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American Federation of State, County and Municipal Employees, Council 31 v. The Illinois Labor Relations Board

Court of Appeals of Illinois, First District, Fourth Division

June 27, 2019

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 31, Petitioner,
v.
THE ILLINOIS LABOR RELATIONS BOARD, LOCAL PANEL, and THE CITY OF CHICAGO, Respondents.

          Petition for Review of the Decision and Order of the Illinois Labor Relations Board, Local Panel. No. L-RC-16-031

          JUSTICE GORDON delivered the judgment of the court, with opinion. Justices Reyes and Burke concurred in the judgment and opinion.

          OPINION

          GORDON, JUSTICE

         ¶ 1 The instant dispute comes to this court on direct administrative review of the decision and order of the Illinois Labor Relations Board, Local Panel (Board). Petitioner American Federation of State, County and Municipal Employees, Council 31 (union), filed a petition to add 16 City of Chicago (City) employees to its existing bargaining unit, and the City objected, claiming these employees, who all held the title of "Senior Procurement Specialist" with the City's department of procurement services (department), were managerial and therefore ineligible to join the union. After a hearing, an administrative law judge (ALJ) issued a recommended decision and order, agreeing with the City's position that these employees were managerial, and the Board adopted the ALJ's recommendation. The union appeals and, for the reasons that follow, we affirm.

         ¶ 2 BACKGROUND

         ¶ 3 On June 3, 2016, the union filed a representation/certification petition with the Board, seeking to add 16 employees with the title of "Senior Procurement Specialist" to its existing bargaining unit. On June 30, 2016, the City objected to the union's petition, claiming that the employees were managerial employees under section 3(j) of the Illinois Public Labor Relations Act (Act) (5 ILCS 315/3(j) (West 2014)) and were therefore excluded from the ability to engage in collective bargaining. The parties proceeded to a hearing before an ALJ, where Byron Whittaker, a deputy procurement officer with the department, was the sole witness. As the department's duties are largely statutory, it is helpful to first explain the statutory framework of the department, followed by a discussion of Whittaker's testimony and the decisions of the ALJ and Board.

         ¶ 4 I. Statutory Duties

         ¶ 5 The department is governed by the Municipal Purchasing Act for Cities of 500, 000 or More Population (Purchasing Act) (65 ILCS 5/8-10-1 et seq. (West 2014)), and chapter 2-92 of the Municipal Code of Chicago (Municipal Code) (Chicago Municipal Code ch. 2-92). Under the Purchasing Act, all purchase orders or contracts exceeding $10, 000 are required to be awarded through a free and open competitive bidding process, in which the contract is to be awarded to the "lowest responsible bidder." 65 ILCS 5/8-10-3(a) (West 2014). Certain types of contracts are not subject to this bidding process, such as contracts for professional services, single-source goods or services, utility services, publications, and certain printing and binding orders. 65 ILCS 5/8-10-4 (West 2014). The City has designated a chief procurement officer to head the department and to be responsible for developing and implementing department procurement plans pursuant to the Purchasing Act. Chicago Municipal Code § 2-92-010 (amended Apr. 15, 2015); see 65 ILCS 5/8-10-15 (West 2014) (providing for a purchasing agent to be designated in each municipality subject to the Purchasing Act).

         ¶ 6 With respect to contracts subject to the competitive bidding process, proposals for such contracts must be advertised in a local newspaper for at least 10 days. 65 ILCS 5/8-10-7 (West 2014). The advertisement must set forth the date, time, and place assigned for the opening of the bids and must describe the character of the proposed contract in sufficient detail to enable bidders to know what their obligations will be. 65 ILCS 5/8-10-7 (West 2014).

         ¶ 7 After the advertising period, the chief procurement officer awards the contract to the lowest responsible bidder. 65 ILCS 5/8-10-10 (West 2014). Under the Purchasing Act, "[i]n determining the responsibility of any bidder the [chief procurement officer] may take into account other factors in addition to financial responsibility, such as past records of transactions with the bidder, experience, adequacy of equipment, ability to complete performance within a specified time limit and other pertinent considerations." 65 ILCS 5/8-10-11 (West 2014). Additionally, "[a]ny and all bids received in response to an advertisement may be rejected by the [chief procurement officer] if the bidder is not deemed responsible, or the character or quality of the services, supplies, materials, equipment or labor does not conform to requirements or if the public interest may otherwise be served thereby." 65 ILCS 5/8-10-12 (West 2014). The Municipal Code includes additional considerations, such as bid incentives and bid preferences for certain types of bidders (see, e.g., Chicago Municipal Code § 2-92-405 (added Apr. 15, 2015), § 2-92-407 (added June 27, 2018), § 2-92-410 (amended Apr. 15, 2015), § 2-92-940 (added June 28, 2017)), as well as contract requirements for minority-owned and women-owned businesses (see Chicago Municipal Code § 2-92-430 (amended July 19, 2000)) and City and project-area residents (see Chicago Municipal Code § 2-92-330 (amended Apr. 10, 2013)).

