Chief Judge v. Illinois State Labor Relations Board
Annotate this Case
Chief Judge v. Illinois State Labor Relations Board, Nos. 80127,
80133 cons.
NOTICE: Under Supreme Court Rule 367 a party has 21 days after
the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.
Docket Nos. 80127, 80133 cons.--Agenda 19--September 1996.
THE CHIEF JUDGE OF THE SIXTEENTH JUDICIAL CIRCUIT, Appellee, v. THE ILLINOIS STATE
LABOR RELATIONS BOARD et al., Appellants.
Opinion filed September 11, 1997.
JUSTICE NICKELS delivered the opinion of the court:
In these consolidated appeals, we decide whether Kane County assistant public defenders are
considered "managerial employees" within the meaning of the Illinois Public Labor Relations Act (the Act)
(5 ILCS 315/1 et seq. (West 1994)). The Illinois State Labor Relations Board (the Board) found that the
assistant public defenders are not managerial employees. Based on this finding, it certified the American
Federation of State, County, and Municipal Employees, Council 31, AFL-CIO (AFSCME), to represent the
assistants for collective-bargaining purposes. On administrative review, the appellate court reversed,
holding that the assistants are managerial employees. Because managerial employees are excluded from
collective bargaining under the Act (see 5 ILCS 315/3(n), 6(a) (West 1994)), this holding precluded AFSCME
from representing the assistants. The Board and AFSCME both filed petitions for leave to appeal (155 Ill.
2d R. 315(a)), which were allowed. We affirm the appellate court.
BACKGROUND
On February 7, 1994, AFSCME filed a representation petition with the Board. AFSCME sought to
represent a collective-bargaining unit of all full-time and part-time Kane County assistant public defenders,
employed by the chief judge of the Sixteenth Judicial Circuit. The proposed unit excluded any supervisors,
confidential employees, and managerial employees because the Act does not apply to those types of
employees. See 5 ILCS 315/3(n), 6(a) (West 1994).
A hearing was held before an administrative law judge. AFSCME sought to include all of the assistants
within the collective-bargaining unit, except Regina Harris. The parties stipulated that this particular
assistant was a supervisor within the meaning of the Act. The administrative law judge heard extensive
testimony concerning the nature of the Kane County public defender's office and the duties of the assistants.
We summarize that testimony.
The duties of the public defender are defined by statute. The purpose of the office is to provide quality
legal representation in certain proceedings for indigent individuals who would otherwise not be able to
retain quality legal representation. 55 ILCS 5/3--4000 (West 1994). Section 3--4006 of the Counties Code
provides, in pertinent part:
"The Public Defender, as directed by the court, shall act as attorney, without fee, before any court
within any county for all persons who are held in custody or who are charged with the commission
of any criminal offense, and who the court finds are unable to employ counsel.
The Public Defender shall be the attorney, without fee, when so appointed by the court under
Section 1--20 of the Juvenile Court Act or Section 1--5 of the Juvenile Court Act of 1987 or by any
court under Section 5(b) of the Parental Notice of Abortion Act of 1983 for any party who the court
finds is financially unable to employ counsel." 55 ILCS 5/3--4006 (West 1994).
The public defender is authorized to appoint assistant public defenders to carry out the duties of the office.
55 ILCS 5/3--4008, 3--4008.1 (West 1994).
At the time of the hearing, the Kane County public defender's office consisted of 13 full-time assistants
and 3 part-time assistants. The office was arranged into several divisions, including felony trial, felony
preliminary hearing, juvenile, DUI, and misdemeanor. The public defender supervised the felony trial
division, while assistant Harris generally supervised the other divisions. The office had a caseload of over
seven thousand cases per year, and assistants were assigned to handle this case load.
The assistant public defenders have absolute discretion in handling their cases. The assistants
generally do not consult with the public defender about their cases. The public defender testified that more
than 90% of the decisionmaking in the felony division occurred without his knowledge or input. Much of
the decisionmaking in the other divisions also occurred without his input and without the input of
supervisor Harris. The public defender had never interfered with any of the decisions made by the
assistants with respect to their cases. The public defender did not tell the assistants how to investigate or
develop defenses in their individual cases. Assistants were not required to seek supervisory approval before
entering into plea negotiations or entering a plea. They initiated their own investigations, directed
investigators, met with clients, and issued subpoenas and other documents. The assistants were fully
responsible for all stages of case development and exercised their own independent judgment. The public
defender and supervisor Harris handled their own case loads.
The public defender, however, generally handled the day-to-day operations and administrative matters
of the felony division. Supervisor Harris was generally responsible for administrative matters in the other
divisions. The office was run in a fairly informal manner. The public defender assigned all cases in the
felony trial division, but assistants were permitted to transfer cases among themselves. The office possessed
no formal performance evaluations and no formal disciplinary system. The public defender and the
assistants all received the same fringe benefits, vacation plan, sick leave and leave of absence policies, and
health care options.
The public defender issued a general set of office rules and policies to the assistants, which governed
such areas as office dress and hours. Occasionally, the public defender and supervisor Harris issued general
directives regarding the handling of cases. The public defender reviewed closed files to determine the
outcome of a case and how it was reached, and to make sure certain paperwork requirements were met.
The public defender handled budget matters himself. He approved any large expenditures of money and
any requests to hire expert witnesses. The public defender and the supervisor also controlled the
interviewing and hiring of new assistants. The public defender and supervisor Harris had ultimate
supervisory control over administrative matters, although the assistants provided input into some decisions.
After hearing testimony concerning the duties of the assistants, the administrative law judge
determined that the assistants under consideration were not managerial employees. Based on this finding,
he concluded that the assistants formed an appropriate collective-bargaining unit under the Act. The
administrative law judge recommended that AFSCME's representation petition be granted and ordered a
representation election.
The Board adopted the administrative law judge's recommendation, agreeing that the assistant public
defenders were not managerial employees. A representation election was held among all full-time and part-
time Kane County assistant public defenders, excluding Harris. AFSCME won the election, and the Board
certified AFSCME as the collective-bargaining representative of this unit.
The chief judge petitioned directly to the appellate court for administrative review of the Board's order.
See 5 ILCS 315/9(i) (West 1994). The appellate court reversed the Board, holding that the assistants are
managerial employees. The appellate court based its holding on three factors:
"(1) the public defender delegates an overwhelming majority of the decision-making responsibilities
to members of his staff; (2) the assistant public defenders, on a day-to-day basis, inherently exercise
a great deal of authority and discretion in effectuating and achieving the goals of their office; and
(3) the professional interests of the assistant public defenders are fundamentally identical to that
of the public defender." 275 Ill. App. 3d 853, 859.
In this appeal, we determine whether the assistants are managerial employees within the meaning of the
Act.
ANALYSIS
I. The Managerial Exclusion
Section 3(j) of the Act defines a "managerial employee" as "an 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 1994). The Act excludes these managerial
employees from the class of employees who are entitled to engage in collective bargaining. See 5 ILCS
315/3(n), 6(a) (West 1994). 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. See
National Labor Relations Board v. Yeshiva University, 444 U.S. 672, 682, 63 L. Ed. 2d 115, 125, 100 S. Ct. 856, 862 (1980); National Labor Relations Board v. Bell Aerospace Co. Division of Textron, Inc., 416 U.S. 267, 281-82, 40 L. Ed. 2d 134, 146-47, 94 S. Ct. 1757, 1765 (1974).
The managerial exclusion in the Act was adopted from decisions of the National Labor Relations Board
and the United States Supreme Court. See, e.g., Yeshiva, 444 U.S. 672, 63 L. Ed. 2d 115, 100 S. Ct. 856;
Bell Aerospace, 416 U.S. 267, 40 L. Ed. 2d 134, 94 S. Ct. 1757. The statutory definition of managerial
employee under the Act is very similar to the definition contained in the two foregoing United States
Supreme Court decisions. The Supreme Court's application of the managerial exclusion provides guidance
to our analysis.
In Yeshiva, the Supreme Court applied the managerial exclusion to preclude the unionization of certain
professional employees. Specifically, the Court held that members of the Yeshiva University faculty were
managerial employees and therefore excluded from collective bargaining. In explaining the managerial
exclusion, the Court stated:
"Managerial employees must exercise discretion within, or even independently of, established
employer policy and must be aligned with management. *** [A]n employee may be excluded as
managerial only if he represents management interests by taking or recommending discretionary
actions that effectively control or implement employer policy." Yeshiva, 444 U.S. at 683, 63 L. Ed. 2d at 126, 100 S. Ct. at 862.
The Court further stated that, given the concern for divided loyalty between employer and union, "the
relevant consideration is effective recommendation or control rather than final authority" over employer
policy. Yeshiva, 444 U.S. at 683 n.17, 63 L. Ed. 2d at 126 n.17, 100 S. Ct. at 863 n.17. See also Bell
Aerospace, 416 U.S. at 288, 40 L. Ed. 2d at 150, 94 S. Ct. at 1768 (definition of managerial employee
includes generally all employees who " `formulate and effectuate management policies by expressing and
making operative the decisions of their employer' " and is not limited to those employees who have some
involvement in labor relations matters); Board of Regents of the Regency Universities System v. Illinois
Educational Labor Relations Board, 166 Ill. App. 3d 730, 740-41 (1988) (managerial exclusion is not limited
to employees who have some potential to affect labor relations matters, such as wages, hours, and other
terms and conditions of employment).
In Yeshiva, the National Labor Relations Board argued that faculty decisionmaking was exercised in
the faculty's own professional interest rather than in the employer's interest. The Court found no
justification for such a distinction. Instead, it concluded that the interests of the faculty and the employer
were indistinguishable, and any attempt to separate these interests would divide faculty loyalty between
employer and union. Yeshiva, 444 U.S. at 686-87, 63 L. Ed. 2d at 128-29, 100 S. Ct. at 864-65. In applying
the managerial exclusion to the Yeshiva faculty, the Court stated that the Yeshiva faculty was intimately
involved in policy decisions in a number of areas, including course offerings, course scheduling, teaching
methods, grading policies, admissions standards, graduation standards, size of the student body, tuition,
and location of a school. Yeshiva, 444 U.S. at 686, 63 L. Ed. 2d at 128, 100 S. Ct. at 864.
