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The Secretary of State v. the Illinois Labor Relations Board

November 29, 2012

THE SECRETARY OF STATE,
PETITIONER,
v.
THE ILLINOIS LABOR RELATIONS BOARD, STATE PANEL; JACALYN J. ZIMMERMAN, MICHAEL HADE, MICHAEL COLI, ALBERT WASHINGTON, AND JESSICA KIMBROUGH, 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; AND SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 73, RESPONDENTS.



Direct Appeal from Illinois Labor Relations Board, State Panel No. S-RC-11-006

The opinion of the court was delivered by: Justice Knecht

Carla Bender 4th District Appellate

JUSTICE KNECHT delivered the judgment of the court, with opinion. Presiding Justice Steigmann and Justice Appleton concurred in the judgment and opinion.

OPINION

¶ 1 The Secretary of State (Secretary) seeks review of a final decision and order of the Illinois Labor Relations Board, State Panel (Board), certifying Service Employees International Union, Local 73 (Union), as the exclusive bargaining representative of "approximately 116" individuals employed by the Secretary.

¶ 2 The Secretary contends (1) the Board lacked jurisdiction to address the Union's representation petition, and (2) the Board's determinations (a) the individuals were not supervisors under section 3(r) of the Illinois Public Labor Relations Act (Labor Act) (5 ILCS 315/3(r) (West 2010)) and (b) were not managers under section 3(j) of the Labor Act (5 ILCS 315/3(j) (West 2010)) were clearly erroneous. We affirm.

¶ 3 I. BACKGROUND

¶ 4 The Union is a labor organization as defined by section 3(i) of the Labor Act (5 ILCS 315/3(i) (West 2010)). The Union represents a bargaining unit that includes some, but not all, employees with the title of executive I or executive II. The unit also includes employees with the following titles: accountant IV, accountant V, administrative assistant I, administrative assistant II, administrative assistant III, administrative clerk, auto parts auditor supervisor, communications network technician, corporation specialist III, driver facility manager I, driver facility manager II, facility personnel officer, microfilm lab technician III, motor carrier reciprocity prorate auditor, office operations supervisor, personnel officer I, personnel officer II, personnel officer III, printing equipment supervisor, private secretary I, private secretary II, public service supervisor, and training specialist.

¶ 5 The bargaining unit is covered under a collective bargaining agreement that expired on June 30, 2012. The Secretary is a public employer within section 3(o) of the Labor Act and a unit of local government under section 20 of the Labor Act (5 ILCS 315/3(o), 20(b) (West 2010)).

¶ 6 A. The Petition

¶ 7 In July 2010, the Union filed an election petition seeking to include 119 individuals employed by the Secretary in its existing bargaining unit with the Secretary. (We note the Union's petition sought the inclusion of 119 employees, but the Board's October 2011 order characterized the Union's petition as seeking only to add "approximately 116 employees." The August 2011 recommended decision and order of the administrative law judge (ALJ) explained while the Secretary contended 119 employees were at issue, one of the Union's exhibits, which was stipulated into evidence, listed only 116 employees.) The individuals all hold job designation of executive I or executive II (hereinafter referred to collectively as Executives). Later that month, the Union amended the petition to a majority interest petition, providing cards signed by a majority of employees.

¶ 8 On July 29, 2010, an ALJ ordered the Secretary to show cause why the petitioned-for unit should not be certified. The ALJ cautioned the Secretary against relying on "vague, generalized testimony or contentions as to an employee's job function."

¶ 9 In August 2010, the Secretary submitted its offer of proof with respect to all positions at issue, arguing the Executives should be excluded from the proposed bargaining unit because of their supervisory status. See 5 ILCS 315/3(r) (West 2010). In support of its offer of proof, the Secretary attached questionnaires that had been filled out by the supervisors of each Executive.

¶ 10 On May 4, 2011, a newly appointed ALJ scheduled an oral hearing for May 23 to 25, 2011. That day, the Secretary filed a motion to dismiss, asserting the Board no longer had jurisdiction over the matter because section 9(a-5) of the Labor Act (5 ILCS 315/9(a-5) (West 2010)) required the Board to conclude the hearing process within 120 days of the filing of the Union's majority interest petition. The Union also disputed the Board's failure to resolve the matter within 120 days, arguing because the 120-day due date had passed, the Board should issue certification nunc pro tunc to November 13, 2010. The ALJ denied both parties' motions, and the parties later renewed their arguments at the administrative hearing.

