Illinois Department of Central Management Services v. Illinois Labor Relations Board ( 2008 )

Filed 4/24/08 NO. 4-07-0344
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE ILLINOIS DEPARTMENT OF CENTRAL ) Petition for Review of an
MANAGEMENT SERVICES (STATE POLICE), ) Order of the Illinois Labor
Petitioner-Appellant, ) Relations Board, State
v. ) Panel
THE ILLINOIS LABOR RELATIONS BOARD, )
STATE PANEL; JACKIE GALLAGHER, MICHAEL )
HADE, CHARLES HERNANDEZ, REX PIPER, and ) No. S-RC-04-108
MICHAEL COLI, the Members of Said Board and )
Panel in Their Official Capacity Only; and the )
AMERICAN FEDERATION OF STATE, COUNTY )
AND MUNICIPAL EMPLOYEES, COUNCIL 31, )
Respondents-Appellees. )
PRESIDING JUSTICE APPLETON delivered the opinion of the court:
Pursuant to section 9(a-5) of the Illinois Public Labor Relations Act (Act)
(5 ILCS 315/9(a-5) (West 2006)), the American Federation of State, County and
Municipal Employees, Council 31 (union), filed a petition to represent telecommunica-
tions supervisors, employed by the State of Illinois, Department of Central Management
Services, State Police (employer). The employer opposed the petition on the grounds
that telecommunications supervisors were "supervisors" within the meaning of section
3(r) (5 ILCS 315/3(r) (West 2006)), "managerial employees" within the meaning of
section 3(j) (5 ILCS 315/3(j) (West 2006)), or both. The Board found that telecommuni-
cations supervisors were neither "supervisors" nor "managerial employees" and,
therefore, ordered their inclusion in the RC-14 bargaining unit. American Federation of
State, County & Municipal Employees, Council 31, 23 Pub. Employee Rep. (Ill.) par. 38,
at 98, No. S–RC–04–108 (Illinois Labor Relations Board, State Panel, March 19, 2007)
(2007 PERI (LRP) LEXIS 37 at *7-8) (hereinafter 23 Pub. Employee Rep. (Ill.) par. 38).
The employer appeals, contending only that telecommunications supervisors are
"supervisors" and, as such, are ineligible for inclusion in the bargaining unit. See 5 ILCS
315/3(s)(1) (West 2006).
The Board could reasonably find that the employer failed to prove two
propositions: (1) the principal work of telecommunications supervisors is substantially
different from that of lead call-taker, and (2) telecommunications supervisors perform a
supervisory function. See 5 ILCS 315/3(r) (West 2006). With those propositions
unproved, telecommunications supervisors are not "supervisors" in the statutory sense.
Therefore, we affirm the Board's decision.
I. BACKGROUND
A. The Communications Service Bureau
Throughout the state, the Illinois State Police has 19 call centers, which
receive emergency telephone calls from the public and provide dispatching services for
troopers. The call centers are part of the Communications Service Bureau of the
Division of Administration. At the helm of the bureau is the bureau chief, and beneath
the bureau chief are two assistant bureau chiefs. The State of Illinois is divided into four
regions, and each assistant bureau chief is responsible for two of the regions. Each
region has a regional manager, who reports to the assistant bureau chief. The Northern
Region has eight call centers. The Southern Region has 11. Each call center has a
telecommunications supervisor, who reports to the regional manager. Beneath the
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telecommunications supervisor, in descending order of hierarchy, are the lead call-
takers and the call-takers.
B. The Duties of a Call-Taker
According to a "class specification" (or job description) written by CMS,
the "[d]istinguishing [f]eatures" of a call-taker's work are as follows:
"Under general supervision of a telecommunications
supervisor, [a call-taker] answers and responds to incoming
requests for service via telephone or in person; assigns [Illi-
nois State Police] officers to respond to calls; transmits and
receives law[-]enforcement messages and data by two-way
radio and computer systems; monitors and/or provides
base[-]station service for multiple police priority and busi-
ness channels; processes confidential information; [and]
originates, relays[,] and interprets information relating to
the safety and well-being of law[-]enforcement officers and
citizens." Board exhibit No. 5.
Call-takers each "[o]perate[] a personal[-]computer terminal," and when they receive
information over the radio or telephone, they enter it into various databases in the Law
Enforcement Agencies Data System (LEADS)--for example, membership in gangs and
the residential address of sex offenders. They also "provide[] training for trainees[,] as
directed."
C. Duties of a Lead Call-Taker
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According to CMS's class specification, the work of a "telecommunicator
lead call[-]taker" has the following "[d]istinguishing [f]eatures":
"Under general supervision[,] [a lead call-taker] acts
as a lead worker overseeing the activities of
telecommunicators, typically on a busy shift when the
supervisor is absent; assists [the] supervisor in preparing
technical reports and maintains [LEADS] records; provides
input into employee performance evaluations; assists
lower[-]level telecommunicators,
[t]elecommunicator/[c]all[-][t]akers[,] and local
[l]aw[-][e]nforcement agencies in the resolution of two-way
radio and computer[-]terminal operational problems;
processes confidential material; also functions as a
[t]elecommunicator [c]all[-][t]aker; answers and responds to
incoming requests for service from the public via telephone
or in person; assigns [Illinois State Police] officers to
respond to calls; transmits and receives
law[-]enforcement messages and data by two-way radio,
teletype, and computer[-]terminal equipment; monitors
and/or provides base[-]station services for multiple police
priority and business channels; [and] originates, relays[,]
and interprets information relating to the safety and
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well[-]being of law[-]enforcement officers and citizens."
Under the heading "Illustrative Examples of Work," the class specification
says that lead call-takers perform the following tasks, among others:
"3. Assists [the] supervisor in the preparation of
reports, provides input into employee performance
evaluations; when [the] supervisor is absent, authorizes
over[]time assignments in accordance with contract
protocols, carries out on the-the-job training programs for
new staff and may assume the lead position in such training;
[and] recommends, monitors, and ensures compliance with
operational policies and rules." Board exhibit No. 5.
Bonnie C. Lane, the assistant bureau chief for the Southern Region,
testified as follows:
"[The position of lead call-taker] is a quasi-
supervisory position[] in that they provide shift or floor
oversight. Obviously, a [t]elecommunications [s]upervisor
can't work 24 hours a day and isn't able to be there across all
three shifts.
So the [l]ead [c]all[-][t]aker is there to *** monitor,
again, operational compliance, the integrity of operations.
They're responsible, over the course of the year, the
evaluation period, to assist in gathering some *** front-line
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data, in terms of operational compliance, quality, [and]
professionalism.
They're looked to[,] most times[,] as being a little
better versed, maybe, in some of the technical issues. With
the computer-aided dispatch, they might be the go-to person
for questions on entry or data management.
But, basically, they are a way to assist the supervisors
with compliance issues on shifts *** that aren't during the
traditional work hours.
Some centers have one [l]ead [c]all[-][t]aker, some
have two. Due to staffing vacancies that can't be filled at this
time, we do have some centers that have no [l]ead
[c]all[-][t]akers presently on staff.
