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

November 30, 2012

THE DEPARTMENT OF CENTRAL MANAGEMENT
SERVICES/DEPARTMENT OF PUBLIC HEALTH,
PETITIONERS,
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 BROSNAN, EXECUTIVE DIRECTOR OF SAID BOARD IN HIS OFFICIAL CAPACITY ONLY; AND THE AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, COUNCIL ) 31, RESPONDENTS.



Direct Administrative Review of the Illinois Labor Relations Board, State Panel No. S-RC-09-036

The opinion of the court was delivered by: Justice Appleton

Carla Bender 4th District Appellate

JUSTICE APPLETON delivered the judgment of the court, with opinion. Justice Knecht concurred in the judgment and opinion.

Justice Cook dissented, with opinion.

OPINION

¶ 1 On September 9, 2008, the American Federation of State, County and Municipal Employees, Council 31 (union), filed with the Illinois Labor Relations Board, State Panel (Board), a majority-interest petition to represent three regional supervisors employed by the Illinois Department of Public Health (Department) in the job title or classification of senior public administrator, option 8H. On September 7, 2010, after an administrative hearing conducted on February 2, 2010, the administrative law judge (ALJ), Sylvia Rios, issued a recommended decision and order granting the petition. On January 28, 2011, the Board decided the ALJ was correct and

ordered the Board's Executive Director, John Brosnan, to certify the union as the exclusive representative of the three petitioned-for regional supervisors. On February 3, 2011, Brosnan issued a certification of representation, stating that the three senior public administrators, option 8H, were within the existing bargaining unit designated as RC-63.

¶ 2 The Department appeals on the ground that the petitioned-for individuals were supervisory employees within the meaning of section 3(r) of the Illinois Public Labor Relations Act (Act) (5 ILCS 315/3(r) (West 2008)). We find no clear error in the Board's decision that the individuals at issue were "employees" with the right to bargain collectively. See 5 ILCS 315/3(n) (West 2008). Therefore, we affirm the Board's decision.

¶ 3 I. BACKGROUND

¶ 4 Three regional supervisors, John Smet of Peoria, Clayton Simonson of Rockford, and Mary Lynne Williams of Edwardsville, are employed by the Department in the division of environmental health. Each has the job title or classification of senior public administrator and each is responsible for the inspection of and ensuring the safety of public places such as swimming pools, beaches, and other facilities. The union filed a petition with the Board to represent these three individuals. However, the Department contends they should not be included in the union because they are supervisory employees as defined in the Act. The union contends they are not supervisory employees because they do not "meaningfully with independent judgment impact the terms and conditions of their subordinates."

¶ 5 On February 2, 2010, the ALJ conducted a hearing and considered the testimony of David Culp, the deputy director of the Department's office of health protection. He oversees four divisions, one of which is the division of environmental health. The division chief, Ken Runkle, reports to Culp at a minimum of twice weekly. The division, under Runkle, consists of seven regional supervisors, three of whom are the employees at issue. Culp testified he was aware that some regional supervisors under Runkle were in the union though he could not provide specifics on how such a decision was made. Culp further testified that the duties of the regional supervisors can be classified as a "50/50 proposition," with half of his or her time spent in the field doing "hands-on work," and the other half spent "supervising, ensur[ing] work assignments[,] and ensuring that those personnel are completing the work needed to be done."

¶ 6 The ALJ also considered the testimony of Runkle, who was the acting division chief, as well as the division's senior toxicologist. His base title was public service administrator, option 4, and his acting title was senior public service administrator, option 8H. He said he was a member of the union. Runkle generally communicates with the regional supervisors weekly by e-mail or telephone, with "intense programatic meetings" conducted quarterly.

¶ 7 The regional supervisors have several employees working under them. (Simonson has 6 subordinate employees, Smet has 11, and Williams has 9.) Each regional supervisor completes an annual performance evaluation for each subordinate employee. Each evaluation consists of four sections: (1) appraisal of objectives, (2) general appraisal of employee performance, (3) remarks by supervisor, and (4) employee objectives for next reporting period. The regional supervisor (1) prepares the objectives, (2) determines whether each objective was met, (3) completes the general appraisal of the employee's performance by indicating whether he or she exceeds expectations, meets expectations, or needs improvement in the areas indicated, and (4) devises, with the assistance of the employee, the objectives for the next reporting period.

¶ 8 Runkle testified he reviews the regional supervisors' employee evaluations before he signs them, but generally does not overrule an entry. He looks only for "red flags." He said there are situations where the regional supervisor is not the immediate supervisor of an employee, so the regional supervisor does not conduct the evaluation, but must sign off on it as the next highest supervisor. On that occasion, the regional supervisor has the authority to overrule the evaluation. Each evaluation is signed by the employee, the immediate supervisor, the next highest supervisor, and Damon T. Arnold, the Director of the Department. Theoretically, a negative evaluation could be used to begin or continue disciplinary proceedings. However, an evaluation does not affect the employee's pay since each employee is a member of the union.

¶ 9 Runkle further testified that if an employee applies for a four-day workweek, the regional supervisor is the one to decide whether that request is approved, as he or she "knows best the work that needs to be done and the most efficient way for it to be done." The regional supervisor is also the "final decision-maker" on an employee's request for time off, utilizing his or her judgment. However, the Department's personnel staff gives supervisors directives regarding what conditions qualify for approving certain time-off requests. Other than those directives, the regional supervisor makes the decision based on "coverage," meaning the supervisor will determine if he has enough employees to cover the demand for the requested time off.

¶ 10 According to Runkle, if an employee requires discipline, the regional supervisor will consult with his supervisors and the personnel department. Only one disciplinary action had been initiated in the 13 months prior to the hearing. It consisted of a written reprimand issued by the regional supervisor after consultation with superiors. Runkle did not know what role the regional supervisors played in the process of promoting employees. He testified on cross-examination that an employee's request for a four-day work schedule would not be implemented until the request received final approval from the director's office.

ΒΆ 11 After considering the parties' posthearing briefs, the ALJ entered a recommended decision and order, finding the petitioned-for employees were not supervisors within the meaning of section 3(r) of the Act (5 ILCS 315/3(r) (West 2008)). The ...


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