like the ALJs in the Human
       Rights Commission case than the ALJs in the Commerce Commission case. That is, given
       their unique duties and independent authority as surrogates to the PCB members, we hold
       that they are “managerial employees” as a matter of law.
¶ 37       Because we have concluded that the attorney-assistants at issue are managerial employees
       as a matter of law, we need not address CMS’s contention that the Board erred by finding
       that employees who are exempt from the Personnel Code under section 4d(1) (20 ILCS
       415/4d(1) (West 2010)) should be included in the bargaining unit.

¶ 38                                  III. CONCLUSION
¶ 39      For the reasons stated, we reverse the Board’s determination.

¶ 40      Reversed.




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