The Court conceded that there was some tension between the managerial exclusion and the inclusion
of professionals in collective bargaining. By its ruling, the Court did not intend to prevent all professionals
from engaging in collective bargaining. The Court stated that employees who only engage in "the routine
discharge of professional duties in projects to which they have been assigned cannot be excluded from
coverage even if union membership arguably may involve some divided loyalty." Yeshiva, 444 U.S. at 690,
63 L. Ed. 2d at 130, 100 S. Ct. at 866. The Court, however, determined that the Yeshiva faculty exercised
"authority which in any other context unquestionably would be managerial." Yeshiva, 444 U.S. at 686, 63 L. Ed. 2d at 128, 100 S. Ct. at 864.
Illinois courts have also considered the application of the managerial exclusion to professionals. Most
significantly, in Office of the Cook County State's Attorney v. Illinois Local Labor Relations Board, 166 Ill. 2d 296 (1995), this court held that assistant Cook County State's Attorneys were managerial employees and
excluded from collective bargaining under the Act. This court discussed the statutory powers and duties of
the State's Attorney and assistants. These powers and duties include representing the county and the state
in the prosecution of civil and criminal actions, prosecuting and defending actions involving a county officer
acting in an official capacity, and giving legal advice to county officers. See Cook County State's Attorney,
166 Ill. 2d at 302-03. Given the procedural posture of Cook County State's Attorney, the Board had not
conducted any fact finding at the time of the appeal. This court found that such fact finding was
unnecessary because the pertinent inquiry focused on the statutory duties of the assistants, rather than
the specific tasks performed by particular individuals. Cook County State's Attorney, 166 Ill. 2d at 305. The
court therefore decided the issue as a matter of law, based on statute and case law detailing the role of the
assistant State's Attorneys.
In determining whether the assistant State's Attorneys were managerial employees, this court stated
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. This court determined that the assistants were vested with the authority
to exercise the power of the State's Attorney and played a substantial part in discharging the statutory
mission of the State's Attorney's office. This court stated that the assistants act as "surrogates for the
State's Attorney" in performing the statutory duties of the State's Attorney. Cook County State's Attorney,
166 Ill. 2d at 303. Because of this close affiliation with the State's Attorney, the assistant State's Attorneys
were found to be managerial employees.
The managerial exclusion has been addressed by the appellate court in other cases. In Salaried
Employees of North America (SENA) v. Illinois Local Labor Relations Board, 202 Ill. App. 3d 1013 (1990),
the appellate court held that, based on the facts presented to the Board, law department attorneys
employed by the City of Chicago were managerial employees. The court stated that "[m]anagerial employees
are those involved in the direction of the governmental enterprise or a major unit thereof who possesses
authority to broadly affect its mission or fundamental methods." Salaried Employees, 202 Ill. App. 3d at
1020. The court relied on three factors in finding the employees to be managerial: (1) the informal setup
of the office, allowing an employee to work in different divisions of the law department; (2) the authority
of all the attorneys to recommend changes in the city's operation and policy; and (3) the large amount of
discretion exercised by the attorneys on behalf of the city. The court concluded that the interests of the law
department employees were identical to those of the city.
In Chief Judge of the Circuit Court v. American Federation of State, County & Municipal Employees,
Council 31, 229 Ill. App. 3d 180 (1992), the appellate court held that, based on the facts presented to the
Board, guardians ad litem employed in the office of the Cook County public guardian were managerial
employees. Pursuant to statute, the public guardian, Patrick Murphy, had been appointed to represent
individuals who were found to be incompetent due to age or disability. Because of the case load, the
individual cases were assigned to guardians ad litem, who made almost all of the decisions in their
respective cases. The Board argued that the guardians ad litem did not represent the interests of their
employer but, instead, represented the many individual wards of the court. The court rejected this
argument. The court concluded that the guardians ad litem, through their exercise of extensive
discretionary decisionmaking, effectively directed the policies of the Cook County public guardian's office.
II. Assistant Public Defenders
In applying the managerial exclusion as defined in the Act, we find that this court's recent decision in
Cook County State's Attorney is dispositive of the issue. We note that the Board reached its decision in the
instant case before Cook County State's Attorney was decided and that the appellate court relied heavily
on that case in reaching its conclusion. As in Cook County State's Attorney, the statute and case law define
the duties of the public defender and assistants, such that the instant case can be decided as a matter of
law. We hold, as a matter of law, that the assistant public defenders are managerial employees and
therefore not subject to the collective-bargaining provisions of the Act.
As noted, the statutory purpose of the public defender's office is to provide quality legal representation
in criminal and related proceedings for indigent individuals. 55 ILCS 5/3--4000 (West 1994). The statutory
duties of the public defender's office are to provide quality legal representation for certain individuals in
criminal cases, juvenile cases, and parental notice of abortion cases. 55 ILCS 5/3--4006 (West 1994). As was
true of assistant State's Attorneys, the assistant public defenders act as officers for the performance of the
general duties of the public defender's office, exercise some portion of the sovereign power of the state, and
perform acts that are generally regarded as acts of the public defender. See 55 ILCS 5/3--4008, 3--4008.1
(West 1994); Warren v. Stone, 958 F.2d 1419, 1424 (7th Cir. 1992); People v. Benford, 31 Ill. App. 3d 892,
895 (1975); People ex rel. Cook County v. Majewski, 28 Ill. App. 3d 269, 271-73 (1975).
Although no exact criteria define a managerial employee, this court, in Cook County State's Attorney,
166 Ill. 2d at 304, relied heavily on the existence of three factors in determining that assistant State's
Attorneys are managerial employees: (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. The relationship between the public defender and the assistants also
manifests these characteristics. The assistant public defenders possess significant authority and discretion
to discharge the mission of the public defender's office. In effect, they act as surrogates for the public
defender.
The Board and AFSCME argue that Cook County State's Attorney is distinguishable from the instant
case. They assert that assistant State's Attorneys, in general, provide legal representation on behalf of the
state. In contrast, the Board and AFSCME argue, the assistant public defenders represent the interests of
their indigent clients but do not represent the interests of the state or chief judge.
A similar argument was recently rejected by the Supreme Court. In National Labor Relations Board
v. Health Care & Retirement Corp. of America, 511 U.S. 571, 128 L. Ed. 2d 586, 114 S. Ct. 1778 (1994), the
Court was required to determine whether certain nurses should be considered "supervisors" within the
meaning of the National Labor Relations Act. The National Labor Relations Board argued that the nurses
were not supervisors because they acted in their own professional interests, not in the interests of their
employer. The Court rejected that argument and noted that such an argument had also been rejected in
Yeshiva:
"The Board's interpretation, that a nurse's supervisory activity is not exercised in the interest of
the employer if it is incidental to the treatment of patients, is similar to an approach the Board
took, and we rejected, in NLRB v. Yeshiva Univ., 444 U.S. 672 (1980). There, we had to determine
whether faculty members at Yeshiva were `managerial employees.' *** Like supervisory employees,
managerial employees are excluded from the Act's coverage. [Citation.] The Board in Yeshiva argued
that the faculty members were not managerial, contending that faculty authority was `exercised in
the faculty's own interest rather than in the interest of the university.' [Citation.] ***
The Board's reasoning fares no better here than it did in Yeshiva. As in Yeshiva, the Board has
created a false dichotomy--in this case, a dichotomy between acts taken in connection with patient
care and acts taken in the interest of the employer. That dichotomy makes no sense. Patient care
is the business of a nursing home, and it follows that attending to the needs of the nursing home
patients, who are the employer's customers, is in the interest of the employer. [Citation.] We thus
see no basis for the Board's blanket assertion that supervisory authority exercised in connection
with patient care is somehow not in the interest of the employer." Health Care, 511 U.S. at 577-78,
128 L. Ed. 2d at 593-94, 114 S. Ct. at 1782.
See also Chief Judge, 229 Ill. App. 3d at 187-88 (rejecting the Board's argument that Cook County
guardians ad litem represented the many individual wards of the court instead of representing the interests
of their employer). For similar reasons, we reject the purported distinction as meaningless.
The Board also relies on conflict of interest cases to suggest that the assistant public defenders are not
closely aligned with the public defender's office. See People v. Spreitzer, 123 Ill. 2d 1 (1988); People v. Banks,
121 Ill. 2d 36 (1987); People v. Robinson, 79 Ill. 2d 147 (1979). In these cases, the relevant question was
whether an assistant could represent a client even if other attorneys in the office had a conflict of interest
involving that client. This court found no per se conflict of interest. This court determined that the attorneys
in the public defender's office could act in the professional interests of their clients and perform the
statutory duties of the office despite any allegiance to the office and the other attorneys in the office. See,
e.g., Banks, 121 Ill. 2d at 42-43.
The conflict of interest cases cited by the Board are not helpful in the context of collective bargaining.
As stated, like the relationship between the State's Attorney and his or her assistants, the assistant public
defenders act on behalf of the public defender in carrying out the statutory duties of the public defender's
office. The nature of this affiliation is not affected by the ability of the assistants to set aside any personal
allegiance in a particular case and perform the statutory duties of the office. The professional interests of
the public defender, his or her assistants, and the office remain the same: to provide quality legal
representation to indigent individuals. In addition, the assistants retain broad authority to act on behalf
of the public defender.
Finally, the Board and AFSCME argue that certain public sector attorneys in Illinois and other
jurisdictions have been allowed to organize into collective-bargaining units. The cases and certification
orders cited provide little support to the matter involved here. In many of these decisions, the question of
managerial status was not even at issue. In addition, the duties of these public sector attorneys are
generally different from the duties of the assistant public defenders, as provided by Illinois statute and case
law. We emphasize, as we did in Cook County State's Attorney, that the holding of the instant case should
not be broadly interpreted to mean that all publicly employed attorneys or other professional employees are
deemed managerial employees under the Act. Instead, we hold only that the assistant public defenders meet
the definition of managerial employee under the Act.