But they are, basically, there to just assist with
gathering documentation and monitoring operations."
Board exhibit No. 5.
D. The Duties of a Telecommunications Supervisor
1. The Class Specification
According to the class specification, the "[d]istinguishing [f]eatures" of the
work of a telecommunications supervisor are as follows:
"Under general direction, [the telecommunications
supervisor] plans, directs, and evaluates the operations of a
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telecommunications center; supervises a staff of
telecommunicators providing computer[-]assisted
law[-]enforcement radio[-]dispatching and call[-]taking to
state and local agencies; trains, schedules[,] and evaluates
the performance of [t]elecommunicators in a
law[-]enforcement district office through subordinate lead
workers, overseeing a continuous multi-shift operation[];
maintains personnel and operational files[] [and] office
inventory control; administers operations dispatching and
telecommunications service contracts with various state and
local agencies; [and] prepares operating reports." Board
exhibit No. 5.
Here are some "illustrative examples" of what a telecommunications
supervisor does:
"1. Plans, supervises[,] and coordinates a State Police
[d]istrict [t]elecommunications [c]enter, providing
computer[-]assisted radio dispatching services for
law[-]enforcement personnel; schedules approximately nine
telecommunications personnel on multiple shifts[;]
maintains personnel and operational files[;] [and] prepares
associated records and reports[,] utilizing word processing,
spreadsheet[,] and database software applications.
-7-
2. Administers procedural policies; monitors
compliance with standard operating procedures; provides
corrective training where necessary to maintain operational
standards and station efficiency; operates [a] console [10]
hours per month to maintain operational efficiency; takes
supervisory and managerial training; [and] serves as a
member of the hiring selection interview team.
3. Administers the [t]elecommunicator [t]raining
[p]rogram at the district level, providing on-the-job training
of new employees; reviews employee performance on a
continuing basis and prepares and signs periodic employee
performance evaluations; [and] promotes or terminates
trainees, as appropriate.
***
10. Administers the collective[-]bargaining contract[,]
conducts labor/management meetings[,] prepares local
formal labor/management agreements[,] and processes and
adjusts first[-]level grievances.
***
12. Schedules operational personnel according to the
needs of the Illinois State Police and other state agencies
with whom formal dispatch agreements exist; monitors
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operations to ensure compliance with existent guidelines,
contracts[,] and agreements." Board exhibit No. 5.
2. The Duties and Authority of a Telecommunications
Supervisor, as Described in the Testimony
a. Monitoring the Operation of the Call Center
In the administrative hearing, the employer called two assistant bureau
chiefs, Kay Rubin, who was responsible for Regions I and II in the northern part of the
state, and Bonnie C. Lane, who was responsible for Regions III and IV in the southern
part of the state, and two telecommunications supervisors, Chrystal J. Mitchell from
District 19 in Carmi and Sherri J. Mahon from District 12 in Effingham. The union
called two telecommunications supervisors, Tracy A. Vail from District 14 in Macomb
and Karen M. Stec from the Chicago district.
Lane testified that a telecommunications supervisor was "the managerial
presence, the supervisory presence[,] for the operations of [the call] center [24 hours a
day and 7 days a week]." Before becoming an assistant bureau chief, Lane was a regional
manager. During her 2 1/2-year stint as a regional manager, she visited each call center
in her region "maybe four times a year" but communicated with the telecommunications
supervisors every week. She testified that the "general practice" was to put the lead call-
taker in "a shift, either in part or whole, opposite[] [to the shift of the
telecommunications supervisor], so that would mean, primarily, evenings or midnight
shift."
Mitchell and Mahon both testified they had infrequent contact with their
regional manager. The administrative hearing occurred in January 2006, and, since
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April 2005, the regional manager had visited Mitchell's call center only once. Mitchell
testified she had "spoken to [the regional manager] twice on the telephone" (whether
Mitchell meant since April 2005 or during the seven years Mitchell had been a
telecommunications supervisor is unclear). Mahon testified that during the five years
she had been a telecommunications supervisor, her regional manager had visited her
call center once. "I don't know that I have ever talked to her on the phone, maybe once
or twice; and, I mean, I e[]mail her every once in a while[,] but mostly to ask for time off
for myself. But other than that, [I have no contact with the regional manager] at all."
Telecommunications supervisors typically carry a pager or cellular
telephone so that the call center can reach them at any time. During their shifts, they sit
by the consoles or listen to a radio scanner in their office, making sure the call-takers are
following procedures and handling calls with courtesy and competence.
b. Scheduling
The telecommunications supervisor prepares a "base schedule," in which
he or she determines what the shifts will be and how many employees will be needed in
each shift. The subordinate employees then bid on shifts, which are awarded on the
basis of seniority. Different telecommunications supervisors have different scheduling
practices. Mitchell testified: "I normally like to make two schedules that are workable
for my district. I let [the employees] vote on which one they approve, and then they bid
on those slots, and it's submitted to the [u]nion." As for Stec, she testified she had
"never created a schedule. We have certain time slots that need to be filled, and it's just
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a given. *** [W]here the scheduling comes into effect is during vacation times[;] you
have to make sure you have the coverage. Most of the time[,] it results in overtime."
By "coverage," Stec meant the minimum staffing level. For her call center
in the Chicago district, it was 5 people on the day shift, 4 1/2 people on the evening shift
("1/2" meaning the first half of the shift had an additional person), and 4 people on the
midnight shift. Stec testified that the telecommunications supervisors in the Chicago
district had recommended this minimum staffing level and the assistant bureau chief
had approved the recommendation. (Later, because of staff shortages, the
telecommunications supervisors of the Chicago district requested a lower minimum
staffing level, but headquarters balked.)
If an employee called in sick, it usually was necessary to call in someone to
perform overtime. Call centers had a certain percentage of "indeterminates" on their
staff--call-takers who could be assigned to any shift--but they had to be given 24 hours'
notice. "Special details" with larger-than-usual deployments of troopers also
necessitated overtime. Some telecommunications supervisors preferred authorizing
overtime themselves; other telecommunications supervisors left this task to lead call-
takers. Mitchell testified she "might go back out to work and actually do the overtime
callout [herself]. If not, [she would] assign the lead worker or usually the most senior
[t]elecommunicator to make the call." Mahon testified that only if she could not be
reached would the lead call-taker call in someone to perform overtime. Vail testified
that "if the overtime needed to be filled and [Vail was] not [at the call center], *** they
[did not] have to call [her] before they scheduled the overtime"; "that's what lead
workers [were] for." Stec testified that any call-taker could call someone in for overtime
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without obtaining her prior approval. She did not "grant" overtime; "[i]f [they fell]
below the staffing levels, then overtime [was] necessary." Rubin testified that the call
centers in the Chicago district were so short-staffed that to keep from "getting called 24
hours a day, nonstop, *** to fill overtime," the two telecommunications supervisors in
that district had told the call-takers that "if we go below, you know, what they have set as
basically what they need to operate, then they have the authority to call people out for
overtime or order them, if need be, if we can't reach anybody at home."
