Am. Fed'n of State, Cnty., & Municipal Emps. (AFSCME), Council 31 v. State

• Decision Date: 31 December 2014
• Docket Number: No. 1–13–0655.,1–13–0655.
• Citation: 25 N.E.3d 52
• Parties: AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES (AFSCME), COUNCIL 31, Petitioner–Appellant, v. STATE of Illinois, ILLINOIS LABOR RELATIONS BOARD, State Panel, and State of Illinois, Department of Central Management Services (Illinois Commerce Commission), Respondents–Appellees.
• Court: United States Appellate Court of Illinois

25 N.E.3d 52

AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES (AFSCME), COUNCIL 31, Petitioner–Appellant

v.STATE of Illinois, ILLINOIS LABOR RELATIONS BOARD, State Panel, and State of Illinois, Department of Central Management Services (Illinois Commerce Commission), Respondents–Appellees.

No. 1–13–0655.

Appellate Court of Illinois, First District, Fifth Division.

Dec. 31, 2014.

Mark S. Stein, of Cornfield & Feldman LLP, of Chicago, for appellant.

Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro, Solicitor General, and John P. Schmidt, Assistant Attorney General, of counsel), for appellees.

OPINION

Justice REYES

delivered the judgment of the court, with opinion.

¶ 1 Following a hearing before an administrative law judge (ALJ) of the Illinois Labor Relations Board (Board), the American Federation of State, County and Municipal Employees (AFSCME) timely filed a petition for review of the Board's decision pursuant to section 3–113 of the Code of Civil Procedure

(735 ILCS 5/3–113 (West 2012) ). AFSCME argues on appeal that the Board erred in designating James Weging, Richard Favoriti, and Christine Ericson managerial employees. For the following reasons, we reverse the Board's decision as to Weging and Ericson, and affirm the Board's decision as to Favoriti.

¶ 2 BACKGROUND

¶ 3 The Illinois Commerce Commission (ICC or Commission) is a quasi-judicial body that regulates public utility services in the state. 220 ILCS 5/2–101 et seq.

(West 2012) (Public Utilities Act). The ICC's stated mission is to pursue an appropriate balance between the interest of consumers and existing and emerging service providers to ensure the provision of adequate, efficient, reliable, safe and least-cost public utility services.¹ The Commission attempts to achieve that mission, in part, by overseeing the certification of private entities that wish to provide public utilities, setting the rates utility companies can charge, providing oversight for various safety measures, and investigating and handling complaints against utility companies.

¶ 4 AFSCME is a national public services employees union. In 2012, AFSCME petitioned the Illinois Labor Relations Board (Board) to include as part of the existing RC–10 bargaining unit four ICC attorneys: John Feely, James Weging, Richard Favoriti, and Christine Ericson. Following a hearing, the ALJ issued a recommended decision and order, finding all four lawyers should be included in the bargaining unit as nonmanagerial employees. Both the State of Illinois Department of Central Management Services and AFSCME filed exceptions to the recommended decision.

¶ 5 I. The Board's Decision

¶ 6 A five-member panel of the Board issued a decision on January 28, 2013. The three-member majority agreed with the ALJ regarding the status of John Feely,² but found the remaining three ICC attorneys—James Weging, Richard Favoriti, and Christine Ericson—were managerial employees.

¶ 7 A. James Weging

¶ 8 James Weging works in the solicitor section of the ICC. The solicitor section handles appeals when parties challenge ICC decisions, defends suits filed by utilities against the Commission, and initiates actions to enforce ICC orders in court. According to the record, Weging has worked in the same position and performed more or less the same duties since the 1980s.

¶ 9 The Board acknowledged Weging spends the “majority of his time”³ representing the ICC during judicial review of the Commission's determinations, deeming this function nonmanagerial. Nevertheless, the Board noted Weging “also defends and otherwise represents the ICC in state and federal court outside the context of administrative review, including in original actions to enforce Commission orders.” According to the Board, these additional duties “create[ ] more opportunity for an attorney's litigation advice to spill into advice that concerns changing the way the agency operates, or even its policy objectives.” The Board found Weging's advice in these instances to be “more in the nature of managerial work,” citing two examples where Weging acted as a managerial employee. In the first example, Weging convinced the ICC to pursue a supervisory order in the Illinois Supreme Court, which would have likely had “a broad impact on the ICC and its operations,” if granted.⁴ In the second example, Weging advised how to revoke a utility's certificate of public necessity and convenience, ultimately establishing guidelines for the particular task. The Board ultimately characterized it as a “close matter,” but found “Weging's activities in representing the ICC outside the context of administrative review and in developing litigation strategy” so “qualitatively different” as to “render[ ] him a managerial employee.”

