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The Department of Central Management Services/The Department of Public Health v. the Illinois Labor Relations Board

November 16, 2012

THE DEPARTMENT OF CENTRAL MANAGEMENT SERVICES/THE DEPARTMENT OF PUBLIC HEALTH,
THE DEPARTMENT OF NATURAL RESOURCES, AND THE ENVIRONMENTAL PROTECTION AGENCY,
PETITIONERS,
v.
THE ILLINOIS LABOR RELATIONS BOARD,
STATE PANEL; JACALYN J. ZIMMERMAN,
MICHAEL COLI, MICHAEL HADE,
JESSICA KIMBROUGH, AND ALBERT WASHINGTON, THE MEMBERS OF SAID BOARD AND PANEL IN THEIR OFFICIAL CAPACITY ONLY;
JOHN F. BROSNAN, EXECUTIVE DIRECTOR OF SAID BOARD, IN HIS OFFICIAL CAPACITY ONLY;
WILLIAM WAECHTER, ADMINISTRATIVE LAW JUDGE OF SAID BOARD IN HIS OFFICIAL CAPACITY ONLY;
THE LABORERS' INTERNATIONAL UNION OF AMERICA, LOCAL 2002;
THE STATE EMPLOYEES ASSOCIATION; AND THE AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, COUNCIL 31, RESPONDENTS.



Direct Review of the Illinois Labor Relations Board, State Panel Nos. S-RC-09-038 S-RC-09-060

The opinion of the court was delivered by: Justice Pope

Carla Bender 4th District Appellate Court, IL

JUSTICE POPE delivered the judgment of the court, with opinion. Presiding Justice Turner and Justice Knecht concurred in the judgment and opinion.

OPINION

¶ 1 Petitioners, the Department of Central Management Services (CMS), the Illinois Departments of Public Health (DPH) and Natural Resources (DNR), and the Illinois Environmental Protection Agency (EPA) bring this action for direct review of a decision by the Illinois Labor Relations Board, State Panel (Board), declaring the American Federation of State, County, and Municipal Employees, Council 31 (Council 31), to be the exclusive bargaining representative of a group of professional engineers with the job title senior public service administrator (option 8E), employed at DPH, DNR, and EPA.

¶ 2 The Board, adopting the administrate law judge's (ALJ) findings, concluded the option 8Es were public employees within the meaning of section 3(n) of the Illinois Public Labor Relations Act (Act) (5 ILCS 315/3(n) (West 2008)) and not supervisors within the meaning of section 3(r) of the Act (5 ILCS 315/3(r) (West 2008)) and thus were eligible for inclusion in the collective-bargaining unit.

¶ 3 Petitioners appeal, arguing the option 8Es were supervisory employees within the meaning of section 3(r) of the Act (5 ILCS 315/3(r) (West 2008)). We reverse.

¶ 4 I. BACKGROUND

¶ 5 Because the parties are familiar with the facts, we discuss them only to the extent necessary to put parties' arguments in context.

¶ 6 A. Procedural History

¶ 7 On September 9, 2008, Council 31 filed a petition with the Board (case No. S-RC-09-038) to become the exclusive bargaining representative of option 8Es working at DPH, DNR, and EPA. See 5 ILCS 315/9(a)(1) (West 2008). The petition sought to add approximately 25 employees to the bargaining unit.

¶ 8 On October 15, 2008, Laborers International Union of America, Local 2002 (Local 2002), also filed a petition with the Board (case No. S-RC-09-060) to become the exclusive bargaining representative of the option 8Es in DPH, DNR, and EPA. The Board entered an order consolidating the two petitions and scheduled a hearing for October 21 and 22, 2008.

¶ 9 During the October 21 and 22, 2008, hearing, Jason DeWitt, Bruce Yurdin, and William Schuck, option 8E employees with DPH, DNR, and EPA, respectively, testified regarding the job duties of option 8Es. We note the parties stipulated the testimony of these three employees would be representative of what the other petitioned-for employees, if called, would testify to.

¶ 10 B. Option 8Es

¶ 11 According to the CMS class specification, a senior public service administrator who is an engineer, i.e., an option 8E, "plans, organizes, coordinates, and reviews the work of a large engineering and technical field staff engaged in conducting field investigations and inspections and monitoring activities."

¶ 12 C. DeWitt's Testimony

¶ 13 DeWitt is the section chief of the general engineering section of DPH. The section administers various environmental health programs, including asbestos abatement, swimming facilities, manufactured housing and recreational facilities. DeWitt holds an engineering license and has been an option 8E with DPH for four years. He has 15 subordinates comprised of multiple engineers (engineers III and IV), several clerical persons (including administrative assistants I and II), and another option 8E, John Riley, who reports directly to DeWitt. DeWitt reports to the acting division chief, who in turn reports to the deputy director.

