Secretary of State v. Illinois Labor Relations Board , 2012 IL App (4th) 111075 ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Secretary of State v. Illinois Labor Relations Board, State Panel, 2012 IL App (4th) 111075Appellate Court THE SECRETARY OF STATE, Petitioner, v. THE ILLINOIS LABOR
Caption 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; JOHN F. BROSNAN, Executive Director of Said
Board in His Official Capacity Only; and SERVICE EMPLOYEES
INTERNATIONAL UNION, LOCAL 73, Respondents.
District & No. Fourth District
Docket No. 4-11-1075
Rule 23 Order filed November 29, 2012
Rule 23 Order
withdrawn January 4, 2013
Opinion filed November 29, 2012
Rehearing denied January 10, 2013
Held The decision of the Illinois Labor Relations Board certifying respondent
(Note: This syllabus union as the exclusive bargaining representative of a group of employees
constitutes no part of of the Secretary of State with the title of “executives” based on the
the opinion of the court finding that the “executives” were not supervisors or managers under the
but has been prepared Illinois Public Labor Relations Act was upheld, since the Secretary failed
by the Reporter of to present evidence that the “executives” directed the effectuation of the
Decisions for the Secretary’s policies.
convenience of the
reader.)
Decision Under Petition for review of order of Illinois Labor Relations Board, State Panel,
Review No. S-RC-11-006.
Judgment Affirmed.
Counsel on Joseph M. Gagliardo and Lawrence Jay Weiner (argued), Special
Appeal Assistant Attorneys General, of Chicago, for petitioner.
Susan M. Matta, of Chicago, for respondent Service Employees
International Union, Local 73.
Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
Solicitor General, and Christopher M.R. Turner (argued), Assistant
Attorney General, of counsel), for respondent Illinois Labor Relations
Board.
Panel JUSTICE KNECHT delivered the judgment of the court, with opinion.
Presiding Justice Steigmann and Justice Appleton concurred in the
judgment and opinion.
OPINION
¶1 The Secretary of State (Secretary) seeks review of a final decision and order of the
Illinois Labor Relations Board, State Panel (Board), certifying Service Employees
International Union, Local 73 (Union), as the exclusive bargaining representative of
“approximately 116” individuals employed by the Secretary.
¶2 The Secretary contends (1) the Board lacked jurisdiction to address the Union’s
representation petition, and (2) the Board’s determinations (a) the individuals were not
supervisors under section 3(r) of the Illinois Public Labor Relations Act (Labor Act) (5 ILCS
315/3(r) (West 2010)) and (b) were not managers under section 3(j) of the Labor Act (5 ILCS
315/3(j) (West 2010)) were clearly erroneous. We affirm.
¶3 I. BACKGROUND
¶4 The Union is a labor organization as defined by section 3(i) of the Labor Act (5 ILCS
315/3(i) (West 2010)). The Union represents a bargaining unit that includes some, but not
all, employees with the title of executive I or executive II. The unit also includes employees
with the following titles: accountant IV, accountant V, administrative assistant I,
administrative assistant II, administrative assistant III, administrative clerk, auto parts auditor
supervisor, communications network technician, corporation specialist III, driver facility
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manager I, driver facility manager II, facility personnel officer, microfilm lab technician III,
motor carrier reciprocity prorate auditor, office operations supervisor, personnel officer I,
personnel officer II, personnel officer III, printing equipment supervisor, private secretary I,
private secretary II, public service supervisor, and training specialist.
¶5 The bargaining unit is covered under a collective bargaining agreement that expired on
June 30, 2012. The Secretary is a public employer within section 3(o) of the Labor Act and
a unit of local government under section 20 of the Labor Act (5 ILCS 315/3(o), 20(b) (West
2010)).
¶6 A. The Petition
¶7 In July 2010, the Union filed an election petition seeking to include 119 individuals
employed by the Secretary in its existing bargaining unit with the Secretary. (We note the
Union’s petition sought the inclusion of 119 employees, but the Board’s October 2011 order
characterized the Union’s petition as seeking only to add “approximately 116 employees.”
The August 2011 recommended decision and order of the administrative law judge (ALJ)
explained while the Secretary contended 119 employees were at issue, one of the Union’s
exhibits, which was stipulated into evidence, listed only 116 employees.) The individuals all
hold job designation of executive I or executive II (hereinafter referred to collectively as
Executives). Later that month, the Union amended the petition to a majority interest petition,
providing cards signed by a majority of employees.
¶8 On July 29, 2010, an ALJ ordered the Secretary to show cause why the petitioned-for unit
should not be certified. The ALJ cautioned the Secretary against relying on “vague,
generalized testimony or contentions as to an employee’s job function.”
¶9 In August 2010, the Secretary submitted its offer of proof with respect to all positions at
issue, arguing the Executives should be excluded from the proposed bargaining unit because
of their supervisory status. See 5 ILCS 315/3(r) (West 2010). In support of its offer of proof,
the Secretary attached questionnaires that had been filled out by the supervisors of each
Executive.
¶ 10 On May 4, 2011, a newly appointed ALJ scheduled an oral hearing for May 23 to 25,
2011. That day, the Secretary filed a motion to dismiss, asserting the Board no longer had
jurisdiction over the matter because section 9(a-5) of the Labor Act (5 ILCS 315/9(a-5)
(West 2010)) required the Board to conclude the hearing process within 120 days of the
filing of the Union’s majority interest petition. The Union also disputed the Board’s failure
to resolve the matter within 120 days, arguing because the 120-day due date had passed, the
Board should issue certification nunc pro tunc to November 13, 2010. The ALJ denied both
parties’ motions, and the parties later renewed their arguments at the administrative hearing.
