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

December 28, 2010

THE DEPARTMENT OF CENTRAL MANAGEMENT DIRECT ADMINISTRATIVE SERVICES/THE ILLINOIS HUMAN RIGHTS REVIEW OF ILLINOIS COMMISSION, LABOR RELATIONS BOARD, STATE PANEL, PETITIONER-APPELLANT,
v.
THE ILLINOIS LABOR RELATIONS BOARD, STATE PANEL; JACKIE GALLAGHER, MICHAEL HADE, REX PIPER, MICHAEL COLI, AND ALBERT WASHINGTON, THE MEMBERS OF SAID BOARD AND PANEL IN THEIR OFFICIAL CAPACITY ONLY; JOHN F. BROSNAN, IN HIS OFFICIAL CAPACITY ONLY AS ILRB EXECUTIVE DIRECTOR; ADMINISTRATIVE LAW JUDGE ELLEN MAUREEN STRIZAK, IN HER OFFICIAL CAPACITY ONLY; AND THE AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, COUNCIL 31, RESPONDENTS-APPELLEES.



The opinion of the court was delivered by: Justice McCULLOUGH

JUSTICE McCULLOUGH delivered the opinion of the court: Petitioner, the Illinois Department of Central Management Services/the Illinois Human Rights Commission (CMS), seeks administrative review of a decision of the Illinois Labor Relations Board, State Panel (Board), that permitted inclusion of employees with the classification of public service administrator (PSA), option 8L, Administrative Law Judge (ALJ), into an existing bargaining unit, RC-10, and certified the American Federation of State, County, and Municipal Employees, Council 31 (union), as their exclusive representative. CMS argues it was improperly and unfairly denied an evidentiary hearing and due process, and ALJs are "managerial employees" under the Illinois Public Labor Relations Act (Act) (5 ILCS 315/1 through 27 (West 2008)) and, therefore, excluded from engaging in collective bargaining. We reverse, finding the ALJs in the case at bar to be "managerial employees" as a matter of law.

On April 8, 2009, the union filed a representation-certification petition with the Board, alleging that a majority of CMS's employees in an appropriate unit wished to be represented by the union for purposes of collective bargaining. Specifically, it asserted there was an existing board-certified, collective-bargaining unit and seven employees holding the position of PSA, option 8L, ALJ wished to be included in that existing bargaining unit.

On May 14, 2009, CMS filed a position statement in response to the union's petition, asserting the petitioned-for bargaining unit was inappropriate because its ALJs were "managerial employees" as defined by the Act. Specifically, it argued (1) the ALJs at issue rendered decisions based upon and effecting management policy and (2) the ALJs were managerial employees as a matter of law. CMS requested dismissal of the petition.

On June 12, 2009, the Board, through its agent, sent a letter to the parties, requesting CMS "cite specific facts in support of its assertion." On July 15, 2009, CMS responded. It argued the ALJs regularly made determinations directly related to the policies of the Human Rights Commission (Commission) as dictated by the Human Rights Act (775 ILCS 5/1-101 through 10-104 (West 2008)). Further, it noted "a two-tier decision-making process in which the ALJs make recommended decisions." CMS alleged that the decisions of the ALJs were "given much deference."

On August 13, 2009, the Board's agent sent a letter to CMS, stating its responses had been reviewed and no issues of law or fact were found. The agent stated she intended to recommend that the petitioned-for unit be certified. On August 17, 2009, the Board's Executive Director issued a certification of representative, designating the union as the exclusive representative of the PSA, option 8L, ALJs for collective-bargaining purposes and adding those employees to the existing bargaining unit.

This appeal followed.

On appeal, CMS argues the Board improperly failed to conduct an evidentiary hearing, violating its due-process rights.

Further, it contends its ALJs could not have appropriately been included in the petitioned-for unit because they were managers under the Act and not public employees.

When a petition to certify a labor organization as the exclusive representative of a group of public employees has been filed, the Board must investigate the petition and, "if it has reasonable cause to believe that a question of representation exists," must provide for an appropriate hearing. 5 ILCS 315/9(a) (West 2008). Addressing the issue of whether the Board improperly failed to conduct a hearing, the First District has recently stated as follows:

"[T]he Act 'on its face provides for the evaluation of the evidence gathered and a determination of its sufficiency before an appropriate hearing must be held.' [Citation.] 'This interpretation is fully consistent with and borne out by the Board's own regulations promulgated to implement section 9(a) of the Act.' [Citations.] These regulations provide a procedure under which a petition may be either dismissed or certified without a hearing." City of Chicago v. Illinois Labor Relations Board, Local Panel, 396 Ill. App. 3d 61, 71-72, 918 N.E.2d 1103, 1113 (2009), quoting Illinois Council of Police v. Illinois Labor Relations Board, Local Panel, 387 Ill. App. 3d 641, 659, 899 N.E.2d 1199, 1214 (2008).

The Board's regulations provide that the Board or its agent must investigate a petition. 80 Ill. Adm. Code §1210.100(b)(6), as amended by 28 Ill. Reg. 4172, 4191 (eff. February 19, 2004).

"A) After the investigation, the Executive Director shall dismiss a petition, or the [ALJ] shall recommend to the Board that a petition be dismissed, when a petition has been filed untimely; when the bargaining unit is clearly inappropriate; when the showing of interest is not adequate; when the employer is not covered by the Act; when the employees are not covered by the Act; or for any other reason there is no reasonable cause to believe that a question of representation exists. ***

B) Where there are no unit appropriateness or exclusion issues, or any other issues necessitating a hearing, the Executive Director will prepare a tally of the finding of majority support and certify the petitioner as the unit's exclusive representative within 20 days after the service of the petition. ***

C) If the investigation discloses that there is reasonable cause to believe that there are unresolved issues relating to the question concerning representation, the Board shall set the matter for hearing before an [ALJ]. ***." 80 Ill. Adm. Code ...


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