Vacation time and overtime were allocated according to seniority. Stec
testified: "Everybody submits three vacation requests[,] and [the requests are] granted
one at a time by seniority. The first person in seniority ultimately gets their first choice,
then down through the line ***." Vail testified that a similar methodology applied to
overtime: "You would offer it out to everyone in the order of the most senior[] with the
least overtime first. If everybody refuses it, you go to the assignment list, and it's the
least senior[] with the least amount of hours[] will get the assignment."
c. The Assignment of Work
Mitchell testified: "We enter a lot of warrants, orders of protection,
registered sex[-]offender add-ons, [and] the annual registered sex[-]offender address
checks. The troopers go knock on their door[] [and] check to see where they live. We
have to do an add-on on each one of those files. We have about 150 of them. And I
assign [c]all[-][t]akers to handle these updates." She might split the assignments
evenly, or she might give the assignments to whoever was the quickest and most
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accurate at entering data into the computer. Mahon testified she might give such
assignments to the call-taker on the least-busy console.
Stec explained that "[a]n add-on [was] a note that[] [was] added onto an
existing LEADS record"--for example, orders of protection or membership in a gang.
According to her, she never assigned add-ons. The information for the add-on typically
arrived at the call center via a radio transmission, and "[t]he telecommunicator handling
the radio traffic" was always the one who entered the add-on into the computer.
d. Proof Status
Under section 15(A) of article XXXIII of the collective-bargaining
agreement, a telecommunications supervisor may place an employee on proof status "if
reasonable grounds exist to suspect abuse." "Proof status" means that the employee
must provide written medical certification of the need for sick time. Section 15(B)
provides: "At the time an employee is placed on proof status, the Employer will submit
to the employee, in writing, the reasons for placing the employee on proof status."
Mitchell testified she had placed two employees on proof status without prior approval
from her superiors.
e. Training
A telecommunications supervisor is responsible for training everyone in
the call center. Typically, the telecommunications supervisor assigns some or all of the
training of new employees to the lead call-taker or an experienced call-taker. The
Communications Service Bureau has a 10-month training curriculum consisting of 42
phases. Trainees are tested after each phase and must score 85% or higher. They also
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must pass a final examination and be certified within a year. The telecommunications
supervisor monitors the progress of training and, with input from the lead call-taker or
whoever is assisting with training, completes a weekly training evaluation on each new
probationary employee.
Mitchell testified: "I keep very thorough documentation, and I have had
to[,] in the past[,] suggest that they not be certified, and we have [had] to let them go."
Mahon testified that after conferring with the lead call-taker, she, too, had
recommended the firing of a trainee and the acting regional manager had approved
Mahon's recommendation.
f. Performance Evaluations
At least once a year, telecommunications supervisors complete a
performance evaluation of each of their subordinates. Vail admitted that performance
evaluations could affect promotions and even continued employment. "But you also,"
she testified, "have to follow the guidelines of the contract ***. *** [H]ypothetically,
you've got two people that are applying for the lead worker position[,] and, usually, you
have to go to the most senior of those people." She testified to her own experience of the
power that seniority wielded in promotions: "when I was promoted to supervisor, the
lead worker position came open, and I had a transfer that came in, and I had three
people [who] wanted the position; but because *** I had to follow the guidelines in the
contract, because of her seniority, she was automatically made the lead worker."
Mitchell likewise testified, "[s]eniority plays a huge part in [promotions]. The most
senior person has a lot of *** weight," and to promote a less-senior person, the employer
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has to prove, through performance evaluations, that the less-senior person is
"considerably more qualified for the position."
According to Mitchell, her superiors never told her whether to give an
employee a good or bad performance evaluation. While a performance evaluation was
"still in the planning process," the regional manager sometimes "g[a]ve [her] better
word choices" but never asked her to "change any of the ratings or anything." The
regional manager might have told her, "'Well, your rating and your comments don't
match, so you need to make them match,'" but that was "all [she had] ever been told."
g. Discipline
Mitchell testified that she once recommended that one of her subordinates
receive a written reprimand for late arrival. The assistant bureau chief followed her
recommendation.
Mahon "assume[d]" that to impose discipline, she "would need to do an
investigation and forward a recommendation *** for some type of discipline." As of yet,
she had never had occasion to request discipline for any of her subordinates.
The union's attorney asked Vail:
"Q. Have you ever had to discipline somebody?
A. Yes.
Q. Okay. And can you take me through a little bit of
that process?"
Vail answered "[i]t was an incident involving one of the telecommunicators who had
gotten in some trouble after hours." Vail "had to do an investigation on it[] and then
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send it up the chain of command." She recommended a letter of reprimand, but
headquarters declined to follow her recommendation and instead suspended the
employee for a day. She had no power to give a written reprimand without her
superiors' approval, and, of course, she could not overrule the discipline they imposed.
Stec testified she lacked authority to impose any discipline. Like Vail, she
once recommended a letter of reprimand, but higher-ranking officials ended up giving
the employee a more severe form of discipline.
E. The ALJ's Recommended Decision and the Board's Decision
The ALJ found that telecommunications supervisors were not "managerial
employees" within the meaning of section 3(j) of the Act (5 ILCS 315/3(j) (West 2006)).
She also found that telecommunications supervisors did not exercise supervisory
authority to hire, promote, reward, and adjust grievances (see 5 ILCS 315/3(r) (West
2006)). Nevertheless, she found that telecommunications supervisors were
"supervisors" for the following reasons: (1) the principal work of a telecommunications
supervisor was substantially different from that of a call-taker or lead call-taker; (2) by
overseeing the call center, establishing work schedules, assigning work, requiring
overtime, granting leave requests, placing employees on proof status, training
employees, and evaluating their work performance, telecommunications supervisors
exercised supervisory authority to direct employees; (3) telecommunications supervisors
exercised supervisory authority to discipline employees; (4) telecommunications
supervisors exercised independent judgment and discretion when they directed and
disciplined employees; and (5) telecommunications supervisors devoted a
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preponderance of their time to supervisory activities. See 5 ILCS 315/3(r) (West 2006).
The union filed exceptions to these findings. The employer filed no exceptions.
The Board issued a decision disagreeing with the ALJ's conclusion that
telecommunications supervisors were "supervisors" within the meaning of section 3(r).
The Board said:
"Herein, the ALJ's finding that the petitioned-for
employees are excluded as supervisors turns on her finding
that they have day-to-day oversight accompanied by the
authority to issue discipline. Our review of the hearing
transcript and the rest of the record leads us to find
otherwise. There was no evidence that the written
reprimands authored by the employees at issue, and placed
in their subordinates' personnel files, affected their
employment[;] nor [was there any] evidence that such
reprimands were subsequently used to enhance later
discipline. In short, on this record, the petitioned-for
employees lack significant discretionary authority to affect
their subordinates' employment. Although the petitioned-for
employees oversee their subordinates' work activities[] and
provide them with instruction and assistance, they are
unable to affect the terms and conditions of their
employment, and oversight authority alone is insufficient to
constitute supervisory direction under the Act. [Citations.]
