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

January 11, 2013

THE DEPARTMENT OF CENTRAL MANAGEMENT
SERVICES/POLLUTION CONTROL BOARD,
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 AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, COUNCIL 31, RESPONDENTS.



Direct Appeal from Illinois Labor Relations Board, State Panel, No. S-RC-10-196

The opinion of the court was delivered by: Presiding Justice Steigmann

Carla Bender 4th District Appellate Court, IL

PRESIDING JUSTICE STEIGMANN delivered the judgment of the court, with opinion.

Justices Pope and Knecht concurred in the judgment and opinion.

OPINION

¶ 1 In February 2010, respondent, the American Federation of State, County, and Municipal Employees, Council 31 (AFSCME), filed a majority interest representation petition under the Illinois Public Labor Relations Act (Act) (5 ILCS 315/1 to 27 (West 2010)) with the Illinois Labor Relations Board (Board), seeking to include attorney-assistant employees of the petitioner, the Department of Central Management Services (CMS), in AFSCME's existing RC-10 bargaining unit.

¶ 2 In August 2011, the Board, in a 3 to 2 decision, issued a ruling, rejecting CMS's argument that the positions in question-namely, public service administrators, option 8s (hereinafter, PSA 8s), which is a designation assigned to state employees who, in this case, are employed as attorney-assistants by the Pollution Control Board (PCB)-were managerial under the Act.

¶ 3 CMS appeals, arguing that the Board erred by (1) concluding that the disputed PSA 8s (1) were not managerial under the Act and (2) finding that employees who are exempt from the Illinois Personnel Code under section 4d(1) (20 ILCS 415/4d(1) (West 2010)) should be included in the bargaining unit. Because we agree with CMS that the Board's determination that the disputed PSA 8s were not managerial employees was clearly erroneous, we reverse.

¶ 4 I. BACKGROUND

¶ 5 In February 2010, AFSCME filed a majority interest representation petition under the Act with the Board, seeking to include certain CMS employees in AFSCME's existing RC-10 bargaining unit.

¶ 6 In March 2010, CMS filed its initial position statement, in which it asserted that the employees at issue should be excluded from the bargaining unit as (1) managerial and/or confidential employees or (2) exempt as at-will employees under section 4d(1) of the Personnel Code.

¶ 7 The case proceeded to a hearing before an administrative law judge (ALJ) at which the parties entered stipulations as to several employees and sought a determination on the remainder. The parties presented the following background (1) at that September 2010 hearing and (2) through their posthearing briefs.

¶ 8 The employees at issue were employed by the PCB, which is a quasi-judicial and quasi-legislative body. The PCB's quasi-judicial functions involve implementing environmental regulations through enforcement, adjustment, and appeals. The PCB's quasi-legislative functions involve drafting and issuing the state's environmental regulations and governing the actions of the Illinois Environmental Protection Agency.

¶ 9 The PCB is comprised of five full-time members. Each PCB member is permitted to hire at least one assistant and a secretary. Although they are not required to be, the assistants to the PCB members have traditionally been attorneys. Those attorneys assist the PCB by providing advice and direction with respect to legal issues involving the PCB's functions, given that the PCB members have traditionally not been attorneys.

¶ 10 The following four PCB attorney assistants are the PSA 8s at issue: (1) Timothy Fox, (2) Daniel Robertson, (3) Marie Tipsord, and (4) Richard McGill. Each of these attorney-assistants or, as the Board would later describe them, "clerks," works closely with the PCB members to, among other duties, draft and issue administrative adjudicatory decisions.

ΒΆ 11 On this description of employment, the ALJ entered a recommended decision and order, finding that "[n]one of the petitioned-for employees" were ...


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