Am. Fed'n of State v. Ill. Labor Relations Bd.

• Decision Date: 14 December 2018
• Docket Number: No. 1-17-2476,1-17-2476
• Citation: 123 N.E.3d 73,2018 IL App (1st) 172476,428 Ill.Dec. 609
• Parties: AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 31, Petitioner, v. The ILLINOIS LABOR RELATIONS BOARD, STATE PANEL, and the Department of Central Management Services, Respondents.
• Court: United States Appellate Court of Illinois

2018 IL App (1st) 172476

123 N.E.3d 73

428 Ill.Dec. 609

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 31, Petitioner,

v.The ILLINOIS LABOR RELATIONS BOARD, STATE PANEL, and the Department of Central Management Services, Respondents.

No. 1-17-2476

Appellate Court of Illinois, First District, SIXTH DIVISION.

Filed December 14, 2018

Rehearing denied January 14, 2019

Gail E. Mrozowski, of Cornfield and Feldman LLP, of Chicago, for petitioner.

Lisa Madigan, Attorney General, of Chicago (David L. Franklin, Solicitor General, and Christina T. Hansen, Assistant Attorney General, of counsel), for respondent Illinois Labor Relations Board, State Panel.

Thomas S. Bradley, Mark W. Bennett, and David A. Moore, Special Assistant Attorneys General, of Laner Muchin Ltd., of Chicago, for other respondent.

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion.

¶ 1 This is an administrative review action brought by the American Federation of State, County and Municipal Employees, Council 31 (Union) against the Illinois Labor Relations Board, State Panel (Board) and the Department of Central Management Services (Employer), as representative for the Department of Employment Security (IDES) and the Department of Children and Family Services (DCFS), seeking a review of the Board's decision on three unit clarification petitions.¹ For the following reasons, we affirm the Board's decision to permit unit clarification petitions for vacant positions, affirm the Board's holding that the petitions were procedurally appropriate pursuant to section 1210.170(a) of the Board's rules ( 80 Ill. Adm. Code 1210.170(a) (2003) ), vacate the Board's holding that the unit clarification petitions were procedurally appropriate on the grounds that they involved alleged managerial employees , and affirm the Board's finding that the positions at issue are managerial.

¶ 2 BACKGROUND

¶ 3 The Union is the certified representative of the job positions at issue. This appeal involves two job positions. The first position is known as the Public Service Administrator (PSA) Option 8L position. That position is employed by DCFS.² The second position is known as the PSA Option 1 position, and that position is employed by a variety of state agencies, including IDES.³ On January 22, 2016, the Employer filed three unit clarification petitions with the Board involving these two positions. The petitions sought to exclude two PSA Option 8L positions employed by DCFS and one PSA Option 1 position employed by IDES, from the Union's collective bargaining unit. The Employer's petitions alleged that the positions should be excluded from the Union's bargaining unit on the grounds that they are managerial or supervisory positions and are therefore statutorily excluded from collective bargaining in accordance with the Illinois Public Labor Relations Act (Act). 5 ILCS 315/3(n), 6(a) (West 2016) (managerial employees are excluded from collective bargaining). The petitions alleged that the positions were newly created positions. A position description for each position was attached to the Employer's petitions. The positions were vacant at the time the Employer filed its petitions seeking clarification.

¶ 4 The Union filed an objection to the petitions and sought their dismissal, contending that they were not procedurally appropriate because they did not fall into one of the recognized circumstances for bringing a clarification petition as set forth in the Board's rules. The Union's objection also claimed that the Employer's petitions were premature because the positions at issue were vacant. The Union's objection alternatively argued that that the position descriptions attached to the petitions were insufficient to show that the positions are managerial or supervisory, which would then cause the positions to be excluded from the collective bargaining unit.

¶ 5 On March 11, 2016, after an investigation, an Administrative Law Judge (ALJ) issued a recommended decision and order (the first RDO) dismissing the Employer's petitions. The ALJ reasoned that because the positions were vacant, a hearing "would not adequately resolve" the matter of their bargaining unit placement. The ALJ further determined that it was unnecessary to address the Union's other arguments. The Employer then filed timely exceptions before the Board, objecting to the first RDO.