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In sum, we find that the employees at issue are not
supervisors within the meaning of the Act, as their day-to-
day oversight of their subordinates is accompanied[,] at
most, only by the authority to issue very low[-]level
discipline[] and[,] thus, it is inadequate to qualify as
supervisory direction within the meaning of the Act.
Consequently, the petitioned-for employees fail to meet the
preponderance requirement[] [citations] and[,] therefore,
are not supervisory within the meaning of [s]ection 3(r) of
the Act and[,] accordingly, not excluded from the Act's
coverage under [s]ection 3(s)." 23 Pub. Employee Rep. (Ill.)
par. 38, at 98 (2007 PERI (LRP) LEXIS 37, at *6-7).
The Board ordered its executive director to certify the union as the exclusive
representative of telecommunications supervisors, who were to be included in
bargaining unit RC-14.
This appeal followed.
II. ANALYSIS
A. Standards of Review
The Administrative Review Law (735 ILCS 5/3-101 to 3-113 (West 2006))
governs our review of the Board's decision. 5 ILCS 315/11(e) (West 2006). According to
section 3-110 of the Administrative Review Law, our "hearing and determination" of this
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action "shall extend to all questions of law and fact presented by the entire record before
[us]." 735 ILCS 5/3-110 (West 2006).
Our standard of review depends on whether the question is one of fact, one
of law, or a mixed question of fact and law. American Federation of State, County &
Municipal Employees, Council 31 v. Illinois State Labor Relations Board, 216 Ill. 2d 569,
577, 839 N.E.2d 479, 485 (2005) (AFSCME Council 31). If the question is purely one of
fact, we will deem the Board's decision to be "prima facie true and correct." 735 ILCS
5/3-110 (West 2006). Case law has interpreted the phrase "prima facie true and correct"
as meaning we will uphold the agency's factual findings and conclusions to the extent
they are not "against the manifest weight of the evidence" (AFSCME Council 31, 216 Ill.
2d at 577, 839 N.E.2d at 485), that is, to the extent that the opposite factual findings and
conclusions are not "clearly evident" from the evidence in the record (Roti v. LTD
Commodities, 355 Ill. App. 3d 1039, 1051, 823 N.E.2d 636, 645 (2005)). If the question
is purely one of law, our standard of review is de novo. McKee v. Board of Trustees of
the Champaign Police Pension Fund, 367 Ill. App. 3d 538, 543, 855 N.E.2d 571, 575
(2006). "Mixed questions of fact and law are 'questions in which the historical facts are
admitted or established, the rule of law is undisputed, and the issue is whether the facts
satisfy the statutory standard, or[,] to put it another way, whether the rule of law[,] as
applied to the established facts[,] is or is not violated.'" AFSCME Council 31, 216 Ill. 2d
at 577, 839 N.E.2d at 485, quoting Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19,
72 L. Ed. 2d 66, 80 n.19, 102 S. Ct. 1781, 1790 n.19 (1982). We will uphold the Board's
determination of a mixed question of law and fact unless the determination is "clearly
erroneous" (AFSCME Council 31, 216 Ill. 2d at 577, 839 N.E.2d at 485), or only if we are
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"left with the firm and definite conviction that a mistake has been committed" (AFSCME
Council 31, 216 Ill. 2d at 578, 839 N.E.2d at 485).
B. The Statutory Definition of "Supervisor"
A bargaining unit may not include both employees and supervisors. 5
ILCS 315/3(s)(1) (West 2006). "The purpose of such an exclusion is to ensure that 'pro-
union bias will not impair the supervisor's ability to apply the employer's policies to
subordinates according to the employer's best interests.'" Chief Judge of the Circuit
Court v. American Federation of State, County & Municipal Employees, Council 31, 153
Ill. 2d 508, 515, 607 N.E.2d 182, 186 (1992), quoting City of Freeport v. Illinois State
Labor Relations Board, 135 Ill. 2d 499, 506, 554 N.E.2d 155, 159 (1990). The employer
in this case maintains that telecommunications supervisors are "supervisors" and that
by ordering their inclusion in the bargaining unit, the Board violated section 3(s)(1) of
the Act (5 ILCS 315/3(s)(1) (West 2006)).
Section 3(r) defines "supervisor" as follows:
"'Supervisor' is an employee whose principal work is
substantially different from that of his or her subordinates
and who has authority, in the interest of the employer, to
hire, transfer, suspend, lay off, recall, promote, discharge,
direct, reward, or discipline employees[;] to adjust their
grievances[;] or to effectively recommend any of those
actions, if the exercise of that authority is not of a merely
routine or clerical nature[] but requires the consistent use of
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independent judgment. Except with respect to police
employment, the term 'supervisor' includes only those
individuals who devote a preponderance of their
employment time to exercising that authority, [s]tate
supervisors notwithstanding." 5 ILCS 315/3(r) (West 2006).
As the party seeking to exclude telecommunications supervisors from the
bargaining unit, the employer had the burden of proving, by a preponderance of the
evidence, that they were "supervisors." See Chief Judge of the Circuit Court, 19 Pub.
Employee Rep. (Ill.) par. 123, at 487-88, No. S--RC--02--083 (Illinois Labor Relations
Board, State Panel, June 27, 2003) (2003 PERI (LRP) LEXIS 121) (hereinafter 19 Pub.
Employee Ref. (Ill.) par. 123). To carry that burden of proof, the employer had to prove
each of the following four propositions derived from section 3(r). First, the principal
work of telecommunications supervisors was substantially different from the principal
work of their subordinates. Second, telecommunications supervisors had authority to
perform one or more of the 11 supervisory functions listed in section 3(r). Third,
telecommunications supervisors consistently used independent judgment in performing
one or more of the supervisory functions. Fourth, telecommunications supervisors
devoted a preponderance of their time to performing one or more of the supervisory
functions. See Chief Judge, 153 Ill. 2d at 515, 607 N.E.2d at 186. We will consider those
four propositions in turn.
1. Is the Principal Work of a Telecommunications Supervisor
Substantially Different From That of His or Her Subordinates?
a. Is This Question Even in Dispute?
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The ALJ found that "the principal work of [t]elecommunications
[s]upervisors was obviously and visibly different from that of their subordinates[,]
notwithstanding the fact that supervisors [might] relieve [c]all[-][t]akers and [l]ead
[c]all[-][t]akers when they [took] breaks and [might] also perform [l]ead [c]all[-][t]aker
duties when the latter [were] absent." The employer reasons that because the Board, in
its decision, did not explicitly disagree with that finding by the ALJ, the finding "is not in
dispute and, therefore, the [t]elecommunications [s]upervisors meet the first prong of
the supervisory analysis."
The employer's reasoning is unsound in this respect. Just because the
Board, in its decision, did not dispute the ALJ's finding that the principal work of
telecommunications supervisors was obviously and visibly different from that of call-
takers and lead call-takers, it does not logically follow that a different party, the union,
agrees with that finding. In fact, in its exceptions to the ALJ's recommended decision
and order, the union took issue with that finding--and, in its brief, the union continues
to do so.
