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AFSCME, Council 31 v. State, Illinois Labor Relations Board

Court of Appeals of Illinois, First District, Fifth Division

December 31, 2014


Page 53

Petition for Review of an Order of the Illinois Labor Relations Board, State Panel. No. S-RC-09-202.

For Appellant: Mark S. Stein, Cornfield and Feldman, LLP, Chicago, IL.

For Appellee: Lisa Madigan, Carolyn E. Shapiro, John P. Schmidt, Attorney General of the State of Illinois, Chicago, Illinois.

JUSTICE REYES delivered the judgment of the court, with opinion. Justice McBride concurred in the judgment and opinion. Justice Gordon dissenting, with opinion.



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[¶1] Following a hearing before an administrative law judge (ALJ) of the Illinois Labor Relations Board (Board), the American Federation of State, County and Municipal Employees (AFSCME) timely filed a petition for review of the Board's decision pursuant to 735 ILCS 5/3-113 (West 2012)). AFSCME argues on appeal that the Board erred in designating James Weging, Richard Favoriti, and Christine Ericson managerial employees. For the following reasons, we reverse the Board's decision as to Weging and Ericson, and affirm the Board's decision as to Favoriti.


[¶3] The Illinois Commerce Commission (ICC or Commission) is a quasi-judicial body that regulates public utility services in the state. 220 ILCS 5/2-101 et seq. (West 2012) (Public Utilities Act). The ICC's stated mission is to pursue an appropriate balance between the interest of consumers and existing and emerging service providers to ensure the provision of adequate, efficient, reliable, safe and least-cost public utility services.[1] The Commission attempts to achieve that mission, in part, by overseeing the certification of private entities that wish to provide public utilities, setting the rates utility companies can charge, providing oversight for various safety measures, and investigating and handling complaints against utility companies.

[¶4] AFSCME is a national public services employees union. In 2012, AFSCME petitioned the Illinois Labor Relations Board (Board) to include as part of the existing RC-10 bargaining unit four ICC attorneys: John Feely, James Weging, Richard Favoriti, and Christine Ericson. Following a hearing, the ALJ issued a recommended decision and order, finding all four lawyers should be included in the bargaining unit as nonmanagerial employees. Both the State of Illinois Department of Central Management Services and AFSCME filed exceptions to the recommended decision.

[¶5] I. The Board's Decision

[¶6] A five-member panel of the Board issued a decision on January 28, 2013. The three-member majority agreed with the ALJ regarding the status of John Feely,[2] but found the remaining three ICC attorneys--James Weging, Richard Favoriti, and Christine Ericson--were managerial employees.

[¶7] A. James Weging

[¶8] James Weging works in the solicitor section of the ICC. The solicitor section handles appeals when parties challenge ICC decisions, defends suits filed by utilities against the Commission, and initiates actions to enforce ICC orders in court. According to the record, Weging has worked in the same position and performed

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more or less the same duties since the 1980s.

[¶9] The Board acknowledged Weging spends the " majority of his time" [3] representing the ICC during judicial review of the Commission's determinations, deeming this function non-managerial. Nevertheless, the Board noted Weging " also defends and otherwise represents the ICC in state and federal court outside the context of administrative review, including in original actions to enforce Commission orders." According to the Board, these additional duties " create[] more opportunity for an attorney's litigation advice to spill into advice that concerns changing the way the agency operates, or even its policy objectives." The Board found Weging's advice in these instances to be " more in the nature of managerial work," citing two examples where Weging acted as a managerial employee. In the first example, Weging convinced the ICC to pursue a supervisory order in the Illinois Supreme Court, which would have likely had " a broad impact on the ICC and its operations," if granted.[4] In the second example, Weging advised how to revoke a utility's certificate of public necessity and convenience, ultimately establishing guidelines for the particular task. The Board ultimately characterized it as a " close matter," but found " Weging's activities in representing the ICC outside the context of administrative review and in developing litigation strategy so " qualitatively different" as to " render[] him a managerial employee."

[¶10] B. Richard Favoriti

[¶11] Richard Favoriti works in the advisory section of the ICC, which functions as in-house counsel to the Commission.[5] In determining the nature of Favoriti's employment, the Board relied on the ALJ's general description of his duties, stating:

" '[Favoriti] researches and drafts legislation, analyzes proposed legislation, and advises the ICC on legislative initiatives; he plans and conducts extensive and complex research to determine statutory compliance by applying legal methods and procedures with reference to the legal implications involved; he confers and advises ICC staff on complex issues of statutory interpretation and compliance; he also performs other duties, special projects or research, as required or assigned which are reasonably within the scope of duties enumerated within his job description. In addition, Favoriti has special expertise in pipeline safety and accordingly handles related matters.'"

The Board additionally examined specific instances of Favoriti's work. In particular, the Board noted Favoriti has drafted legal advice while " serv[ing] as an assistant to the Commission," helped draft amendments to legislation, and drafted orders initiating citation proceedings.[6] Favoriti also on one occasion helped draft a proposed rule concerning " the disclosure

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of gas pipeline inspections and audit information to the public." The Board " [found] these tasks to be executive and management functions." Further, the Board cited another instance where the ICC asked Favoriti whether it was required to follow an executive order from the Governor implementing a furlough program. After Favoriti advised the Commission it would not be obligated to follow the order, the ICC chose not to implement the program. According to the Board, Favoriti's involvement regarding the executive order indicated his " managerial status because [the ICC's decision] broadly concern[ed] how the agency will be run and concern[ed] the means the agency will use to ...

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