Central Management Services v. Illinois Labor Relations Board
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Filed 2/5/09
NO. 4-08-0210
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
STATE OF ILLINOIS, DEPARTMENT OF CENTRAL
MANAGEMENT SERVICES (DEPARTMENT OF
HEALTHCARE AND FAMILY SERVICES),
Petitioner-Appellant,
v.
STATE OF ILLINOIS, ILLINOIS LABOR
RELATIONS BOARD, STATE PANEL; JACKIE
GALLAGHER, MICHAEL HADE, CHARLES
HERNANDEZ, REX PIPER, and MICHAEL COLI,
the Members of Said Board and Panel in Their
Official Capacity Only; and the ILLINOIS NURSES
ASSOCIATION,
Respondents-Appellees.
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Petition for Direct Review
of an Order of the Illinois
Labor Relations Board,
State Panel
No. S-RC-07-036
JUSTICE APPLETON delivered the opinion of the court:
Petitioner, the Department of Central Management Services (employer),
brings this action for direct review of a decision by the Illinois Labor Relations Board,
State Panel (Board), declaring the Illinois Nurses Association (union) to be the exclusive
bargaining representative of all public service administrators, option 8, in the Bureau of
Administrative Litigation, office of the Inspector General, Department of Healthcare
and Family Services, except, as the "Certificate of Representative" says, supervisory,
managerial, and confidential employees. See Illinois Nurses Ass'n, 23 Pub. Employee
Rep. (Ill.) par. 173, No. S-RC-07-036 (Illinois Labor Board, State Panel, October 30,
2007) (hereinafter 23 Pub. Employee Rep. (Ill.) par. 173). These employees are
attorneys who represent the agency in internal hearings before administrative law
judges.
For two reasons, the employer urges us to reverse the Board's decision
outright or at least reverse it and remand the case for reconsideration: (1) all of the
attorneys in question are managerial employees, and (2) the proposed bargaining unit is
inappropriate because it carves a subset of employees out of a larger, centralized
classification.
The Board found the attorneys were not managerial employees. Because
that finding is not clearly erroneous, we decline to overturn it. The Board's decisions
have created a "presumption of inappropriateness" in situations in which the union
seeks to represent only a portion of the employees who perform duties in identical job
classifications. The Board could have found sufficient evidence, however, to rebut that
presumption. The State employs many more attorneys than the six staff attorneys in the
Bureau of Administrative Litigation; option 8L of the classification of public service
administrator consists of approximately 134 attorneys. But the record reveals little or
nothing about these numerous attorney positions outside the Bureau (e.g., their skills,
functions, hours, or working conditions). Given this dearth of information, one could
not validly conclude that all of the attorneys in option 8L belong in the same bargaining
unit. Therefore, we affirm the Board's decision.
I. BACKGROUND
A. The Union's Petition and the Employer's Position Statement
On September 5, 2006, the union filed with the Board a petition to become
the exclusive bargaining representative of all public service administrators, option 8, in
the Bureau of Administrative Litigation, office of the Inspector General, Department of
Healthcare and Family Services. See 5 ILCS 315/9(a)(1) (West Supp. 2007). (In their
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briefs, the parties agree that the employees in question are, more precisely, public
service administrators, option 8L, but the union's petition and the Board's "Certificate of
Representative" merely say "option 8." It appears, however, that the Bureau of
Administrative Litigation has no option 8 employees other than option 8Ls; therefore,
failing to specify the subset of option 8 apparently makes no practical difference.) In its
petition, the union stated that 30% of the employees requested a secret ballot to
determine whether the Board should certify the union as their exclusive bargaining
agent. See 5 ILCS 315/9(a)(1) (West Supp. 2007).
The Board scheduled an investigative hearing for October 5 and 6, 2006,
and requested the employer to submit a comprehensive and detailed position statement
addressing the appropriateness of the proposed bargaining unit. See 80 Ill. Adm. Code
ยง1210.100(a)(3), as amended by 28 Ill. Reg. 4172, 4174, eff. February 19, 2004. On
October 2, 2006, the employer submitted a position statement arguing that the Board
should dismiss the union's petition for three reasons. First, public service
administrators, option 8L, were managerial employees, both as a matter of law and as a
matter of fact. Second, because the union's petition was limited to the six option 8Ls in
the Bureau of Administrative Litigation within the office of the Inspector General of the
Department of Healthcare and Family Services, the petition impermissibly sought to
carve out a handful of employees from a statewide classification. Third, the only
appropriate unit of state-employed attorneys was the existing unit, S-VR-91-10 (VR-10),
represented by the American Federation of State, County and Municipal Employees,
Council 31 (AFSCME) (see State of Illinois, Department of Central Management
Services, 21 Pub. Employee Rep. (Ill.) par. 205, No. S-UC-05-006, at 748, 755 (Illinois
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Labor Board, State Panel, November 4, 2005) (2005 PERI (LRP) LEXIS 197))
(hereinafter 21 Pub. Employee Rep. (Ill.) par. 205).