Moreover, we can affirm the Board's decision for any reason the record
discloses, regardless of whether the Board relied on that reason. See Gardziella v. City of
Chicago, 337 Ill. App. 3d 181, 185, 785 N.E.2d 81, 85 (2003); Commonwealth Edison Co.
v. Illinois Commerce Comm'n, 295 Ill. App. 3d 311, 319, 692 N.E.2d 1350, 1355 (1998).
The ultimate correctness of the Board's decision does not depend on the exhaustiveness
of the Board's rationale therein.
b. Is the Principal Work of a Telecommunications Supervisor
"Obviously and Visibly Different" From That of His or Her Subordinates?
- 22 -
In its published decisions, the Board has developed a methodology for the
principal-work requirement. The Board first asks whether the principal work of the
alleged supervisors is "obviously and visibly different" from the principal work of their
subordinates. Metropolitan Alliance of Police, Burr Ridge Command Chapter No. 13, 23
Pub. Employee Rep. (Ill.) par. 102, at 406, No. S--RC--05--109 (Illinois Labor Relations
Board, State Panel, June 22, 2007) (2007 PERI (LRP) LEXIS 100, at *35) (hereinafter
23 Pub. Employee Rep. (Ill.) par. 102). If the answer is yes, the principal-work
requirement is fulfilled. 23 Pub. Employee Rep. (Ill.) par. 102, at 406 (2007 PERI (LRP)
LEXIS 100, at *35) . If the answer is no, the Board examines what the alleged
supervisors do, to determine whether the "'"nature and essence"'" of their principal work
is different from the "'"nature and essence"'" of their subordinates' principal work. 23
Pub. Employee Rep. (Ill.) par. 102, at 406 (2007 PERI (LRP) LEXIS 100, at *35-36),
quoting City of Freeport, 135 Ill. 2d at 514, 554 N.E.2d at 163, quoting City of Burbank, 1
Pub. Employee Rep. (Ill.) par. 2008, at VIII-49, No. S--RC--45 (Illinois State Labor
Relations Board, June 6, 1985) (1985 PERI (LRP) LEXIS 605). "This examination
involves a consideration of the existence of the alleged supervisor's supervisory
authority and ability to exercise it any time and to '*** identify the point at which an
employee's supervisory obligation conflicts with his participation in union activity with
the employees he supervises.'" 23 Pub. Employee Rep. (Ill.) par. 102, at 406 (2007 PERI
(LRP) LEXIS 100, at *36), quoting City of Freeport, 135 Ill. 2d at 518, 554 N.E.2d at 164.
In the argument of its brief, under the heading "Telecommunications
Supervisors Perform Principal Work Substantially Different [F]rom [T]hat of Their
- 23 -
Subordinates," the employer argues that "the principal work of [t]elecommunications
[s]upervisors is obviously and visibly different from that of their subordinates." In
support of that argument, the employer compares the principal work of a
telecommunications supervisor to that of a call-taker. "[T]he principal work of the
[t]elecommunications [s]upervisors," the employer says, "is to oversee the work of
[c]all[-][t]akers and [l]ead [c]all[-][t]akers." The principal work of call-takers, by
contrast, is "to operate the dispatch consoles[,] to answer emergency telephone calls
from the public[] and radio calls for service from [s]tate troopers[] and other agencies[,]
to dispatch troopers[,] to run criminal histories[,] to collect and enter other data[,] and
to resolve problems with computer equipment."
The employer thereby shows that the principal work of a
telecommunications supervisor is obviously and visibly different from that of a call-
taker--but call-takers are not the only subordinates. Lead call-takers also are
subordinate to telecommunications supervisors, and they have a job description
separate from that of call-takers. Also, they are paid more. Vail testified she had to be
careful about assigning lead call-taker duties to call-takers because call-takers might
begin demanding lead call-taker pay. It appears that, in their duties, lead call-takers
occupy a gray zone between call-takers and telecommunications supervisors. In the
absence of the telecommunications supervisor, they are the supervisor of the shift.
According to Mahon, lead call takers operate the radios but also, when necessary, call in
employees to work overtime. As the union observes in its brief, lead call-takers also
"monitor phone calls for quality and assist in evaluating other [c]all[-][t]akers, perform
- 24 -
quality checks[,] and assist with reports"--things a telecommunications supervisor does.
Lane testified:
"The [l]ead [c]all[-][t]aker position is *** a quasi-supervisory
position[] in that [lead call-takers] provide shift or floor
oversight. Obviously, a [t]elecommunications [s]upervisor
can't work 24 hours a day and isn't able to be there across all
three shifts. So the [l]ead [c]all[-][t]aker is there to ***
monitor *** operational compliance[] [and] the integrity of
the operations ***."
Thus, a lead call-taker answers the radio like a call-taker but also oversees
the shift, trains and evaluates employees, assigns overtime, and prepares reports like a
telecommunications supervisor. Which are the principal, or most important, duties of a
lead call-taker? The answer is unclear. The employer does not identify any evidence in
the record that would require a rational trier of fact to find that the duties a lead call-
taker shares with a call-taker are more important than the supervisory duties a lead call-
taker shares with the telecommunications supervisor. The Board could reasonably find
that the principal work of a telecommunications supervisor is not obviously and visibly
different from the principal work of a lead call-taker, who is, as Lane testified, a quasi-
supervisor.
With respect to the principal-work requirement, the employer does not
proceed to the second phase of the analysis: whether, if telecommunications supervisors
were allowed to join the bargaining unit, the nature and essence of their principal work
- 25 -
would cause them to be torn between their allegiance to the employer and their
allegiance to the union (see 23 Pub. Employee Rep. (Ill.) par. 102, at 406 (2007 PERI
(LRP) LEXIS 100, at *36). Thus, we need not take up that question. The principal-work
requirement is unfulfilled, and for that reason alone, an affirmance of the Board's
decision is justified. We will consider, however, the remaining three requirements in
section 3(r) (5 ILCS 315/3(r) (West 2006)).
2. Do Telecommunications Supervisors Have
Authority To Perform Supervisory Functions?
The second proposition the employer must prove, to obtain the exclusion
of telecommunications supervisors from the bargaining unit, is that telecommunications
supervisors have authority to perform 1 or more of the 11 supervisory functions. See
Chief Judge, 153 Ill. 2d at 515, 607 N.E.2d at 186. Those functions are "to hire, transfer,
suspend, lay off, recall, promote, discharge, direct, reward, or discipline employees[;] to
adjust their grievances[;] or to effectively recommend any of those actions." 5 ILCS
315/3(r) (West 2006). The employer contends that telecommunications supervisors
perform two supervisory functions: directing employees and disciplining them.
a. Directing Employees
The employer maintains that telecommunications supervisors direct their
subordinates in seven ways: (1) monitoring and correcting their performance, (2)
establishing work schedules, (3) assigning work, (4) determining the need for overtime,
(5) granting leave and imposing proof status, (6) training employees, and (7) evaluating
their performance. It is not enough, however, merely to point out these functions of
direction; "the alleged supervisor must have both the authority to make operational
- 26 -
decisions and exercise significant discretionary authority that impacts his subordinates'
employment status in areas most likely to fall within their terms and conditions of
employment" (emphases added) (State of Illinois, Department of Central Management
Services, 21 Pub. Employee Rep. (Ill.) par. 46, at 216, No. S--RC--04--038 (Illinois Labor
Board, State Panel, March 25, 2005) (2005 PERI (LRP) LEXIS 43)). As an ALJ
explained in a recommended decision with which the Board agreed:
"The authority to direct involves functions relating to
overseeing an employer's operations or which indicate
responsibility for the performance of a subordinate's work.