¶ 11 On May 18, 2011, the Secretary submitted a prehearing memorandum, adding as an
additional argument 26 of the Executives should be excluded from the bargaining unit
because they were managerial employees as defined by section 3(j) of the Labor Act (5 ILCS
315/3(j) (West 2010)). The Union objected, contending the Secretary’s managerial argument
was untimely and prejudiced the Union.
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¶ 12 B. The Administrative Hearing
¶ 13 The Union and Secretary appeared for an administrative hearing on May 23, 2011, at
which the ALJ allowed the Secretary to proceed on its managerial argument, with the
requirement the Secretary stipulate it was only proceeding on the matter-of-fact test.
¶ 14 Thereafter, the parties presented the following evidence.
¶ 15 1. Gary Lazzerini’s Testimony
¶ 16 Gary Lazzerini, director of driver services (hereinafter Driver Services) for the metro
area, testified as the Secretary’s sole witness. Driver Services is one of the Secretary’s
subsidiary divisions. It maintains 25 facilities in Chicago and its collar counties and 105
facilities in downstate Illinois. Driver Services issues and maintains the records of driver’s
licenses and state identification cards and handles the state organ donor and federal motor
voter programs. The parties stipulated Lazzerini’s testimony would be relevant as to all
Executives at issue. Lazzerini’s testimony on direct examination and cross-examination
spanned 22 total pages of transcript and revealed the following facts.
¶ 17 a. Directing Employees
¶ 18 Executive Is are typically assistant managers and executive IIs are typically facility
managers. In personnel hierarchy, Executives are subordinate to directors, deputy directors,
administrators, and zone managers. Beneath the Executives are public service representatives
and clerks. The number of employees each Executive supervises depends on the size of the
facility at which the Executive works. The Executives typically do not have on-site superiors
at their facilities.
¶ 19 According to Lazzerini, the primary function of the Executives “is to direct, manage, and
supervise the employees of the facility.” When asked what Executives direct their employees
to do, Lazzerini testified “they’re directing them to do their job *** that’s in the job
description, they’re directing them as far as the different shifts, the different breaks, job
assignments, job duties.” He explained Executives assign staff to different work areas within
their facilities, such as at the greeter’s desk, based on the operational needs of the facility.
¶ 20 Overall, Lazzerini estimated the Executives spend 75% to 80% of their time in a
supervisory or managerial function.
¶ 21 b. Evaluating Employees’ Performance
¶ 22 According to Lazzerini, the Executives evaluate probationary employees twice a year,
and those evaluations determine whether a probationary employee becomes a full-time
employee. The Executives also evaluate nonprobationary employees once a year, and those
evaluations “[have] a significance” in determining pay raises and promotions. Lazzerini
explained employee pay increases as a whole are calculated according to collective-
bargaining agreements; however, if an employee receives a score of two or below on a four-
point scale in two evaluation periods, the employee may not receive a pay raise and could
lose his job.
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¶ 23 After the Executives fill out employee evaluations, the department of personnel reviews
the evaluations “to make sure that the justifications fit with the scoring.” The department
brings any problems with the evaluations to the Executives, who make changes accordingly.
Lazzerini testified zone managers also review the evaluations “at times,” but the managers
do not direct the Executives “at all”; rather, the managers serve as a “sounding board” to the
Executives.
¶ 24 c. Disciplining Employees
¶ 25 Lazzerini testified Driver Services has a progressive discipline system which starts with
oral warnings, followed by written warnings, suspensions, and then discharge. Executives
initiate the disciplinary process by identifying and bringing to the administration’s attention
any disciplinary requests. Executives only have authority to issue oral, verbal, or written
warnings but may recommend higher disciplinary action. When an Executive recommends
suspension, the director conducts a ground-level investigation, obtains witness statements,
and sends the investigation’s results to the personnel department. Lazzerini testified the
Executives’ disciplinary recommendations are accepted a majority of the time.
¶ 26 d. Scheduling Employees
¶ 27 According to Lazzerini, Executives also “handle the day-to-day attendance” of
employees. He explained the Secretary’s policy requires facility employees to submit
vacation requests toward the beginning of the year. The Executives then approve vacation
requests based on (1) seniority, (2) the collective-bargaining agreement’s required staffing
levels and allowance for two employees at a facility to be on vacation at a given time, and
(3) the workload at the facility. Lazzerini did not know if the Executives ever deny time off
when the requisite staff levels are met.
¶ 28 2. Documentary Evidence
¶ 29 In addition to Lazzerini’s testimony, the Secretary submitted over 3,000 pages of
exhibits, consisting of (1) organizational charts; (2) employee questionnaires completed by
supervisors of the Executives; (3) position descriptions; (4) oral and written warning notices
made by the Executives; (5) performance evaluations completed by the Executives; (6)
performance evaluations about the Executives completed by their supervisors; and (7)
various memoranda and emails purporting to show the Executives directing their
subordinates. Following the hearing, the Secretary also submitted a chart providing
information about 108 of the Executives, including their working titles, departments and
location assignments, number of supervised subordinates, and whether they are the top-
ranked employees at their work locations. The document shows the Executives are all either
managers, assistant mangers, or assistant managers currently serving as managers. Sixty-nine
of the Executives are the highest-ranked employees at their facilities. The Executives
supervise between 1 and 51 subordinates.