B. The Administrative Hearing
On October 5 and 6, 2006, the Board held an administrative hearing, in
which the following evidence emerged.
1. The State's System of Classifying Jobs
To make sure that state employees who hold comparable positions receive
comparable pay, the State has devised a system of classifying positions. According to
the class specification for public service administrator, the distinguishing feature of that
classification is the "management nature of the work": "the exercise of discretion in
controlling or directing the organization's supportive program" and the "responsibility
to direct the effectuation of management policies." There are approximately 4,000
public service administrators statewide. In deciding which positions belong in the
classification of public service administrator, the State considers the following factors,
which overlap to some extent: the nature and variety of the work; the supervision the
employee receives; the supervision the employee exercises; the guidelines available to
the employee, such as job manuals or step-by-step regulations; the extent to which the
position requires originality, independent thinking, and sophisticated analysis; the
decisions and commitments the employee must make in the position (i.e., the
weightiness or public consequence of the employee's decisions or the employee's ability
to commit an agency to a course of action); and the educational and experiential
requirements of the position.
The State has divided the classification of public service administrator into
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eight options. Option 8 consists of employees who must possess a license to perform the
type of work their position requires--for example, attorneys, nurses, and engineers.
There are approximately 460 employees in option 8. The State has further divided
option 8 into options 8A through 8Z, to designate the various licensed professions.
Option 8L consists of attorneys. There are approximately 136 employees in option 8L,
statewide. The six staff attorneys in the Bureau of Administrative Litigation--the only
employees whom the union has petitioned to represent in this case--are option 8Ls.
They are Martin S. Feldman, Joan T. Cherry, Alan M. Polikoff, Avery A. Gerstein, Henry
M. Soltysinski Jr., and Daniel E. Falb. According to employer's exhibit No. 7, the
agency's office of General Counsel has seven additional option 8Ls--Jeanette B. Cuomo,
Thomas K. Fischer, William C. Kurylak, Dora L. McNew-Clarke, Vickie V. Fair, Stacy L.
Cooper, and Leo J. Howard, the first four of whom are administrative law judges or
hearing referees--and the office of the Director has one option 8L, Shannon M. Verner.
The six staff attorneys employed in the Bureau of Administrative Litigation appear
before the administrative law judges and hearing referees employed in the office of
General Counsel. Also, in his testimony, the agency's Inspector General, John C. Allen
IV, mentioned a "staff attorney" in the General Counsel's office, Dan Leikvold (whose
name does not appear in employer's exhibit No. 7). According to Allen, Leikvold
reviewed exceptions and "ruled on" the administrative law judges' recommended
decisions.
Of the approximately 960 classifications in the State's classification
system, not a single classification existed in which some positions were included in a
bargaining unit and other positions were excluded (unless the excluded positions were
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excluded for statutory reasons, i.e., the employees in those positions were managerial,
supervisory, or confidential employees)--that is, until the Board's decision in the present
case. Further, with one exception, no bargaining unit in the State has been limited to a
single agency when the classification represented by the unit existed statewide in more
than one agency--that is, until now. The lone exception was the educators in the Illinois
School for the Deaf in Jacksonville; they were represented by a historically recognized
unit, HR-10, which predated the Act.
2. A Preexisting Bargaining Unit That Represents Attorneys
In 1991, the State and AFSCME stipulated, and the Board certified, that
the RC-10 bargaining unit was the only appropriate unit of attorneys working statewide.
(We assume that RC-10 is the same unit as VR-10, to which the employer refers in its
position statement to the Board.) RC-10 included the classifications of technical advisor
advanced program specialist, technical advisor III, technical advisor II, technical advisor
I, and hearings referee. The positions in the classification of technical advisor advanced
program specialist were previously classified as public service administrator, option 8L,
but because the classification of public service administrator, by definition, could not
include any positions subject to collective bargaining, the option 8Ls were reclassified
upon their inclusion in RC-10. The State and AFSCME further stipulated that any stateemployed attorneys not included in the RC-10 bargaining unit were excluded because of
their status as managerial employees, supervisors, or confidential employees. The six
staff attorneys in the Bureau of Administrative Litigation were not included in RC-10.
3. The Office of Inspector General
The agency has four divisions or primary areas of responsibility: (1) the
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division that oversees Medicaid and other medical programs, (2) the Division of Child
Support Enforcement, (3) the Office of Energy Assistance, and (4) Group Health
Purchasing. Further, the agency has an office of the Inspector General, which
investigates allegations of fraud, substandard care, and other wrongdoing within the
medical programs. The Inspector General also audits the agency's programs and,
generally, is responsible for ensuring the integrity of the programs.
Sections 12-13.1(b) and (f) of the Illinois Public Aid Code set forth the
powers and duties of the Inspector General:
"(b) In order to prevent, detect, and eliminate fraud,
waste, abuse, mismanagement, and misconduct, the
Inspector General shall oversee the Department of
Healthcare and Family Services' integrity functions, which
include, but are not limited to, the following:
(1) Investigation of misconduct by
employees, vendors, contractors[,] and medical
providers.