CONCLUSION
The Kane County assistant public defenders are managerial employees, within the meaning of the Act.
They are excluded from collective bargaining under the Act. For the foregoing reasons, the judgment of the
appellate court is affirmed.
Affirmed.
CHIEF JUSTICE FREEMAN, dissenting:
The majority, relying on this court's opinion in Office of the Cook County State's Attorney v. Illinois
Local Labor Relations Board, 166 Ill. 2d 296 (1995), holds that the Kane County assistant public defenders
are managerial employees as a matter of law and, as such, are precluded from collective bargaining. I
disagreed with the holding in Cook County State's Attorney then and I disagree that it is dispositive of the
issue before this court now. I, therefore, respectfully dissent.
Citing National Labor Relations Board v. Yeshiva University, 444 U.S. 276, 63 L. Ed. 2d 115, 100 S. Ct. 856 (1980), and National Labor Relations Board v. Bell Aerospace Co. Division of Textron, Inc., 416 U.S. 267, 40 L. Ed. 2d 134, 94 S. Ct. 1757 (1974), the majority here acknowledges that the managerial exclusion
in Illinois' Labor Relations Act was borne out of decisions of the National Labor Relations Board and the
Supreme Court. The majority then further acknowledges the Supreme Court's application of the managerial
exclusion as having "provide[d] guidance" to its analysis. See slip op. at 5. No sooner than its
acknowledgement of these precedents, however, the majority veers off course. Quite contrary to Yeshiva and
Bell Aerospace, the majority here has taken a direction guaranteed to insure every statutorily defined public
employer of professional employees absolute freedom from organized labor.
The nature of the managerial exclusion is clear and the principles to be applied in making the
managerial status determination may be stated briefly. As defined in Bell Aerospace, 416 U.S. 267, 40 L. Ed. 2d 134, 94 S. Ct. 1757, managerial employees are those employees whose interests are more closely
identified with those of management or who are representatives of management, although their work does
not generally entail the supervision of bargaining unit employees. The "touchstone of managerial status is
*** an alliance with management." See Yeshiva, 444 U.S. at 695, 63 L. Ed. 2d at 134, 100 S. Ct. at 869,
(Brennan, J., dissenting, joined by White, Marshall and Blackmun, JJ.). Yeshiva recognizes the existence
of such an alliance as being when the employee represents management interests by taking or
recommending discretionary actions that effectively control or implement employer policy. Yeshiva, 444 U.S.
at 683, 63 L. Ed. 2d at 126, 100 S. Ct. at 862. In contrast, employees whose decisionmaking is limited to
the routine discharge of professional duties in projects to which they have been assigned cannot be excluded
from unionized bargaining even if union membership arguably may involve some divided loyalty. Key to
the managerial exclusion determination is a recognition that "[o]nly if an employee's activities fall outside
the scope of the duties routinely performed by similarly situated professionals will [the employee] be found
aligned with management." (Emphasis added.) Yeshiva, 444 U.S. at 690, 63 L. Ed. 2d at 130, 100 S. Ct. at
866.
The principles espoused in Yeshiva have been adopted to answer the managerial exclusion inquiry in
other than academic settings. In Montefiore Hospital & Medical Center, 261 N.L.R.B. 569 (1982), for
example, the medical center, as employer, attempted to exclude medical doctors from the bargaining units
because the center viewed the doctors as a part of management. The Board noted that as professional
employees, the doctors might also be managerial, but their managerial status could not be based on
decisionmaking which was merely part of the routine discharge of their professional duties. Consistent with
Yeshiva, the Board stated that "[o]nly if the activities of professional employees fall outside the scope of the
duties routinely performed by similarly situated professionals will they be found aligned with management."
Montefiore, 261 N.L.R.B. at 570.
Relevant to the managerial determination in the health care area is whether the decisions alleged to
be managerial or supervisory are "incidental to" or "in addition to" the treatment of patients. See 2 C.
Morris, The Developing Labor Law 1459 n.199 (2d ed. 1983). Decisions which are merely incidental to
treatment are not considered managerial, but are viewed merely as being within the scope of the employee's
duties.
Finally and, I believe, most importantly, managerial status of employees must be decided on the
particular facts of each case. See Yeshiva, 444 U.S. at 691, 63 L. Ed. 2d at 131, 100 S. Ct. at 867. In Bell
Aerospace, the Court noted that the status determination requires consideration of the employees' actual
job responsibilities, their authority to act, as well as their relationship with their employer. Bell Aerospace,
416 U.S. at 290 n.19, 40 L. Ed. 2d at 151 n.19, 94 S. Ct. at 1769 n.19; see also Montefiore Hospital &
Medical Center, 261 N.L.R.B. 569 (1982) (noting that in the health care context, the Board must evaluate
the facts of each case to determine whether decisions alleged to be managerial are incidental to the
professional's treatment of patients).
Although purportedly "guided" by the Supreme Court's application of the exclusion, which requires
consideration of the facts of each case, the majority engages in a very different analysis--one which allows
for the total disregard of the Board's factual findings. Contrary to Yeshiva or Bell Aerospace, the majority
here decides that "the statute and case law define the duties of the public defender and assistants, such
that the instant case be decided as a matter of law." Slip op. at 9.
Aside from my disagreement that managerial status can be determined simply as a matter of law (see
Yeshiva, 444 U.S. at 691, 63 L. Ed. 2d at 131, 100 S. Ct. at 867 (whether college professors were managerial
employees presented mixed question of law and fact); Boston University Chapter, American Ass'n of
University Professors v. National Labor Relations Board, 835 F.2d 399, 401 (1st Cir. 1987); see also
Bloomquist v. Ely, 247 Ill. App. 3d 656, 667 (1993) (whether a certain device constitutes implement of
husbandry as defined by statute raises mixed question of law and fact)), the relevant statute and case law
tell us of no more than the purpose and function of every public defender's office, generally. Neither
describes, nor could it, the actual duties of the Kane County assistant public defenders in particular.
Beyond the lack of particularity concerning the Kane County office, the majority's statutory analysis
presents a more fundamental problem: What quantum of statutory detail is sufficient to defeat the need
for fact finding? In Cook County State's Attorney, the court declined the Board's invitation for administrative
agency fact finding as unnecessary to the disposition of the case. In so doing, the court opined that the
statutes and the case law provided "sufficient" detail concerning the duties of the State's Attorney and his
assistants for determining the issue of the assistant State's Attorneys' status as a matter of law. Cook
County State's Attorney, 166 Ill. 2d at 305.
Even accepting the Cook County State's Attorney court's declination of fact finding as proper to the
analysis, the statutory details pertaining to the public defender's office are, to say the least, at a minimum.
Thus, even a correct application of the faulty reasoning in Cook County State's Attorney to this case should
dictate that the status of the assistant public defenders cannot be decided as a matter of law.
A simple comparison of the statutory provisions pertaining to public defenders and those pertaining
to State's Attorneys serves to demonstrate the problems, first, with defining what amount of detail is
"sufficient" and, second, with finding the level of detail "sufficient" in this case. Specifically, the Counties
Code provides, generally, for the creation of the public defender's office. The statute also provides that the
purpose of the office is to provide quality legal representation in criminal and related proceedings for
persons who would otherwise have no ability to retain quality legal representation. See 55 ILCS 5/3--4000
(West 1994). The duties of the public defender are to provide legal representation in criminal, juvenile, and
parental notice of abortion cases. See 55 ILCS 5/3--4006 (West 1994). Further, the statute empowers the
public defender to appoint assistant public defenders for the proper discharge of the duties of the office, and
who serve at the pleasure of the public defender. 55 ILCS 5/3--4008, 3--4008.1 (West 1994). Case law adds
that the representation of indigent defendants is a requirement of due process of law which constitutes a
delegation of sovereignty to the public defender's office (see People ex rel. Cook County v. Majewski, 28 Ill.
App. 3d 269, 272 (1975)), and that the public defender is responsible for the professional conduct and acts
of his assistants (see People v. Dread, 27 Ill. App. 3d 106 (1975)). As is apparent, the statute pertaining to
the public defender's office provides nothing more than the legislative authorization for the provision of
legal representation in particular types of cases.
In contrast, and as recited in Cook County State's Attorney, the statute pertaining to the State's
Attorneys provides, in significantly greater detail, that
"[t]he State's Attorney is required, among other things:
`(1) To commence and prosecute all actions, suits, indictments and prosecutions, civil and
criminal, in the circuit court for his county, in which the people of the State or county may be
concerned.
(2) To prosecute all forfeited bonds and recognizances, and all actions and proceedings for the
recovery of debts, revenues, moneys, fines, penalties and forfeitures accruing to the State or his
county, or to any school district or road district in his county; also, to prosecute all suits in his
county against railroad or transportation companies, which may be prosecuted in the name of the
People of the State of Illinois.
(3) To commence and prosecute all actions and proceedings brought by any county officer in
his official capacity.
(4) To defend all actions and proceedings brought against his county, or against any county or
State officer, in his official capacity, within his county.
* * *
(7) To give his opinion, without fee or reward, to any county officer in his county, upon any
question or law relating to any criminal or other matter, in which the people or the county may
be concerned.
* * *
(11) To perform such other and further duties as may, from time to time, be enjoined on him
by law.
(12) To appear in all proceedings by collectors of taxes against delinquent taxpayers for
judgments to sell real estate, and see that all the necessary preliminary steps have been legally
taken to make the judgment legal and binding.' " Cook County State's Attorney, 166 Ill. 2d at 302-
03, quoting 55 ILCS 5/3--9005(a) (West 1992).
