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02/23/96 STATE ILLINOIS v. ILLINOIS STATE LABOR

February 23, 1996

THE STATE OF ILLINOIS, DEPARTMENT OF CENTRAL MANAGEMENT SERVICES, PETITIONER,
v.
THE ILLINOIS STATE LABOR RELATIONS BOARD AND THE AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 31, AFL-CIO, RESPONDENTS.



Administrative Review of the Illinois State Labor Relations Board. No. SRC9464.

Petition for Rehearing Denied April 2, 1996. Released for Publication April 2, 1996. As Corrected August 9, 1996.

Honorable John T. McCULLOUGH, J., Honorable Robert J. Steigmann, J., Honorable Rita B. Garman, J., Concurring. Justice McCULLOUGH delivered the opinion of the court: Steigmann and Garman, JJ., concur.

The opinion of the court was delivered by: Mccullough

The Honorable Justice McCULLOUGH delivered the opinion of the court:

Petitioner State of Illinois, Department of Central Management Services, brings this direct statutory review of an administrative decision of the Illinois State Labor Relations Board (Board) granting the representation petition of respondent American Federation of State, County, and Municipal Employees, Council 31, AFL-CIO (AFSCME), regarding corrections leisure activities specialist IV (CLAS IVs) and certifying AFSCME as the exclusive bargaining representative of the CLAS IVs. (5 ILCS 315/9(i) (West 1994); 735 ILCS 5/3-113 (West 1994); 155 Ill. 2d R. 335.) The Board accepted the recommendation of the administrative law judge (ALJ) and adopted it as the Board's decision. On December 30, 1994, the Board ordered that an election be conducted to allow the employees to vote on representation. (State of Illinois (Department of Central Management Services--Department of Corrections), 11 Pub. Employee Rep. (Ill.) par. 2011, No. S-RC-94-064 (Illinois State Labor Relations Board, Dec. 30, 1994).) Following the election, the Board certified the election of AFSCME as the exclusive representative of the CLAS IVs and included those employees in the historical RC-62-OCB bargaining unit.

On appeal, the issues are whether (1) as a matter of law, the CLAS IVs are "State supervisors" exempt from the "preponderance" test included in section 3(r) of the Illinois Public Labor Relations Act (Act) (5 ILCS 315/3(r) (West 1994)); (2) the Board's finding that the CLAS IVs are not supervisors was against the manifest weight of the evidence; and (3) the Board's finding that the CLAS IVs were not managerial employees was against the manifest weight of the evidence. We reverse and remand with directions.

The parties and this court are familiar with the record in this case. Only those facts necessary to an understanding of this disposition will be discussed.

This action involves 18 employees of the Department of Corrections (DOC). Adult institutions are headed by a warden. At each adult facility, there are an assistant warden of programs and an assistant warden of operations, both of whom report directly to the warden. The assistant warden of programs oversees several departments, including the leisure time services (LTS) department. The equivalent position in a juvenile facility is assistant superintendent of programs. The LTS departments are generally headed by a CLAS IV who reports directly to the assistant warden of programs. (Hereinafter, reference to assistant warden means assistant warden of programs.) The CLAS IVs are responsible for the effective day-to-day operation of the LTS departments. Employees in CLAS I, II, and III job titles are subordinate to the CLAS IVs. Each LTS department contains employees in some or all of these subordinate positions, all of which are included in the historical bargaining unit. The main difference between the duties of the CLAS IVs and those of their subordinates involves the extent of their responsibilities. The subordinates are assigned by the CLAS IVs to specific programs and/or events which they may plan and operate, while the CLAS IVs are responsible for the operation of the LTS departments and the effective implementation of all programs and events.

The first issue is whether, as a matter of law, the CLAS IVs are "State supervisors" exempt from the "preponderance" test included in section 3(r) of the Act (5 ILCS 315/3(r) (West 1994)). The petitioner argues that the Board should not have applied the preponderance test to the CLAS IVs because (1) the clause "State supervisors notwithstanding" exempts them and (2) the prior decisions of the appellate court disagreeing with petitioner's interpretation should be rejected. The Board correctly points out in its brief that this issue is waived.

Prior to the hearing, the parties stipulated that the issues to be resolved were whether the CLAS IVs could be classified as supervisory employees or managerial employees. Following the ALJ's submission of a recommended decision and order, petitioner filed exceptions before the Board. The only exceptions raised were whether the ALJ's findings that CLAS IVs were neither "supervisors" or "non-managerial employees" were against the manifest weight of the evidence. At no time did petitioner advance the argument that CLAS IVs were exempt from the statute or raise any statutory construction argument. The failure of a party to raise an argument in its exceptions to the hearing officer's recommended decision and order waives that argument for purposes of review. Moore v. Illinois State Labor Relations Board (1990), 206 Ill. App. 3d 327, 337, 564 N.E.2d 213, 219, 151 Ill. Dec. 236.

The next issue is whether the Board's finding that the CLAS IVs are not "supervisors" was against the manifest weight of the evidence. Section 9(i) of the Act (5 ILCS 315/9(i) (West 1994)) makes the Board's decision reviewable under the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 1994)). Under the Administrative Review Law, judicial review extends to all questions of law and fact presented by the record. (735 ILCS 5/3-110 (West 1994).) The Board's findings and conclusions are considered prima facie true. (735 ILCS 5/3-110 (West 1994).) Courts will not interfere with the Board's expertise and authority unless it has been exercised in an arbitrary and capricious manner. Therefore, the scope of review is limited to a determination of whether the Board's decision is against the manifest weight of the evidence, and the Board's decision can be overturned only if, after viewing the evidence in a light most favorable to the Board, it is determined that no rational trier of fact could have reached the conclusion reached by the Board. Chief Judge of the Circuit Court v. American Federation of State, County & Municipal Employees, Council 31 (1992), 153 Ill. 2d 508, 514, 607 N.E.2d 182, 185, 180 Ill. Dec. 288.

In order to ensure that a pro-union bias will not impair a supervisor's ability to apply the employer's policies to subordinates in accordance with the employer's best interests, the Act provides that a bargaining unit may not contain both supervisors and nonsupervisors. (5 ILCS 315/3(s)(1) (West 1994); Chief Judge, 153 Ill. 2d at 515, 607 N.E.2d at 186; City of Freeport v. Illinois State Labor Relations Board (1990), 135 Ill. 2d 499, 505-06, 554 N.E.2d 155, 158-59, 143 Ill. Dec. 220.) Section 3(r) states in relevant part:

"'Supervisor' is an employee whose principal work is substantially different from that of his or her subordinates and who has authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, direct, reward, or discipline employees, to adjust their grievances, or to effectively recommend any of those actions, if the exercise of that authority is not of a merely routine or clerical nature, but requires the consistent use of independent judgment. Except with respect to police employment, the term 'supervisor' includes only those individuals who devote a preponderance of their employment time to exercising that authority, State supervisors notwithstanding." 5 ILCS 315/3(r) (West 1994).

There is a four-part test to determine whether an employee is a supervisor under section 3(r) ...


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