(2) Audits of medical providers related
to ensuring that appropriate payments are
made for services rendered and to the recovery
of overpayments.
(3) Monitoring of quality assurance
programs generally related to the medical
assistance program and specifically related to
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any managed[-]care program.
(4) Quality[-]control measurements of
the programs administered by the Department
of Healthcare and Family Services.
(5) Investigations of fraud or intentional
program violations committed by clients of the
Department of Healthcare and Family Services.
(6) Actions initiated against contractors
or medical providers for any of the following
reasons:
(A) Violations of the
medical assistance program.
(B) Sanctions against
providers brought in conjunction
with the Department of Public
Health or the Department of
Human Services (as successor to
the Department of Mental Health
and Developmental Disabilities).
(C) Recoveries of
assessments against hospitals and
long-term care facilities.
(D) Sanctions mandated
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by the United States Department
of Health and Human Services
against medical providers.
(E) Violations of contracts
related to any managed[-]care
programs.
(7) Representation of the Department of
Healthcare and Family Services at hearings
with the Illinois Department of Professional
Regulation in actions taken against
professional licenses held by persons who are
in violation of orders for child[-]support
payments.
***
(f) To carry out his or her duties as described in this
Section, the Inspector General and his or her designees shall
have the power to compel[,] by subpoena[,] the attendance
and testimony of witnesses and the production of books,
electronic records[,] and papers as directly related to public
assistance programs administered by the Department of
Healthcare and Family Services or the Department of
Human Services (as successor to the Department of Public
Aid)." 305 ILCS 5/12-13.1(b), (f) (West Supp. 2007).
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The office of the Inspector General is divided into five bureaus: (1) the
Bureau of Medicaid Integrity, which is responsible for auditing state Medicaid
programs; (2) the Bureau of Investigations, which investigates potential fraud by
recipients of Medicaid; (3) the Bureau of Information Technology, which collects and
analyzes data to identify trends suggestive of fraud by providers or recipients of services
in the medical-assistance programs; (4) the Bureau of Internal Affairs, which
investigates wrongdoing by agency employees; and (5) the Bureau of Administrative
Litigation, which prosecutes vendors who have engaged in wrongdoing in connection
with the medical-assistance programs.
4. The Bureau of Administrative Litigation
The Bureau of Administrative Litigations consists of one bureau chief, six
staff attorneys, and an executive I. At the time of the administrative hearing, Feldman
was serving both as acting bureau chief and as a staff attorney. In its brief, the union
informs us that Feldman now is merely a staff attorney and no longer is the acting
bureau chief.
The six staff attorneys in the Bureau of Administrative Litigation represent
the agency in administrative hearings, in which providers are the respondents.
Providers can incur penalties, including suspension or termination from participation in
the agency's medical-assistance programs, for violating the agency's rules or providing
substandard care to patients. If the Inspector General determines, through an audit,
that the agency has overpaid a provider, the staff attorneys bring a recoupment action
against the providers. These actions are administrative; the staff attorneys may not
represent the agency in court. The staff attorneys also represent the agency, the
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Department of Public Health, and the Department of Human Services in Medicaid
decertification actions against long-term care facilities and in actions to terminate
provider agreements on the basis of certification surveys the agency performs every
year. They also represent the agency's Division of Child Support Enforcement in
administrative hearings before other licensing agencies to have the state licenses or
certifications of noncustodial parents revoked, suspended, or not renewed because of
their failure to pay child support. The licensing agencies include the Department of
Finance and Professional Regulation, Illinois Gaming Board, Department of Nuclear
Safety, Department of Agriculture, and Department of Children and Family Services.
The staff attorneys also represent the agency and the Department of Revenue in
administrative hearings to suspend a provider's participation in the medical-assistance
programs because of the provider's failure to pay taxes to the State.
5. The Duties and Routine of Staff Attorneys
The six staff attorneys in the Bureau of Administrative Litigation are
responsible for preparing cases and presenting them to administrative law judges in the
agency. As we said, these cases are administrative actions to suspend or terminate a
provider's participation in the medical-assistance programs, to recover overpayments,
or to revoke a license or certification because of failure to pay taxes or child support.
Allen described the duties of the staff attorneys as follows: "preparing witnesses,
reviewing cases, identifying documentation, formulating witness lists and evidence lists,
presenting arguments and evidence to the administrative law judge, preparing
exceptions[,] *** drafting rules as assigned[,] and some legal research." He also testified
that the staff attorneys drafted settlement agreements and "decision memoranda" to
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accompany the settlement agreements. Occasionally, the staff attorneys worked with
attorneys in other agencies, such as when someone's license was being revoked or
someone was suing the agency. A few times, the Inspector General has requested the
staff attorneys' help in drafting rules.
The union called three staff attorneys: Gerstein, Polikoff, and Soltysinski.
