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09/11/97 CHIEF JUDGE SIXTEENTH JUDICIAL CIRCUIT v.

September 11, 1997

THE CHIEF JUDGE OF THE SIXTEENTH JUDICIAL CIRCUIT, APPELLEE,
v.
THE ILLINOIS STATE LABOR RELATIONS BOARD ET AL., APPELLANTS.



Appeal from the Appellate Court for the Second District; heard in that court on review of an order ofthe Illinois State Labor Relations Board.

The Honorable Justice Nickels delivered the opinion of the court. Chief Justice Freeman, dissenting. Justices Harrison and McMORROW join in this dissent.

The opinion of the court was delivered by: Nickels

The Honorable Justice NICKELS delivered the opinion of the court:

In these consolidated appeals, we decide whether Kane County assistant public defenders are considered "managerial employees" within the meaning of the Illinois Public Labor Relations Act (the Act) (5 ILCS 315/1 et seq. (West 1994)). The Illinois State Labor Relations Board (the Board) found that the assistant public defenders are not managerial employees. Based on this finding, it certified the American Federation of State, County, and Municipal Employees, Council 31, AFL-CIO (AFSCME), to represent the assistants for collective-bargaining purposes. On administrative review, the appellate court reversed, holding that the assistants are managerial employees. Because managerial employees are excluded from collective bargaining under the Act (see 5 ILCS 315/3(n), 6(a) (West 1994)), this holding precluded AFSCME from representing the assistants. The Board and AFSCME both filed petitions for leave to appeal (155 Ill. 2d R. 315(a)), which were allowed. We affirm the appellate court.

BACKGROUND

On February 7, 1994, AFSCME filed a representation petition with the Board. AFSCME sought to represent a collective-bargaining unit of all full-time and part-time Kane County assistant public defenders, employed by the chief judge of the Sixteenth Judicial Circuit. The proposed unit excluded any supervisors, confidential employees, and managerial employees because the Act does not apply to those types of employees. See 5 ILCS 315/3(n), 6(a) (West 1994).

A hearing was held before an administrative law judge. AFSCME sought to include all of the assistants within the collective-bargaining unit, except Regina Harris. The parties stipulated that this particular assistant was a supervisor within the meaning of the Act. The administrative law judge heard extensive testimony concerning the nature of the Kane County public defender's office and the duties of the assistants. We summarize that testimony.

The duties of the public defender are defined by statute. The purpose of the office is to provide quality legal representation in certain proceedings for indigent individuals who would otherwise not be able to retain quality legal representation. 55 ILCS 5/3-4000 (West 1994). Section 3-4006 of the Counties Code provides, in pertinent part:

"The Public Defender, as directed by the court, shall act as attorney, without fee, before any court within any county for all persons who are held in custody or who are charged with the commission of any criminal offense, and who the court finds are unable to employ counsel.

The Public Defender shall be the attorney, without fee, when so appointed by the court under Section 1-20 of the Juvenile Court Act or Section 1-5 of the Juvenile Court Act of 1987 or by any court under Section 5(b) of the Parental Notice of Abortion Act of 1983 for any party who the court finds is financially unable to employ counsel." 55 ILCS 5/3-4006 (West 1994).

The public defender is authorized to appoint assistant public defenders to carry out the duties of the office. 55 ILCS 5/3-4008, 3-4008.1 (West 1994).

At the time of the hearing, the Kane County public defender's office consisted of 13 full-time assistants and 3 part-time assistants. The office was arranged into several divisions, including felony trial, felony preliminary hearing, juvenile, DUI, and misdemeanor. The public defender supervised the felony trial division, while assistant Harris generally supervised the other divisions. The office had a caseload of over seven thousand cases per year, and assistants were assigned to handle this case load.

The assistant public defenders have absolute discretion in handling their cases. The assistants generally do not consult with the public defender about their cases. The public defender testified that more than 90% of the decisionmaking in the felony division occurred without his knowledge or input. Much of the decisionmaking in the other divisions also occurred without his input and without the input of supervisor Harris. The public defender had never interfered with any of the decisions made by the assistants with respect to their cases. The public defender did not tell the assistants how to investigate or develop defenses in their individual cases. Assistants were not required to seek supervisory approval before entering into plea negotiations or entering a plea. They initiated their own investigations, directed investigators, met with clients, and issued subpoenas and other documents. The assistants were fully responsible for all stages of case development and exercised their own independent judgment. The public defender and supervisor Harris handled their own case loads.

The public defender, however, generally handled the day-to-day operations and administrative matters of the felony division. Supervisor Harris was generally responsible for administrative matters in the other divisions. The office was run in a fairly informal manner. The public defender assigned all cases in the felony trial division, but assistants were permitted to transfer cases among themselves. The office possessed no formal performance evaluations and no formal disciplinary system. The public defender and the assistants all received the same fringe benefits, vacation plan, sick leave and leave of absence policies, and health care options.