¶ 30 The Union stipulated to the authenticity of the Secretary’s documents, reserving the right
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to argue the applicability of the documents to the law. For its part, the Union offered into
evidence the collective-bargaining agreement between the Union and the Secretary as well
as a document providing information about each Executive’s supervisor. The Union’s
document listed 116 Executives–73 executive Is and 43 executive IIs.
¶ 31 In June 2011, the Union and Secretary both filed posthearing briefs. In his brief, the
Secretary expanded his managerial argument to argue that all of the Executives at issue
should be excluded because they were managers under the Labor Act.
¶ 32 C. The ALJ’S Recommended Decision
¶ 33 In August 2011, the ALJ issued a recommended decision and order, recommending the
Board grant the Union’s petition. First, the ALJ rejected the Secretary’s jurisdictional
argument, concluding section 9(a-5) of the Labor Act is not jurisdictional in nature.
Likewise, the ALJ rejected the Union’s contention the passage of the 120-day deadline
entitled it to nunc pro tunc certification.
¶ 34 1. Supervisory Exception
¶ 35 With respect to the Executives’ alleged supervisory status, the ALJ found the Secretary
failed to show the Executives spend a preponderance of their time performing supervisory
functions. Specifically, the ALJ found the Secretary failed to show the Executives exercise
supervisory authority when directing their subordinates because the evidence did not show
the Executives’ directory role required them to consistently use independent judgment. The
ALJ noted the Secretary relied on conclusory testimony and survey statements and vague
references to examples in the record. The few specific examples the Secretary did provide
failed to show the Executives exercised independent judgment when overseeing their
subordinates.
¶ 36 While the ALJ did not find the Executives exercise supervisory authority when directing
employees, the ALJ did find the Executives act in a supervisory role when they (1) issue
discipline, (2) reward employees, and (3) discharge nonprobationary employees. However,
the ALJ found the Secretary failed to show the Executives spend a preponderance of their
time performing these functions. The ALJ noted the Secretary did not describe the
Executives’ day-to-day activities in sufficient detail but, rather, relied on Lazzerini’s
conclusory testimony and broad citations to the surveys and job descriptions submitted into
evidence. Further, the ALJ pointed out Lazzerini asserted the Executives spend at least 75%
of their time directing employees. Thus, the ALJ reasoned the Executives must spend no
more than 25% of their time issuing discipline, rewarding employees, and discharging
nonprobationary employees. Based on this, the ALJ concluded the Secretary failed to show
the Executives spend a preponderance of their time exercising supervisory authority.
¶ 37 2. Managerial Exception
¶ 38 Likewise, the ALJ concluded the Secretary failed to show the Executives were
managerial employees because the evidence did not establish the Executives formulate policy
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and procedure or effectuate policy through their recommendations.
¶ 39 3. ALJ Recommends Certification
¶ 40 Based on the foregoing, the ALJ recommended the Board certify the Union as the
exclusive representative of the Executives. Thereafter, the parties both filed exceptions to the
ALJ’s findings and responses to each other’s exceptions.
¶ 41 D. The Board’s Decision
¶ 42 In October 2011, the Board issued a written decision, adopting the ALJ’s
recommendations and granting the Union’s petition to add the Executives to its certified
collective-bargaining agreement with the Secretary. Service Employees International Union,
Local 73, 28 PERI ¶ 68 (ILRB State Panel 2011). Like the ALJ, the Board rejected both the
Secretary’s and the Union’s arguments with respect to the Board’s failure to hold a hearing
within 120 days.
¶ 43 The Board also rejected the Secretary’s argument the Executives were supervisors within
the meaning of section 3(r) of the Labor Act. The Board concluded the Secretary failed to
present evidence showing how much time the Executives spend rewarding, disciplining, and
discharging employees, thereby failing to satisfy the “preponderance-of-time” requirement.
Further, the Board found the Secretary failed to show the Executives use independent
judgment to direct subordinates because (1) the Secretary relied on conclusory testimony and
job descriptions, and (2) the questionnaires and other documentary evidence submitted by
the Secretary merely showed the Executives directing subordinates to do routine tasks
outlined in their job descriptions–direction that does not require independent judgment. Thus,
the Board concluded the evidence failed to show the Executives exercise supervisory
authority when directing subordinates.
¶ 44 In addition, the Board found the Secretary failed to show the Executives were managerial
employees because the Secretary did not show the Executives (1) were engaged
predominantly in executive and management functions or (2) exercised responsibility for
directing the effectuation of management policies and functions. In so holding, the Board
rejected the Secretary’s contention the Executives who were the highest-ranking employees
at their facilities were necessarily managerial.
¶ 45 The Board directed its Executive Director to issue a certification consistent with its order.
In November 2011, the Board’s Executive Director issued a certificate of representation,
certifying the Union as the exclusive representative of the Executives.
¶ 46 This appeal followed.
¶ 47 II. ANALYSIS
¶ 48 On appeal, the Secretary contends (1) the Board erred by denying the Secretary’s motion
to dismiss because the Board lacked jurisdiction to address the Union’s representation
petition, and (2) the Board’s determinations (a) the individuals were not supervisors under
section 3(r) of the Labor Act (5 ILCS 315/3(r) (West 2010)) and (b) the individuals were not
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managerial employees under section 3(j) of the Labor Act (5 ILCS 315/3(j) (West 2010))
were clearly erroneous. We address the Secretary’s contentions in turn.