I read Cook County State's Attorney to at least recognize that, in the absence of "sufficient" statutory
detail, the managerial exclusion determination should be treated as a question of fact. In fact, the court in
Cook County State's Attorney, 166 Ill. 2d at 304-05, explained fact finding in Chief Judge of the Circuit
Court v. American Federation of State, County & Municipal Employees, Council 31, 229 Ill. App. 3d 180
(1992), involving guardians ad litem, and Salaried Employees of North America (SENA) v. Illinois Local
Labor Relations Board, 202 Ill. App. 3d 1013 (1990), involving lawyers of the municipal law department,
as necessary because no detailed statutory apparatus, similar to that for State's Attorneys, describes the
function of those employees. Here, we have little more than the statutory authorization for the existence
of an office, and the majority equates that with Cook County State's Attorney's "sufficient" statutory detail.
At any rate, to be truly guided by the analysis in Yeshiva requires not merely consideration of case law
and statutory provisions, but also consideration of an employee's actual job responsibilities. A view of the
Kane County assistant public defenders' actual responsibilities can support but one conclusion--that the
assistants' duties are not managerial in nature, but are merely routine; their decisions are not in addition,
but are merely "incidental," to their professional responsibility to render legal services to indigent clients.
Although apparently not relevant to its determination, the majority recites several of the factual
findings made by the Board. Because the Board's findings form the basis of my dissent, however, I find it
apt to recount them here in somewhat greater detail. At the time of these proceedings Michael McInerney
held the position of Kane County public defender. According to McInerney, he assigns each assistant to one
of four divisions in the public defender's office. The daily operations and administrative matters of the
felony division are McInerney's responsibility, while Supervisor Harris is responsible for the other divisions.
McInerney personally handles a caseload of 10 to 15 serious felony cases.
Ordinarily, McInerney assigns all felony trial division cases. In assigning cases, he considers the type
of case, the experience of the assistants and the size of their current caseloads. In March 1994, while
McInerney was away from the office for a one-week period, he assigned the senior felony division attorney
the task of case assignments. However, the senior attorney was given explicit instruction by McInerney
concerning how assignments were to be made. McInerney testified that this was an isolated incident. With
respect to juvenile cases, the two assistants assigned to that division decide between themselves their
specific case assignments.
Once cases are assigned, the assistants are expected to exercise their professional judgment with
respect to their representation. Assistants decide how to handle the case, the strategies involved, whether
to engage in plea bargaining and what defenses to assert. Decisions made by assistants in connection with
their cases are governed solely by the interests of their clients, with the overriding objective being the
provision of quality legal representation. As long as the assistants process cases within the guidelines
established by McInerney and Harris, McInerney expects the assistants neither to consider his interests
nor to take into account how McInerney, himself, would handle a case in the same situation.
The assistants do not enjoy complete freedom from McInerney's control, however. McInerney and Harris
promulgate some of the procedures for case management. For example, McInerney issued a memorandum
to the assistants in the felony preliminary hearing division indicating that, based upon his review, the
assistants had not prepared case notes thoroughly enough. He set in place an office policy which prohibits
(1) pleading a client guilty unless the assistant has read the police report and (2) waiving a preliminary
hearing without a plea agreement by the State's Attorney. Additionally, McInerney advised the assistants
how to deal with cases in which a client wishes to enter a plea against the assistant's recommendation.
As supervisor, Harris has issued a memorandum establishing a procedure for assistants to follow in
cases where a client fails to appear in court. Also, she has issued memoranda concerning the assignment
of cases and the specific steps to be followed in custody cases.
It does not appear from the record that the assistants share a similar supervisory function in the
management of the office. In fact, the record reveals that in the event that an assistant becomes aware that
an investigator employed by the public defender is not following office procedures, the assistant has no
authority to direct that individual. The assistant must instead bring the concern either to McInerney's
attention or to the attention of the head investigator.
Further, the assistant public defenders have no fiscal oversight responsibilities for the office. Although
McInerney has solicited the assistants' opinion concerning what needs the budget should address, the
assistants do not prepare the annual budget, they are never asked to prepare draft proposals of the budget,
and they are not invited to offer budget recommendations.
McInerney and Supervisor Harris make even those fiscal decisions involving the use and availability
of office funds. In that respect, the assistants have been given limited authority to spend "a couple hundred
dollars" of office funds for items relating to their cases, such as hearing transcripts or expert witness fees.
Any expenditure in excess of that amount, however, requires McInerney's prior approval. Only McInerney
and the office manager know the amount of money maintained in the office account and only those two have
access to the office budget figures.
On a single occasion, McInerney allowed one assistant to determine the type of computer equipment
that would be appropriate for the office. In this instance, the office had received a prior monetary grant to
purchase the equipment. McInerney's reliance on the assistant was necessary only because McInerney
lacked adequate knowledge concerning computer technology.
The clearest example of the assistants' nonmanagerial status is the fact that McInerney determines
office policies with respect to working hours, office conduct, dress code, requests for time off and vacation.
While, on occasion, McInerney seeks input from the assistants on such issues, McInerney has the final say
in such matters. Finally, the assistants do not make decisions concerning the hiring of new staff. McInerney
testified that, with the exception of one particular instance, he and Supervisor Harris conduct interviews
with prospective employees.
Critical to the managerial employee determination in Yeshiva was the fact that the faculty's power
extended beyond strictly academic concerns; they were not limited to the routine discharge of their
professional duties. In fact, the Yeshiva faculty "substantially and pervasively" ran the university. Cf.
Salaried Employees of North America, 202 Ill. App. 3d 1013 (attorneys held to be managerial where they
all were involved in hiring, had access to all files, and could be assigned to labor-related matters). While
in this case there are isolated incidents where the assistants have performed, at McInerney's request,
beyond the scope of their legal representation function, McInerney testified that the assistants do not make
any decisions on a regular basis except those decisions which directly relate to representation of their
clients. The facts clearly demonstrate that in this case, unlike the faculty in Yeshiva, it is McInerney and
Supervisor Harris who "substantially and pervasively" operate the public defender's office.
The public defender and Harris set policy with respect to the greater number of labor-relations issues.
More than that, however, the public defender and Harris determine policy with respect to (1) the
preparation of case notes, (2) when a guilty plea may be offered, (3) the management of clients who wish
to plead other than as recommended by the assistant, (4) the procedure for handling cases in which
defendants fail to appear, and (5) the specific steps in the management of custody cases.
What the majority does here is to erroneously elevate the assistants' independent exercise of
professional judgment to the level of managerial discretion. Clearly,
"[w]ork which is based on professional competence necessarily involves a consistent exercise of
discretion and judgment, else professionalism would not be involved. Nevertheless, professional
employees plainly are not the same as management employees either by definition or in authority,
and managerial authority is not vested in professional employees merely by virtue of their
professional status, or because work performed in that status may have a bearing on company
direction." Neighborhood Legal Services, Inc., 236 N.L.R.B. 1269, 1273 (1978).
Accord General Dynamics Corp., 213 N.L.R.B. 851 (1974).
As an attempt to bolster its analysis, the majority finds significant that, similar to the State's Attorney
and his assistants in Cook County State's Attorney, (1) the public defender has a close identification with
the actions of his assistants, (2) the public defender and the assistants have a unity of professional interest
and (3) the assistants have the power to act on behalf of the public defender. The majority additionally
points out that the assistants act as surrogates for the public defender. See slip op. at 9. These
characteristics, of course, define the nature of most any professional employer-employee relationship. They
are, for that reason, unremarkable for purposes of determining managerial status.
The duties performed by the Kane County assistant public defenders are merely incidental, not in
addition, to the rendition of their legal representation; their activities--the rendition of quality legal
representation--do not fall outside the scope of those duties routinely performed by similarly situated
professionals. The assistants are simply the rank and file employees of the office who exercise professional
judgment in the performance of their assigned duties. They are not, therefore, sufficiently aligned with
either the chief judge or the public defender and they are not, for that reason, managerial employees. The
Board's finding to that effect was both reasonable and consistent with Illinois' Labor Relations Act and
should be affirmed.
Before concluding, I find it necessary to address one additional point. To make the holding here more
palatable, the majority, just as the majority did in Cook County State's Attorney, offers that its holding is
limited, in that not all publicly employed attorneys or other professional employees are deemed managerial
employees under the Act. See slip op. at 12. Barring the existence of a statute defining the nature and
purpose of the employment, that might be true. Where such a statute exists, however, under Cook County
State's Attorney and now this case, it appears certain that all such employees must be deemed managerial
as a matter of law, regardless of their actual job duties and, apparently, regardless of the sufficiency of the
statutory detail.
In conclusion, the majority's application of the managerial exclusion in this case is wholly inconsistent
with both the Supreme Court's application of the exclusion in Yeshiva as well as with the National Labor
Relations Board's interpretation. Although the majority would argue otherwise, I believe that its
misapplication of Yeshiva was improperly motivated by concerns with some of the more difficult realities
of organized labor, i.e., the potential for work stoppages and strikes. Considering the impact of a work
stoppage in the public defender's office, the concerns are, admittedly, valid. Such concerns, however,
properly rest within the legislature's domain and should be left to be addressed either by that body (see 5
ILCS 315/14(m) (West 1994) (Illinois Public Labor Relations Act expressly forbids certain public employees
to strike, e.g., firefighters and paramedics)), or by the parties at the collective-bargaining table (see 1 C.
Morris, The Developing Labor Law 815 (2d ed. 1983) (under the National Labor Relations Act, an employer
may bargain for a no-strike clause to the point of impasse)); see also 22 Ill. Jur. Labor and Employment sec.
12:37 (1995) (it is unlawful for public employees to strike if, inter alia, a collective-bargaining agreement
prohibits a strike or the parties have mutually agreed to submit disputed issues to binding arbitration).
Today's holding is an inappropriate usurpation of the legislature's authority to determine who may be
invited to sit at the collective-bargaining table. Worse than that, however, the holding unfairly deprives the
Kane County assistant public defenders--intended beneficiaries of the Illinois Public Labor Relations Act's
coverage--a right enjoyed by other publicly employed professionals--the right to participate in defining the
nature and terms of their employment. For all of the reasons stated, I dissent.