They testified they had discretion to decide what questions to ask witnesses, the order in
which to call the witnesses, the documents they would present in the hearing, and the
closing argument they would make. Otherwise, they had to obtain the approval of
Feldman as acting bureau chief, who sometimes, in turn, had to obtain the approval of
his superiors. Feldman assigned cases to the staff attorneys under his supervision, and
the referring bureaus specified the charges and the penalties. The staff attorneys had no
authority to change the charges or seek different penalties, although they were expected
to evaluate the case to see if the elements of the alleged violation could be proved. Even
if they concluded the charges could not be proved, they had no authority to withdraw the
case. Instead, they had to bring their concerns to Feldman, who, after conferring with
the referring bureau, sometimes told the staff attorneys to proceed with the case even
though he agreed the case could not be proved. The only document the staff attorneys
were permitted to sign was exceptions to the recommended decisions of administrative
law judges. They could not sign the notice or complaint that went out to the provider;
the bureau chief had to sign it in the Inspector General's name. Settlement agreements
and decision memoranda went up the chain of command all the way to the Director.
According to the testimony of the staff attorneys, Feldman reviewed everything they
wrote, often making substantive revisions. They did not know how much time Feldman
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spent reviewing any one document--probably less time than former bureau chiefs,
because while holding down the job of acting bureau chief, Feldman also was working as
a staff attorney and had a caseload of his own.
C. The Board's Decision
In her recommended decision, the administrative law judge dismissed the
union's petition on the grounds that (1) the petition carved a subset of employees out of
a larger, centralized classification, and the union failed to rebut the presumption of
inappropriateness; and (2) the staff attorneys were managerial employees as a matter of
fact and as a matter of law.
The Board declined to accept the administrative law judge's
recommendation. The Board said:
"The preference for large, functionally-based [sic]
units was, and continues to be, an important consideration,
yet[,] [in some of our previous decisions,] excessive concern
with avoiding fragmentation and promoting economy and
efficiency in public bargaining and contract administration
consumed not only the employees' right to organize, but also
the criteria set forth in [s]ection 9(b) [(5 ILCS 315/9(b)
(West Supp. 2007))]. The Act demands that we balance
between these extremes so as to avoid regularly and
completely depriving public employees of their right granted
therein. After reviewing the petitioned-for unit in light of the
considerations set forth in [s]ection 9(b), [we find that] only
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the fragmentation factor favors dismissal, and by itself, it is
insufficient to deny the [union's] petition.
As an alternative, the State offers the RC-10
bargaining unit, in existence since 1991, represented by a
union other than [p]etitioner, as the only appropriate unit
for the petitioned-for employees. However, the
representative of the RC-10 unit does not seek herein to
represent the petitioned-for employees, nor has it [done so]
in the [16] years since that unit was formed. It is
fundamentally at odds with the Act itself to place the
petitioned-for employees' right to organize completely under
the control of a third party, and thus, the [e]mployer's
suggestion in this regard is without merit.
***
At most, in this matter, the petitioned-for employees
exercise professional discretion and technical expertise, but
*** this is insufficient to exclude them from collective
bargaining under the managerial exclusion.
Correspondingly, there is no evidence that these employees
possess final responsibility and independent authority to
establish and effectuate policy for the [e]mployer. *** There
is no indication that the petitioned-for employees have
substantial discretion, or even a role, in developing the
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means and methods of reaching the agency's policy
objectives or responsibility for determining the extent to
which such objectives will be achieved. Thus, the petitionedfor employees are not managerial within the meaning of
[s]ection 3(j) of the Act [(5 ILCS 315/3(j) (West Supp.
2007))]."
The Board ordered that a secret ballot election be conducted among the six staff
attorneys, in which they would receive the opportunity to vote on whether they desired
representation by the union or no representation.
This appeal followed.
II. ANALYSIS
A. Standards of Review
We review questions of law de novo. City of Belvidere v. Illinois State
Labor Relations Board, 181 Ill. 2d 191, 205, 692 N.E.2d 295, 302 (1998). We ask
whether the Board's purely factual findings are against the manifest weight of the
evidence. City of Belvidere, 181 Ill. 2d at 204, 692 N.E.2d at 302. Insomuch as the
Board decided questions that were a mixture of fact and law, we ask whether the Board's
decision is clearly erroneous. City of Belvidere, 181 Ill. 2d at 205, 692 N.E.2d at 302.
B. Managerial Employees
1. The Traditional Test
The employer argues the staff attorneys in the Bureau of Administrative
Litigation are managerial employees and, therefore, have no right to organize and
bargain collectively. See 5 ILCS 315/3(n) (West Supp. 2007); 5 ILCS 315/6(a) (West
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2006). The Board and the appellate court have applied two tests to determine whether
an employee is a managerial employee: (1) the traditional test, which considers whether
the employee is a managerial employee as a matter of fact (21 Pub. Employee Rep. (Ill.)
par. 205, at 753), and (2) the alternative test, which considers whether the employee is a
managerial employee as a matter of law (Chief Judge of the Sixteenth Judicial Circuit v.