         ¶ 8 With respect to contracts not subject to the competitive bidding process, the department prequalifies certain contractors pursuant to a "request for qualifications" (RFQ), which results in a list of "exclusive responsible bidders" for projects concerning roof repair, building demolition, board-up work, or emergency bridge or viaduct repair. [1] Chicago Municipal Code § 2-92-340 (amended Apr. 18, 2018). The responsible bidder list for each RFQ is compiled by an evaluation committee designated by the chief procurement officer, which includes members of the departments likely to require the type of work addressed by the RFQ. Chicago Municipal Code § 2-92-350 (amended July 19, 2000). The evaluation committee evaluates responses to the RFQ in accordance with the criteria set forth in the RFQ and recommends to the chief procurement officer those contractors satisfying the criteria. Chicago Municipal Code § 2-92-350 (amended July 19, 2000). Based on these recommendations, the chief procurement officer develops a list of contractors who are prequalified as the exclusive responsible bidders on contracts for the type of work addressed in the RFQ. Chicago Municipal Code § 2-92-350 (amended July 19, 2000). If the chief procurement officer determines at any time that the contractor is "nonresponsible," the chief procurement officer may delete the contractor from the responsible bidder list. Chicago Municipal Code § 2-92-350 (amended July 19, 2000).

         ¶ 9 II. Whittaker's Testimony

         ¶ 10 As noted, the sole witness at the hearing on the union's petition was Byron Whittaker, a deputy procurement officer with the department, who testified that he has been working in that capacity for 7 to 8 years and has been an employee within the department for 30 years. Whittaker testified that as a deputy procurement officer, his responsibility was to provide direction and supervision to a staff of procurement specialists and senior procurement specialists. Whittaker testified that he was responsible for overseeing several units of the department: the architectural and engineering unit; the construction unit; and the commodities unit, which also included the small orders unit. Whittaker testified that the department was a "service department" and that their "client departments" were all of the City's user departments. The client departments requisitioned the department for various goods and services required for their day-to-day functions and operations, and the department worked with the client department to develop specification documents for the purpose of preparing either bid documents or solicitation documents that detailed the goods and services required.

         ¶ 11 Whittaker testified that, as to the procedural steps in the procurement process, the client department would first enter a requisition request into the computerized system and the department would determine whether a competitive process or an evaluative process was required. Then, the department would work with the client department to develop a detailed specification document, with the client department being primarily responsible for setting forth the scope of services that it wished the department to procure. After that document was developed, the department "will then pretty much take over the process," including soliciting bids, receiving the bids, and either performing a bid tabulation or leading a committee evaluation process.

         ¶ 12 Whittaker testified to the organizational structure of the department, which was depicted in an organizational chart that was admitted into evidence at the hearing. Under the chart, the chief procurement officer was the head of the department. Directly under him was the first deputy procurement officer, followed by deputy procurement officers in six divisions. Three of these divisions were grouped into the "Contract Administration" section: (1) the construction, architectural and engineering, commodities, and small orders division; (2) the work services, heavy equipment, and "pro-serve" division; and (3) the aviation division. Under the deputy procurement officer in each division there is an assistant procurement officer, followed by senior procurement specialists and procurement specialists.

         ¶ 13 Whittaker testified that, with respect to the division under his control, the construction, commodities, and small orders units generally employed competitive bidding. Under that process, the department worked with the client department to develop a detailed specification of the services required by the client department, resulting in the development of a specification document. The specification document would be prepared for solicitation by either the senior procurement specialist or a procurement specialist, who would then receive and review the bids, perform bid tabulations, and work with the client department to recommend a bid award. The department would then award the bid and secure the contract documents, so that the service could be performed or the product could be obtained.

         ¶ 14 With respect to the architectural and engineering unit, Whittaker testified that this unit was considered a "professional service unit" and participated in a "more evaluative process" that involved either a RFQ or request for proposals (RFP). As with the other units, this process began with gathering documents from the client department concerning the scope of the services required. After that, an evaluation committee was established for the purpose of identifying the appropriate evaluation criteria; this evaluation committee was always chaired by a procurement specialist. The committee then received responses to its ...


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