JUSTICES HARRISON and McMORROW join in this dissent.
80133 cons.
NOTICE: Under Supreme Court Rule 367 a party has 21 days after
the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.
Docket Nos. 80127, 80133 cons.--Agenda 19--September 1996.
THE CHIEF JUDGE OF THE SIXTEENTH JUDICIAL CIRCUIT, Appellee, v. THE ILLINOIS STATE
LABOR RELATIONS BOARD et al., Appellants.
Opinion filed September 11, 1997.
JUSTICE NICKELS delivered the opinion of the court:
In these consolidated appeals, we decide whether Kane County assistant public defenders are
considered "managerial employees" within the meaning of the Illinois Public Labor Relations Act (the Act)
(5 ILCS 315/1 et seq. (West 1994)). The Illinois State Labor Relations Board (the Board) found that the
assistant public defenders are not managerial employees. Based on this finding, it certified the American
Federation of State, County, and Municipal Employees, Council 31, AFL-CIO (AFSCME), to represent the
assistants for collective-bargaining purposes. On administrative review, the appellate court reversed,
holding that the assistants are managerial employees. Because managerial employees are excluded from
collective bargaining under the Act (see 5 ILCS 315/3(n), 6(a) (West 1994)), this holding precluded AFSCME
from representing the assistants. The Board and AFSCME both filed petitions for leave to appeal (155 Ill.
2d R. 315(a)), which were allowed. We affirm the appellate court.
BACKGROUND
On February 7, 1994, AFSCME filed a representation petition with the Board. AFSCME sought to
represent a collective-bargaining unit of all full-time and part-time Kane County assistant public defenders,
employed by the chief judge of the Sixteenth Judicial Circuit. The proposed unit excluded any supervisors,
confidential employees, and managerial employees because the Act does not apply to those types of
employees. See 5 ILCS 315/3(n), 6(a) (West 1994).
A hearing was held before an administrative law judge. AFSCME sought to include all of the assistants
within the collective-bargaining unit, except Regina Harris. The parties stipulated that this particular
assistant was a supervisor within the meaning of the Act. The administrative law judge heard extensive
testimony concerning the nature of the Kane County public defender's office and the duties of the assistants.
We summarize that testimony.
The duties of the public defender are defined by statute. The purpose of the office is to provide quality
legal representation in certain proceedings for indigent individuals who would otherwise not be able to
retain quality legal representation. 55 ILCS 5/3--4000 (West 1994). Section 3--4006 of the Counties Code
provides, in pertinent part:
"The Public Defender, as directed by the court, shall act as attorney, without fee, before any court
within any county for all persons who are held in custody or who are charged with the commission
of any criminal offense, and who the court finds are unable to employ counsel.
The Public Defender shall be the attorney, without fee, when so appointed by the court under
Section 1--20 of the Juvenile Court Act or Section 1--5 of the Juvenile Court Act of 1987 or by any
court under Section 5(b) of the Parental Notice of Abortion Act of 1983 for any party who the court
finds is financially unable to employ counsel." 55 ILCS 5/3--4006 (West 1994).
The public defender is authorized to appoint assistant public defenders to carry out the duties of the office.
55 ILCS 5/3--4008, 3--4008.1 (West 1994).
At the time of the hearing, the Kane County public defender's office consisted of 13 full-time assistants
and 3 part-time assistants. The office was arranged into several divisions, including felony trial, felony
preliminary hearing, juvenile, DUI, and misdemeanor. The public defender supervised the felony trial
division, while assistant Harris generally supervised the other divisions. The office had a caseload of over
seven thousand cases per year, and assistants were assigned to handle this case load.
The assistant public defenders have absolute discretion in handling their cases. The assistants
generally do not consult with the public defender about their cases. The public defender testified that more
than 90% of the decisionmaking in the felony division occurred without his knowledge or input. Much of
the decisionmaking in the other divisions also occurred without his input and without the input of
supervisor Harris. The public defender had never interfered with any of the decisions made by the
assistants with respect to their cases. The public defender did not tell the assistants how to investigate or
develop defenses in their individual cases. Assistants were not required to seek supervisory approval before
entering into plea negotiations or entering a plea. They initiated their own investigations, directed
investigators, met with clients, and issued subpoenas and other documents. The assistants were fully
responsible for all stages of case development and exercised their own independent judgment. The public
defender and supervisor Harris handled their own case loads.
The public defender, however, generally handled the day-to-day operations and administrative matters
of the felony division. Supervisor Harris was generally responsible for administrative matters in the other
divisions. The office was run in a fairly informal manner. The public defender assigned all cases in the
felony trial division, but assistants were permitted to transfer cases among themselves. The office possessed
no formal performance evaluations and no formal disciplinary system. The public defender and the
assistants all received the same fringe benefits, vacation plan, sick leave and leave of absence policies, and
health care options.
The public defender issued a general set of office rules and policies to the assistants, which governed
such areas as office dress and hours. Occasionally, the public defender and supervisor Harris issued general
directives regarding the handling of cases. The public defender reviewed closed files to determine the
outcome of a case and how it was reached, and to make sure certain paperwork requirements were met.
The public defender handled budget matters himself. He approved any large expenditures of money and
any requests to hire expert witnesses. The public defender and the supervisor also controlled the
interviewing and hiring of new assistants. The public defender and supervisor Harris had ultimate
supervisory control over administrative matters, although the assistants provided input into some decisions.
After hearing testimony concerning the duties of the assistants, the administrative law judge
determined that the assistants under consideration were not managerial employees. Based on this finding,
he concluded that the assistants formed an appropriate collective-bargaining unit under the Act. The
administrative law judge recommended that AFSCME's representation petition be granted and ordered a
representation election.
The Board adopted the administrative law judge's recommendation, agreeing that the assistant public
defenders were not managerial employees. A representation election was held among all full-time and part-
time Kane County assistant public defenders, excluding Harris. AFSCME won the election, and the Board
certified AFSCME as the collective-bargaining representative of this unit.
The chief judge petitioned directly to the appellate court for administrative review of the Board's order.
See 5 ILCS 315/9(i) (West 1994). The appellate court reversed the Board, holding that the assistants are
managerial employees. The appellate court based its holding on three factors:
"(1) the public defender delegates an overwhelming majority of the decision-making responsibilities
to members of his staff; (2) the assistant public defenders, on a day-to-day basis, inherently exercise
a great deal of authority and discretion in effectuating and achieving the goals of their office; and
(3) the professional interests of the assistant public defenders are fundamentally identical to that
of the public defender." 275 Ill. App. 3d 853, 859.
In this appeal, we determine whether the assistants are managerial employees within the meaning of the
Act.
ANALYSIS
I. The Managerial Exclusion
Section 3(j) of the Act defines a "managerial employee" as "an 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 1994). The Act excludes these managerial
employees from the class of employees who are entitled to engage in collective bargaining. See 5 ILCS
315/3(n), 6(a) (West 1994). 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. See
National Labor Relations Board v. Yeshiva University, 444 U.S. 672, 682, 63 L. Ed. 2d 115, 125, 100 S. Ct. 856, 862 (1980); National Labor Relations Board v. Bell Aerospace Co. Division of Textron, Inc., 416 U.S. 267, 281-82, 40 L. Ed. 2d 134, 146-47, 94 S. Ct. 1757, 1765 (1974).
The managerial exclusion in the Act was adopted from decisions of the National Labor Relations Board
and the United States Supreme Court. See, e.g., Yeshiva, 444 U.S. 672, 63 L. Ed. 2d 115, 100 S. Ct. 856;
Bell Aerospace, 416 U.S. 267, 40 L. Ed. 2d 134, 94 S. Ct. 1757. The statutory definition of managerial
employee under the Act is very similar to the definition contained in the two foregoing United States
Supreme Court decisions. The Supreme Court's application of the managerial exclusion provides guidance
to our analysis.
In Yeshiva, the Supreme Court applied the managerial exclusion to preclude the unionization of certain
professional employees. Specifically, the Court held that members of the Yeshiva University faculty were
managerial employees and therefore excluded from collective bargaining. In explaining the managerial
exclusion, the Court stated:
"Managerial employees must exercise discretion within, or even independently of, established
employer policy and must be aligned with management. *** [A]n employee may be excluded as
managerial only if he represents management interests by taking or recommending discretionary
actions that effectively control or implement employer policy." Yeshiva, 444 U.S. at 683, 63 L. Ed. 2d at 126, 100 S. Ct. at 862.
The Court further stated that, given the concern for divided loyalty between employer and union, "the
relevant consideration is effective recommendation or control rather than final authority" over employer
policy. Yeshiva, 444 U.S. at 683 n.17, 63 L. Ed. 2d at 126 n.17, 100 S. Ct. at 863 n.17. See also Bell
Aerospace, 416 U.S. at 288, 40 L. Ed. 2d at 150, 94 S. Ct. at 1768 (definition of managerial employee
includes generally all employees who " `formulate and effectuate management policies by expressing and
making operative the decisions of their employer' " and is not limited to those employees who have some
involvement in labor relations matters); Board of Regents of the Regency Universities System v. Illinois
Educational Labor Relations Board, 166 Ill. App. 3d 730, 740-41 (1988) (managerial exclusion is not limited
to employees who have some potential to affect labor relations matters, such as wages, hours, and other
terms and conditions of employment).
In Yeshiva, the National Labor Relations Board argued that faculty decisionmaking was exercised in
the faculty's own professional interest rather than in the employer's interest. The Court found no
justification for such a distinction. Instead, it concluded that the interests of the faculty and the employer
were indistinguishable, and any attempt to separate these interests would divide faculty loyalty between
employer and union. Yeshiva, 444 U.S. at 686-87, 63 L. Ed. 2d at 128-29, 100 S. Ct. at 864-65. In applying
the managerial exclusion to the Yeshiva faculty, the Court stated that the Yeshiva faculty was intimately
involved in policy decisions in a number of areas, including course offerings, course scheduling, teaching
methods, grading policies, admissions standards, graduation standards, size of the student body, tuition,
and location of a school. Yeshiva, 444 U.S. at 686, 63 L. Ed. 2d at 128, 100 S. Ct. at 864.