¶ 11 On May 18, 2011, the Secretary submitted a prehearing memorandum, adding as an additional argument 26 of the Executives should be excluded from the bargaining unit because they were managerial employees as defined by section 3(j) of the Labor Act (5 ILCS 315/3(j) (West 2010)). The Union objected, contending the Secretary's managerial argument was untimely and prejudiced the Union.

¶ 12 B. The Administrative Hearing

¶ 13 The Union and Secretary appeared for an administrative hearing on May 23, 2011, at which the ALJ allowed the Secretary to proceed on its managerial argument, with the requirement the Secretary stipulate it was only proceeding on the matter-of-fact test.

¶ 14 Thereafter, the parties presented the following evidence.

¶ 15 1. Gary Lazzerini's Testimony

¶ 16 Gary Lazzerini, director of driver services (hereinafter Driver Services) for the metro area, testified as the Secretary's sole witness. Driver Services is one of the Secretary's subsidiary divisions. It maintains 25 facilities in Chicago and its collar counties and 105 facilities in downstate Illinois. Driver Services issues and maintains the records of driver's licenses and state identification cards and handles the state organ donor and federal motor voter programs. The parties stipulated Lazzerini's testimony would be relevant as to all Executives at issue. Lazzerini's testimony on direct examination and cross-examination spanned 22 total pages of transcript and revealed the following facts.

¶ 17 a. Directing Employees

¶ 18 Executive Is are typically assistant managers and executive IIs are typically facility managers. In personnel hierarchy, Executives are subordinate to directors, deputy directors, administrators, and zone managers. Beneath the Executives are public service representatives and clerks. The number of employees each Executive supervises depends on the size of the facility at which the Executive works. The Executives typically do not have on-site superiors at their facilities.

¶ 19 According to Lazzerini, the primary function of the Executives "is to direct, manage, and supervise the employees of the facility." When asked what Executives direct their employees to do, Lazzerini testified "they're directing them to do their job *** that's in the job description, they're directing them as far as the different shifts, the different breaks, job assignments, job duties." He explained Executives assign staff to different work areas within their facilities, such as at the greeter's desk, based on the operational needs of the facility.

¶ 20 Overall, Lazzerini estimated the Executives spend 75% to 80% of their time in a supervisory or managerial function.

¶ 21 b. Evaluating Employees' Performance

¶ 22 According to Lazzerini, the Executives evaluate probationary employees twice a year, and those evaluations determine whether a probationary employee becomes a full-time employee. The Executives also evaluate nonprobationary employees once a year, and those evaluations "[have] a significance" in determining pay raises and promotions. Lazzerini explained employee pay increases as a whole are calculated according to collective-bargaining agreements; however, if an employee receives a score of two or below on a four-point scale in two evaluation periods, the employee may not receive a pay raise and could lose his job.

¶ 23 After the Executives fill out employee evaluations, the department of personnel reviews the evaluations "to make sure that the justifications fit with the scoring." The department brings any problems with the evaluations to the Executives, who make changes accordingly.

Lazzerini testified zone managers also review the evaluations "at times," but the managers do not direct the Executives "at all"; rather, the managers serve as a "sounding board" to the Executives.

¶ 24 c. Disciplining Employees

¶ 25 Lazzerini testified Driver Services has a progressive discipline system which starts with oral warnings, followed by written warnings, suspensions, and then discharge. Executives initiate the disciplinary process by identifying and bringing to the administration's attention any disciplinary requests. Executives only have authority to issue oral, verbal, or written warnings but may recommend higher disciplinary action. When an Executive recommends suspension, the director conducts a ground-level investigation, obtains witness statements, and sends the investigation's results to the personnel department. Lazzerini testified the Executives' disciplinary recommendations are accepted a majority of the time.

