Department of Central Management Services/Department of Public Health v. Illinois Labor Relations Board, State Panel

ILLINOIS OFFICIAL REPORTS

Appellate Court

Department of Central Management Services/Department of Public Health v. Illinois Labor

Relations Board, State Panel, 2012 IL App (4th) 110209

Appellate Court THE DEPARTMENT OF CENTRAL MANAGEMENT

Caption SERVICES/DEPARTMENT OF PUBLIC HEALTH, Petitioners, 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 BROSNAN,

Executive Director of Said Board in His Official Capacity Only; and THE

AMERICAN FEDERATION OF STATE, COUNTY, and MUNICIPAL

EMPLOYEES, COUNCIL 31, Respondents.

District & No. Fourth District

Docket No. 4-11-0209

Filed November 30, 2012

Rehearing denied December 28, 2012

Held A decision of the Illinois Labor Relations Board, State Panel, finding that

(Note: This syllabus three employees of the Department of Public Health classified as senior

constitutes no part of public administrators and referred to as regional supervisors were

the opinion of the court “employees” with the right to bargain collectively within the meaning of

but has been prepared the Illinois Public Labor Relations Act was upheld, since the supervisors

by the Reporter of did not “direct” their subordinates by overseeing their work, conducting

Decisions for the evaluations or making the work schedule, they did not devote any time

convenience of the exercising supervisory authority, and they were not “supervisors” for

reader.)

purposes of section 3(r) of the Act.

Decision Under Petition for review of order of Illinois Labor Relations Board, State Panel,

Review No. S-RC-09-036.

Judgment Affirmed.

Counsel on Joseph M. Gagliardo and Lawrence Jay Weiner (argued), Special

Appeal Assistant Attorneys General, of Chicago, for petitioners.

Jacob Pomeranz (argued), of Cornfield & Feldman, of Chicago, for

respondent American Federation of State, County and Municipal

Employees.

Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,

Solicitor General, and Carl J. Elitz, Assistant Attorney General, of

counsel), for respondent Illinois Labor Relations Board.

Panel JUSTICE APPLETON delivered the judgment of the court, with opinion.

Justice Knecht concurred in the judgment and opinion.

Justice Cook dissented, with opinion.

OPINION

¶1 On September 9, 2008, the American Federation of State, County and Municipal

Employees, Council 31 (union), filed with the Illinois Labor Relations Board, State Panel

(Board), a majority-interest petition to represent three regional supervisors employed by the

Illinois Department of Public Health (Department) in the job title or classification of senior

public administrator, option 8H. On September 7, 2010, after an administrative hearing

conducted on February 2, 2010, the administrative law judge (ALJ), Sylvia Rios, issued a

recommended decision and order granting the petition. On January 28, 2011, the Board

decided the ALJ was correct and ordered the Board’s Executive Director, John Brosnan, to

certify the union as the exclusive representative of the three petitioned-for regional

supervisors. On February 3, 2011, Brosnan issued a certification of representation, stating

that the three senior public administrators, option 8H, were within the existing bargaining

unit designated as RC-63.

¶2 The Department appeals on the ground that the petitioned-for individuals were

supervisory employees within the meaning of section 3(r) of the Illinois Public Labor

Relations Act (Act) (5 ILCS 315/3(r) (West 2008)). We find no clear error in the Board’s

decision that the individuals at issue were “employees” with the right to bargain collectively.

See 5 ILCS 315/3(n) (West 2008). Therefore, we affirm the Board’s decision.

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¶3 I. BACKGROUND

¶4 Three regional supervisors, John Smet of Peoria, Clayton Simonson of Rockford, and

Mary Lynne Williams of Edwardsville, are employed by the Department in the division of

environmental health. Each has the job title or classification of senior public administrator

and each is responsible for the inspection of and ensuring the safety of public places such as

swimming pools, beaches, and other facilities. The union filed a petition with the Board to

represent these three individuals. However, the Department contends they should not be

included in the union because they are supervisory employees as defined in the Act. The

union contends they are not supervisory employees because they do not “meaningfully with

independent judgment impact the terms and conditions of their subordinates.”