¶ 49 A. Standard of Review
¶ 50 Our review of the Board’s decision is governed by the Administrative Review Law (735
ILCS 5/3-101 to 3-113 (West 2010)). American Federation of State, County & Municipal
Employees, Council 31 v. Illinois State Labor Relations Board, State Panel, 216 Ill. 2d 569,
577, 839 N.E.2d 479, 485 (2005). We review questions of pure fact under a manifest weight
of the evidence standard, while we review pure questions of law de novo. Department of
Central Management Services/The Department of Public Health v. Illinois Labor Relations
Board, State Panel, 2012 IL App (4th) 110013, ¶¶ 50-51. Where an agency’s decision
presents mixed questions of law and fact, we review the decision under a “ ‘clearly
erroneous’ ” standard. American Federation of State, County & Municipal Employees, 216
Ill. 2d at 577, 839 N.E.2d at 485. Applying this “extremely deferential” standard, we will
reverse an agency’s decision only when we are “left with the definite and firm conviction that
a mistake has been committed.” (Internal quotation marks omitted.) Board of Education of
Glenview Community Consolidated School District No. 34 v. Illinois Educational Labor
Relations Board, 374 Ill. App. 3d 892, 899, 874 N.E.2d 158, 164-65 (2007).
¶ 51 B. The Union’s Assertion the Secretary Has Forfeited His Arguments
¶ 52 Before turning to the Secretary’s substantive arguments, we wish to address the Union’s
assertion we should deem the Secretary’s arguments forfeited in this case. (We note, in its
brief, the Union argued the Secretary “waived” his arguments. However, “waiver” refers to
a voluntary relinquishment of a right, whereas “forfeiture” refers to procedural default.
People v. Blair, 215 Ill. 2d 427, 444 n.2, 831 N.E.2d 604, 615 n.2 (2005).)
¶ 53 The Union asserts the Secretary “failed to put on a competent case” by (1) calling one
witness at the administrative hearing, which lasted less than three hours, (2) failing to show
how the thousands of exhibits he submitted to the Board demonstrate the Executives’
supervisory or managerial status, and (3) relying extensively on block quotations in his brief
on appeal.
¶ 54 The Union’s complaints are well taken. In May 2011, the ALJ accorded the Secretary the
opportunity of a hearing to prove the Executives’ supervisory or managerial status. Upon
being granted that hearing, the Secretary’s attorney, Lawrence Weiner, elected to call a single
witness, Lazzerini, and proceeded to conduct a direct examination of Lazzerini consisting
of roughly 50 questions and answers comprising 10 transcript pages. The Secretary also
submitted approximately 14 volumes of exhibits. In his brief to this court, the Secretary cites
these exhibits for broad propositions–such as “[f]or examples of Executives’ direction of
subordinates, see R 740-744”–but fails to articulate exactly what these exhibits allegedly
show. In two separate footnotes, the Secretary merely instructs us to “[s]ee Appendix for
complete list of exhibits.”
¶ 55 As the party seeking to exclude the Executives from the bargaining unit, the Secretary
carried the burden of proving the Executives’ supervisory or managerial status by a
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preponderance of the evidence. See Department of Central Management Services (State
Police) v. Illinois Labor Relations Board, State Panel, 382 Ill. App. 3d 208, 220-21, 888
N.E.2d 562, 575 (2008). To do so, the Secretary needed to present specific evidence as to
each Executive and connect that evidence to the controlling law. The Secretary may not foist
his burden on the ALJ, the Board, or this court. See People v. Snow, 2012 IL App (4th)
110415, ¶ 11, 964 N.E.2d 1139 (“[T]his court is not a depository into which the appellant
can dump his burden of argument and research.”).
¶ 56 Because we conclude the Secretary’s performance goes to whether he carried his burden
of proof, and not to whether he forfeited his case, we will address the Secretary’s claims on
the merits. In doing so, however, we are mindful it is not this court’s responsibility to sift
through the record and make the Secretary’s arguments for him.
¶ 57 In addition, we note the Secretary’s choice to call a single witness in this case served as
a detriment to meeting his burden of proof. Lazzerini’s testimony failed to provide details
about any of the Executives’ day-to-day activities and failed to provide background
information about any of the thousands of exhibits the Secretary submitted–information that
would have been useful in determining how, exactly, the exhibits demonstrated the
Executives acting in a supervisory or managerial function. Perhaps this was due to the
Secretary’s limited questioning of Lazzerini, or perhaps this was due to Lazzerini’s position
as the director of Driver Services for the metro area–a position that did not allow Lazzerini
to observe each of the Executives on a daily basis. Whatever the reason, in this case, where
the Union sought to include in its bargaining unit over 100 employees who worked in various
subdivisions of the Secretary of State, the Secretary’s reliance on Lazzerini’s testimony did
little to assist him in proving, by a preponderance of the evidence, the Executives were
supervisors or managers. We reiterate, to meet his burden of proof, the Secretary needed to
develop his arguments as to each specific employee, providing citations to the record, that
is, to (1) synthesize, (2) analyze, and (3) explain to the finder of fact exactly how the various
facts within the items of stipulated evidence proved the employees were supervisors or
managers under the Labor Act.
¶ 58 C. The Secretary’s Contention the Board Lacked
Jurisdiction To Address the Petition
¶ 59 The Secretary first argues, without citation to authority, the Board erred by holding it
retained jurisdiction over the Union’s petition. Specifically, the Secretary contends section
9(a-5) is mandatory and requires the Board to conclude its hearing process and issue a
certification within 120 days. The Union and Board respond the 120-day time period set forth
in section 9(a-5) is directory, not mandatory.
