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The Department of Central Management v. the Illinois Labor Relations Board

February 5, 2009

THE DEPARTMENT OF CENTRAL MANAGEMENT
SERVICES/THE DEPARTMENT OF HEALTHCARE
AND FAMILY SERVICES,
PETITIONER-APPELLANT,
v.
THE ILLINOIS LABOR RELATIONS BOARD,
STATE PANEL; JACKIE GALLAGHER, MICHAEL
HADE, CHARLES HERNANDEZ, REX PIPER, AND
MICHAEL COLI, THE MEMBERS OF SAID BOARD AND
PANEL IN THEIR OFFICIAL CAPACITY ONLY; AND THE
ILLINOIS NURSES ASSOCIATION, RESPONDENTS-APPELLEES.



Petition for Direct Review of an Order of the Illinois Labor Relations Board, State Panel No. S-RC-07-036

The opinion of the court was delivered by: Justice Appleton

JUSTICE APPLETON delivered the opinion of the court: Petitioner, the Department of Central Management Services (employer), brings this action for direct review of a decision by the Illinois Labor Relations Board, State Panel (Board), declaring the Illinois Nurses Association (union) to be the exclusive bargaining representative of all public service administrators, option 8, in the Bureau of Administrative Litigation, office of the Inspector General, Department of Healthcare and Family Services, except, as the "Certificate of Representative" says, supervisory, managerial, and confidential employees. See Illinois Nurses Ass'n, 23 Pub. Employee Rep. (Ill.) par. 173, No. S-RC-07-036 (Illinois Labor Board, State Panel, October 30, 2007) (hereinafter 23 Pub. Employee Rep. (Ill.) par. 173). These employees are attorneys who represent the agency in internal hearings before administrative law judges.

For two reasons, the employer urges us to reverse the Board's decision outright or at least reverse it and remand the case for reconsideration: (1) all of the attorneys in question are managerial employees, and (2) the proposed bargaining unit is inappropriate because it carves a subset of employees out of a larger, centralized classification.

The Board found the attorneys were not managerial employees. Because that finding is not clearly erroneous, we decline to overturn it. The Board's decisions have created a "presumption of inappropriateness" in situations in which the union seeks to represent only a portion of the employees who perform duties in identical job classifications. The Board could have found sufficient evidence, however, to rebut that presumption. The State employs many more attorneys than the six staff attorneys in the Bureau of Administrative Litigation; option 8L of the classification of public service administrator consists of approximately 134 attorneys. But the record reveals little or nothing about these numerous attorney positions outside the Bureau (e.g., their skills, functions, hours, or working conditions). Given this dearth of information, one could not validly conclude that all of the attorneys in option 8L belong in the same bargaining unit. Therefore, we affirm the Board's decision.

I. BACKGROUND

A. The Union's Petition and the Employer's Position Statement On September 5, 2006, the union filed with the Board a petition to become the exclusive bargaining representative of all public service administrators, option 8, in the Bureau of Administrative Litigation, office of the Inspector General, Department of Healthcare and Family Services. See 5 ILCS 315/9(a)(1) (West Supp. 2007). (In their briefs, the parties agree that the employees in question are, more precisely, public service administrators, option 8L, but the union's petition and the Board's "Certificate of Representative" merely say "option 8." It appears, however, that the Bureau of Administrative Litigation has no option 8 employees other than option 8Ls; therefore, failing to specify the subset of option 8 apparently makes no practical difference.) In its petition, the union stated that 30% of the employees requested a secret ballot to determine whether the Board should certify the union as their exclusive bargaining agent. See 5 ILCS 315/9(a)(1) (West Supp. 2007).

The Board scheduled an investigative hearing for October 5 and 6, 2006, and requested the employer to submit a comprehensive and detailed position statement addressing the appropriateness of the proposed bargaining unit. See 80 Ill. Adm. Code §1210.100(a)(3), as amended by 28 Ill. Reg. 4172, 4174, eff. February 19, 2004. On October 2, 2006, the employer submitted a position statement arguing that the Board should dismiss the union's petition for three reasons. First, public service administrators, option 8L, were managerial employees, both as a matter of law and as a matter of fact. Second, because the union's petition was limited to the six option 8Ls in the Bureau of Administrative Litigation within the office of the Inspector General of the Department of Healthcare and Family Services, the petition impermissibly sought to carve out a handful of employees from a statewide classification. Third, the only appropriate unit of state-employed attorneys was the existing unit, S-VR-91-10 (VR-10), represented by the American Federation of State, County and Municipal Employees, Council 31 (AFSCME) (see State of Illinois, Department of Central Management Services, 21 Pub. Employee Rep. (Ill.) par. 205, No. S-UC-05-006, at 748, 755 (Illinois Labor Board, State Panel, November 4, 2005) (2005 PERI (LRP) LEXIS 197)) (hereinafter 21 Pub. Employee Rep. (Ill.) par. 205).

B. The Administrative Hearing

On October 5 and 6, 2006, the Board held an administrative hearing, in which the following evidence emerged.