[Citations.] These functions include reviewing and
monitoring work activities, instructions on how work is to be
performed, scheduling work hours, assigning work, and
approving requests for leave or overtime[,] and completing
performance evaluations. [Citations.] The Board has also
previously held that these and any other function of direction
are not supervisory direction absent evidence that the alleged
supervisor possesses significant discretion to affect or impact
the[] subordinates['] employment in areas likely to fall
within the scope of union representation, such as wages,
discipline, transfer, promotion, hir[ing,] or other working
conditions." Service Employees International Union, Local
73-HC, 19 Pub. Employee Rep. (Ill.) par. 58, at 265, No. L--
- 27 -
RC--02--014 (Illinois Labor Board, Local Panel, April 15,
2003) (2003 PERI (LRP) LEXIS 59).
See also City of Sparta, 9 Pub. Employee Rep. (Ill.) par. 2029, at X-150, No. S--RC--92--
100 (Illinois State Labor Relations Board, June 21, 1993) (1993 PERI (LRP) LEXIS 158).
The reasoning is that "absent such discretionary authority, an individual's responsibility
to direct subordinates in the performance of their job duties does not conflict with his
membership in a bargaining unit." City of Bloomington, 13 Pub. Employee Rep. (Ill.)
par. 2041, at X-236, No. S--UC--97--30 (Illinois State Labor Relations Board, August 25,
1997) (1997 PERI (LRP) LEXIS 129, at *8). In the present case, the Board found that
"[a]lthough [telecommunications supervisors] overs[aw] their subordinates' work
activities[] and provide[d] them with instruction and assistance, they [were] unable to
affect the terms and conditions of their [subordinates'] employment, and oversight
authority alone [was] insufficient to constitute supervisory direction under the Act." 23
Pub. Employee Rep. (Ill.) par. 38, at 98 (2007 PERI (LRP) LEXIS 37, at *6).
The employer does not claim that telecommunications supervisors have
any influence over transfers. Nor does the employer claim that telecommunications
supervisors are "supervisors," in the statutory sense, by virtue of their participation in
hiring committees. It appears that the only means by which telecommunications
supervisors arguably have any influence over wages, discipline, and promotion are
performance evaluations and referrals for discipline--both of which serve, essentially, as
recommendations or suggested grounds for action by someone higher in the chain of
command. Under section 3(r), a "supervisor" directs or disciplines employees (among
- 28 -
other possible supervisory functions) or "effectively recommend[s] any of those actions."
5 ILCS 315/3(r) (West 2006). The critical word is "effectively." "For a recommendation
such as this to be [']effective['] within the meaning of the Act [(5 ILCS 315/3(r) (West
2006))], it must be adopted as a matter of course, without independent review."
International Union of Operating Engineers, Local No. 150, 23 Pub. Employee Rep. (Ill.)
par. 130, at 561, No. S--RC--06--175 (Illinois Labor Board, State Panel, September 4,
2007) (2007 PERI (LRP) LEXIS 128).
The employer argues that because no one higher in the chain of command
ever requested a telecommunications supervisor to change the ratings in a performance
evaluation and because Vail and Stec admitted that performance evaluations could affect
promotions and influence the decision of whether to fire an employee,
telecommunications supervisors have significant discretion to affect the terms and
conditions of employment and, therefore, they "direct" employees. As authority for this
argument, the employer cites Village of Hinsdale, 22 Pub. Employee Rep. (Ill.) par. 176,
at 669-70, No. S--RC--06--037 (Illinois Labor Board, State Panel, December 13, 2006)
(2006 PERI (LRP) LEXIS 181) (hereinafter 22 Pub. Employee Rep. (Ill.) par 176).
In Village of Hinsdale, the ALJ found that police sergeants employed by
the village were "supervisors" because they had authority to discipline their
subordinates by putting counseling statements in their personnel file, which could
enhance future discipline. The Board agreed with that finding. The ALJ found,
however, that the sergeants' authority to evaluate their subordinates' performance was
not indicative of supervisory authority. The employer filed an exception to that finding,
and the Board agreed with the employer. The sergeants were required to evaluate patrol
- 29 -
officers in 25 categories, rating their performance as "'below standard,'" "'standard,'" or
"'above standard'" in each category. Three of the rating categories--warning citations,
traffic citations, and parking citations--were based solely on the number of citations the
patrol officer had issued during the year, so the sergeant's rating in those categories was
automatic and did not require the use of independent judgment. But the remaining
categories--e.g., problem-solving, performance under pressure, and interpersonal
skills--were more subjective and called for independent judgment by the sergeant. The
Board said:
"It is also apparent that the component ratings, which
control the overall rating, affect the patrol officers' terms and
conditions of employment. A patrol officer must achieve an
overall 'standard' to advance to the next pay grade. While
the record indicates that most officers do so on an annual
basis, the record does demonstrate that[,] in one instance[,]
a patrol officer failed to advance for three straight years,
based on a sergeant's negative overall rating.
While the evaluations are reviewed by higher[-]level
officials, the record reflects that the sergeants' ratings of
their subordinates--both the 25 components and the overall
ratings--have never been changed. Thus, these are effective
recommendations within the meaning of [s]ection 3(r) of the
Act. [Citation.] As these evaluations directly affect the
- 30 -
patrol officers' terms and conditions of employment, that is,
their wages, the sergeants exercise the supervisory authority
to direct in evaluating the patrol officers." 22 Pub. Employee
Rep. (Ill.) par. 176, at 670 (2006 PERI (LRP) LEXIS 181, at
*5-6).
In a footnote in Village of Hinsdale, the Board said:
"As noted by the [ALJ], the evaluations also contain
narrative comments. ***
***
As found by the [ALJ], the record shows that the
evaluations are reviewed and higher-level officials sometimes
add to or change the narrative comments. It is fairly typical,
especially in a paramilitary organization, that the review
would include some input by the higher-level officials, and
we do not believe that it demonstrates that the sergeants lack
independent judgment in preparing their comments in the
first instance. In any event, however, it is the ratings, not the
comments, which determine whether a patrol officer receives
a pay increase, and the evidence is clear that the higher-level
officials have never changed those ratings. Thus, the
sergeants make effective recommendations which directly
impact their subordinates' wages." 22 Pub. Employee Rep.
- 31 -
(Ill.) par. 176, at 670 n. 1 (2006 PERI (LRP) LEXIS 181, at *6
n.1).
The present case is distinguishable from Village of Hinsdale for five
reasons. First, it is unclear, from the record before us, that telecommunications
supervisors use independent judgment in evaluating their subordinates because we do
not know the categories in the performance evaluations and, therefore, we are unable to
say that the categories are more subjective than quantitative. Second, it is unclear how
often call-takers and lead call-takers receive an opportunity for promotion (in contrast
to the Hinsdale patrol officers, most of whom advanced to the next pay grade each year).