¶ 6 On September 2, 2016, the Board reversed the first RDO and remanded the petitions back to the ALJ for a hearing on the merits. In its order, the Board acknowledged that it had "previously and historically declined to hold hearings on vacant positions as a matter of policy," but found "compelling reasons to modify that policy * * *." The Board further stated:

"The policy we applied in the past is rooted in the belief and expectation that because a position is vacant there necessarily will be an inability to adduce evidence that sufficiently defines the actual duties of the prospective employee who eventually holds the position in question. However, the Employer in this case has provided an abundance of information that very clearly and specifically defines the duties that prospective employees will be expected to perform. We find that the evidence presented by the Employer during investigation raises a question of fact as to whether the positions' anticipated duties would be sufficient to sustain the exclusion, and it offers some challenge to the assumption that underlies our historical policy."

The Board recognized that this policy modification would require a shift toward relying on position descriptions as evidence of a position's duties but noted that the United States Court of Appeals for the Seventh Circuit has repeatedly held it appropriate to rely on position descriptions in that context. The Board also noted that its "now-modified approach retains the safeguard that the Union could use the unit clarification process to address a situation where the Employer does not deliver on the promised duties that it relied upon to establish the exclusion."

¶ 7 On remand, the ALJ held a hearing on whether the petitions were appropriately filed pursuant to the Board's rules and whether the positions at issue are managerial or supervisory within the meaning of the Act.⁴ During the hearing, the Employer presented testimony from two witnesses: (1) Sheila Riley, deputy general counsel downstate for DCFS, who testified about the duties of the PSA Option 8L positions as utilized by DCFS, and (2) Jeanette Okulinski, human resources manager for IDES, who testified about the duties of the PSA Option 1 position as utilized by IDES.

¶ 8 Riley testified that in August 2015, she requested two new PSA Option 8L positions "that would be able to do the same thing as the preexisting PSA 8Ls."⁵ She explained that the PSA Option 8L positions' duties include, inter alia , drafting pleadings, preparing witnesses, and advocating for DCFS in juvenile proceedings, probate proceedings, and administrative hearings. The PSA Option 8L positions are responsible for performing legal screenings and making recommendations to DCFS on child placement issues. The employees in these positions also make recommendations to DCFS staff on legal issues.

¶ 9 Next, Okulinski testified that the PSA Option 1 position had previously been classified as an "Executive II" position. It was temporarily occupied by an individual who had an Executive II designation but who was not authorized to exercise supervisory authority, including disciplining other employees. Upon that individual's retirement, the Executive II position was eliminated and the new PSA Option 1 position was created. Okulinski was responsible for writing the job description for the new position based on the eliminated Executive II position. She testified that the new position has "a higher level of duties." The PSA Option 1 position is intended to "oversee" the migrant and seasonal farm workers program and is expected to supervise the staff members responsible for implementing the program.

¶ 10 Following the hearing, the ALJ issued an RDO (the second RDO), holding that the petitions were procedurally appropriate. The ALJ explained that the Board's rules permit unit clarification petitions when "a significant change takes place in statutory or case law that affects the bargaining rights of employees," citing to section 1210.170(a)(3) of the Board's rules ( 80 Ill. Adm. Code 1210.170(a)(3) (2003) ), and that "the Board, in remanding this case for hearing, made a substantial change in the law that raises questions regarding the bargaining rights of employees who will hold the at issue positions in the future." The second RDO therefore held that the petitions were procedurally appropriate in accordance with the Board's rules. The second RDO additionally held that the unit clarification petition regarding the PSA Option 1 position was procedurally appropriate based upon section 1210.170(a)(1) of the Board's rules ( 80 Ill. Adm. Code 1210.170(a)(1) (2003) ) because "the Employer recently made substantial changes to the duties and functions of that position."

¶ 11 However, the ALJ rejected an argument by the Employer that the petitions were also procedurally appropriate on the grounds that they sought to remove alleged managerial positions from the bargaining unit. The ALJ noted the recognized circumstances set forth in the Board's rules for filing petitions and that a petition involving an alleged managerial employee is outside of those circumstances. The second RDO stated: "although the Employer couches its argument in terms of timeliness, the question of a petition's timeliness is distinct from the question of whether unit clarification is the appropriate vehicle by which to remove the identified persons from the bargaining unit."

¶ 12 The second RDO further held that the PSA Option 8L positions and the PSA Option 1 position are all managerial as "a matter of fact" within the meaning of the Act.⁶ For the PSA...