The opinion
NO. 4-09-0721 Filed 12/28/10
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE DEPARTMENT OF CENTRAL MANAGEMENT ) Direct Administrative
SERVICES/THE ILLINOIS HUMAN RIGHTS ) Review of Illinois
COMMISSION, ) Labor Relations Board,
Petitioner-Appellant, ) State Panel,
v. ) No. S-RC-09-132
THE ILLINOIS LABOR RELATIONS BOARD, )
STATE PANEL; JACKIE GALLAGHER, MICHAEL )
HADE, REX PIPER, MICHAEL COLI, and )
ALBERT WASHINGTON, the Members of Said )
Board and Panel in Their Official )
Capacity Only; JOHN F. BROSNAN, in His )
Official Capacity Only as ILRB )
Executive Director; Administrative Law )
Judge ELLEN MAUREEN STRIZAK, in Her )
Official Capacity Only; and the )
AMERICAN FEDERATION OF STATE, COUNTY, )
AND MUNICIPAL EMPLOYEES, COUNCIL 31, )
Respondents-Appellees. )
_________________________________________________________________
JUSTICE McCULLOUGH delivered the opinion of the court:
Petitioner, the Illinois Department of Central Manage-
ment Services/the Illinois Human Rights Commission (CMS), seeks
administrative review of a decision of the Illinois Labor Rela-
tions Board, State Panel (Board), that permitted inclusion of
employees with the classification of public service administrator
(PSA), option 8L, Administrative Law Judge (ALJ), into an exist-
ing bargaining unit, RC-10, and certified the American Federation
of State, County, and Municipal Employees, Council 31 (union), as
their exclusive representative. CMS argues it was improperly and
unfairly denied an evidentiary hearing and due process, and ALJs
are "managerial employees" under the Illinois Public Labor
Relations Act (Act) (5 ILCS 315/1 through 27 (West 2008)) and,
therefore, excluded from engaging in collective bargaining. We
reverse, finding the ALJs in the case at bar to be "managerial
employees" as a matter of law.
On April 8, 2009, the union filed a representation-
certification petition with the Board, alleging that a majority
of CMS's employees in an appropriate unit wished to be repre-
sented by the union for purposes of collective bargaining.
Specifically, it asserted there was an existing board-certified,
collective-bargaining unit and seven employees holding the
position of PSA, option 8L, ALJ wished to be included in that
existing bargaining unit.
On May 14, 2009, CMS filed a position statement in
response to the union's petition, asserting the petitioned-for
bargaining unit was inappropriate because its ALJs were "manage-
rial employees" as defined by the Act. Specifically, it argued
(1) the ALJs at issue rendered decisions based upon and effecting
management policy and (2) the ALJs were managerial employees as a
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matter of law. CMS requested dismissal of the petition.
On June 12, 2009, the Board, through its agent, sent a
letter to the parties, requesting CMS "cite specific facts in
support of its assertion." On July 15, 2009, CMS responded. It
argued the ALJs regularly made determinations directly related to
the policies of the Human Rights Commission (Commission) as
dictated by the Human Rights Act (775 ILCS 5/1-101 through 10-104
(West 2008)). Further, it noted "a two-tier decision-making
process in which the ALJs make recommended decisions." CMS
alleged that the decisions of the ALJs were "given much defer-
ence."
On August 13, 2009, the Board's agent sent a letter to
CMS, stating its responses had been reviewed and no issues of law
or fact were found. The agent stated she intended to recommend
that the petitioned-for unit be certified. On August 17, 2009,
the Board's Executive Director issued a certification of repre-
sentative, designating the union as the exclusive representative
of the PSA, option 8L, ALJs for collective-bargaining purposes
and adding those employees to the existing bargaining unit.
This appeal followed.
On appeal, CMS argues the Board improperly failed to
conduct an evidentiary hearing, violating its due-process rights.
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Further, it contends its ALJs could not have appropriately been
included in the petitioned-for unit because they were managers
under the Act and not public employees.
When a petition to certify a labor organization as the
exclusive representative of a group of public employees has been
filed, the Board must investigate the petition and, "if it has
reasonable cause to believe that a question of representation
exists," must provide for an appropriate hearing. 5 ILCS
315/9(a) (West 2008). Addressing the issue of whether the Board
improperly failed to conduct a hearing, the First District has
recently stated as follows:
"[T]he Act 'on its face provides for the
evaluation of the evidence gathered and a
determination of its sufficiency before an
appropriate hearing must be held.'
[Citation.] 'This interpretation is fully
consistent with and borne out by the Board's
own regulations promulgated to implement
section 9(a) of the Act.' [Citations.] These
regulations provide a procedure under which a
petition may be either dismissed or certified
without a hearing." City of Chicago v.
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Illinois Labor Relations Board, Local Panel,
396 Ill. App. 3d 61, 71-72, 918 N.E.2d 1103,
1113 (2009), quoting Illinois Council of
Police v. Illinois Labor Relations Board,
Local Panel, 387 Ill. App. 3d 641, 659, 899
N.E.2d 1199, 1214 (2008).