¶5 On February 2, 2010, the ALJ conducted a hearing and considered the testimony of David

Culp, the deputy director of the Department’s office of health protection. He oversees four

divisions, one of which is the division of environmental health. The division chief, Ken

Runkle, reports to Culp at a minimum of twice weekly. The division, under Runkle, consists

of seven regional supervisors, three of whom are the employees at issue. Culp testified he

was aware that some regional supervisors under Runkle were in the union though he could

not provide specifics on how such a decision was made. Culp further testified that the duties

of the regional supervisors can be classified as a “50/50 proposition,” with half of his or her

time spent in the field doing “hands-on work,” and the other half spent “supervising,

ensur[ing] work assignments[,] and ensuring that those personnel are completing the work

needed to be done.”

¶6 The ALJ also considered the testimony of Runkle, who was the acting division chief, as

well as the division’s senior toxicologist. His base title was public service administrator,

option 4, and his acting title was senior public service administrator, option 8H. He said he

was a member of the union. Runkle generally communicates with the regional supervisors

weekly by e-mail or telephone, with “intense programmatic meetings” conducted quarterly.

¶7 The regional supervisors have several employees working under them. (Simonson has

6 subordinate employees, Smet has 11, and Williams has 9.) Each regional supervisor

completes an annual performance evaluation for each subordinate employee. Each evaluation

consists of four sections: (1) appraisal of objectives, (2) general appraisal of employee

performance, (3) remarks by supervisor, and (4) employee objectives for next reporting

period. The regional supervisor (1) prepares the objectives, (2) determines whether each

objective was met, (3) completes the general appraisal of the employee’s performance by

indicating whether he or she exceeds expectations, meets expectations, or needs

improvement in the areas indicated, and (4) devises, with the assistance of the employee, the

objectives for the next reporting period.

¶8 Runkle testified he reviews the regional supervisors’ employee evaluations before he

signs them, but generally does not overrule an entry. He looks only for “red flags.” He said

there are situations where the regional supervisor is not the immediate supervisor of an

employee, so the regional supervisor does not conduct the evaluation, but must sign off on

it as the next highest supervisor. On that occasion, the regional supervisor has the authority

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to overrule the evaluation. Each evaluation is signed by the employee, the immediate

supervisor, the next highest supervisor, and Damon T. Arnold, the Director of the

Department. Theoretically, a negative evaluation could be used to begin or continue

disciplinary proceedings. However, an evaluation does not affect the employee’s pay since

each employee is a member of the union.

¶9 Runkle further testified that if an employee applies for a four-day workweek, the regional

supervisor is the one to decide whether that request is approved, as he or she “knows best the

work that needs to be done and the most efficient way for it to be done.” The regional

supervisor is also the “final decision-maker” on an employee’s request for time off, utilizing

his or her judgment. However, the Department’s personnel staff gives supervisors directives

regarding what conditions qualify for approving certain time-off requests. Other than those

directives, the regional supervisor makes the decision based on “coverage,” meaning the

supervisor will determine if he has enough employees to cover the demand for the requested

time off.

¶ 10 According to Runkle, if an employee requires discipline, the regional supervisor will

consult with his supervisors and the personnel department. Only one disciplinary action had

been initiated in the 13 months prior to the hearing. It consisted of a written reprimand issued

by the regional supervisor after consultation with superiors. Runkle did not know what role

the regional supervisors played in the process of promoting employees. He testified on cross-

examination that an employee’s request for a four-day work schedule would not be

implemented until the request received final approval from the director’s office.

¶ 11 After considering the parties’ posthearing briefs, the ALJ entered a recommended

decision and order, finding the petitioned-for employees were not supervisors within the

meaning of section 3(r) of the Act (5 ILCS 315/3(r) (West 2008)). The ALJ recommended

granting the union’s petition. The Board agreed.