Illinois State Labor Relations Board, 178 Ill. 2d 333, 343, 687 N.E.2d 795, 799 (1997); 21
Pub. Employee Rep. (Ill.) par. 205, 753-54). According to the employer, both of these
tests show that the staff attorneys are managerial employees.
The traditional test considers, factually, whether the employee conforms to
the definition of a "managerial employee" in section 3(j) of the Illinois Public Labor
Relations Act (Act) (5 ILCS 315/3(j) (West Supp. 2007)). That statute defines
"managerial employee" as follows: "[A]n individual who is engaged predominantly in
executive and management functions and is charged with the responsibility of directing
the effectuation of management policies and practices." 5 ILCS 315/3(j) (West Supp.
2007). Thus, the statute sets down two criteria, both of which the employee must meet
to be considered a managerial employee. First, the employee must be engaged
predominantly in executive and management functions. Second, the employee must be
charged with the responsibility of directing the effectuation of management policies and
procedures.
The Act does not define "executive and management functions," but the
Board and appellate court have said that these functions "relate to running a
department and include such activities as formulating department policy, preparing the
budget, and assuring the efficient and effective operations of the department." Village of
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Elk Grove Village v. Illinois State Labor Relations Board, 245 Ill. App. 3d 109, 121-22,
613 N.E.2d 311, 320 (1993); see also 21 Pub. Employee Rep. (Ill.) par. 205, at 753.
"Other executive and management functions include using independent discretion to
make policy decisions as opposed to following established policy, changing the focus of
an employer's organization, being responsible for day[-]to[-]day operations, negotiating
on behalf of an employer with its employees or the public[,] and exercising authority to
pledge an employer's credit." 21 Pub. Employee Rep. (Ill.) par. 205, at 753. An
employee is not a management employee if he or she serves merely a subordinate or
advisory function in the development of policy, for "it is the final responsibility and
independent authority to establish and effectuate policy that determines managerial
status under the Act." City of Evanston v. Illinois State Labor Relations Board, 227 Ill.
App. 3d 955, 975, 592 N.E.2d 415, 428 (1992). As we have held, this criterion "requires
more than the exercise of professional discretion and technical expertise. The employee
must possess and exercise authority and discretion which broadly [a]ffects a
department's goals and means of achieving its goals." Department of Central
Management Services v. Illinois State Labor Relations Board, 278 Ill. App. 3d 79, 87,
662 N.E.2d 131, 136 (1996).
As for the second criterion, an employee directs the effectuation of
management policies and procedures if the employee "oversees or coordinates policy
implementation through development of means and methods of achieving policy
objectives, determines the extent to which the objectives will be achieved, and is
empowered with a substantial amount of discretion to determine how policies will be
effected." Department of Central Management Services, 278 Ill. App. 3d at 87, 662
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N.E.2d at 137. It is not enough that the employee "merely performs duties essential to
the employer's ability to accomplish its mission." 21 Pub. Employee Rep. (Ill.) par. 205,
at 753. Instead, the employee "must possess the authority or responsibility to determine
the specific methods or means of how the employer's services will be provided." 21 Pub.
Employee Rep. (Ill.) par. 205, at 753. "Managerial employees are involved in the
direction of the governmental enterprise or a major unit thereof." Department of
Central Management Services, 278 Ill. App. 3d at 88, 662 N.E.2d at 137.
The employer argues that the staff attorneys in the Bureau of
Administrative Litigation are managerial employees because they do the following:
"[They] mak[e] daily decisions with respect to case
strategy[,] specif[y] charges against the alleged wrongdoer[,] identif[y] potential witnesses and documentary
evidence needed[,] engag[e] in appropriate discovery to
gather the information [they have] determined is
necessary[,] schedul[e] and attend[] pre[]hearing
conferences on behalf of the [agency,] prepare[] witnesses
and their testimony[,] and present[] the [agency's] case in
the hearing. *** In addition, the petitioned-for employees
may draft rules and legislation[,] work with the Attorney
General's office preparing cases when [the agency] is the
plaintiff in a civil action[,] work with state and federal
prosecutors in preparing criminal cases against providers[,]
prepare exceptions to [a]dministrative [l]aw [j]udges'
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recommended decisions, and prepare [d]ecision [m]emos to
authorize settlements."
Mostly, these are tasks that any attorney would perform in the course of
litigation. Again, the status of managerial employee "requires more than the exercise of
professional discretion and technical expertise." Department of Central Management
Services, 278 Ill. App. 3d at 87, 662 N.E.2d at 136. By using their professional discretion
and skills of legal analyses, the staff attorneys "perform[] duties essential to the
employer's ability to accomplish its mission," but it does not follow that they are
managerial employees. 21 Pub. Employee Rep. (Ill.) par. 205, at 753. They have no
independent authority to settle a case or withdraw a charge. They do not determine the
means by which the Inspector General accomplishes his statutory duties. They do not
decide the extent to which the policy objectives of the Inspector General will be
achieved. The referring bureau determines the charges and sanctions in each case. Very
rarely do the staff attorneys draft a rule or legislation; therefore, this infrequent activity
would not cause them to be "predominantly" engaged in executive or management
functions. 5 ILCS 315/3(j) (West Supp. 2007). Besides, their superiors review any rule
or legislation they draft, and the record appears to contain no evidence that their
superiors approve the proposed rule or legislation "as a matter of course," without
substantive revision. 21 Pub. Employee Rep. (Ill.) par. 205, at 754. The Board could
reasonably conclude that, under the traditional test, the staff attorneys in this case do
not meet the criteria for being managerial employees.