¶ 26 d. Scheduling Employees

¶ 27 According to Lazzerini, Executives also "handle the day-to-day attendance" of employees. He explained the Secretary's policy requires facility employees to submit vacation requests toward the beginning of the year. The Executives then approve vacation requests based on (1) seniority, (2) the collective-bargaining agreement's required staffing levels and allowance for two employees at a facility to be on vacation at a given time, and (3) the workload at the facility. Lazzerini did not know if the Executives ever deny time off when the requisite staff levels are met.

¶ 28 2. Documentary Evidence

¶ 29 In addition to Lazzerini's testimony, the Secretary submitted over 3,000 pages of exhibits, consisting of (1) organizational charts; (2) employee questionnaires completed by supervisors of the Executives; (3) position descriptions; (4) oral and written warning notices made by the Executives; (5) performance evaluations completed by the Executives; (6) performance evaluations about the Executives completed by their supervisors; and (7) various memoranda and emails purporting to show the Executives directing their subordinates. Following the hearing, the Secretary also submitted a chart providing information about 108 of the Executives, including their working titles, departments and location assignments, number of supervised subordinates, and whether they are the top-ranked employees at their work locations. The document shows the Executives are all either managers, assistant mangers, or assistant managers currently serving as managers. Sixty-nine of the Executives are the highest-ranked employees at their facilities. The Executives supervise between 1 and 51 subordinates.

¶ 30 The Union stipulated to the authenticity of the Secretary's documents, reserving the right to argue the applicability of the documents to the law. For its part, the Union offered into evidence the collective-bargaining agreement between the Union and the Secretary as well as a document providing information about each Executive's supervisor. The Union's document listed 116 Executives-73 executive Is and 43 executive IIs.

¶ 31 In June 2011, the Union and Secretary both filed posthearing briefs. In his brief, the Secretary expanded his managerial argument to argue that all of the Executives at issue should be excluded because they were managers under the Labor Act.

¶ 32 C. The ALJ'S Recommended Decision

¶ 33 In August 2011, the ALJ issued a recommended decision and order, recommending the Board grant the Union's petition. First, the ALJ rejected the Secretary's jurisdictional argument, concluding section 9(a-5) of the Labor Act is not jurisdictional in nature.

Likewise, the ALJ rejected the Union's contention the passage of the 120-day deadline entitled it to nunc pro tunc certification.

¶ 34 1. Supervisory Exception

¶ 35 With respect to the Executives' alleged supervisory status, the ALJ found the Secretary failed to show the Executives spend a preponderance of their time performing supervisory functions. Specifically, the ALJ found the Secretary failed to show the Executives exercise supervisory authority when directing their subordinates because the evidence did not show the Executives' directory role required them to consistently use independent judgment. The ALJ noted the Secretary relied on conclusory testimony and survey statements and vague references to examples in the record. The few specific examples the Secretary did provide failed to show the Executives exercised independent judgment when overseeing their subordinates.

¶ 36 While the ALJ did not find the Executives exercise supervisory authority when directing employees, the ALJ did find the Executives act in a supervisory role when they (1) issue discipline, (2) reward employees, and (3) discharge nonprobationary employees. However, the ALJ found the Secretary failed to show the Executives spend a preponderance of their time performing these functions. The ALJ noted the Secretary did not describe the Executives' day-today activities in sufficient detail but, rather, relied on Lazzerini's conclusory testimony and broad citations to the surveys and job descriptions submitted into evidence. Further, the ALJ pointed out Lazzerini asserted the Executives spend at least 75% of their time directing employees. Thus, the ALJ reasoned the Executives must spend no more than 25% of their time issuing discipline, rewarding employees, and discharging nonprobationary employees. Based on this, the ALJ concluded the Secretary failed to show the Executives spend a preponderance of their time exercising supervisory authority.

¶ 37 2. Managerial Exception

¶ 38 Likewise, the ALJ concluded the Secretary failed to show the Executives were managerial employees because the evidence did not establish the Executives formulate policy and procedure or effectuate policy through their recommendations.

¶ 39 3. ALJ Recommends Certification

ΒΆ 40 Based on the foregoing, the ALJ recommended the Board certify the Union as the exclusive representative of the Executives. Thereafter, the parties both filed exceptions to the ALJ's ...


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