¶ 12 II. ANALYSIS

¶ 13 A. Standards of Review

¶ 14 The Administrative Review Law (735 ILCS 5/3-101 to 3-113 (West 2008)) governs the

judicial review of a decision by the Board certifying a labor organization as the exclusive

bargaining representative of a group of employees. 5 ILCS 315/9(i) (West 2008); County of

Cook v. Illinois Labor Relations Board-Local Panel, 351 Ill. App. 3d 379, 385 (2004).

According to section 3-110 of the Administrative Review Law, our “hearing and

determination shall extend to all questions of law and fact presented by the entire record.”

735 ILCS 5/3-110 (West 2008).

¶ 15 Our standard of review depends on the nature of the question we are considering. If the

question is one purely of fact, we deem the Board’s resolution of that question to be “prima

facie true and correct.” 735 ILCS 5/3-110 (West 2008). The statutory phrase “prima facie

true and correct” means that we uphold the factual finding unless it is against the manifest

weight of the evidence. Carpetland U.S.A., Inc. v. Illinois Department of Employment

Security, 201 Ill. 2d 351, 369 (2002). A factual finding is against the manifest weight of the

evidence only if a proposition opposite to that finding is clearly apparent from the evidence

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or only if the finding is unreasonable, arbitrary, or not based on evidence. Bazydlo v. Volant,

164 Ill. 2d 207, 215 (1995).

¶ 16 If the question, by contrast, is one purely of law, we give no deference at all to the Board

unless it resolved a genuine ambiguity in a statute or regulation that it was charged with

administering (see Illinois Bell Telephone Co. v. Illinois Commerce Comm’n, 362 Ill. App.

3d 652, 656 (2005)). We decide legal questions de novo. Carpetland, 201 Ill. 2d at 369; City

of St. Charles v. Illinois Labor Relations Board, 395 Ill. App. 3d 507, 509 (2009).

¶ 17 As in this case, sometimes a question does not fall entirely into the category of either fact

or law but instead is a question of both fact and law, a question of what is “ ‘the legal effect

of a given set of facts.’ ” AFM Messenger Service, Inc. v. Department of Employment

Security, 198 Ill. 2d 380, 391 (2001) (quoting City of Belvidere v. Illinois State Labor

Relations Board, 181 Ill. 2d 191, 205 (1998)). A hybrid question of fact and law “is one ‘in

which the historical facts are admitted or established, the rule of law is undisputed, and the

issue is whether the facts satisfy the statutory standard, or *** whether the rule of law as

applied to the established facts is or is not violated.’ ” AFM, 198 Ill. 2d at 391 (quoting

Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19 (1982)). When reviewing an

administrative agency’s resolution of a hybrid question of fact and law, we apply an

intermediate standard of review, a standard in between manifest weight and de novo. AFM,

198 Ill. 2d at 392. We give some deference to the agency’s decision but not as much

deference as we would give if the question were one purely of fact. AFM, 198 Ill. 2d at 392.

We give this diminished amount of deference by asking whether the agency’s decision is

clearly erroneous. AFM, 198 Ill. 2d at 392. A finding is clearly erroneous if, despite the

existence of some evidence to support the finding, the evidence in its entirety leaves the

reviewing court with the definite and firm conviction that the finding is a mistake. AFM, 198

Ill. 2d at 393. Again, in this context, the finding is that the undisputed facts do or do not

satisfy the statutory standard, the meaning of which likewise is undisputed. AFM, 198 Ill. 2d

at 391. If there could be two reasonable but opposing views of whether the facts satisfy the

statutory standard, the agency cannot have committed clear error by choosing between those

views. Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985).

¶ 18 B. Supervisory Status as a Matter of Law

¶ 19 “In order to ensure that a pro-union bias will not impair a supervisor’s ability to apply the

employer’s policies to subordinates in accordance with the employer’s best interests, the Act

provides that a bargaining unit may not contain both supervisors and nonsupervisors.”