2. The Alternative Test
In Office of the Cook County State's Attorney v. Illinois Local Labor
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Relations Board, 166 Ill. 2d 296, 305, 652 N.E.2d 301, 305 (1995), the supreme court
held that because a "detailed statutory apparatus" described the powers and duties of
assistant State's Attorneys and because assistant State's Attorneys were " 'generally
clothed with all the powers and privileges of the State's Attorney' " (Cook County State's
Attorney, 166 Ill. 2d at 303, 652 N.E.2d at 304, quoting People v. Nahas, 9 Ill. App. 3d
570, 575, 292 N.E.2d 466, 470 (1973)), they were managerial employees as a matter of
law and fact-finding was unnecessary to determine whether they were managerial
employees (Cook County State's Attorney, 166 Ill. 2d at 305, 652 N.E.2d at 305). The
employer argues that the staff attorneys in this case likewise are managerial employees
as a matter of law, because "as designees of the Inspector General in the performance of
his statutory duties, [they] have the power to commence and prosecute enforcement
actions, give legal opinions, and take numerous discretionary actions that effectively
control or implement the statutes, regulations, and policies [a]ffecting the [agency]."
(Emphasis in original.)
The staff attorneys in this case are not comparable to assistant State's
Attorneys. See Cook County State's Attorney, 166 Ill. 2d at 305, 652 N.E.2d at 305
("This is not to say that all publicly employed lawyers must necessarily be deemed
managerial employees under the Labor Act"). The supreme court deemed assistant
State's Attorneys to be managerial employees as a matter of law because they could act
with the full power of the State's Attorney in his or her absence. Cook County State's
Attorney, 166 Ill. 2d at 304, 652 N.E.2d at 304-05; Department of Central Management
Services, 278 Ill. App. 3d at 88, 662 N.E.2d at 137 (distinguishing Cook County State's
Attorney on that basis). The staff attorneys in the Bureau of Administrative Litigation
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are not surrogates of the Inspector General; they are not assistant Inspectors General.
In the Inspector General's absence, they would have no independent authority, for
example, to investigate misconduct by employees, vendors, contractors, and medical
providers; audit medical providers; or monitor quality-assurance programs. See 305
ILCS 5/12-13.1(b)(1), (b)(2), (b)(3) (West Supp. 2007). That is to say, they would not be
able to do those things solely by virtue of being staff attorneys. The Inspector General
can designate employees as having "the power to compel by subpoena the attendance
and testimony of witnesses and the production of books, electronic records[,] and
papers as directly related to public[-]assistance programs administered by the
[agency]." 305 ILCS 5/12-13.1(f) (West Supp. 2007). An employee so designated would
be able to do those things not because of any statutory powers of his or her position but
because the Inspector General designated that employee. Assistant State's Attorneys,
once they are appointed, do not require any designation by the State's Attorney. Solely
by virtue of being assistant State's Attorneys, they are " 'clothed with all the powers and
privileges of the State's Attorney; and all acts done by [assistant State's Attorneys] in
that capacity must be regarded as if done by the State's Attorney himself.' " Cook
County State's Attorney, 166 Ill. 2d at 303, 652 N.E.2d at 304, quoting Nahas, 9 Ill. App.
3d at 575-76, 292 N.E.2d at 470. Section 12.-13.1(b) of the Illinois Public Aid Code (305
ILCS 5/12-13.1 (West Supp. 2007)) describes the powers and duties of the Inspector
General, but it does not describe the powers and duties of the staff attorneys. The
statute does not so much as mention them, let alone clothe them with any authority.
C. Feldman as a Managerial Employee or Supervisor
In a footnote to its brief, the employer argues that Feldman, in his capacity
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as acting bureau chief, meets the statutory definitions of a managerial employee (5 ILCS
315/3(j) (West Supp. 2007)) and supervisor (5 ILCS 315/3(r) (West Supp. 2007)). We
need not consider that argument, because the union represents to us, in its brief, that
Feldman no longer is the acting bureau chief. The employer does not dispute that
representation. We will not decide whether Feldman used to be a managerial employee
or supervisor. The question now is academic. A case on appeal is moot to the extent
that the reviewing court's decision could have no practical effect on the parties. Bunge
Corp. v. Lewis, 146 Ill. App. 3d 1094, 1097, 497 N.E.2d 867, 868 (1986).
