Court of Appeals of Illinois, First District, Third Division
AMERICAN FEDERATION OF STATE, COUNTY and MUNICIPAL EMPLOYEES (AFSCME), COUNCIL 31, Petitioner,
THE ILLINOIS LABOR RELATIONS BOARD, STATE PANEL, and THE DEPARTMENT OF CENTRAL MANAGEMENT SERVICES (Illinois Commerce Commission), Respondents
Petition for Review of Order of Labor Relations Board, State Panel. S-RC-10-034, S-RC-10-036.
FOR PETITIONER: Cornfield and Feldman LLC, Of Melissa J. Auerbach.
FOR RESPONDENT: Laner Muchin, Ltd., Special Assistant Attorneys General, Of Joseph M. Gagliardo, Lawrence Jay Weiner; Lisa Madigan, Attorney General, Of Melissa J. Auerbach.
JUSTICE NEVILLE delivered the judgment of the court, with opinion. Presiding Justice Hyman and Justice Mason concurred in the judgment and opinion.
[¶1] This case involves the application of the managerial employee exception codified in section 3(n) of the Illinois Public Labor Relations Act (Act) (5 ILCS 315/3(n) (West 2010)). The Illinois Labor Relations Board (Board) certified the American Federation of State, County and Municipal Employees, Council 31 (AFSCME) as the sole bargaining representative for eight administrative law judges (ALJs), all of whom work at the Illinois Commerce Commission (Commission). The Department of Central Management Services (CMS) filed a petition in the appellate court seeking review of the Board's order certifying AFSCME as the exclusive representative of the eight ALJs. The appellate court reversed the Board's certification order and remanded the case to the Board for an evidentiary hearing to determine whether the subject ALJs III and IV are managerial employees. Department of Central Management Services/Illinois Commerce Commission v. Illinois Labor Relations Board, State Panel, 406 Ill.App.3d 766, 943 N.E.2d 1136, 348 Ill.Dec. 226 (4th Dist. 2010). On remand, the Board conducted a two-day evidentiary hearing and determined that the ALJs fell within the Act's definition for managerial employees. 5 ILCS 315/3(j) (West 2010).
[¶2] We find that the evidence supports the Board's finding that ALJs III and IV fall within section 3(j), the Act's definition for managerial employees and, therefore, the ALJs are barred by the managerial employee exception in section 3(n) of the Act from engaging in collective bargaining.
Accordingly, we affirm the Board's decision.
[¶4] The 2010 Appeal
[¶5] On July 28, 2009, AFSCME filed two majority interest petitions with the Board seeking to be certified as the exclusive representative for eight ALJs (one ALJ IV and seven ALJ IIIs) of the Commission. In each of the petitions, AFSCME stated that there was an existing Board-certified collective bargaining unit and the ALJs wished to be included in the bargaining unit.
[¶6] On August 14, 2009, CMS filed a position statement in response to AFSCME's petition, asserting that the ALJs should be excluded from the bargaining unit because they were " managerial" employees as defined by section 3(j) of the Act (5 ILCS 315/3(j) (West 2008)) and, as such, were ineligible to participate in collective bargaining.
[¶7] On August 14, 2009, the ALJ assigned to the case sent a letter to the parties, stating that she had reviewed CMS's position statement and had found nothing therein necessitating a hearing. The ALJ ordered CMS to show cause why AFSCME should not be certified as the bargaining representative of the eight ALJs.
[¶8] On September 9, 2009, in response to the Board's order to show cause, CMS filed a supplemental position statement and asserted that the ALJs had a direct hand in formulating policy through the preparation of orders for the Commission. According to CMS, the chief ALJ had estimated that the Commission adopted the ALJs' recommendations 95% of the time, that substantive modifications were rare, and outright reversals were even rarer.
[¶9] After CMS submitted its supplemental position statement, the ALJ wrote the parties and stated that she found " no issues of law or fact in these matters" and that she would recommend that the Board's Executive Director certify AFSCME as the bargaining representative for the eight ALJs. On September 10, 2009, the Board's Executive Director certified AFSCME as the exclusive representative of the eight ALJs and ordered their inclusion in the existing RC-10 bargaining unit.
[¶10] CMS filed a petition seeking a review of the Board's order in the Appellate Court, Fourth District, and argued that the ALJs were exempt from collective bargaining because they were managerial employees and that the Board erred when it certified AFSCME as the exclusive representative of the ALJs without holding an oral hearing.
[¶11] The appellate court found that the ALJs were not managerial employees as a matter of law because members of the Commission retained the power and duty to issue their own decisions after receipt of the ALJs' recommended orders. Department of Central Management Services, 406 Ill.App.3d at 782. The appellate court also found that the Board's decision to certify AFSCME as the exclusive representative for the ALJs without an oral hearing was clearly erroneous because there was still " a live question" as to whether the eight ALJs were managerial employees. Department of Central Management Services, 406 Ill.App.3d at 767. Therefore, the appellate court remanded the case to the Board for further proceedings on whether the ALJs are managerial employees. Department of Central Management Services, 406 Ill.App.3d at 783.
The Evidentiary Hearing