Dep't of Cent. Mgmt. Servs. v. Ill. Labor Relations Bd.

• Decision Date: 11 December 2012
• Docket Number: Docket No. 4–11–0356.
• Parties: The DEPARTMENT OF CENTRAL MANAGEMENT SERVICES/The DEPARTMENT OF STATE POLICE, Petitioner, v. The ILLINOIS LABOR RELATIONS BOARD, State Panel; Jacalyn J. Zimmerman, Michael Hade, Michael Coli, Albert Washington, and Jessica Kimbrough, the Members of Said Board and Panel in Their Official Capacity Only; Elaine L. Tarver, in Her Official Capacity Only as an ILRB Administrative Law Judge; John Brosnan, Executive Director of Said Board in His Official Capacity Only; and The Illinois State Employees Association, Laborers International Union, Local 2002, Respondents.
• Court: United States Appellate Court of Illinois

980 N.E.2d 1259

The DEPARTMENT OF CENTRAL MANAGEMENT SERVICES/The DEPARTMENT OF STATE POLICE, Petitioner,

v.The ILLINOIS LABOR RELATIONS BOARD, State Panel; Jacalyn J. Zimmerman, Michael Hade, Michael Coli, Albert Washington, and Jessica Kimbrough, the Members of Said Board and Panel in Their Official Capacity Only; Elaine L. Tarver, in Her Official Capacity Only as an ILRB Administrative Law Judge; John Brosnan, Executive Director of Said Board in His Official Capacity Only; and The Illinois State Employees Association, Laborers International Union, Local 2002, Respondents.

Docket No. 4–11–0356.

Appellate Court of Illinois, Fourth District.

Dec. 11, 2012.

Joseph M. Gagliardo and Lawrence Jay Weiner (argued), Special Assistant Attorneys General, of Chicago, for petitioner.

Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and John P. Schmidt (argued), Assistant Attorney General, of counsel), for respondent State of Illinois.

Justice TURNER delivered the judgment of the court, with opinion.

¶ 1 Pursuant to Illinois Supreme Court Rule 335 (eff. Feb. 1, 1994) and section 9(i) of the Illinois Public Labor Relations Act (Labor Act) ( 5 ILCS 315/9(i) (West 2008)), petitioner, the Department of Central Management Services/Department of State Police (Department), seeks direct review of a decision of the Illinois Labor Relations Board, State Panel (Board), to include the position held by Nicholas Kondelis, an attorney with the State Police, in a stand-alone bargaining unit represented by the Illinois State Employees Association, Laborers International Union, Local 2002 (Union). On review, the Department asserts Kondelis cannot be a member of the collective-bargaining unit because he is a(1) managerial employee under section 3(j) of the Labor Act ( 5 ILCS 315/3(j) (West 2008)), and (2) confidential employee under section 3(c) of the Labor Act ( 5 ILCS 315/3(c) (West 2008)). We reverse in part the Board's decision and vacate in part the certification of representation.

¶ 2 I. BACKGROUND

¶ 3 On October 26, 2009, the Union filed a representation-certification petition, seeking to create a collective-bargaining unit, consisting of four attorney positions classified as public service administrator, option 8L, or staff attorney with the State Police and Illinois Emergency Management Agency. The positions at the Illinois Emergency Management Agency, which were certified as members of the collective-bargaining unit, are not at issue in this appeal. The attorneys who held the State Police positions at issue were William Jarvis and Nicholas Kondelis. The Department responded, noting the State Police had four public service administrator, option 8L, positions and objecting to those positions' inclusion in the proposed collective-bargaining unit. The Union then sought to include only the additional public service administrator, option 8L, position of William Hosteny.

¶ 4 On April 29, 2010, administrative law judge Sylvia Rios commenced the hearing on the Union's proposed certification. The Department presented the testimony of Hosteny, who was the acting chief legal counsel for the State Police, and numerous supporting exhibits. The Union presented the testimony of Kondelis and Jarvis and a joint exhibit. The following is a brief summary of the evidence since the parties are familiar with the facts of this case.

¶ 5 The evidence showed the structure of the State Police and the current union representation. The sworn officers of the State Police that were troopers, sergeants, lieutenants, and captains were represented by the Troopers Lodge 41 of the Fraternal Order of Police (Fraternal Order of Police) and the master sergeants were represented by the Teamsters. The Director of the Department of State Police has several internal offices that are led by chiefs that report to the Director's office. Those offices included the legal office, the labor-relations office, the office of governmental affairs, and the "EEO" office. The State Police's legal office consists of 10 attorneys. Seven of the attorneys are sworn police officers who would normally be represented by the Fraternal Order of Police but were excluded from the bargaining unit under a memorandum of understanding between the State Police and the Fraternal Order of Police. The other three attorneys are Hosteny, Kondelis, and Jarvis, all of whom are civilians in the public service administrator, option 8L, position. At the time of the hearing, Hosteny was acting chief counsel. The chief of the legal office, currently Hosteny, officially reported to the first deputy director, Luis Tigera, who was the second highest ranking person in the State Police, and could also report to the chief of staff, Jessica Trame.