¶ 60 Whether a statutory command is mandatory or directory is a question of statutory
construction, which we review de novo. People v. Robinson, 217 Ill. 2d 43, 54, 838 N.E.2d
930, 936 (2005). Section 9(a-5) of the Labor Act provides, in relevant part, as follows:
“If a hearing is necessary to resolve any issues of representation under this Section, the
Board shall conclude its hearing process and issue a certification of the entire appropriate
unit not later than 120 days after the date the petition was filed. The 120-day period may
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be extended one or more times by the agreement of all parties to a hearing to a date
certain.” 5 ILCS 315/9(a-5) (West 2010).
¶ 61 In support of its contention section 9(a-5) is mandatory, the Secretary points to the Labor
Act’s language the Board “shall” act within 120 days. Our supreme court has clarified,
however, “the word ‘shall’ is not determinative” in determining whether a statute is
mandatory or directory. Robinson, 217 Ill. 2d at 54, 838 N.E.2d at 936. Rather, we determine
whether a statutory command is mandatory or directory by ascertaining the legislative intent
behind the statute. Id.¶ 62 We presume a statute issuing a procedural command to a government official is directory.
People v. Delvillar, 235 Ill. 2d 507, 517, 922 N.E.2d 330, 336 (2009). This presumption may
be overcome, however, when either (1) the statute contains negative language prohibiting
further action in the case of noncompliance, or (2) the right the statute is designed to protect
would be injured under a directory reading. Id.¶ 63 The Secretary contends the second condition is met here. Namely, the Secretary posits
one of the Labor Act’s purposes is to “prescribe the legitimate rights of both public
employees and public employers.” 5 ILCS 315/2 (West 2010). According to the Secretary,
the Board’s failure to resolve a case within 120 days would result in a change in the
workforce and thus prejudice (1) employers’ rights to have a majority of their current
employees in favor of unionization, and (2) employees’ rights to choose whether they
become members of a bargaining unit.
¶ 64 We find the Secretary’s argument unpersuasive. In County of Du Page v. Illinois Labor
Relations Board, 231 Ill. 2d 593, 607, 900 N.E.2d 1095, 1103 (2008), the supreme court
reviewed the legislative history of section 9(a-5) and determined the legislature’s intent in
enacting the statute was “to provide an alternative to the ‘lengthy and cumbersome’ statutory
election procedure.” In 2009, Public Act 96-813 (Pub. Act 96-813, § 5 (eff. Oct. 30, 2009))
amended section 9(a-5) to add, among other things, the 120-day time period to resolve
majority interest petitions. The bill’s sponsor, Representative Linda Chapa LaVia, explained
the bill’s amendments would protect employees from having “their interests unfairly
compromised by the tremendous delays in the process of the cases.” 96th Ill. Gen. Assem.,
House Proceedings, Apr. 2, 2009, at 76 (statements of Representative Chapa LaVia).
¶ 65 The foregoing review of the legislative history behind section 9(a-5) leads us to conclude
finding the statute is mandatory would, in fact, injure the rights the Labor Act was designed
to protect. If the 120-day deadline set forth in section 9(a-5) were mandatory, each time the
deadline passed, the Union would be required to file a new petition and reinitiate the entire
petition process, thereby causing substantial delays.
¶ 66 Based on the foregoing, we conclude section 9(a-5) is discretionary. Therefore, the Board
retained jurisdiction to address the Union’s petition.
¶ 67 D. The Secretary’s Assertion the Executives Are “Supervisors”
¶ 68 The Secretary next contends the Board’s decision he failed to prove the Executives were
supervisors within the meaning of the Labor Act was clearly erroneous. We disagree.
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¶ 69 The Labor Act prohibits a bargaining unit from including both employees and
supervisors. 5 ILCS 315/3(s)(1) (West 2010). This prohibition “ensures employers 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.” City of Freeport v. Illinois State
Labor Relations Board, 135 Ill. 2d 499, 506, 554 N.E.2d 155, 159 (1990). Section 3(r)
defines a “ ‘[s]upervisor’ ” 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 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, State supervisors notwithstanding.”
5 ILCS 315/3(r) (West 2010).
¶ 70 Thus, employees are supervisors pursuant to the Labor Act if they (1) perform principal
work that is substantially different from that of their subordinates; (2) have authority in the
interest of the employer to perform some or all of the 11 enumerated supervisory functions;
(3) consistently use independent judgment in performing the enumerated functions; and (4)
devote a preponderance of their time to performing those functions. 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). As the party seeking to exclude the
Executives from the bargaining unit, the Secretary carried the burden of proving, by a
preponderance of the evidence, the Executives were “supervisors” within the meaning of the
Labor Act. See Department of Central Management Services (State Police), 382 Ill. App. 3d
at 220-21, 888 N.E.2d at 575.
¶ 71 Here, the Board found the Secretary failed to prove the Executives spend a
preponderance of their time using independent judgment to perform the tasks enumerated in
section 3(r) of the Labor Act. Specifically, the Board found the Executives exercise
independent judgment only when they (1) reward, (2) discipline, and (3) discharge
probationary employees–tasks the Executives do not spend a preponderance of their time
completing. The Secretary asserts the Board’s decision was clearly erroneous because (1) the
Executives also exercise independent judgment when directing their subordinates, and (2)
the Executives devote a preponderance of their time to performing supervisory functions. We
address the Secretary’s assertions in turn.