The Board's regulations provide that the Board or its
agent must investigate a petition. 80 Ill. Adm. Code
§1210.100(b)(6), as amended by 28 Ill. Reg. 4172, 4191 (eff.
February 19, 2004).
"A) After the investigation, the
Executive Director shall dismiss a petition,
or the [ALJ] shall recommend to the Board
that a petition be dismissed, when a petition
has been filed untimely; when the bargaining
unit is clearly inappropriate; when the
showing of interest is not adequate; when the
employer is not covered by the Act; when the
employees are not covered by the Act; or for
any other reason there is no reasonable cause
to believe that a question of representation
exists. ***
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B) Where there are no unit
appropriateness or exclusion issues, or any
other issues necessitating a hearing, the
Executive Director will prepare a tally of
the finding of majority support and certify
the petitioner as the unit's exclusive
representative within 20 days after the
service of the petition. ***
C) If the investigation discloses that
there is reasonable cause to believe that
there are unresolved issues relating to the
question concerning representation, the Board
shall set the matter for hearing before an
[ALJ]. ***." 80 Ill. Adm. Code
§1210.100(b)(7), as amended by 28 Ill. Reg.
4172, 4192 (eff. February 19, 2004).
"Under the Administrative Review Law [(735 ILCS 5/3-110
(West 2008))], the scope of judicial review extends to all
questions of law and fact presented by the record before the
court." AFM Messenger Service, Inc. v. Department of Employment
Security, 198 Ill. 2d 380, 390, 763 N.E.2d 272, 279 (2001). On
review, this court must determine whether the agency's findings
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of fact are against the manifest weight of the evidence. Exelon
Corp. v. Department of Revenue, 234 Ill. 2d 266, 272, 917 N.E.2d
899, 904 (2009). Questions of law are subject to de novo review.
Exelon, 234 Ill. 2d at 273, 917 N.E.2d at 904. Finally, "[a]n
agency's conclusion on a mixed question of fact and law is
reviewed for clear error." Exelon, 234 Ill. 2d at 273, 917
N.E.2d at 905.
CMS first argues it was deprived of due process when
the Board issued a certification of representative without a
hearing. This issue presents a question of law and is subject to
de novo review.
"The fundamental requirements of due process are notice
of the proceeding and an opportunity to present any objections."
People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 201, 909
N.E.2d 783, 796 (2009). However, "[t]he due[-]process clauses of
the fifth and fourteenth amendments were enacted to protect
'persons,' not States." People v. Williams, 87 Ill. 2d 161, 166,
429 N.E.2d 487, 489 (1981). The State is not a "person" and
cannot benefit from due-process protection. Williams, 87 Ill. 2d
at 166, 429 N.E.2d at 489.
Here, CMS is a state agency and not entitled the
protections of due process. Moreover, in this instance, the
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fundamental requirements of due process were met because CMS
received notice of the proceedings at issue and an opportunity
for its objections to be heard. The record reflects CMS filed
two responses to the union's petition and both were reviewed by
the Board's agent during her investigation of the petition.
CMS's argument that it was denied due process is without merit.
Additionally, neither the Act nor the Board's
regulations require a hearing following the filing of a majority-
interest petition. As stated, the Act provides for a hearing
only when there is reasonable cause to believe a question of
representation exists. See 5 ILCS 315/9(a) (West 2008).
CMS, however, also contends "the undisputed facts
contained in its position statements [were] sufficient to raise
questions of representation and exclusions." It argued before
the Board, and argues on appeal, that its ALJs are "managerial
employees" under the Act and may not engage in collective
bargaining.
"While the test to determine whether a
hearing is required under the Act is a legal
one, involving whether the Board had 'no
reasonable cause' to believe that a question
of representation existed [citation], that
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test must be applied to and depends upon the
sufficiency of facts presented to the Board
during its investigation of the
representation petition. [Citations.] As
such, this court reviews the Board's finding
that a hearing was not required under the
clearly erroneous standard. [Citation.]"
City of Chicago, 396 Ill. App. 3d at 72, 918
N.E.2d at 1113-14.
An agency's decision "will be deemed 'clearly erroneous' only
where the reviewing court, on the entire record, is 'left with
the definite and firm conviction that a mistake has been
committed.'" AFM Messenger, 198 Ill. 2d at 395, 763 N.E.2d at
282, quoting United States v. United States Gypsum Co., 333 U.S.
364, 395, 92 L. Ed. 746, 766, 68 S. Ct. 525, 542 (1948).
One of the Act's purposes is "to regulate labor
relations between public employers and employees." 5 ILCS 315/2
(West 2008). The Act defines a "public employee" as "any
individual employed by a public employer," excluding "managerial
employees." 5 ILCS 315/3(n) (West 2008). "'Managerial employee'
means an individual who is engaged predominantly in executive and
management functions and is charged with the responsibility of
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directing the effectuation of management policies and practices."
