American Federation of State v. Illinois State Labor Relations Board

JUSTICE GOLDENHERSH, specially concurring:

I reluctantly concur with the result reached by the majority in this cause. I agree that the outcome in this case is dictated by Office of the Cook County State’s Attorney v. Illinois Local Labor Relations Board, 166 Ill. 2d 296 (1995), and Chief Judge of the Sixteenth Judicial Circuit v. Illinois State Labor Relations Board, 178 Ill. 2d 333 (1997).

I am specially concurring, however, to note the coming to pass of Chief Justice Harrison’s warning in his dissent in Office of the Cook County State’s Attorney v. Illinois Local Labor Relations Board:

“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.” (Emphasis added.) Office of the Cook County State’s Attorney, 166 Ill. 2d at 307-08 (Harrison, J., dissenting, joined by Freeman, J.).

Considering the subsequent decision of Chief Judge of the Sixteenth Judicial Circuit and the decision in the instant case, the above warning is becoming reality.