¶ 14 According to DeWitt's testimony, Riley and the engineers respond to complaints from the general public, conduct investigations to determine compliance and enforcement, and generate reports, which DeWitt reviews. DeWitt reviews his engineers' reports for accuracy and clarity regarding how the facts are presented. DeWitt also reviews his subordinates' work to make sure it conforms to statutes, administrative regulations, and DPH's policies and procedures. He also reviews their findings to determine whether the agency could bring a legal cause of action against the alleged violators. DeWitt testified he spends, on average, two to three hours per week reviewing reports.

¶ 15 DeWitt also testified his staff would seek his involvement in reviewing plans and specifications for asbestos abatement jobs "either because of some matter that the code didn't particularly handle well or had broader implications and so they would typically pull me in to that review *** to find out what direction we would want to go as a department." He testified he would spend approximately four to five hours a week on such work.

¶ 16 DeWitt testified he has trained two employees during the four years he has worked for DPH. DeWitt testified he trains new employees by "showing them how to assemble an investigative file, [and] also going through the proper way to investigate those cases, whether it be questioning witnesses, collecting evidence, things of that nature to make sure that our policies and procedures are being transferred to them [so] that we're being consistent [so] that no matter which engineer goes to do an investigation they're done the same [way]."

¶ 17 In training clericals, DeWitt makes sure they understand the written manual of procedures for how to perform their job. The clericals frequently come to DeWitt with questions not covered by the manual. DeWitt testified if he aggregated those occurrences it would amount to approximately an hour a day. When asked how much time he spends working with his staff on technical issues, DeWitt replied, "if I aggregated all of those occurrences[,] I would guess around an hour and a half a day."

¶ 18 DeWitt testified, "on a typical normal daily basis *** I authorize time sheets so I do spend some amount of time signing off on time sheets[,] and also for the section there is a weekly time reconciliation that I'm responsible for. No, I mean, that's the majority of my time I spend doing that." DeWitt also testified he has authority to grant or deny his subordinates' timeoff requests. He spends 15 minutes a day authorizing such requests.

¶ 19 DeWitt also testified it is part of his job to decide overtime requests. DeWitt considers an employee's personal circumstances in granting overtime and whether denying it would cause the employee a personal hardship. DeWitt used the example of an employee having to drive back and forth from Springfield to Schaumburg to finish a job. DeWitt also testified he does not need his supervisor's approval to grant overtime. According to DeWitt, an overtime issue comes up approximately 10 times per month. He spends a few minutes dealing with each request.

¶ 20 DeWitt testified he has had to deal with disciplinary issues regarding his staff. He would be considered a "first[-]line implementer of discipline with [his] subordinate staff." DeWitt testified about an incident involving an employee and her misuse of state resources. He testified "I believe that we merely extended a reprimand to her in this case." Regarding another incident involving an employee who was abusing sick time, DeWitt testified, "[W]e issued proof status as allowed by the [union] contract so that we could monitor whether or not she was indeed sick the times that she called in." In another instance, DeWitt issued a memorandum to an employee to relay his concerns to her and notify her what she needed to do to correct the behavior. That memorandum was placed in the employee's personnel file.

¶ 21 DeWitt also conducts evaluations of his staff. DeWitt testified he had evaluated only one merit compensation employee, who has since retired and whose position has remained unfilled. However, DeWitt testified an "accomplished" rating would result in a $150 per-month raise. An "exceptional" rating would result in a $200 per-month increase. DeWitt also testified regarding a one-time annual discretionary bonus, which could also result in a raise.

¶ 22 DeWitt testified he spends the rest of his time

"[t]ypically working on either issues that have come to the department that have been passed to me to be dealt with. It may be dealing with special interest groups, it may be dealing with legislation, rule revisions. I spend a fair amount of time in meetings with different groups, for instance the Illinois Association of Park Districts discussing swimming facility matters.

I spend a fair amount of time engaging the public with those types of meetings. A good amount of time is spent responding to correspondence for those subpoenas. I occasionally get called to testify at hearings. *** I'm [also] engaged quite heavily with the Illinois Attorney General's Office in prosecuting cases that we have sent to them for prosecution."

DeWitt testified he spends two to three days a week testifying in hearings when he is called as a witness.

¶ 23 DeWitt also testified he spends from one to three hours a day on average dealing with calls from the public regarding situations that come within the purview of his section's responsibilities.

ΒΆ 24 DeWitt testified he spends eight hours a week dealing with Freedom of Information Act (FOIA) requests. DeWitt is the "last reviewer" of FOIAs before they go to DPH's FOIA officer. According to DeWitt, he reviews the requested documents assembled by the ...


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