Department of Central Management Services v. Illinois State Labor Relations Board, 278

Ill. App. 3d 79, 83 (1996). Section 3(r) defines a “supervisor” as follows:

“ ‘Supervisor’ is an employee whose principal work is substantially different from that

of his or her subordinates and who has authority, in the interest of the employer, to hire,

transfer, suspend, lay off, recall, promote, discharge, direct, reward, or discipline

employees, to adjust their grievances, or to effectively recommend any of those actions,

if the exercise of that authority is not of a merely routine or clerical nature, but requires

the consistent use of independent judgment. Except with respect to police employment,

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the term ‘supervisor’ includes only those individuals who devote a preponderance of

their employment time to exercising that authority, State supervisors notwithstanding.”

5 ILCS 315/3(r) (West 2008).

Thus, under section 3(r), an individual is a supervisor if all three of these propositions are

true: (1) the individual has principal work substantially different from that of his or her

subordinates; (2) the individual has authority on the employer’s behalf to perform at least 1

of the 11 indicia of supervisory authority–i.e., hiring, transferring, suspending, laying off,

recalling, promoting, discharging, directing, rewarding, or disciplining employees or

adjusting their grievances–or to effectively recommend any of those actions, and the

individual consistently uses independent judgment in exercising such authority; and (3) the

individual spends a preponderance of his or her time in the job performing supervisory tasks.

City of Freeport v. Illinois State Labor Relations Board, 135 Ill. 2d 499, 512 (1990).

¶ 20 The ALJ and the Board found that all of the regional supervisors performed principal

work that was “obviously and visibly different from that of their subordinates.” Therefore,

the only elements of supervisory status that are at issue in this appeal are the second and third

ones.

¶ 21 1. Indicia of Supervisory Authority

¶ 22 As the party seeking to exclude the regional supervisors from the union, the Department

had the burden of proving, by a preponderance of the evidence, that they were “supervisors.”

See Department of Central Management Services v. Illinois Labor Relations Board, 382 Ill.

App. 3d 208, 220-21 (2008). To carry that burden, the Department had to prove the regional

supervisors had the authority to perform 1 or more of the 11 supervisory functions listed in

section 3(r), while exercising independent judgment in performing these functions. An

employee uses independent judgment whenever he or she must choose between two or more

significant courses of action. See Freeport, 135 Ill. 2d at 521.

¶ 23 The Board found the regional supervisors did not have the authority to discipline, direct,

or promote the employees using the required independent judgment. The Department

challenges the findings related to the two functions of disciplining and directing employees,

claiming the regional supervisors perform at least one of these tasks with independent

judgment.

¶ 24 a. Disciplining Employees

¶ 25 At the hearing, the Department presented evidence, via the testimony of Runkle and the

introduction of a memorandum referencing a written reprimand to one division employee,

that the division had only one disciplinary action in the 13 months immediately preceding

the hearing. Runkle testified the decision to issue this written reprimand was made jointly

between him and the regional supervisor, only after consultation with and approval from the

offices of the deputy director and personnel. It was apparent from his testimony that

disciplinary decisions are reached as a collaborative effort among several levels of

supervisors and the personnel office. The Department did not present evidence of who

initiates disciplinary proceedings, how such proceedings are conducted, and the precise role

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the regional supervisor plays in the proceedings. Thus, the fact that this one particular

disciplinary proceeding was part of a collaborative effort among several levels of supervisors

suggests that disciplinary decisions are not functions performed by the regional supervisors

at the required level of independent judgment. That is, it does not appear the regional

supervisors have the authority to choose between two or more significant courses of action

when disciplining a subordinate employee becomes an issue.

¶ 26 b. Directing Employees

¶ 27 The Department contends the regional supervisors “direct” their employees, as

demonstrated by the evidence presented at the hearing, by conducting annual performance

evaluations, final probationary evaluations, processing work-schedule requests, and

considering time-off requests. To “direct” employees within the meaning of the Act,

supervisors must have the authority to affect the employees’ terms and conditions of

employment. Department of Central Management Services, 382 Ill. App. 3d at 224.

