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

December 28, 2010

THE DEPARTMENT OF CENTRAL MANAGEMENT ) DIRECT ADMINISTRATIVE SERVICES/ILLINOIS COMMERCE COMMISSION, ) REVIEW OF THE ILLINOIS PETITIONER-APPELLANT,
v.
LABOR RELATIONS BOARD, STATE PANEL 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 Appleton

JUSTICE APPLETON delivered the opinion of the court: The Illinois Department of Central Management Services (CMS) seeks review of a decision by the Illinois Labor Relations Board, State Panel (Board), certifying the American Federation of State, County, and Municipal Employees, Council 31 (union), as the exclusive representative of one Administrative Law Judge IV (ILRB case No. S-RC-10-034) and seven Administrative Law Judge IIIs (ILRB case No. S-RC-10-036) (the ALJs), all of whom work at the Illinois Commerce Commission (Commission). CMS complains that the Board reached a decision solely on the basis of written submissions, without giving CMS an opportunity for an oral hearing, including the examination of witnesses.

We agree with CMS that the denial of an oral hearing was clearly erroneous because there is an unresolved issue as to whether the eight ALJs in question are managerial employees. It appears that, like managerial employees, the ALJs make effective recommendations. According to the position statement that CMS submitted to the Board, the Commission almost always accepts the ALJs' recommended orders, without modification, and these recommended orders, adopted by the Commission, are the means by which the Commission fulfills its statutory mission of regulating public utilities. As far as we can see from the record, the Board's investigation yielded no basis for questioning the position statement in that regard. In short, the position statement describes the ALJs as exerting great influence within the Commission, and we do not understand either the union or the Board as contending otherwise. We have a firm and definite conviction that the certification of the union as the bargaining representative of the eight ALJs was premature because there is still a live question as to whether they are managerial employees. We do not purport to resolve that question one way or the other; instead, the Board should do so. Therefore, we reverse the Board's decision and remand this case for further proceedings.

I. BACKGROUND

On July 28, 2009, the union filed two majority-interest petitions, in which it requested to be certified as the exclusive representative of the eight ALJs.

On July 29, 2009, Lori Novak, an assistant of the Board's Executive Director, John F. Brosnan, wrote a letter to Greg Newton, the acting deputy general counsel for CMS at the time, asking him to file responses to the two majority-interest petitions. Newton said that these responses had to "include any issues [CMS] intend[ed] to raise concerning *** whether any employees sought by the petitioner should be excluded from the unit."

A. CMS's Initial Position Statement

In its initial response, or position statement, filed on August 14, 2009, CMS contended that the ALJs should be excluded from the bargaining unit because they were managers and, as such, were ineligible to participate in collective bargaining. Essentially, CMS gave three reasons why the ALJs should be considered managers. First, the ALJs worked in the realm of policy. They conducted quasi-judicial hearings that involved rule-making, rates, citations, complaints, certificates, financial agreements, and the issuance of securities, and by issuing recommended orders in these matters, the ALJs created the policies of the Commission. Second, the ALJs' recommendations were "effective" in that the Commission "rarely rejected" them. Third, the ALJs were managerial as a matter of law because section 2-106(a) of the Public Utilities Act (220 ILCS 5/2-106(a) (West 2008)) required the executive director of the Commission to employ them.

B. The Order To Show Cause

On August 14, 2009, an ALJ of the Board, Ellen M. Strizak, wrote in a letter to the parties that she had reviewed CMS's position statement of August 14, 2009, and that she had found nothing therein that warranted the convening of a hearing. Accordingly, she ordered CMS to show cause, by no later than September 9, 2009, as to why the union should not be certified as the bargaining representative of the eight employees in question. She cautioned that to support its claim of a statutory exclusion, CMS could not "rely[] on vague, generalized testimony or contentions as to an employee's job function" but that, instead, CMS had to "present specific examples of the alleged managerial authority," including "all documentary evidence and affidavits[] which support[ed] [CMS's] position." Further, all documentation had to be accompanied by an explanation of the following: (1) what the documentation was, (2) what the documentation purported to show, and (3) why the information in each document supported CMS's claim that the petitioned-for employees were managerial.

C. CMS's Supplemental Position Statement

On September 9, 2009, in response to Strizak's order to show cause, CMS filed a supplemental position statement, which had attached to it as exhibits A through F 1,785 pages of orders issued by the Commission in 13 public-utility cases. According to CMS, the eight ALJs wrote these orders as recommendations to the Commission, and in all but one case, the Commission adopted the orders without modification.

In its supplemental position statement, CMS said that by the "conservative estimate" of the chief ALJ of the Commission, the Commission adopted the ALJ's recommendations 95% of the time. "Substantive modifications [were] rare[,] and outright reversals [were] even rarer." According to CMS, the ALJs had "a direct hand in formulating policy through the preparation of orders to the Commission. This reliance on the ALJs to set up the language of the policies that the Commission want[ed] to implement as well as to see that past policy [was] followed support[ed] the Employer's position that these ALJs [met] the managerial exclusion," CMS argued.

D. Certification of the Union

On September 9, 2009, Strizak wrote the parties that she had reviewed CMS's response to the majority-interest petitions and that she had found "no issues of law or fact in these matters." Consequently, she announced that she would recommend to the Board's Executive Director that he certify the union.

On September 10, 2009, Brosnan prepared tallies of majority interest and certified the union as the exclusive representative of the eight ALJs employed at the Commission, ordering their inclusion in the union's existing RC-10 bargaining unit.

This appeal followed.

II. ANALYSIS

A. Standard of Review

On appeal, we ask whether the Board committed clear error by deciding that an oral hearing was unnecessary. City of Chicago v. Illinois Labor Relations Board, Local Panel, 396 Ill. App. 3d 61, 72, 918 N.E.2d 1103, 1113-14 (2009), appeal denied, 236 Ill. 2d 502, 930 N.E.2d 407 (2010); Illinois Council of Police v. Illinois Labor Relations Board, Local Panel, 387 Ill. App. 3d 641, 658, 899 N.E.2d 1199, 1213 (2008). (We use the term "oral hearing" because the denial of an oral hearing is not necessarily the denial of a hearing: a hearing could be "written" in the sense that parties could be heard solely through their presentation of written arguments and documentary evidence to the agency. See Lawless v. Central Production Credit Ass'n, 228 Ill. App. 3d 500, 515, 592 N.E.2d 1210, 1219 (1992); Lewis v. Superior Court, 19 Cal. 4th 1232, 1248-49, 970 P.2d 872, 884, 82 Cal. Rptr. 2d 85, 97 (1999); Black's Law Dictionary 737 (8th ed. 2004) (defining a "hearing" in the administrative-law context as "[a]ny setting in which an affected person presents arguments to an agency decision-maker").) Under this standard of clear error, we will uphold the Board's decision unless our review of the entire record leaves us with " ' " 'the definite and firm conviction that a mistake has been committed.' " ' " City of Chicago, 396 Ill. App. 3d at 72, ...


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