¶ 72 1. Whether the Executives Use Independent Judgment
To “Direct” Their Subordinates
¶ 73 The Secretary first posits the Board’s finding the Executives do not exercise independent
judgment when directing their subordinates was clearly erroneous. We disagree.
¶ 74 The statutory term “direct” encompasses related oversight functions such as reviewing
and monitoring work activities, instructing on how work is to be performed, scheduling work
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hours, approving time-off and overtime requests, assigning duties, and evaluating job
performance. Department of Central Management Services (State Police), 382 Ill. App. 3d
at 224, 888 N.E.2d at 578. Exercising “independent judgment” means “ ‘the alleged
supervisor must make choices between two or more significant courses of action without
substantial review by superiors.’ ” Chief Judge, 153 Ill. 2d at 516, 607 N.E.2d at 186. Some
supervisory functions “are routine or ministerial in nature and do not generally require the
use of independent judgment.” City of Freeport, 135 Ill. 2d at 521, 554 N.E.2d at 166.
¶ 75 Here, the Secretary contends he proved the Executives” direct” their subordinates by
presenting evidence showing the Executives (1) are responsible for the overall direction of
their facilities, (2) assign work to their subordinates, (3) complete performance evaluations
of their subordinates, and (4) approve and disapprove time-off requests.
¶ 76 a. The Executives’ Overall Direction of Their Facilities
¶ 77 The Secretary asserts the Executives generally manage the overall direction of their
facilities. In support of his assertion, the Secretary cites the following evidence: (1)
organizational charts showing the executive IIs are usually the top employees at their
facilities and the executive Is are usually “second in command”; (2) Lazzerini’s “undisputed”
testimony the Executives “run[ ] the show” and manage the “overall direction” of their
facilities, and (3) three Executives’ job descriptions and five other documents detailed below.
¶ 78 First, the Secretary contends the Executives’ status as the top or second top employee at
their facilities is sufficient, in and of itself, to show the Executives direct their subordinates.
In support of his contention, the Secretary cites City of Sandwich v. Illinois Labor Relations
Board, State Panel, 406 Ill. App. 3d 1006, 942 N.E.2d 675 (2011), in which the Second
District held the petitioned-for police sergeants were “supervisors” within the meaning of the
Labor Act. In reaching its holding, the Second District noted when the chief of the police
department was absent–which was a majority of the time–the on-duty sergeant was the
highest-ranked employee at the headquarters for the police department. The court stated “[i]t
is unrealistic to conclude that patrol officers are unsupervised two-thirds to almost three-
quarters of the time.” City of Sandwich, 406 Ill. App. 3d at 1012, 942 N.E.2d at 681.
¶ 79 As the Board points out, however, City of Sandwich is inapposite because there, the on-
duty sergeant was the highest-ranked employee at the headquarters for the entire police
department. By contrast, here, the Executives are the highest-ranked on-site employees at
their facilities, but they are not the highest-ranked employees in the entire department.
Lazzerini testified, in the Driver Services department, Executives rank below directors,
deputy directors, administrators, and zone managers.
¶ 80 Moreover, in City of Sandwich, the Second District did not rely solely on the fact that the
petitioned-for sergeants were the highest-ranked active employee for the police department.
The court also noted (1) the city ordinance and department policies clearly demonstrated the
city’s plan to utilize sergeants as supervisors, and (2) the sergeants were required to
investigate, report, and recommend discipline.
¶ 81 Finally, we note our court rejected a similar argument in County of Vermilion v. Illinois
Labor Relations Board, 344 Ill. App. 3d 1126, 800 N.E.2d 875 (2003). There, the employer
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had asserted that, because the police sergeants were often the only on-duty employees in a
supervising capacity, they must necessarily be spending a preponderance of their time
engaged in supervision. County of Vermilion, 344 Ill. App. 3d at 1136, 800 N.E.2d at 882.
We disagreed that such a conclusion could be made “where, as here, deciding whether a
person is a ‘supervisor’ must be made in accordance with the particular legislative formula
set forth in section 3(r) of the [Labor] Act.” Id.¶ 82 For the foregoing reasons, we reject the Secretary’s contention the Executives’ status as
the top or second in command at their facilities necessarily showed the Executives spend a
preponderance of their time supervising their subordinates.
¶ 83 The Secretary also asserts Lazzerini’s “undisputed testimony” sufficiently proved the
Executives direct their employees. Lazzerini stated the Executives’ primary duty “is to direct,
manage, and supervise the employees of the facilit[ies].” He also said the Executives “run[ ]
the show” and manage the “overall direction” of the facilities. However, the Board concluded
Lazzerini’s testimony was too conclusory to meet the Secretary’s burden of proof. The
Board’s decision in that regard is not clearly erroneous.
¶ 84 Finally, the Secretary’s brief states “[Lazzerini’s] testimony is supported by the stipulated
exhibits and surveys, which contain job descriptions and other work documents,” and
provides an accompanying footnote directing us to see three documents in the record as
“examples of Executive[s]’ job descriptions” and five documents in the record as “examples
of Executives’ direction of subordinates.”
¶ 85 The three job descriptions cited by the Secretary are those of Matthew Adduci, Joseph
Boggs, and Brenda Bostic, all executive Is.