Third, in the present case, promotions appear to depend more on seniority than
performance evaluations. It is theoretically possible that a junior employee could be
promoted over a senior employee if performance evaluations showed the junior
employee to be "considerably more qualified for the position," but there appears to be no
evidence in the record that performance evaluations have, in practice, ever trumped
seniority or affected anyone's promotion. Fourth, telecommunications supervisors do
not exercise independent judgment, in the first instance, when writing the comments in
performance evaluations. Sometimes, while a performance evaluation is "still in the
planning process," the regional manager will require a telecommunications supervisor
to revise the performance evaluation so that a rating and the corresponding comment
are in congruence. Such a revision necessarily would entail a substantive change in
either the comment or the rating. This is different from Village of Hinsdale, in which the
higher-level officials made additions or changes in the comments themselves. Fifth, it is
unclear that the comments in a call-taker's or lead call-taker's performance evaluation
- 32 -
are less important than the ratings. In sum, the Board could reasonably find that
telecommunications supervisors' authority to evaluate their subordinates does not
amount to significant discretionary authority to affect their subordinates' terms and
conditions of employment and, thus, their responsibility for the subordinates'
competent performance is not supervisory authority to "direct" employees within the
meaning of section 3(r) (5 ILCS 315/3(r) (West 2006)). See 23 Pub. Employee Rep.
(Ill.) par. 102, at 400 (2007 PERI (LRP) LEXIS 100, at *5) ("on occasion, the chief has
suggested modifications to evaluations completed by the sergeants").
We say this is a reasonable finding by the Board, not an ineluctable
finding. There is some evidence in the record to support the opposite finding, and we do
not mean to ignore that evidence. For example, the class specification says that a
telecommunications supervisor "promotes or terminates trainees, as appropriate." The
Board could reasonably find, however, that despite this unqualified language in the job
description, telecommunications supervisors, in practice, do not have significant
discretionary authority to affect the employment of trainees. Mitchell testified that she
"suggested" to her superiors that an underperforming trainee not be certified. Mahon
testified that when she recommended the firing of a trainee, she had to submit proof in
support of her recommendation. Instead of following her recommendation, with no
questions asked, Mahon's superiors required her to make a case with the weekly training
evaluations. It appears that these weekly training evaluations are designed to eliminate
subjectivity or discretion. "A decision is not against the manifest weight of the evidence
and must be affirmed if any evidence fairly supports the determination of the
administrative agency." Roti, 355 Ill. App. 3d at 1051, 823 N.E.2d at 645. We do not
- 33 -
reweigh the evidence or make an independent determination of the facts; if the record
allows a reasonable difference of opinion, our duty is to affirm. Roti, 355 Ill. App. 3d at
1051, 823 N.E.2d at 645. Insomuch as the question is whether the facts fit the statute--
whether a telecommunications supervisor "direct[s]" employees, as the Board and case
law have interpreted that statutory term--we are not left with a firm and definite
conviction that a negative answer is a mistake. See AFSCME Council 31, 216 Ill. 2d at
577-78, 839 N.E.2d at 485.
Likewise, the creation of schedules and the assignment of work are
inconsequential oversight functions unless the alleged supervisor has authority to affect
the employment of his or her subordinates. Metropolitan Alliance of Police, Sergeants
Chapter No. 435, 23 Pub. Employee Rep. (Ill.) par. 72, at 246, No. S--RC–06–005
(Illinois Labor Board, State Panel, April 27, 2007) (2007 PERI (LRP) LEXIS 69, at *8)
(hereinafter 23 Pub. Employee Rep. (Ill.) par. 72). As we have explained,
telecommunications supervisors lack such authority, or so the Board could reasonably
have found. That a lead call-taker or even a call-taker, who are members of the
bargaining unit, can call in employees to perform overtime tends to confirm that
scheduling is not a quintessentially "supervisory" act. Moreover, a telecommunications
supervisor's discretion in scheduling is narrowly cabined by shift-bidding and minimum
manpower requirements. See 23 Pub. Employee Rep. (Ill.) par. 72, at 246 (2007 PERI
(LRP) LEXIS 69, at *7) ("[s]ergeants' role in approving vacations or other time off for
the employees in the subordinate ranks is dictated by the minimum manpower
requirements, department rules, or the officers' collective[-]bargaining agreement").
b. Disciplining Employees
- 34 -
In the argument of its brief, the employer says, without citation to the
record, that telecommunications supervisors "have discretion as to whether they will
issue a written reprimand." See 177 Ill. 2d R. 341(e)(7) ("Argument, which shall contain
the contentions of the appellant and the reasons therefor, with citation of the authorities
and the pages of the record relied on"). In the "Statement of Facts" in its brief, the
employer cites Mitchell's testimony that she once disciplined an employee for late
arrival. But when one reads the rest of Mitchell's testimony, it becomes apparent that
she herself was not the one who imposed the discipline. She testified that she
recommended to the assistant bureau chief that the employee receive a letter of
reprimand and, as a result of her recommendation, the employee received one.
Telecommunications supervisors can verbally counsel employees. Such verbal
counseling, however, is not supervisory in nature unless it affects the terms and
conditions of employment, and the record appears to contain no evidence that it does.
See County of Lake & Sheriff of Lake County, 16 Pub. Employee Rep. (Ill.) par. 2036, at
X-160, No. S--UC--99--017 (Illinois State Labor Relations Board, July 7, 2000) (2000
PERI (LRP) LEXIS 384) (hereinafter 16 Pub. Employee Rep. (Ill.) par. 2036) . We are
aware of no evidence that telecommunications supervisors have discretion to issue
written reprimands. It appears that when discipline becomes necessary, all they may do
is recommend the issuance of a letter of reprimand (or other discipline) and then their
superiors either accept or reject that recommendation. Vail recommended a letter of
reprimand, but her superiors declined to follow her recommendation and instead
imposed a more severe punishment--suspension for a day. Stec denied that she had
authority to impose discipline before speaking with someone higher in the chain of
- 35 -
command. Her experience was similar to Vail's: higher-ranking officials did not always
follow her recommendations in matters of discipline. Stec testified: "Something that I
thought would warrant a written reprimand[] ended up with a more severe discipline."
See 23 Pub. Employee Rep. (Ill.) par. 72, at 246 (2007 PERI (LRP) LEXIS 69, at *8-9)
("the sergeants need approval from the deputy chief to issue an oral or written
reprimand"). On the basis of such evidence, a reasonable trier of fact could find that
telecommunications supervisors' recommendations as to discipline are not "adopted as a
matter of course," without independent review and, therefore, telecommunications
supervisors lack authority to "effectively recommend" discipline (emphasis added) (5
ILCS 315/3(r) (West 2006)). See County of Cook v. Illinois Labor Relations Board--
Local Panel, 351 Ill. App. 3d 379, 396, 813 N.E.2d 1107, 1122 (2004), appeal denied, 212
Ill. 2d 530, 824 N.E.2d 283 (2004).