¶ 10 B. Richard Favoriti

¶ 11 Richard Favoriti works in the advisory section of the ICC, which functions as in-house counsel to the Commission.⁵ In determining the nature of Favoriti's employment, the Board relied on the ALJ's general description of his duties, stating:

“ ‘[Favoriti] researches and drafts legislation, analyzes proposed legislation, and advises the ICC on legislative initiatives; he plans and conducts extensive and complex research to determine statutory compliance by applying legal methods and procedures with reference to the legal implications involved; he confers and advises ICC staff on complex issues of statutory interpretation and compliance; he also performs other duties, special projects or research, as required or assigned which are reasonably within the scope of duties enumerated within his job description. In addition, Favoriti has special expertise in pipeline safety and accordingly handles related matters.’ ”

The Board additionally examined specific instances of Favoriti's work. In particular, the Board noted Favoriti has drafted legal advice while “serv[ing] as an assistant to the Commission,” helped draft amendments to legislation, and drafted orders initiating citation proceedings.⁶ Favoriti also on one occasion helped draft a proposed rule concerning “the disclosure of gas pipeline inspections and audit information to the public.” The Board “[found] these tasks to be executive and management functions.” Further, the Board cited another instance where the ICC asked Favoriti whether it was required to follow an executive order from the Governor implementing a furlough program. After Favoriti advised the Commission it would not be obligated to follow the order, the ICC chose not to implement the program. According to the Board, Favoriti's involvement regarding the executive order indicated his “managerial status because [the ICC's decision] broadly concern[ed] how the agency will be run and concern[ed] the means the agency will use to achieve its mandate.” The Board then found that, in sum, “the evidence sufficiently establishe[d] that Favoriti is a managerial employee.”

¶ 12 C. Christine Ericson

¶ 13 Christine Ericson's employment with the ICC primarily relates to the interaction between the Commission and outside entities, namely, federal agencies with the capacity to impose restrictions on the ICC, such as the Federal Energy Regulatory Commission (FERC). Her responsibilities in this role involve both litigation-related tasks and advisory functions. Her primary duties include representing the ICC in matters pending before the FERC and advising the ICC's “Federal Energy Policy” group (FEP). Relying on Ericson's advice, the FEP then counsels the Commission on whether it should intervene in certain FERC actions—for example, “proceedings initiated by consumers against an Illinois utility.” If the ICC decides to intervene, Ericson initiates the process by drafting and filing the necessary documents on the Commission's behalf.

¶ 14 Additionally, Ericson's position involves her monitoring the activities of external organizations in the field of utility and energy policy. She participates in work groups of multistate agencies that oversee the interstate electrical grid and reviews their monthly agendas. Using this experience, Ericson then flags issues for the FEP's attention she deems may be of potential interest to the ICC.

¶ 15 Ultimately, the Board found the drafting of documents by Ericson did not constitute managerial duties. The Board, however, found Ericson's “role as an advisor and gatekeeper with respect to those areas in which the ICC chooses to become involved in arenas outside the State and outside its role as regulator * * * indicative of managerial status.” The Board noted Ericson is responsible for “flagging” which issues pending before outside entities are important to the ICC from a legal perspective. This means that “[i]f she does not flag a matter that is important to the ICC or the State of Illinois * * * the ICC decision-makers will not be able to act on that important matter.” (Emphases in original.) Thus the Board concluded, even though her recommendations may not necessarily be followed all of the time, her gatekeeping role demonstrated a “power and influence on managerial decision-making sufficient to constitute managerial authority.”

¶ 16 II. The Dissent

¶ 17 Two panel members dissented as to the Board's determination of Weging, Favoriti, and Ericson as managerial employees. The dissent acknowledged “these attorneys play an important role in the ICC's operations,” but argued “that role is nevertheless purely advisory and subordinate.” The dissent noted “there is nothing in the record to suggest that Weging's, Favoriti's, or Ericson's legal recommendations ‘almost always persuade’ their superiors,” which would imply they possess managerial authority. Instead, the dissent urged, “the predominant function of all four of the positions at issue is to perform the classic role of an attorney.”

¶ 18 ANALYSIS

¶ 19 The Illinois Public Labor Relations Act (Act) “grant[s] public employees the full freedom of association, self-organization, and designation of representatives of their own choosing for the purpose of...