¶ 86 Matthew Adduci’s position description states he spends 30% of his time “plan[ning],
organiz[ing], direct[ing], supervis[ing] and evaluat[ing] staff”; “supervis[ing] staff within
established policies; exercis[ing] responsibility for assignment of daily work tasks;
recommend[ing] personnel actions affecting subordinate[s]” and “approv[ing] employee time
off.” He spends 20% of his time determining, establishing, and implementing operational
procedures to address workflow, 20% of his time participating in policy and procedure
development, 10% performing driver services duties, 10% preparing reports “pertaining to
day-to-day operations,” and 10% performing other duties.
¶ 87 Joseph Boggs’ position description says he spends 35% of his time “plan[ning],
organiz[ing], direct[ing], and evaluat[ing] the activities of his employees and responding to
their inquiries, 25% of his time “ensuring adequate” staffing levels, developing training
programs, and conferring with the administrator to develop and implement work procedures.
Boggs also spends 15% of his time maintaining and monitoring production reports and
reviewing and recommending to the administrator “areas for policy/procedural revisions for
improved efficiency.” Boggs spends the other 25% of his time responding to public inquiries,
initiating progressive disciplinary actions, approving scheduled time off for staff, and
performing other duties.
¶ 88 Brenda Bostic’s position description says Bostic spends 40% of her time “[p]lan[ning],
supervis[ing]” and “evaluat[ing] staff,” administering progressive discipline, arranging for
employees’ training, determining work schedules and time-off requests, assigning overtime
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and travel assignments, and handling employee work complaints. She devotes 20% of her
time to maintaining records of money collected by the facility, 20% of her time administering
road examinations and performing cashier functions, and the remaining 20% of her time
completing other duties.
¶ 89 The Board, in a footnote in its decision, found the job descriptions cited by the Secretary
“suffer from the same defect as much of the testimony. In conclusory terms, they provide that
the Executive Is and IIs ‘direct’ their subordinates.” Service Employees International Union,
Local 73, 28 PERI ¶ 68, at 306 n.7 (ILRB State Panel 2011). We agree with the Board in this
regard. The job descriptions do not specify–nor does the Secretary’s brief explain–the extent
to which the Executives use independent judgment to complete the tasks outlined in their job
descriptions. Instead, the descriptions contain generalized statements, such as the Executives
plan, direct, supervise and evaluate. Based on these generalized statements, the Board could
reasonably conclude the Secretary failed to carry his burden of proving the Executives act
in a supervisory role when directing their employees. See Department of Central
Management Services (State Police), 382 Ill. App. 3d at 228, 888 N.E.2d at 581 (concluding
the Board could reasonably find, despite broad language in the employees’ job description,
the employees do not, in practice, have significant discretionary authority to affect their
subordinates’ employment).
¶ 90 The Secretary also cites five documents as supportive of Lazzerini’s testimony the
Executives’ “primary function is to direct, manage, and supervise the employees of the
facility.” The first of these documents is a handout prepared by Christine Works, an
executive I, for a January 2010 staff meeting. The handout instructs employees on matters
such as communicating via email and setting task reminders on their computers. The handout
also details how work will be divided among available employees when an employee is
unavailable. The handout further instructs employees on confidentiality, time-off, and call-in
policies, providing a link to the policy manual.
¶ 91 The second document the Secretary directs us to consider is a document prepared by
Loretta Cass, an executive II, which the Secretary says shows Cass’ “[p]raise of [a]
subordinate” and “direction of work.” The document contains various reminders to
employees about processing forms as well as policies relating to cellular phone usage and
beverage consumption during work.
¶ 92 The third document the Secretary cites as an example of the Executives’ direction of
subordinates is a March 2010 email from Denise Westnedge, an executive II, to her
employees. The email contains the subject line “Office policies 2010” and contains
instructions to subordinates regarding (1) office hours, (2) cellular phone usage, (3) breaks,
(4) talking to other coworkers, (5) email usage, (6) receiving visitors from other departments,
and (7) requests for time off and switching break times.
¶ 93 The Secretary’s fourth cited example of Executives’ direction is a performance
evaluation of Marsha Dirks, an executive I, completed by her supervisor, an executive IV.
Dirks’ supervisor’s comments indicate he meets with Dirks monthly, at which time Dirks
“will present problematic situations that need administrative review or action.” The
comments also say Dirks “is challenged by new ideas or interpretaions [sic] of policies and
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is one that presents different perspectives to assist in solutions.” The evaluation also contains
“goals” for Dirks’ next reporting period, including the following: (1) initiate necessary
disciplinary actions, (2) provide evaluations of all employees, (3) keep employees informed
of all procedural, policy, and/or legislative changes, (4) continue to supervise and review the
activities of employees, “reporting any problems immediately to Administrator,” (5)
“[a]nalyze workloads of employees to maintain maximum productivity and efficiency
throughout the facility and recommend any improvements to workflow and procedures in the
vehicle area,” and (6) identify any needed training issues and bring them to the administrator.
¶ 94 The Secretary’s final cited example of Executives’ direction is a one-page document
entitled “Goals-Public Inquiry Division.” The document appears to have been attached to a
performance evaluation completed by Danny Neff, an executive I. The document contains
advice to employees on being courteous, dealing with angry callers, and avoiding bad habits
such as “chewing while talking” and “holding two conversations at the same time.”
¶ 95 None of the aforementioned documents leave us with the “definite and firm conviction”
the Board committed an error by concluding the Executives do not exercise supervisory
authority when directing their subordinates. American Federation of State, County &
Municipal Employees, 216 Ill. 2d at 577-78, 839 N.E.2d at 485. The Secretary’s bald citation
to these documents–without any argument or explanation as to how, specifically, the
documents show the Executives using independent judgment–fails to convince us the
Board’s findings were erroneous.