5 ILCS 315/3(j) (West 2008). "The exclusion is intended to
maintain the distinction between management and labor and to
provide the employer with undivided loyalty from its
representatives in management." Chief Judge of the Sixteenth
Judicial Circuit v. Illinois State Labor Relations Board, 178
Ill. 2d 333, 339, 687 N.E.2d 795, 797 (1997).
Two tests are used to determine whether an employee is
a "managerial employee" for purposes of the Act. Department of
Central Management Services v. Illinois Labor Relations Board,
State Panel, 388 Ill. App. 3d 319, 330, 902 N.E.2d 1122, 1130
(2009). The first test is "the traditional test, which considers
whether the employee is a managerial employee as a matter of
fact." Department of Central Management Services, 388 Ill. App.
3d at 330, 902 N.E.2d at 1130. The second test is "the
alternative test, which considers whether the employee is a
managerial employee as a matter of law [citation]." Department
of Central Management Services, 388 Ill. App. 3d at 330, 902
N.E.2d at 1130.
In Cook County State's Attorney v. Illinois Local Labor
Relations Board, 166 Ill. 2d 296, 304, 652 N.E.2d 301, 305
(1995), the supreme court found that, as a matter of law,
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assistant State's Attorneys were "managerial employees" under the
Act due to (1) the close identification of a State's Attorney
with the actions of his or her assistants, (2) the unity of their
professional interests, and (3) the power of the assistants to
act on behalf of the State's Attorney. Sufficient grounds for
determining the issue as a matter of law existed because of
statutes and case law that articulated the powers and duties of
the State's Attorney's office and of the assistant State's
Attorneys. Cook County State's Attorney, 166 Ill. 2d at 305, 652
N.E.2d at 305. In reaching its decision, the court noted that
"[t]he authority to make independent decisions and the consequent
alignment of the employee's interests with management's are
hallmarks of managerial status for purposes of labor law." Cook
County State's Attorney, 166 Ill. 2d at 301, 652 N.E.2d at 303.
In Chief Judge, 178 Ill. 2d at 343, 687 N.E.2d at 799,
the supreme court also found that assistant public defenders were
"managerial employees" as a matter of law. It referenced the
three factors relied upon by the court in Cook County State's
Attorney and found "assistant public defenders possess
significant authority and discretion to discharge the mission of
the public defender's office." Chief Judge, 178 Ill. 2d at 344,
687 N.E.2d at 800. In effect, the assistants acted "as
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surrogates for the public defender." Chief Judge, 178 Ill. 2d at
344, 687 N.E.2d at 800.
Here, the powers and duties of the Commission and its
ALJs are defined in the Illinois Human Rights Act (775 ILCS 5/1-
101 through 10-104 (West 2008)). The Commission consists of 13
members appointed by the Governor with the advice and consent of
the Senate. 775 ILCS 5/8-101(A) (West 2008). It has the power
to hear and decide complaints filed by the Illinois Department of
Human Rights based upon civil-rights violations. 775 ILCS 5/7A-
102(C), (F), 8-102(G) (West 2008). The Commission also has the
power to hire and train attorneys to act as ALJs and preside over
hearings. 775 ILCS 5/8-102(D), 8A-102 (West 2008).
The ALJs hear testimony, make findings of fact, and
issue recommended orders. 775 ILCS 5/8A-102(G), (I) (West 2008).
If the parties agree to proceed with the alternative hearing
procedure set forth in the Human Rights Act, the ALJ's decision
is final and cannot be appealed. 775 ILCS 5/8A-102.5 (West
2008). Under regular hearing procedures, the ALJ's recommended
order becomes the final order of the Commission when no party
files written exceptions within 30 days of receipt of service of
the recommended order. 775 ILCS 5/8A-103(A) (West 2008). Once
exceptions are filed, the Commission may decline to review the
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recommended order, making it the order of the Commission. 775
ILCS 5/8A-103(E) (West 2008). It also may accept the case for
review and "adopt, modify, or reverse in whole or in part" the
ALJ's findings and recommendations. 775 ILCS 5/8A-103(E)(1)
(West 2008). On review, the Commission must adopt the ALJ's
factual findings which are not contrary to the manifest weight of
the evidence. 775 ILCS 5/8A-103(E)(2) (West 2008).
Here, the ALJs preside over hearings and render
decisions in cases that involve alleged civil-rights violations.
They act with discretion and with the purpose of carrying out the
policies of the Commission. Their recommended orders become the
final decision of the Commission. Although parties in the
underlying action may seek review of an ALJ's recommended order,
the Commission is highly deferential to the ALJ's findings of
fact. As in Cook County State's Attorney and Chief Judge, the
ALJs' actions are closely identified with those of the
Commission, a unity of professional interests exists between the
two, and the ALJs have the power to act on behalf of the
Commission. Under the circumstances presented, the ALJs are
"managerial employees" as a matter of law.
For the reasons stated, we reverse the Board's
determination.
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Reversed.
KNECHT, P.J., and TURNER, J., concur.
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