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10/11/95 CHIEF JUDGE 16TH JUDICIAL CIRCUIT v.

October 11, 1995

CHIEF JUDGE OF THE 16TH JUDICIAL CIRCUIT, PETITIONER-APPELLANT,
v.
THE ILLINOIS STATE LABOR RELATIONS BOARD AND AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, COUNCIL 31, AFL-CIO, RESPONDENTS-APPELLEES.



Direct Review. No. S-RC-94-99.

Released for Publication November 16, 1995. Petition for Leave to Appeal Allowed January 31, 1996.

The Honorable Justice Hutchinson delivered the opinion of the court: Bowman and Thomas, JJ., concur.

The opinion of the court was delivered by: Hutchinson

JUSTICE HUTCHINSON delivered the opinion of the court:

Respondent, American Federation of State, County and Municipal Employees, Council 31, AFL-CIO (the Union), filed a representation petition pursuant to the Illinois Public Labor Relations Act (the Act) (5 ILCS 315/1 et seq. (West 1994)). Respondent brought this petition seeking to represent a bargaining unit of all full-time and part-time Kane County Assistant Public Defenders (assistant public defenders or APDs) employed by petitioner, the Chief Judge of the Sixteenth Judicial Circuit, excluding supervisors, confidential employees, and managerial employees as defined by the Act. See 5 ILCS 315/3(j) (West 1994).

Respondent, Illinois State Labor Relations Board (the Board), conducted a hearing before an administrative law judge (the Judge), on March 23 and 24, 1994. At the hearing, petitioner and the Union stipulated that one of the assistant public defenders, Harris, was a supervisor within the meaning of the Act. The Public Defender was never part of the petitioned-for unit. The Judge concluded that the assistant public defenders were nonmanagerial employees and as such, formed an appropriate bargaining unit within the meaning of the Act. (See 5 ILCS 315/3(j) (West 1994)). The Judge recommended that the Union's representation petition be granted and ordered a representation election. Petitioner filed timely exceptions to the Judge's decision. The Board upheld the Judge's decision. A representation election was held among all full-time and part-time assistant public defenders, excluding managerial and confidential employees and Harris as supervisor. The Union won the election. The Board certified the Union as the collective-bargaining representative of all of the attorneys in the Office of the Kane County Public Defender except the Public Defender and Harris. This petition for review of the Board's order followed.

On review, petitioner alleges: (1) the assistant public defenders are managerial employees within the meaning of the Act and thus are excluded from collective-bargaining as a matter of law; (2) the Board's certification violates public policy because it places the assistant public defenders in a position of divided loyalty; and (3) the Board lacked jurisdiction to certify the Union because the relationship between the Public Defender and the assistant public defenders is not subject to the Act as a matter of law. We reverse.

No issues are raised on the pleadings. Due to the lengthiness ofthe facts in this case, we will address only those facts necessary to our determination of the issues presented in this appeal.

An order by the Board certifying a labor organization as the exclusive bargaining representative of employees in the bargaining unit is a final order that is reviewable directly by this court applying the Administrative Review Law. (See 5 ILCS 315/9(i) (West 1994).) "Judicial review of agency action extends to all questions of law and fact presented in the record." ( City of Evanston v. Illinois State Labor Relations Board (1992), 227 Ill. App. 3d 955, 968, 169 Ill. Dec. 928, 592 N.E.2d 415.) On review,

"the agency's findings and conclusions on questions of fact shall be held prima facie true and correct. Where the findings of fact are against the manifest weight of the evidence and it is clearly evident that the Board should have reached the opposite conclusion, a reviewing court may reverse the agency's findings of fact. [Citation.] Where the question involved is one of law, such as the proper interpretation of a statute, the Board's finding is not binding on the court [citations]; however, administrative decisions interpreting the legal effect of statutory language are generally given great weight by the judiciary." City of Evanston, 227 Ill. App. 3d at 968.

The relevant statutory provision defines a "managerial employee" 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 1994).) In City of Evanston, a two-part test (modeled after the statutory provision) was used to determine managerial status: "First, the employee must be predominantly engaged in executive and management functions. Second, the employee must exercise responsibility for directing the effectuation of management policies and procedures." City of Evanston, 227 Ill. App. 3d at 974.

The first part of the test requires a careful scrutiny of the employee's executive and management functions. Executive and management functions are those

"which specifically relate to the running of an agency or department, which may include establishment of policies and procedures, preparation of the budget and the responsibility for assuring that the agency or department operates effectively and efficiently. [Citation.] Executive functions require more than the exercise of professional discretion and technical expertise; an individual must possess and exercise authority and discretion sufficiently to broadly effect a department's goals or means of achieving its goals." ( City of Evanston, 227 Ill. App. 3d at 974-75.)

An employee is not managerial when his or her role in establishing policy is merely advisory and subordinate, "as it is the finalresponsibility and independent authority to establish and effectuate policy that determines managerial ...


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