Office of the Cook County State's Attorney v. Illinois Local Labor Relations Board

JUSTICE HARRISON, dissenting:

Assistant State’s Attorneys are not managerial employees as a matter of law. Although they carry out the general duties of the office of State’s Attorney, that is not dispositive of their legal status. Contrary to the majority’s view, an employee cannot be deemed "managerial” because he has the authority to act for his employer and to exercise independent judgment in doing so. To some degree, all professional employees exercise independent judgment in performing their responsibilities. The majority’s approach would therefore have the effect of removing not only attorneys, but all professional employees, from the reach of the Illinois Public Labor Relations Act (5 ILCS 315/1 et seq. (West 1992)), contrary to the clear intention of the legislature.

What matters under the law are the type of decisions professional employees make and the areas over which they have authority. If their decisionmaking consists of discharging normal professional duties in projects to which they have been assigned, professional employees cannot be excluded from coverage under the Illinois Public Labor Relations Act (5 ILCS 315/1 et seq. (West 1992)) even if union membership may involve divided loyalty with the employer. (See National Labor Relations Board v. Yeshiva University (1980), 444 U.S. 672, 690 , 63 L. Ed. 2d 115, 130 , 100 S. Ct. 856, 866 .) Accordingly, when an attorney for the State decides whether to offer a plea bargain or take a case to trial, when he gives his professional opinion to county officers on questions of law, or when he does any of the myriad other things that make lawyers lawyers, that does not elevate him to the status of manager. Something more is necessary.

The question of whether a professional employee should be deemed "managerial” within the meaning of section 3(j) of the Illinois Public Labor Relations Act (5 ILCS 315/3(j) (West 1992)) must be evaluated in the context of the purpose of the statute. The Act is not concerned with every aspect of the relationship between employers and employees. Rather, it is addressed specifically to issues of wages, hours and other conditions of employment. (See 5 ILCS 315/2, 4, 6, 7 (West 1992).) Wages, hours and other conditions of employment are the only matters over which employers are required to bargain (5 ILCS 315/4, 7 (West 1992)), and the only matters about which public employees, including professional employees, have the right to organize and bargain collectively (5 ILCS 315/6 (West 1992)). As a result, when section 3(j) of the Act (5 ILCS 315/3(j) (West 1992)) defines a managerial employee as one who is charged with directing the effectuation of "management policies and practices,” what it is really referring to are management policies and practices concerning wages, hours and other conditions of employment. Because wages, hours and other conditions of employment are all that matter under the Act, an employee’s power to make policy in some other area is irrelevant. Unless he can control wages, hours and other conditions of employment, an employee cannot be deemed a manager for the purposes of this statute.

In rejecting this approach for a more expansive definition of managerial status, the majority forgets that, under the Act, the statutory duty to bargain collectively is broad, and any exceptions should be construed narrowly. (See, e.g., City of Decatur v. American Federation of State, County, & Municipal Employees, Local 268 (1988), 122 Ill. 2d 353, 364-66 .) There may sometimes be problems of divided loyalty between the employer and the collective-bargaining unit if assistant State’s Attorneys are permitted to organize, but divided loyalty is an issue whenever labor organizes. If the prospect of divided loyalty were reason enough to take employees out of the Act, no public employee could ever invoke its protections. The law would be rendered a nullity.

I note, moreover, that the issue of loyalty is no more problematic here than in other situations. To the contrary, there should be no real concern about employee allegiance in this context. Prosecutors, as a group, tend to be highly motivated and dedicated individuals. In most cases, economics are not their guiding consideration. They do what they do out of philosophical conviction and in obedience to the Rules of Professional Conduct. There is no reason to believe that the opportunity to engage in collective bargaining would diminish their commitment in any way. If anything, it is likely to enhance their dedication by protecting them from unfair terms and conditions of employment.

Although the majority claims that its holding does not necessarily mean that all publicly employed lawyers will be deemed managers, its analysis provides for no exceptions. Had the General Assembly intended to exclude this class of employees, it could have enacted a specific statutory provision to accomplish that result. It did not, and we have no right to engraft such an exclusion onto the statute. Under the law, lawyers constitute professional employees and, as such, are included in the Act’s coverage unless their actual duties, beyond the provision of legal services, render them managers. That is a fact-based determination for the State Board to make, and the circuit court was therefore correct when it refused to bar the Board from proceeding with the representation petitions in this case.

JUSTICE FREEMAN joins in this dissent.