D. The Appropriateness of the Proposed Bargaining Unit
1. Carving Six Employees Out of Larger Classifications
The employer argues the Board should have dismissed the union's petition
because the petition seeks to carve a subset of employees out of a larger, centralized
classification. Section 9(b) of the Act states as follows:
"The Board shall decide in each case, in order to
assure public employees the fullest freedom in exercising the
rights guaranteed by this Act, a unit appropriate for the
purpose of collective bargaining, based upon but not limited
to such factors as: historical pattern of recognition;
community of interest including employee skills and
functions; degree of functional integration;
interchangeability and contact among employees;
fragmentation of employee groups; common supervision,
wages, hours[,] and other working conditions of the
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employees involved; and the desires of the employees. For
purposes of this subsection, fragmentation shall not be the
sole or predominant factor used by the Board in determining
an appropriate bargaining unit." 5 ILCS 315/9(b) (West
Supp. 2007).
The Board has held that fragmentation of a classification raises a
presumption that the proposed bargaining unit is inappropriate. The Board has said:
"[W]here the employing public entity has an established and
centralized job classification system, a presumption of
inappropriateness is warranted solely by virtue of the fact
that the [p]etitioner has sought only a portion of employees
who perform duties in identical job classifications. In the
public sector, a commonality of functions and community of
interest generally exists among people in the same job
classification[,] which, as here, would often override such
specific factors as common supervision and functional
integration." DuPage County Board, 1 Pub. Employee Rep.
(Ill.) par. 2003, Nos. S-RC-9, S-RC-17, at 7 (Illinois State
Labor Relations Board, April 26, 1985) (hereinafter 1 Pub.
Employee Rep. (Ill.) par 2003).
The Board has provided the following rationale for this "presumption of
inappropriateness":
"'[I]n the public sector, the concepts of community of
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interest and commonality in wages, hours[,] and working
conditions are given expansive interpretations, to yield
broad-based bargaining units whenever feasible. Larger,
broad-based units are preferred in order to facilitate stability
in labor relations and avoid excessive expense and difficulty
in public bargaining and administration.'" General Service
Employees Union, Local 73, 3 Pub. Employee Rep. (Ill.) par.
3033, No. L-RC-87-14, at 245 (Illinois Local Labor Relations
Board, October 30, 1987) (hereinafter 3 Pub. Employee Rep.
(Ill.) par. 3033), quoting American Federation of State,
County & Municipal Employees, 2 Pub. Employee Rep. (Ill.)
Par. 3027, No. L-RC-86-05, at IX-130 (Illinois Local Labor
Relations Board, November 13, 1986).
The employer makes the following observations. The six staff attorneys in
the Bureau of Administrative Litigation are in the classification of public service
administrator, which, statewide, consists of approximately 4,000 employees. Further,
the six staff attorneys are in the subclassification of public service administrator, option
8, consisting of employees who need a license to perform the duties of their positions,
and approximately 460 employees statewide are in option 8. Further, the six staff
attorneys are in the subclassification of option 8 known as option 8L, consisting entirely
of attorneys, and approximately 134 employees statewide are in that subclassification.
The employer argues that under the Board's previous decisions, a "presumption of
inappropriateness" arises because the union seeks to represent "only a portion of
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employees who perform duties in identical job classifications." 1 Pub. Employee Rep.
(Ill.) par. 2003, at 7.
As the Board seems to recognize in its decision in the present case, the
"presumption of inappropriateness" is difficult to square with section 9(b), which says:
"[F]ragmentation shall not be the sole or predominant factor used by the Board in
determining an appropriate bargaining unit." 5 ILCS 315/9(b) (West Supp. 2007).
Treating fragmentation as presumptively decisive seems to elevate it to predominance.
In any event, like all presumptions, this "presumption of
inappropriateness" is rebuttable. Once evidence contrary to the presumption is
introduced, the bubble bursts--the presumption vanishes. Then the issue will be
determined as if no presumption ever existed. Lipscomb v. Sisters of St. Francis Health
Services, Inc., 343 Ill. App. 3d 1036, 1041, 799 N.E.2d 293, 298 (2003), quoting Lehman
v. Stephens, 148 Ill. App. 3d 538, 551, 499 N.E.2d 103, 112 (1986). To rebut the
presumption, the evidence must be " 'sufficient to support a finding of the nonexistence
of the presumed fact.' " Franciscan Sisters Health Care Corp. v. Dean, 95 Ill. 2d 452,
463, 448 N.E.2d 872, 877 (1983), quoting M. Graham, Presumptions in Civil Cases in
Illinois: Do They Exist? 1977 S. Ill. U. L.J. 1, 24. The weight of the rebutting evidence
will depend on the strength of the presumption. Franciscan Sisters, 95 Ill. 2d at 463,
448 N.E.2d at 877. The trier of fact will weigh the persuasiveness of the rebutting
evidence against the persuasiveness of the presumption. " '[M]ost presumptions should,
where applicable at all, continue to operate unless and until the evidence persuades the
trier at least that the non[]existence of the presumed fact is as probable as its
existence.'" W. Shipley, Annot., Effect of Presumption as Evidence or Upon Burden of
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Proof, Where Controverting Evidence Is Introduced, 5 A.L.R.3d 19, 57 n.14 (1966),
quoting E. Morgan, Instructing the Jury Upon Presumptions and Burden of Proof, 47
Harv. L. Rev. 59, 83 (1933).