Overseeing functions in areas likely to fall within the scope of union representation, such as

wages, discipline, transfer, promotion, hiring, or other working conditions, is insufficient to

constitute supervisory “direction” within the meaning of the Act.

¶ 28 According to the binding precedent set forth in Department of Central Management

Services, 382 Ill. App. 3d at 224, the employer maintained that telecommunications

supervisors were supervisors within the meaning of section 3(r) (5 ILCS 315/3(r) (West

2006)) because they directed their subordinates in seven ways: (1) monitoring and correcting

their performance, (2) establishing work schedules, (3) assigning work, (4) determining the

need for overtime, (5) granting leave and imposing proof status, (6) training employees, and

(7) evaluating their performance. We responded:

“It is not enough, however, merely to point out these functions of direction; ‘the alleged

supervisor must have both the authority to make operational decisions and exercise

significant discretionary authority that impacts his subordinates’ employment status in

areas most likely to fall within their terms and conditions of employment’ (emphases

added) (State of Illinois, Department of Central Management Services, 21 Pub.

Employee Rep. (Ill.) par. 46, at 216, No. S-RC-04-038 (Illinois Labor Board, State Panel,

March 25, 2005)). As an ALJ explained in a recommended decision with which the

Board agreed:

‘The authority to direct involves functions relating to overseeing an employer’s

operations or which indicate responsibility for the performance of a subordinate’s

work. [Citations.] These functions include reviewing and monitoring work activities,

instructions on how work is to be performed, scheduling work hours, assigning work,

and approving requests for leave or overtime[,] and completing performance

evaluations. [Citations.] The Board has also previously held that these and any other

function of direction are not supervisory direction absent evidence that the alleged

supervisor possesses significant discretion to affect or impact the[ ] subordinates[‘]

employment in areas likely to fall within the scope of union representation, such as

wages, discipline, transfer, promotion, hir[ing,] or other working conditions.’ Service

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Employees International Union, Local 73-HC, 19 Pub. Employee Rep. (Ill.) par. 58,

at 265, No. L-RC-02-014 (Illinois Labor Board, Local Panel, April 15, 2003).

See also City of Sparta, 9 Pub. Employee Rep. (Ill.) par. 2029, at X-150, No. S-RC-92-

100 (Illinois State Labor Relations Board, June 21, 1993). The reasoning is that ‘absent

such discretionary authority, an individual’s responsibility to direct subordinates in the

performance of their job duties does not conflict with his membership in a bargaining

unit.’ City of Bloomington, 13 Pub. Employee Rep. (Ill.) par. 2041, at X-236, No. S-UC-

97-30 (Illinois State Labor Relations Board, August 25, 1997).” Department of Central

Management Services, 382 Ill. App. 3d at 224-25.

¶ 29 Here, the Board concluded that such general oversight was basically the function of the

regional supervisors and that they did not actually have significant discretionary authority to

affect or impact a subordinate employee’s status of employment. The annual evaluations and

final probationary evaluations were subject to “several levels of review.” Indeed, the regional

supervisors filled out the evaluations, but the evaluations were not completed until they

received final approval from higher-ranking supervisors. The Department did not present

evidence that the regional supervisors exercised any significant authority in determining

consequences from a poor annual evaluation or in determining whether a probationary

employee becomes a certified employee.

¶ 30 The same can be said for the regional supervisors’ role related to subordinate employees’

schedules. Apparently, independent judgment is not utilized to decide whether an employee’s

request for a four-day workweek or time off is granted. Runkle testified that the personnel

office provides the division with guidelines that should be used to determine whether an

employee’s time-off request should be approved or denied. Likewise, the deputy director

provides guidelines for the lower-level supervisors to determine an employee’s work

schedule. That is, the regional supervisor does not possess the supervisory authority to make

such an independent judgment, as the decision is subject to final approval from the director.