3. The Negation of the Remaining Two Elements in Section 3(r), Since
Telecommunications Supervisors Do Not Perform Supervisory Functions
The third proposition the employer had to prove was that
telecommunications supervisors consistently used independent judgment in performing
supervisory functions. See Chief Judge, 153 Ill. 2d at 515, 607 N.E.2d at 186. The fourth
proposition was that telecommunications supervisors devoted a preponderance of their
time to exercising supervisory functions. See Chief Judge, 153 Ill. 2d at 515, 607 N.E.2d
at 186. By failing to prove that telecommunications supervisors performed supervisory
functions, the employer necessarily failed to prove those remaining two propositions.
See 16 Pub. Employee Rep. (Ill.) par. 2036, at X-160 (2000 PERI (LRP) LEXIS 384).
III. CONCLUSION
- 36 -
For the foregoing reasons, we affirm the Board's decision.
Affirmed.
KNECHT, J., concurs.
COOK, J., dissents.
JUSTICE COOK, dissenting:
I respectfully dissent. I would reverse the decision of the Board and accept
the ALJ's recommended order.
The State Police have 19 telecommunication centers throughout the state
that support police and law-enforcement operations by answering emergency telephone
calls from the public and radio calls for service from state troopers and other agencies.
The centers dispatch troopers, run criminal histories, and collect and enter data. The
telecommunications centers are administered by the Communications Service Bureau.
The highest officials at the telecommunication centers are the 19 telecommunication
supervisors, who report to but infrequently confer with the 4 Regional Managers. Two
of the telecommunications supervisors actually function as regional managers. Each
telecommunication supervisor has between 7 and 22 subordinates, including call-takers
- 37 -
and lead call-takers who are usually assigned to shifts the telecommunications
supervisor does not work.
The telecommunications supervisor oversees all communication
operations at the center and trouble shoots. He or she observes call-takers' and lead
call-takers' compliance with law, policy, procedures, and protocol, and also corrects
their errors. The telecommunications supervisor schedules call-takers' work hours,
decides overtime, prepares written reports, mediates employee disputes, evaluates
employees, and handles leave requests. Telecommunications supervisors are on call 24
hours a day. The telecommunications supervisor monitors the work of subordinates by
using a scanner, sometimes even when he or she is off duty at home. He or she carries a
pager and cell phone so that he or she may be contacted when an issue arises. When a
telecommunications supervisor hears a call-taker or lead call-taker giving wrong
information or observes him or her not conforming to policy, he or she may immediately
counsel the individual. The telecommunications supervisor may also transfer a
subordinate to a different shift to allow greater monitoring and instruction.
A telecommunications supervisor annually evaluates subordinate call-
takers and lead call-takers. Telecommunications supervisors make hiring
recommendations. Telecommunications supervisors effectively recommend the
discharge of trainee employees. The telecommunications supervisor may issue written
reprimands, which remain in an employee's personnel file for two years. In practice,
those reprimands have been acted upon by the Assistant Bureau Chief and by Regional
Managers.
- 38 -
An employee is a "supervisor" if (1) his or her principal work is
substantially different from her subordinates; (2) he or she has authority to do things
such as "direct" or "discipline" employees; (3) that authority is not of a merely routine or
clerical nature, but requires the consistent use of independent judgment; and (4) he or
she devotes a preponderance of her employment time to exercising that authority. 5
ILCS 315/3®) (West 2006). "Preponderance" is not determined by a strictly
mathematical test. Whether a person is a supervisor should be defined by the
significance of what that person does for the employer, regardless of the time spent on
particular types of functions. County of Vermilion v. Illinois Labor Relations Board, 344
Ill. App. 3d 1126, 1136, 800 N.E.2d 875, 882 (2003).
The question presented in this case is an important one. There would be a
conflict of interest if supervisors, who must apply the employer's policies to
subordinates, are subject to control by the same union representing those subordinates.
Freeport, 135 Ill. 2d at 517, 554 N.E. 2d at 164. In this case, as in Freeport, if the
telecommunications supervisors are not statutory "supervisors," the
telecommunications centers operate "entirely without supervision a large part of the
time." Freeport, 135 Ill. 2d at 522, 554 N.E. 2d at 166. In fact, because Regional
Managers only occasionally travel to communications centers for meetings and
interviews, the situation here may be more aggravated than that in Freeport.
The majority concludes that the principal work of the telecommunications
supervisors is not significantly different from that of the lead call-takers. Lead call-
takers monitor operations in the telecommunications supervisor's absence, but
otherwise have no oversight responsibility. Lead call-takers do not prepare schedules,
- 39 -
prepare written reports, mediate employee disputes, evaluate employees, handle leave
requests, make hiring recommendations, issue written reprimands, or recommend the
discharge of trainees. Lead call-takers are basically call-takers, members of the
bargaining unit. City of Naperville, 8 Pub. Employee Rep. (Ill.) par. 2016, at X-99, No.
S--RC--92--15 (Illinois State Labor Relations Board, April 1, 1992) (1992 PERI (LRP)
LEXIS 88) (holding that lead call-takers are members of the bargaining unit because
they do not devote a preponderance of their time to supervisory activities). The majority
recognizes that call-takers are not supervisors. If the majority is correct that lead call-
takers are more like telecommunications supervisors than they are call- takers, then lead
call-takers should be considered supervisors, not vice-versa.
The majority states that it is "aware of no evidence that
telecommunications supervisors have discretion to issue written reprimands." Slip op.
at 36. The majority is mistaken. I agree with the ALJ that the record evidence
establishes that telecommunications supervisors have authority to counsel employees
for instances of misconduct and have discretion as to whether they will issue a written
reprimand after several repeated instances of misconduct. Written reprimands remain
in an employee's personnel file for two years. "Telecommunications [s]upervisors
exercise independent judgment in issuing written reprimands because they choose
between two or more significant courses of action, counseling or a written reprimand."
23 Pub. Employee Rep. (Ill.) par. 38, at 103 (Illinois Labor Board, State Panel,
Administrative Law Judge's Recommended Decision and Order, March 19, 2007) (2007
PERI (LRP) LEXIS 37, at *34).
The Board concluded telecommunications supervisors have no authority to
- 40 -
discipline employees because "[t]here was no evidence that the written reprimands
authored by the employees at issue [(telecommunications supervisors)], and placed in
their subordinates' personnel files, affected their employment, nor evidence that such
reprimands were subsequently used to enhance later discipline." Written reprimands
are just a meaningless ritual? The majority takes a different tack, that higher-ranking
officials did not always follow the recommendations of the telecommunications
supervisors, that they sometimes imposed more severe punishment. Slip op. at 36. The
fact of the matter is that there would be no discipline absent the recommendation of the
telecommunications supervisors. There is no evidence that the recommendations of the
telecommunications supervisors were ever ignored, only that higher ranking officials
sometimes went beyond those recommendations. The Board's conclusion that the
recommendations had no effect on the subordinates' employment is clearly erroneous.
The subordinates had to be concerned with the views of the telecommunications
supervisors, not the views of the Regional Managers--whom they almost never saw.
- 41 -