The Court conceded that there was some tension between the managerial exclusion and the inclusion
of professionals in collective bargaining. By its ruling, the Court did not intend to prevent all professionals
from engaging in collective bargaining. The Court stated that employees who only engage in "the routine
discharge of professional duties in projects to which they have been assigned cannot be excluded from
coverage even if union membership arguably may involve some divided loyalty." Yeshiva, 444 U.S. at 690,
63 L. Ed. 2d at 130, 100 S. Ct. at 866. The Court, however, determined that the Yeshiva faculty exercised
"authority which in any other context unquestionably would be managerial." Yeshiva, 444 U.S. at 686, 63 L. Ed. 2d at 128, 100 S. Ct. at 864.
Illinois courts have also considered the application of the managerial exclusion to professionals. Most
significantly, in Office of the Cook County State's Attorney v. Illinois Local Labor Relations Board, 166 Ill. 2d 296 (1995), this court held that assistant Cook County State's Attorneys were managerial employees and
excluded from collective bargaining under the Act. This court discussed the statutory powers and duties of
the State's Attorney and assistants. These powers and duties include representing the county and the state
in the prosecution of civil and criminal actions, prosecuting and defending actions involving a county officer
acting in an official capacity, and giving legal advice to county officers. See Cook County State's Attorney,
166 Ill. 2d at 302-03. Given the procedural posture of Cook County State's Attorney, the Board had not
conducted any fact finding at the time of the appeal. This court found that such fact finding was
unnecessary because the pertinent inquiry focused on the statutory duties of the assistants, rather than
the specific tasks performed by particular individuals. Cook County State's Attorney, 166 Ill. 2d at 305. The
court therefore decided the issue as a matter of law, based on statute and case law detailing the role of the
assistant State's Attorneys.
In determining whether the assistant State's Attorneys were managerial employees, this court stated
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. This court determined that the assistants were vested with the authority
to exercise the power of the State's Attorney and played a substantial part in discharging the statutory
mission of the State's Attorney's office. This court stated that the assistants act as "surrogates for the
State's Attorney" in performing the statutory duties of the State's Attorney. Cook County State's Attorney,
166 Ill. 2d at 303. Because of this close affiliation with the State's Attorney, the assistant State's Attorneys
were found to be managerial employees.
The managerial exclusion has been addressed by the appellate court in other cases. In Salaried
Employees of North America (SENA) v. Illinois Local Labor Relations Board, 202 Ill. App. 3d 1013 (1990),
the appellate court held that, based on the facts presented to the Board, law department attorneys
employed by the City of Chicago were managerial employees. The court stated that "[m]anagerial employees
are those involved in the direction of the governmental enterprise or a major unit thereof who possesses
authority to broadly affect its mission or fundamental methods." Salaried Employees, 202 Ill. App. 3d at
1020. The court relied on three factors in finding the employees to be managerial: (1) the informal setup
of the office, allowing an employee to work in different divisions of the law department; (2) the authority
of all the attorneys to recommend changes in the city's operation and policy; and (3) the large amount of
discretion exercised by the attorneys on behalf of the city. The court concluded that the interests of the law
department employees were identical to those of the city.
In Chief Judge of the Circuit Court v. American Federation of State, County & Municipal Employees,
Council 31, 229 Ill. App. 3d 180 (1992), the appellate court held that, based on the facts presented to the
Board, guardians ad litem employed in the office of the Cook County public guardian were managerial
employees. Pursuant to statute, the public guardian, Patrick Murphy, had been appointed to represent
individuals who were found to be incompetent due to age or disability. Because of the case load, the
individual cases were assigned to guardians ad litem, who made almost all of the decisions in their
respective cases. The Board argued that the guardians ad litem did not represent the interests of their
employer but, instead, represented the many individual wards of the court. The court rejected this
argument. The court concluded that the guardians ad litem, through their exercise of extensive
discretionary decisionmaking, effectively directed the policies of the Cook County public guardian's office.
II. Assistant Public Defenders
In applying the managerial exclusion as defined in the Act, we find that this court's recent decision in
Cook County State's Attorney is dispositive of the issue. We note that the Board reached its decision in the
instant case before Cook County State's Attorney was decided and that the appellate court relied heavily
on that case in reaching its conclusion. As in Cook County State's Attorney, the statute and case law define
the duties of the public defender and assistants, such that the instant case can be decided as a matter of
law. We hold, as a matter of law, that the assistant public defenders are managerial employees and
therefore not subject to the collective-bargaining provisions of the Act.
As noted, the statutory purpose of the public defender's office is to provide quality legal representation
in criminal and related proceedings for indigent individuals. 55 ILCS 5/3--4000 (West 1994). The statutory
duties of the public defender's office are to provide quality legal representation for certain individuals in
criminal cases, juvenile cases, and parental notice of abortion cases. 55 ILCS 5/3--4006 (West 1994). As was
true of assistant State's Attorneys, the assistant public defenders act as officers for the performance of the
general duties of the public defender's office, exercise some portion of the sovereign power of the state, and
perform acts that are generally regarded as acts of the public defender. See 55 ILCS 5/3--4008, 3--4008.1
(West 1994); Warren v. Stone, 958 F.2d 1419, 1424 (7th Cir. 1992); People v. Benford, 31 Ill. App. 3d 892,
895 (1975); People ex rel. Cook County v. Majewski, 28 Ill. App. 3d 269, 271-73 (1975).
Although no exact criteria define a managerial employee, this court, in Cook County State's Attorney,
166 Ill. 2d at 304, relied heavily on the existence of three factors in determining that assistant State's
Attorneys are managerial employees: (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. The relationship between the public defender and the assistants also
manifests these characteristics. The assistant public defenders possess significant authority and discretion
to discharge the mission of the public defender's office. In effect, they act as surrogates for the public
defender.
The Board and AFSCME argue that Cook County State's Attorney is distinguishable from the instant
case. They assert that assistant State's Attorneys, in general, provide legal representation on behalf of the
state. In contrast, the Board and AFSCME argue, the assistant public defenders represent the interests of
their indigent clients but do not represent the interests of the state or chief judge.
A similar argument was recently rejected by the Supreme Court. In National Labor Relations Board
v. Health Care & Retirement Corp. of America, 511 U.S. 571, 128 L. Ed. 2d 586, 114 S. Ct. 1778 (1994), the
Court was required to determine whether certain nurses should be considered "supervisors" within the
meaning of the National Labor Relations Act. The National Labor Relations Board argued that the nurses
were not supervisors because they acted in their own professional interests, not in the interests of their
employer. The Court rejected that argument and noted that such an argument had also been rejected in
Yeshiva:
"The Board's interpretation, that a nurse's supervisory activity is not exercised in the interest of
the employer if it is incidental to the treatment of patients, is similar to an approach the Board
took, and we rejected, in NLRB v. Yeshiva Univ., 444 U.S. 672 (1980). There, we had to determine
whether faculty members at Yeshiva were `managerial employees.' *** Like supervisory employees,
managerial employees are excluded from the Act's coverage. [Citation.] The Board in Yeshiva argued
that the faculty members were not managerial, contending that faculty authority was `exercised in
the faculty's own interest rather than in the interest of the university.' [Citation.] ***
The Board's reasoning fares no better here than it did in Yeshiva. As in Yeshiva, the Board has
created a false dichotomy--in this case, a dichotomy between acts taken in connection with patient
care and acts taken in the interest of the employer. That dichotomy makes no sense. Patient care
is the business of a nursing home, and it follows that attending to the needs of the nursing home
patients, who are the employer's customers, is in the interest of the employer. [Citation.] We thus
see no basis for the Board's blanket assertion that supervisory authority exercised in connection
with patient care is somehow not in the interest of the employer." Health Care, 511 U.S. at 577-78,
128 L. Ed. 2d at 593-94, 114 S. Ct. at 1782.
See also Chief Judge, 229 Ill. App. 3d at 187-88 (rejecting the Board's argument that Cook County
guardians ad litem represented the many individual wards of the court instead of representing the interests
of their employer). For similar reasons, we reject the purported distinction as meaningless.
The Board also relies on conflict of interest cases to suggest that the assistant public defenders are not
closely aligned with the public defender's office. See People v. Spreitzer, 123 Ill. 2d 1 (1988); People v. Banks,
121 Ill. 2d 36 (1987); People v. Robinson, 79 Ill. 2d 147 (1979). In these cases, the relevant question was
whether an assistant could represent a client even if other attorneys in the office had a conflict of interest
involving that client. This court found no per se conflict of interest. This court determined that the attorneys
in the public defender's office could act in the professional interests of their clients and perform the
statutory duties of the office despite any allegiance to the office and the other attorneys in the office. See,
e.g., Banks, 121 Ill. 2d at 42-43.
The conflict of interest cases cited by the Board are not helpful in the context of collective bargaining.
As stated, like the relationship between the State's Attorney and his or her assistants, the assistant public
defenders act on behalf of the public defender in carrying out the statutory duties of the public defender's
office. The nature of this affiliation is not affected by the ability of the assistants to set aside any personal
allegiance in a particular case and perform the statutory duties of the office. The professional interests of
the public defender, his or her assistants, and the office remain the same: to provide quality legal
representation to indigent individuals. In addition, the assistants retain broad authority to act on behalf
of the public defender.
Finally, the Board and AFSCME argue that certain public sector attorneys in Illinois and other
jurisdictions have been allowed to organize into collective-bargaining units. The cases and certification
orders cited provide little support to the matter involved here. In many of these decisions, the question of
managerial status was not even at issue. In addition, the duties of these public sector attorneys are
generally different from the duties of the assistant public defenders, as provided by Illinois statute and case
law. We emphasize, as we did in Cook County State's Attorney, that the holding of the instant case should
not be broadly interpreted to mean that all publicly employed attorneys or other professional employees are
deemed managerial employees under the Act. Instead, we hold only that the assistant public defenders meet
the definition of managerial employee under the Act.