The regional supervisors may make recommendations in these areas, but in order to qualify

as a supervisory function under the Act, those recommendations “ ‘must be adopted as a

matter of course, without independent review.’ ” Department of Central Management

Services, 382 Ill. App. 3d at 225 (quoting International Union of Operating Engineers, Local

No. 150, 23 PERI ¶ 130, at 561 (ILRB State Panel 2007)).

¶ 31 Section 3(r) provides that a supervisor must perform at least 1 of the 11 functions “or to

effectively recommend any of those actions.” 5 ILCS 315/3(r) (West 2008). As the

Department explains in its brief, a recommendation is “effective” within the meaning of

section 3(r) only if the superiors adopt it as a matter of course. Department of Central

Management Services, 382 Ill. App. 3d at 229. The Board could reasonably have found

insufficient proof that the regional supervisors’ recommendations regarding a subordinate

employee’s discipline, work schedule, annual evaluation, or final probationary evaluation

were effective recommendations. Just because the Department accepted the regional

supervisors’ recommendations on these topics in the exhibits provided, it does not

necessarily follow that the Department accepted his or her recommendations as a matter of

course. The evidence simply did not demonstrate the regional supervisors possess the

authority to exercise the independent judgment as required under the Act.

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¶ 32 We adhere to our reasoning in Department of Central Management Services and

conclude that, absent significant discretion to affect their subordinates’ employment in areas

likely to fall within the scope of union representation, such as wages, discipline, transfer,

promotion, hiring, or other working conditions, the regional supervisors do not “direct” their

subordinates, within the meaning of section 3(r), by overseeing their work, conducting

evaluations, and making the work schedule.

¶ 33 c. Preponderance of Time Factor

¶ 34 Finally, the Act requires that a “supervisor” devote a preponderance of his or her work

time exercising his or her supervisory authority. Because we agree with the Board’s finding

on each of the above factors, that the regional supervisors are not “supervisors” within the

meaning of section 3(r), we agree they do not devote any of their time exercising their

supervisory authority. There can be no analysis regarding the amount of time spent

performing supervisory functions unless there is first a determination that we have before us

a “supervisor” within the meaning of the Act. This is not such a case.

¶ 35 III. CONCLUSION

¶ 36 For the foregoing reasons, we affirm the Board’s decision.

¶ 37 Affirmed.

¶ 38 JUSTICE COOK, dissenting.

¶ 39 Ken Runkle, the division chief of the division of environmental health, oversees seven

regional offices headed by senior public service administrators, regions including Rockford,

Edwardsville, and Peoria. The testimony in this case focused on the Peoria region, headed

by John Smet. Smet has 11 subordinates. Dr. David Culp, the Deputy Director of the office

of health protection, testified that “[Runkle] of course cannot supervise close to a hundred

personnel himself, so he then depends on those section chiefs. So he depends on the regional

supervisors out at the various regional offices to supervise the people at those regional

offices.” “So it is only up to the regional supervisor to ensure, quote, the work gets done.”

Smet completes his subordinates’ performance evaluations as he sees fit and ranks the

employee as he deems appropriate. Smet does not consult Runkle before filling out his

subordinates’ performance evaluations. Runkle could not recall having ever vetoed,

overruled, or sent back a single performance evaluation received from Smet. Smet has the

authority to discipline subordinates, and Smet issued a written reprimand once during

Runkle’s 13-month tenure, after contacting Runkle prior to issuing the reprimand.

¶ 40 Section 3(r) lays out three requirements for a “supervisor.” First, his or her “principal

work is substantially different from that of his or her subordinates.” 5 ILCS 315/3(r) (West

2008). Second, he or she must have authority to do such things as suspend, lay off, direct,

reward or discipline employees “or to effectively recommend any of those actions, if the

exercise of that authority is not of a merely routine or clerical nature, but requires the

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consistent use of independent judgment.” 5 ILCS 315/3(r) (West 2008). “[O]nly one

indicium of supervisory authority accompanied by independent judgment is sufficient to

indicate supervisory status ***.” Chief Judge of the Circuit Court v. American Federation

of State, County & Municipal Employees, Council 31, 153 Ill. 2d 508, 516, 607 N.E.2d 182,

186 (1992). Third, the term “supervisor” includes only those individuals who devote a

preponderance of their employment time to exercising that authority. 5 ILCS 315/3(r) (West

2008).