¶ 6 Moreover, Hosteny testified he worked with other offices on legal matters, including the labor-relations office. According to Hosteny, all of the staff attorneys in the office had the same kinds of duties, and he assigned cases based on who was available and who had the best background for the issue. With his labor-relations background, Hosteny did most of the labor-relations work. Evidence was presented showing a time when Jarvis worked on a labor-relations issue. Due to Kondelis's criminal-law background, Hosteny often assigned Kondelis to work on merit-board cases. Hosteny explained discipline of sworn officers was governed by the State Police Act ( 20 ILCS 2610/0.01 et seq. (West 2008)) and how the process worked. In explaining the merit-board process, Hosteny noted the State Police were represented by the Attorney General's office and his office assisted with the cases by lining up witnesses, prepping witnesses, and drafting questions. Hosteny emphasized that, while he assigned attorneys matters based on their legal background, he did cross-train his employees so they could handle a matter when needed. Hosteny also noted Kondelis was the attorney in the office that handled matters with the State Police's forensic science laboratories and often Kondelis was contacted directly on such issues.

¶ 7 Kondelis testified he was a former prosecutor in the Cook County State's Attorney's office. With his criminal-law background, "a lot" of Kondelis's work was with merit-board cases. Kondelis explained he had no authority to accept or reject settlement offers in merit-board cases. He relayed any settlement offers to Hosteny, who discussed the matter with Tigera and Trane, outside of Kondelis's presence. Kondelis also testified that, while he could draft a merit-board complaint, he had no authority to file the complaint. Such matters had to go through Hosteny.

¶ 8 In addition to merit-board cases, Kondelis conducted seminars for the State Police's forensic laboratory scientists. He had also worked on an Equal Opportunity Employment Commission case involving a forensic scientist. In the past, Hosteny had also asked Kondelis to provide State Police officers information on issues such as forced blood draws. Further, Kondelis testified he was not involved in matters of collective bargaining and labor issues. He had never been involved with grievances, labor arbitrations, and collective-bargaining strategies. Even if a merit-board case he was working on also involved a grievance, Kondelis had nothing to do with the grievance process.

¶ 9 In October 2010, administrative law judge Elaine L. Tarver filed a written recommended decision and order, finding Kondelis's and Jarvis's positions were neither managerial nor confidential. (The record does not reveal why the order was written by a different administrative law judge than the one that heard the evidence.) Thus, the decision recommended the certification of the bargaining unit that included Kondelis's and Jarvis's positions. Hosteny's public service administrator, option 8L, position was excluded due to the lack of evidence about that position. Tarver later filed a corrected recommended decision and order. The Department filed exceptions to the corrected recommended decision and order, asserting Kondelis and Jarvis should have been excluded because they were both managerial and confidential employees.

¶ 10 On March 25, 2011, the Board, which was comprised of Jacalyn J. Zimmerman, Michael Hade, Michael Coli, Albert Washington, and Jessica Kimbrough, issued a decision and order, rejecting the administrative law judge's determination that Jarvis was not a confidential employee. On March 29, 2011, the Board's executive director, John Brosnan, executed the certification of representative for the collective-bargaining unit that included Kondelis's position.

¶ 11 On April 26, 2011, the Department filed its timely petition for administrative review under Rule 335. See 5 ILCS 315/9(i) (West 2008). Accordingly, we have jurisdiction under article VI, section 6, of the Illinois Constitution of 1970 ( Ill. Const. 1970, art. VI, § 6 ) and section 9(i) of the Labor Act ( 5 ILCS 315/9(i) (West 2008)).

¶ 12 II. ANALYSIS

¶ 13 A. Standard of Review

¶ 14 With direct administrative review, this court reviews de novo the agency's decision on a question of law. Niles Township High School District 219 v. Illinois Educational Labor Relations Board, 379 Ill.App.3d 22, 26, 318 Ill.Dec. 195, 883 N.E.2d 29, 33 (2007). On the other hand, we afford deference to the agency's decision on a question of fact and will not reverse such a decision unless it is against the manifest weight of the evidence. Niles Township, 379 Ill.App.3d at 26, 318 Ill.Dec. 195, 883 N.E.2d at 33. An administrative agency's finding is "against the manifest weight of the evidence only where the opposite conclusion is clearly evident." Peacock v. Board of Trustees of the Police Pension Fund, 395 Ill.App.3d 644, 652, 335 Ill.Dec. 159, 918 N.E.2d 243, 250 (2009).

¶ 15 Some agency decisions involve both questions of law and fact. " ‘A mixed question of law and fact asks the legal effect of a given set of facts.’ " Niles Township, 379 Ill.App.3d at 26, 318 Ill.Dec. 195, 883...