CONCLUSION
The Kane County assistant public defenders are managerial employees, within the meaning of the Act.
They are excluded from collective bargaining under the Act. For the foregoing reasons, the judgment of the
appellate court is affirmed.
Affirmed.
CHIEF JUSTICE FREEMAN, dissenting:
The majority, relying on this court's opinion in Office of the Cook County State's Attorney v. Illinois
Local Labor Relations Board, 166 Ill. 2d 296 (1995), holds that the Kane County assistant public defenders
are managerial employees as a matter of law and, as such, are precluded from collective bargaining. I
disagreed with the holding in Cook County State's Attorney then and I disagree that it is dispositive of the
issue before this court now. I, therefore, respectfully dissent.
Citing National Labor Relations Board v. Yeshiva University, 444 U.S. 276, 63 L. Ed. 2d 115, 100 S. Ct. 856 (1980), and National Labor Relations Board v. Bell Aerospace Co. Division of Textron, Inc., 416 U.S. 267, 40 L. Ed. 2d 134, 94 S. Ct. 1757 (1974), the majority here acknowledges that the managerial exclusion
in Illinois' Labor Relations Act was borne out of decisions of the National Labor Relations Board and the
Supreme Court. The majority then further acknowledges the Supreme Court's application of the managerial
exclusion as having "provide[d] guidance" to its analysis. See slip op. at 5. No sooner than its
acknowledgement of these precedents, however, the majority veers off course. Quite contrary to Yeshiva and
Bell Aerospace, the majority here has taken a direction guaranteed to insure every statutorily defined public
employer of professional employees absolute freedom from organized labor.
The nature of the managerial exclusion is clear and the principles to be applied in making the
managerial status determination may be stated briefly. As defined in Bell Aerospace, 416 U.S. 267, 40 L. Ed. 2d 134, 94 S. Ct. 1757, managerial employees are those employees whose interests are more closely
identified with those of management or who are representatives of management, although their work does
not generally entail the supervision of bargaining unit employees. The "touchstone of managerial status is
*** an alliance with management." See Yeshiva, 444 U.S. at 695, 63 L. Ed. 2d at 134, 100 S. Ct. at 869,
(Brennan, J., dissenting, joined by White, Marshall and Blackmun, JJ.). Yeshiva recognizes the existence
of such an alliance as being when the employee represents management interests by taking or
recommending discretionary actions that effectively control or implement employer policy. Yeshiva, 444 U.S.
at 683, 63 L. Ed. 2d at 126, 100 S. Ct. at 862. In contrast, employees whose decisionmaking is limited to
the routine discharge of professional duties in projects to which they have been assigned cannot be excluded
from unionized bargaining even if union membership arguably may involve some divided loyalty. Key to
the managerial exclusion determination is a recognition that "[o]nly if an employee's activities fall outside
the scope of the duties routinely performed by similarly situated professionals will [the employee] be found
aligned with management." (Emphasis added.) Yeshiva, 444 U.S. at 690, 63 L. Ed. 2d at 130, 100 S. Ct. at
866.
The principles espoused in Yeshiva have been adopted to answer the managerial exclusion inquiry in
other than academic settings. In Montefiore Hospital & Medical Center, 261 N.L.R.B. 569 (1982), for
example, the medical center, as employer, attempted to exclude medical doctors from the bargaining units
because the center viewed the doctors as a part of management. The Board noted that as professional
employees, the doctors might also be managerial, but their managerial status could not be based on
decisionmaking which was merely part of the routine discharge of their professional duties. Consistent with
Yeshiva, the Board stated that "[o]nly if the activities of professional employees fall outside the scope of the
duties routinely performed by similarly situated professionals will they be found aligned with management."
Montefiore, 261 N.L.R.B. at 570.
Relevant to the managerial determination in the health care area is whether the decisions alleged to
be managerial or supervisory are "incidental to" or "in addition to" the treatment of patients. See 2 C.
Morris, The Developing Labor Law 1459 n.199 (2d ed. 1983). Decisions which are merely incidental to
treatment are not considered managerial, but are viewed merely as being within the scope of the employee's
duties.
Finally and, I believe, most importantly, managerial status of employees must be decided on the
particular facts of each case. See Yeshiva, 444 U.S. at 691, 63 L. Ed. 2d at 131, 100 S. Ct. at 867. In Bell
Aerospace, the Court noted that the status determination requires consideration of the employees' actual
job responsibilities, their authority to act, as well as their relationship with their employer. Bell Aerospace,
416 U.S. at 290 n.19, 40 L. Ed. 2d at 151 n.19, 94 S. Ct. at 1769 n.19; see also Montefiore Hospital &
Medical Center, 261 N.L.R.B. 569 (1982) (noting that in the health care context, the Board must evaluate
the facts of each case to determine whether decisions alleged to be managerial are incidental to the
professional's treatment of patients).
Although purportedly "guided" by the Supreme Court's application of the exclusion, which requires
consideration of the facts of each case, the majority engages in a very different analysis--one which allows
for the total disregard of the Board's factual findings. Contrary to Yeshiva or Bell Aerospace, the majority
here decides that "the statute and case law define the duties of the public defender and assistants, such
that the instant case be decided as a matter of law." Slip op. at 9.
Aside from my disagreement that managerial status can be determined simply as a matter of law (see
Yeshiva, 444 U.S. at 691, 63 L. Ed. 2d at 131, 100 S. Ct. at 867 (whether college professors were managerial
employees presented mixed question of law and fact); Boston University Chapter, American Ass'n of
University Professors v. National Labor Relations Board, 835 F.2d 399, 401 (1st Cir. 1987); see also
Bloomquist v. Ely, 247 Ill. App. 3d 656, 667 (1993) (whether a certain device constitutes implement of
husbandry as defined by statute raises mixed question of law and fact)), the relevant statute and case law
tell us of no more than the purpose and function of every public defender's office, generally. Neither
describes, nor could it, the actual duties of the Kane County assistant public defenders in particular.
Beyond the lack of particularity concerning the Kane County office, the majority's statutory analysis
presents a more fundamental problem: What quantum of statutory detail is sufficient to defeat the need
for fact finding? In Cook County State's Attorney, the court declined the Board's invitation for administrative
agency fact finding as unnecessary to the disposition of the case. In so doing, the court opined that the
statutes and the case law provided "sufficient" detail concerning the duties of the State's Attorney and his
assistants for determining the issue of the assistant State's Attorneys' status as a matter of law. Cook
County State's Attorney, 166 Ill. 2d at 305.
Even accepting the Cook County State's Attorney court's declination of fact finding as proper to the
analysis, the statutory details pertaining to the public defender's office are, to say the least, at a minimum.
Thus, even a correct application of the faulty reasoning in Cook County State's Attorney to this case should
dictate that the status of the assistant public defenders cannot be decided as a matter of law.
A simple comparison of the statutory provisions pertaining to public defenders and those pertaining
to State's Attorneys serves to demonstrate the problems, first, with defining what amount of detail is
"sufficient" and, second, with finding the level of detail "sufficient" in this case. Specifically, the Counties
Code provides, generally, for the creation of the public defender's office. The statute also provides that the
purpose of the office is to provide quality legal representation in criminal and related proceedings for
persons who would otherwise have no ability to retain quality legal representation. See 55 ILCS 5/3--4000
(West 1994). The duties of the public defender are to provide legal representation in criminal, juvenile, and
parental notice of abortion cases. See 55 ILCS 5/3--4006 (West 1994). Further, the statute empowers the
public defender to appoint assistant public defenders for the proper discharge of the duties of the office, and
who serve at the pleasure of the public defender. 55 ILCS 5/3--4008, 3--4008.1 (West 1994). Case law adds
that the representation of indigent defendants is a requirement of due process of law which constitutes a
delegation of sovereignty to the public defender's office (see People ex rel. Cook County v. Majewski, 28 Ill.
App. 3d 269, 272 (1975)), and that the public defender is responsible for the professional conduct and acts
of his assistants (see People v. Dread, 27 Ill. App. 3d 106 (1975)). As is apparent, the statute pertaining to
the public defender's office provides nothing more than the legislative authorization for the provision of
legal representation in particular types of cases.
In contrast, and as recited in Cook County State's Attorney, the statute pertaining to the State's
Attorneys provides, in significantly greater detail, that
"[t]he State's Attorney is required, among other things:
`(1) To commence and prosecute all actions, suits, indictments and prosecutions, civil and
criminal, in the circuit court for his county, in which the people of the State or county may be
concerned.
(2) To prosecute all forfeited bonds and recognizances, and all actions and proceedings for the
recovery of debts, revenues, moneys, fines, penalties and forfeitures accruing to the State or his
county, or to any school district or road district in his county; also, to prosecute all suits in his
county against railroad or transportation companies, which may be prosecuted in the name of the
People of the State of Illinois.
(3) To commence and prosecute all actions and proceedings brought by any county officer in
his official capacity.
(4) To defend all actions and proceedings brought against his county, or against any county or
State officer, in his official capacity, within his county.
* * *
(7) To give his opinion, without fee or reward, to any county officer in his county, upon any
question or law relating to any criminal or other matter, in which the people or the county may
be concerned.
* * *
(11) To perform such other and further duties as may, from time to time, be enjoined on him
by law.
(12) To appear in all proceedings by collectors of taxes against delinquent taxpayers for
judgments to sell real estate, and see that all the necessary preliminary steps have been legally
taken to make the judgment legal and binding.' " Cook County State's Attorney, 166 Ill. 2d at 302-
03, quoting 55 ILCS 5/3--9005(a) (West 1992).