¶ 41 The ALJ found that “[i]n this case, the record demonstrates that the work of the

petitioned-for employees is obviously and visibly different from that of their subordinates.

There is evidence in the record that the Regional Managers must address time-off requests,

complete annual performance evaluations, review final probationary evaluations, answer

work schedule change requests, issue disciplinary documents and sign off on personnel

transaction requests.” The ALJ decided the case on the second requirement, authority to

direct and discipline, et cetera, and did not reach the third requirement, the preponderance

requirement. The Supreme Court has defined “preponderance” as follows: “the most

significant allotment of the employee’s time must be spent exercising supervisory functions.

[Citation.] In other words, the employee must spend more time on supervisory functions than

on any one nonsupervisory function.” City of Freeport, 135 Ill. 2d at 532, 554 N.E.2d at 171.

If the second requirement is met here, it seems clear that the third requirement has also been

met.

¶ 42 The ALJ found it significant that “[t]here has been only one disciplinary action against

a Division employee in the thirteen months prior to the hearing.” That emphasis is mistaken,

“because it improperly assigns dispositive weight to the number of times the [supervisors]

have exercised their supervisory authority.” Village of Maryville v. Illinois Labor Relations

Board, State Panel, 402 Ill. App. 3d 369, 374-75, 932 N.E.2d 558, 563-64 (2010). “The

potential for a conflict of interest lies in the supervisor’s authority to influence or control

personnel decisions in areas most likely to affect the employment of subordinates and, thus,

most likely to fall within the scope of union representation.” (Emphasis in original.) City of

Freeport, 135 Ill. 2d at 518, 554 N.E.2d at 164. “[I]t is the existence of the supervisory

authority *** that is essential, not the amount of time such authority is exercised.” City of

Peru v. Illinois State Labor Relations Board, 167 Ill. App. 3d 284, 292, 521 N.E.2d 108, 114

(1988). A good supervisor, who makes it clear what is expected of employees, may rarely be

forced to resort to disciplinary actions.

¶ 43 The ALJ found it significant that Smet had contacted Runkle before issuing the written

reprimand. We have previously rejected that criticism:

“The Board’s decision in this respect, however, is yet another example of its improper

view that the term ‘independent judgment’ means that employees cannot involve anyone

else in their disciplinary decision-making process.

Here, the Board again ignores the third option of the second prong of the Act’s

definition of a supervisor. That is, if employees, such as these section managers,

effectively recommend such discipline with independent judgment, that is sufficient to

meet the Act’s definition of a supervisor.” Department of Central Management Services

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v. Illinois Labor Relations Board, State Panel, 2011 IL App (4th) 090966, ¶¶ 208, 209,

959 N.E.2d 114.

As Culp testified, Runkle cannot supervise close to 100 personnel himself, particularly when

they are scattered at various locations around the State, locations which Runkle rarely visits.

The section chiefs are the only supervisors familiar with the employees and the only

supervisors able to effectively direct employees or effectively recommend discipline.

¶ 44 This court was critical of AFSCME’s position in our 2011 case: only “the Governor and

his policy team” would be excluded from the tens of thousands of State executive branch

employees subject to collective bargaining under the Act. Department of Central

Management Services, 2011 IL App (4th) 090966, ¶ 224, 959 N.E.2d 114. I agreed with that

criticism in our 2008 case: “In this case, as in Freeport, if the telecommunications

supervisors are not statutory ‘supervisors,’ the telecommunications centers operate ‘entirely

without supervision a large part of the time.’ ” Department of Central Management Services,

382 Ill. App. 3d at 231, 888 N.E.2d at 583 (Cook, J., dissenting). I continue to believe that

our 2008 decision was wrongfully decided and should not be followed in this case. I would

reverse the Board’s decision.

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