1. The State's System of Classifying Jobs

To make sure that state employees who hold comparable positions receive comparable pay, the State has devised a system of classifying positions. According to the class specification for public service administrator, the distinguishing feature of that classification is the "management nature of the work": "the exercise of discretion in controlling or directing the organization's supportive program" and the "responsibility to direct the effectuation of management policies." There are approximately 4,000 public service administrators statewide. In deciding which positions belong in the classification of public service administrator, the State considers the following factors, which overlap to some extent: the nature and variety of the work; the supervision the employee receives; the supervision the employee exercises; the guidelines available to the employee, such as job manuals or step-by-step regulations; the extent to which the position requires originality, independent thinking, and sophisticated analysis; the decisions and commitments the employee must make in the position (i.e., the weightiness or public consequence of the employee's decisions or the employee's ability to commit an agency to a course of action); and the educational and experiential requirements of the position.

The State has divided the classification of public service administrator into eight options. Option 8 consists of employees who must possess a license to perform the type of work their position requires--for example, attorneys, nurses, and engineers. There are approximately 460 employees in option 8. The State has further divided option 8 into options 8A through 8Z, to designate the various licensed professions. Option 8L consists of attorneys. There are approximately 136 employees in option 8L, statewide. The six staff attorneys in the Bureau of Administrative Litigation--the only employees whom the union has petitioned to represent in this case--are option 8Ls. They are Martin S. Feldman, Joan T. Cherry, Alan M. Polikoff, Avery A. Gerstein, Henry M. Soltysinski Jr., and Daniel E. Falb. According to employer's exhibit No. 7, the agency's office of General Counsel has seven additional option 8Ls--Jeanette B. Cuomo, Thomas K. Fischer, William C. Kurylak, Dora L. McNew-Clarke, Vickie V. Fair, Stacy L. Cooper, and Leo J. Howard, the first four of whom are administrative law judges or hearing referees--and the office of the Director has one option 8L, Shannon M. Verner. The six staff attorneys employed in the Bureau of Administrative Litigation appear before the administrative law judges and hearing referees employed in the office of General Counsel. Also, in his testimony, the agency's Inspector General, John C. Allen IV, mentioned a "staff attorney" in the General Counsel's office, Dan Leikvold (whose name does not appear in employer's exhibit No. 7). According to Allen, Leikvold reviewed exceptions and "ruled on" the administrative law judges' recommended decisions.

Of the approximately 960 classifications in the State's classification system, not a single classification existed in which some positions were included in a bargaining unit and other positions were excluded (unless the excluded positions were excluded for statutory reasons, i.e., the employees in those positions were managerial, supervisory, or confidential employees)--that is, until the Board's decision in the present case. Further, with one exception, no bargaining unit in the State has been limited to a single agency when the classification represented by the unit existed statewide in more than one agency--that is, until now. The lone exception was the educators in the Illinois School for the Deaf in Jacksonville; they were represented by a historically recognized unit, HR-10, which predated the Act.

2. A Pre-existing Bargaining Unit That Represents Attorneys In 1991, the State and AFSCME stipulated, and the Board certified, that the RC-10 bargaining unit was the only appropriate unit of attorneys working statewide. (We assume that RC-10 is the same unit as VR-10, to which the employer refers in its position statement to the Board.) RC-10 included the classifications of technical advisor advanced program specialist, technical advisor III, technical advisor II, technical advisor I, and hearings referee. The positions in the classification of technical advisor advanced program specialist were previously classified as public service administrator, option 8L, but because the classification of public service administrator, by definition, could not include any positions subject to collective bargaining, the option 8Ls were reclassified upon their inclusion in RC-10. The State and AFSCME further stipulated that any state-employed attorneys not included in the RC-10 bargaining unit were excluded because of their status as managerial employees, supervisors, or confidential employees. The six staff attorneys in the Bureau of Administrative Litigation were not included in RC-10.

3. The Office of Inspector General

The agency has four divisions or primary areas of responsibility: (1) the division that oversees Medicaid and other medical programs, (2) the Division of Child Support Enforcement, (3) the Office of Energy Assistance, and (4) Group Health Purchasing. Further, the agency has an office of the Inspector General, which investigates allegations of fraud, substandard care, and other wrongdoing within the medical programs. The Inspector General also audits the agency's programs and, generally, is responsible for ensuring the integrity of the programs.

Sections 12-13.1(b) and (f) of the Illinois Public Aid Code set forth the powers and duties of the Inspector General:

"(b) In order to prevent, detect, and eliminate fraud, waste, abuse, mismanagement, and misconduct, the Inspector General shall oversee the Department of Healthcare and Family Services' integrity functions, which include, but are not limited to, the following:

(1) Investigation of misconduct by employees, vendors, contractors[,] and medical providers.

(2) Audits of medical providers related to ensuring that appropriate payments are made for services rendered and to the recovery of overpayments.

(3) Monitoring of quality assurance programs generally related to the medical assistance program and specifically ...


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