I read Cook County State's Attorney to at least recognize that, in the absence of "sufficient" statutory
detail, the managerial exclusion determination should be treated as a question of fact. In fact, the court in
Cook County State's Attorney, 166 Ill. 2d at 304-05, explained fact finding in Chief Judge of the Circuit
Court v. American Federation of State, County & Municipal Employees, Council 31, 229 Ill. App. 3d 180
(1992), involving guardians ad litem, and Salaried Employees of North America (SENA) v. Illinois Local
Labor Relations Board, 202 Ill. App. 3d 1013 (1990), involving lawyers of the municipal law department,
as necessary because no detailed statutory apparatus, similar to that for State's Attorneys, describes the
function of those employees. Here, we have little more than the statutory authorization for the existence
of an office, and the majority equates that with Cook County State's Attorney's "sufficient" statutory detail.
At any rate, to be truly guided by the analysis in Yeshiva requires not merely consideration of case law
and statutory provisions, but also consideration of an employee's actual job responsibilities. A view of the
Kane County assistant public defenders' actual responsibilities can support but one conclusion--that the
assistants' duties are not managerial in nature, but are merely routine; their decisions are not in addition,
but are merely "incidental," to their professional responsibility to render legal services to indigent clients.
Although apparently not relevant to its determination, the majority recites several of the factual
findings made by the Board. Because the Board's findings form the basis of my dissent, however, I find it
apt to recount them here in somewhat greater detail. At the time of these proceedings Michael McInerney
held the position of Kane County public defender. According to McInerney, he assigns each assistant to one
of four divisions in the public defender's office. The daily operations and administrative matters of the
felony division are McInerney's responsibility, while Supervisor Harris is responsible for the other divisions.
McInerney personally handles a caseload of 10 to 15 serious felony cases.
Ordinarily, McInerney assigns all felony trial division cases. In assigning cases, he considers the type
of case, the experience of the assistants and the size of their current caseloads. In March 1994, while
McInerney was away from the office for a one-week period, he assigned the senior felony division attorney
the task of case assignments. However, the senior attorney was given explicit instruction by McInerney
concerning how assignments were to be made. McInerney testified that this was an isolated incident. With
respect to juvenile cases, the two assistants assigned to that division decide between themselves their
specific case assignments.
Once cases are assigned, the assistants are expected to exercise their professional judgment with
respect to their representation. Assistants decide how to handle the case, the strategies involved, whether
to engage in plea bargaining and what defenses to assert. Decisions made by assistants in connection with
their cases are governed solely by the interests of their clients, with the overriding objective being the
provision of quality legal representation. As long as the assistants process cases within the guidelines
established by McInerney and Harris, McInerney expects the assistants neither to consider his interests
nor to take into account how McInerney, himself, would handle a case in the same situation.
The assistants do not enjoy complete freedom from McInerney's control, however. McInerney and Harris
promulgate some of the procedures for case management. For example, McInerney issued a memorandum
to the assistants in the felony preliminary hearing division indicating that, based upon his review, the
assistants had not prepared case notes thoroughly enough. He set in place an office policy which prohibits
(1) pleading a client guilty unless the assistant has read the police report and (2) waiving a preliminary
hearing without a plea agreement by the State's Attorney. Additionally, McInerney advised the assistants
how to deal with cases in which a client wishes to enter a plea against the assistant's recommendation.
As supervisor, Harris has issued a memorandum establishing a procedure for assistants to follow in
cases where a client fails to appear in court. Also, she has issued memoranda concerning the assignment
of cases and the specific steps to be followed in custody cases.
It does not appear from the record that the assistants share a similar supervisory function in the
management of the office. In fact, the record reveals that in the event that an assistant becomes aware that
an investigator employed by the public defender is not following office procedures, the assistant has no
authority to direct that individual. The assistant must instead bring the concern either to McInerney's
attention or to the attention of the head investigator.
Further, the assistant public defenders have no fiscal oversight responsibilities for the office. Although
McInerney has solicited the assistants' opinion concerning what needs the budget should address, the
assistants do not prepare the annual budget, they are never asked to prepare draft proposals of the budget,
and they are not invited to offer budget recommendations.
McInerney and Supervisor Harris make even those fiscal decisions involving the use and availability
of office funds. In that respect, the assistants have been given limited authority to spend "a couple hundred
dollars" of office funds for items relating to their cases, such as hearing transcripts or expert witness fees.
Any expenditure in excess of that amount, however, requires McInerney's prior approval. Only McInerney
and the office manager know the amount of money maintained in the office account and only those two have
access to the office budget figures.
On a single occasion, McInerney allowed one assistant to determine the type of computer equipment
that would be appropriate for the office. In this instance, the office had received a prior monetary grant to
purchase the equipment. McInerney's reliance on the assistant was necessary only because McInerney
lacked adequate knowledge concerning computer technology.
The clearest example of the assistants' nonmanagerial status is the fact that McInerney determines
office policies with respect to working hours, office conduct, dress code, requests for time off and vacation.
While, on occasion, McInerney seeks input from the assistants on such issues, McInerney has the final say
in such matters. Finally, the assistants do not make decisions concerning the hiring of new staff. McInerney
testified that, with the exception of one particular instance, he and Supervisor Harris conduct interviews
with prospective employees.
Critical to the managerial employee determination in Yeshiva was the fact that the faculty's power
extended beyond strictly academic concerns; they were not limited to the routine discharge of their
professional duties. In fact, the Yeshiva faculty "substantially and pervasively" ran the university. Cf.
Salaried Employees of North America, 202 Ill. App. 3d 1013 (attorneys held to be managerial where they
all were involved in hiring, had access to all files, and could be assigned to labor-related matters). While
in this case there are isolated incidents where the assistants have performed, at McInerney's request,
beyond the scope of their legal representation function, McInerney testified that the assistants do not make
any decisions on a regular basis except those decisions which directly relate to representation of their
clients. The facts clearly demonstrate that in this case, unlike the faculty in Yeshiva, it is McInerney and
Supervisor Harris who "substantially and pervasively" operate the public defender's office.
The public defender and Harris set policy with respect to the greater number of labor-relations issues.
More than that, however, the public defender and Harris determine policy with respect to (1) the
preparation of case notes, (2) when a guilty plea may be offered, (3) the management of clients who wish
to plead other than as recommended by the assistant, (4) the procedure for handling cases in which
defendants fail to appear, and (5) the specific steps in the management of custody cases.
What the majority does here is to erroneously elevate the assistants' independent exercise of
professional judgment to the level of managerial discretion. Clearly,
"[w]ork which is based on professional competence necessarily involves a consistent exercise of
discretion and judgment, else professionalism would not be involved. Nevertheless, professional
employees plainly are not the same as management employees either by definition or in authority,
and managerial authority is not vested in professional employees merely by virtue of their
professional status, or because work performed in that status may have a bearing on company
direction." Neighborhood Legal Services, Inc., 236 N.L.R.B. 1269, 1273 (1978).
Accord General Dynamics Corp., 213 N.L.R.B. 851 (1974).
As an attempt to bolster its analysis, the majority finds significant that, similar to the State's Attorney
and his assistants in Cook County State's Attorney, (1) the public defender has a close identification with
the actions of his assistants, (2) the public defender and the assistants have a unity of professional interest
and (3) the assistants have the power to act on behalf of the public defender. The majority additionally
points out that the assistants act as surrogates for the public defender. See slip op. at 9. These
characteristics, of course, define the nature of most any professional employer-employee relationship. They
are, for that reason, unremarkable for purposes of determining managerial status.
The duties performed by the Kane County assistant public defenders are merely incidental, not in
addition, to the rendition of their legal representation; their activities--the rendition of quality legal
representation--do not fall outside the scope of those duties routinely performed by similarly situated
professionals. The assistants are simply the rank and file employees of the office who exercise professional
judgment in the performance of their assigned duties. They are not, therefore, sufficiently aligned with
either the chief judge or the public defender and they are not, for that reason, managerial employees. The
Board's finding to that effect was both reasonable and consistent with Illinois' Labor Relations Act and
should be affirmed.
Before concluding, I find it necessary to address one additional point. To make the holding here more
palatable, the majority, just as the majority did in Cook County State's Attorney, offers that its holding is
limited, in that not all publicly employed attorneys or other professional employees are deemed managerial
employees under the Act. See slip op. at 12. Barring the existence of a statute defining the nature and
purpose of the employment, that might be true. Where such a statute exists, however, under Cook County
State's Attorney and now this case, it appears certain that all such employees must be deemed managerial
as a matter of law, regardless of their actual job duties and, apparently, regardless of the sufficiency of the
statutory detail.
In conclusion, the majority's application of the managerial exclusion in this case is wholly inconsistent
with both the Supreme Court's application of the exclusion in Yeshiva as well as with the National Labor
Relations Board's interpretation. Although the majority would argue otherwise, I believe that its
misapplication of Yeshiva was improperly motivated by concerns with some of the more difficult realities
of organized labor, i.e., the potential for work stoppages and strikes. Considering the impact of a work
stoppage in the public defender's office, the concerns are, admittedly, valid. Such concerns, however,
properly rest within the legislature's domain and should be left to be addressed either by that body (see 5
ILCS 315/14(m) (West 1994) (Illinois Public Labor Relations Act expressly forbids certain public employees
to strike, e.g., firefighters and paramedics)), or by the parties at the collective-bargaining table (see 1 C.
Morris, The Developing Labor Law 815 (2d ed. 1983) (under the National Labor Relations Act, an employer
may bargain for a no-strike clause to the point of impasse)); see also 22 Ill. Jur. Labor and Employment sec.
12:37 (1995) (it is unlawful for public employees to strike if, inter alia, a collective-bargaining agreement
prohibits a strike or the parties have mutually agreed to submit disputed issues to binding arbitration).
Today's holding is an inappropriate usurpation of the legislature's authority to determine who may be
invited to sit at the collective-bargaining table. Worse than that, however, the holding unfairly deprives the
Kane County assistant public defenders--intended beneficiaries of the Illinois Public Labor Relations Act's
coverage--a right enjoyed by other publicly employed professionals--the right to participate in defining the
nature and terms of their employment. For all of the reasons stated, I dissent.
JUSTICES HARRISON and McMORROW join in this dissent.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