It follows that the strength of the rebutting evidence, relative to the
strength of the presumption, is a question of fact. Our deference to the Board is greatest
with respect to questions of fact. See 735 ILCS 5/3-110 (West 2006). The theory behind
the presumption is that "[i]n the public sector, a commonality of functions and
community of interest generally exist[] among people in the same job classification[,]
which, as here, would often override such specific factors as common supervision and
functional integration." 1 Pub. Employee Rep. (Ill.) par. 2003, at 7. In the
circumstances of this case, a reasonable trier of fact would not necessarily consider this
presumption to be strong. The classification system is not perfect; it is approximate
and, to some degree, subjective; it inevitably will blur distinctions between positions.
For example, the classification of public service administrators (and, therefore, the
subclassification of option 8L) is supposed to contain only managerial employees, but,
clearly, the six staff attorneys in this case are far from being managers. There is a gap
between the class specification and the reality of what certain employees in that class do
on the job. The presumption of inappropriateness can be rebutted by evidence that the
classification encompasses employees who do not, in fact, have the same functions and
community of interest.
The record reveals that the option 8Ls in the agency consist not only of the
six staff attorneys in the Bureau of Administrative Litigation, who serve as advocates for
the agency in administrative hearings, but also administrative law judges, hearing
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referees, and a staff attorney in the office of General Counsel. It is not difficult to
surmise why these two groups of attorneys are in different divisions of the agency. The
administrative law judges and hearing referees preside over administrative hearings and
write recommended decisions. The staff attorney in the office of General Counsel "rules
on" the recommended decisions of administrative law judges and the exceptions thereto.
While the attorneys in the Bureau of Administrative Litigation are expected to be
advocates, the attorneys in the office of General Counsel are expected to be impartial
decision-makers. The integrity of the adversary system demands a rigorous segregation
of those two functions. Thus, the record contains evidence from which a reasonable
trier of fact could conclude that not all the attorneys in option 8L have the same
functions and community of interest. The presumption of inappropriateness was
rebutted and, therefore, is irrelevant.
The record does not reveal what the other approximately 120 attorneys in
option 8L do or what their wages, hours, and other working conditions are. Thus, the
Board could have reasonably decided that the record afforded an insufficient evidentiary
basis for concluding that all 134 employees in option 8L belonged in the same
bargaining unit. The record does not provide enough information to apply the factors in
section 9(b) (5 ILCS 315/9(b) (West Supp. 2007)) to option 8L as a whole. We decline
to hold that all of the employees in option 8L belong in the same bargaining unit solely
and simply because they are attorneys. Such a holding would be simplistic and artificial
and not based on the factors in section 9(b). Unlike the clerical employees in General
Service Employees Union, Local 73, 3 Pub. Employee Rep. (Ill.) par 3033, at 248,
- 27 -
publicly employed attorneys do not have the same job description, and they are not
interchangeable.
It appears from the record, however, that the six staff attorneys in the
Bureau of Administrative Litigation have the same skills and serve the same functions;
that they are functionally integrated; that they are interchangeable and have regular
contact with each other; and that they have the same supervisor, hours, and working
conditions. See 5 ILCS 315/9(b) (West Supp. 2007). Thus, the record contains evidence
to support the Board's finding that a bargaining unit consisting of those employees is an
appropriate unit. That finding is not clearly erroneous, considering that section 9(b)
forbids us to make fragmentation a predominant factor. We have no reason to conclude,
on the record before us, that the unit is "artificial or arbitrary." See Illinois Fraternal
Order of Police Labor Council v. Illinois Local Labor Relations Board, 319 Ill. App. 3d
729, 743, 745 N.E.2d 647, 659 (2001).
2. Unit RC-10, the Preexisting Unit of Attorneys
The employer argues that if the staff attorneys are not managerial
employees, they should be placed in the preexisting bargaining unit of attorneys, RC-10,
represented by AFSCME. In support of that argument, the employer cites Department
of Central Management Services, 21 Pub. Employee Rep. (Ill.) par. 205, at 755, in which
the Board held that a group of attorneys employed by the Department of Revenue were
not managerial employees and the Board placed them in the existing unit, VR-10. In
that case, however, AFSCME filed a unit-clarification petition seeking to add those
employees to VR-10. In the present case, as the Board said, AFSCME "does not seek
herein to represent the petitioned-for employees, nor has it [done so] in the [16] years
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since that unit was formed." 23 Pub. Employee Rep. (Ill.) par. 173, at 743. We agree
with the Board that it is "fundamentally at odds with the Act itself to place the
petitioned-for employees' right to organize completely under the control of a third
party." 23 Pub. Employee Rep. (Ill.) par. 173, at 743.
III. CONCLUSION
For the foregoing reasons, we affirm the Board's decision.
Affirmed.
MYERSCOUGH and STEIGMANN, JJ., concur.
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