The public defender issued a general set of office rules and policies to the assistants, which governed such areas as office dress and hours. Occasionally, the public defender and supervisor Harris issued general directives regarding the handling of cases. The public defender reviewed closed files to determine the outcome of a case and how it was reached, and to make sure certain paperwork requirements were met. The public defender handled budget matters himself. He approved any large expenditures of money and any requests to hire expert witnesses. The public defender and the supervisor also controlled the interviewing and hiring of new assistants. The public defender and supervisor Harris had ultimate supervisory control over administrative matters, although the assistants provided input into some decisions.

After hearing testimony concerning the duties of the assistants, the administrative law judge determined that the assistants under consideration were not managerial employees. Based on this finding, he concluded that the assistants formed an appropriate collective-bargaining unit under the Act. The administrative law judge recommended that AFSCME's representation petition be granted and ordered a representation election.

The Board adopted the administrative law judge's recommendation, agreeing that the assistant public defenders were not managerial employees. A representation election was held among all full-time and part-time Kane County assistant public defenders, excluding Harris. AFSCME won the election, and the Board certified AFSCME as the collective-bargaining representative of this unit.

The chief judge petitioned directly to the appellate court for administrative review of the Board's order. See 5 ILCS 315/9(i) (West 1994). The appellate court reversed the Board, holding that the assistants are managerial employees. The appellate court based its holding on three factors:

"(1) the public defender delegates an overwhelming majority of the decision-making responsibilities to members of his staff; (2) the assistant public defenders, on a day-to-day basis, inherently exercise a great deal of authority and discretion in effectuating and achieving the goals of their office; and (3) the professional interests of the assistant public defenders are fundamentally identical to that of the public defender." 275 Ill. App. 3d 853, 859, 656 N.E.2d 791, 212 Ill. Dec. 194.

In this appeal, we determine whether the assistants are managerial employees within the meaning of the Act.

ANALYSIS

I. The Managerial Exclusion

Section 3(j) of the Act 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). The Act excludes these managerial employees from the class of employees who are entitled to engage in collective bargaining. See 5 ILCS 315/3(n), 6(a) (West 1994). 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. See National Labor Relations Board v. Yeshiva University, 444 U.S. 672, 682, 63 L. Ed. 2d 115, 125, 100 S. Ct. 856, 862 (1980); National Labor Relations Board v. Bell Aerospace Co. Division of Textron, Inc., 416 U.S. 267, 281-82, 40 L. Ed. 2d 134, 146-47, 94 S. Ct. 1757, 1765 (1974).

The managerial exclusion in the Act was adopted from decisions of the National Labor Relations Board and the United States Supreme Court. See, e.g., Yeshiva, 444 U.S. 672, 63 L. Ed. 2d 115, 100 S. Ct. 856; Bell Aerospace, 416 U.S. 267, 40 L. Ed. 2d 134, 94 S. Ct. 1757. The statutory definition of managerial employee under the Act is very similar to the definition contained in the two foregoing United States Supreme Court decisions. The Supreme Court's application of the managerial exclusion provides guidance to our analysis.

In Yeshiva, the Supreme Court applied the managerial exclusion to preclude the unionization of certain professional employees. Specifically, the Court held that members of the Yeshiva University faculty were managerial employees and therefore excluded from collective bargaining. In explaining the managerial exclusion, the Court stated:

"Managerial employees must exercise discretion within, or even independently of, established employer policy and must be aligned with management. *** An employee may be excluded as managerial only if he represents management interests by taking or recommending discretionary actions that effectively control or implement employer policy." Yeshiva, 444 U.S. at 683, 63 L. Ed. 2d at 126, 100 S. Ct. at 862.

The Court further stated that, given the concern for divided loyalty between employer and union, "the relevant consideration is effective recommendation or control rather than final authority" over employer policy. Yeshiva, 444 U.S. at 683 n.17, 63 L. Ed. 2d at 126 n.17, 100 S. Ct. at 863 n.17. See also Bell Aerospace, 416 U.S. at 288, 40 L. Ed. 2d at 150, 94 S. Ct. at 1768 (definition of managerial employee includes generally all employees who " 'formulate and effectuate management policies by expressing and making operative the decisions of their employer' " and is not limited to those employees who have some involvement in labor relations matters); Board of Regents of the Regency Universities System v. Illinois Educational Labor Relations Board, 166 Ill. App. 3d 730, 740-41, 117 Ill. Dec. 799, 520 N.E.2d 1150 (1988) (managerial exclusion is not limited to employees who have some potential to affect labor relations matters, such as wages, hours, and other terms and conditions of employment).

In Yeshiva, the National Labor Relations Board argued that faculty decisionmaking was exercised in the faculty's own professional interest rather than in the employer's interest. The Court found no justification for such a distinction. Instead, it concluded that the interests of the faculty and the employer were indistinguishable, and any attempt to separate these interests would divide faculty loyalty between employer and union. Yeshiva, 444 U.S. at 686-87, 63 L. Ed. 2d at 128-29, 100 S. Ct. at 864-65. In applying the managerial exclusion to the Yeshiva faculty, the Court stated that the Yeshiva faculty was intimately involved in policy decisions in a number of areas, including course offerings, course scheduling, teaching methods, ...


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