¶ 96 b. Assigning Work
¶ 97 The Secretary next claims the Executives “direct” their subordinates when they assign
work. In support of his claim, the Secretary cites the following documents: (1) an email from
Grant Lakin, an executive I, directing employees to give “coded mail” to one of the
employees; (2) a handout prepared by Christine Works, an executive I, directing employees
on various tasks such as checking email and using computer programs; and (3) an email from
Thomas Kovalichuk, an executive I, in which he tells another employee (presumably his
supervisor) he assigned a subordinate to complete an assignment (“the Bizflows”) each day
before “going to VIA.” The Secretary also points out Lazzerini testified that “based upon
operational needs, management will assign staff to those various locations in order to ensure
that the facility is running properly.”
¶ 98 The Board found Lazzerini’s testimony merely showed the Executives “instruct their
subordinates to perform the duties as outlined in their job descriptions and as needed to
address the flow of work at the facility. That sort of instruction does not involve the use of
independent judgment by the supervisor.” The Board’s finding was not clearly erroneous. See
City of Freeport, 135 Ill. 2d at 531, 554 N.E.2d at 170 (concluding Board did not clearly err
by finding that lieutenants do not use independent judgment when directing firefighters
because tasks are assigned according to agreed-upon system and standards set forth in fire
chief’s manual).
¶ 99 Like Lazzerini’s testimony, the Secretary’s citation to the documents–again, without any
argument or explanation as to what, specifically, the documents show–does not convince us
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the Board erred. The documents merely show the Executives assigning tasks in a routine
fashion to manage workloads and do not convince us the Board’s findings were clearly
erroneous. See Chief Judge, 153 Ill. 2d at 521-22, 607 N.E.2d at 188-89 (quoting with
approval the appellate court’s finding the supervisors’ assignment of work on a pro rata
basis is a routine function not requiring the exercise of independent judgment).
¶ 100 c. Completing Performance Evaluations
¶ 101 Next, the Secretary argues the Executives direct their employees through performance
evaluations. Specifically, the Secretary asserts the evaluations “evidence the authority and
exercise of that authority to direct as they can impact the terms of their subordinates’
employment through salary adjustments and opportunities for advances.”
¶ 102 The Secretary raised an identical argument in his exceptions to the ALJ’s findings,
contending “the evaluations” contained “a myriad of examples of direction.” In rejecting the
Secretary’s argument, the Board, in its order, responded as follows: “[T]he ALJ found the
Executive Is and IIs reward, discharge, and discipline subordinates ***, findings to which
the evaluations *** would no doubt be most relevant, but the evidence demonstrates that
performance of those tasks, without more, cannot meet the preponderance of time element.”
¶ 103 Whether we consider the evaluations in the context of showing Executives’ “reward,
discharge, and discipline” of subordinates or view the evaluations as showing Executives’
“direction” of subordinates, the evaluations are insufficient to convince us the Board erred
because the Secretary has not shown the Executives spend a substantial amount of their time
completing the evaluations. Indeed, Lazzerini testified the Executives evaluate probationary
employees twice a year and evaluate nonprobationary employees once a year.
¶ 104 d. Approving and Disapproving Time-Off Requests
¶ 105 Finally, the Secretary claims the Executives direct their employees by approving and
disapproving time-off requests. Citing Lazzerini’s testimony, the Secretary contends the
evidence shows the following: (1) the Executives have the authority based on operational
needs to grant or deny time off outside of the contract’s parameters, and (2) the Executives
independently determine whether overtime, which does not need to be preapproved by a
regional manager, is needed.
¶ 106 Lazzerini testified Executives generally approve time-off requests based on (1) seniority,
(2) operational needs, and (3) contract requirements. Lazzerini also stated Executives can
deny time off, even when requisite staffing levels are met. However, on cross-examination,
the Union’s attorney asked Lazzerini whether the Executives, in fact, ever deny time off
when staffing levels are met, and the following colloquy ensued:
“[LAZZERINI]: Yeah. I’m not there every day. I would imagine they do or else the
vacation time would just be rubber stamped. And I know there’s been vacation denied.
[UNION ATTORNEY]: Based on staffing needs, correct?
[LAZZERINI]: Correct.
[UNION ATTORNEY]: Okay but what I’m talking about is if the staffing needs are
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met, they don’t deny time off, right?
[LAZZERINI]: You know, I’m not there every day. I don’t know every denial of
vacation time.
[UNION ATTORNEY]: So you don’t know?
[LAZZERINI]: I don’t know.”
¶ 107 The automatic approval of vacation and sick leave requests does not require the
consistent use of independent judgment. Chief Judge, 153 Ill. 2d at 518, 607 N.E.2d at 187.
Lazzerini’s testimony revealed that he did not actually know whether Executives deny
vacation time when staffing levels are met; thus, the testimony fails to establish by a
preponderance of the evidence the Executives’ approval or denial of vacation time was not
automatic. Likewise, Lazzerini’s cursory testimony the Executives “make the call” with
respect to scheduling overtime–without any evidence as to how often overtime is, in fact,
considered or assigned–is insufficient to convince us the Board erred by concluding the
Executives do not exercise independent judgment with respect to scheduling.
¶ 108 2. Whether the Executives Devote a Preponderance of Their Time
To Performing Supervisory Functions
¶ 109 The Secretary next claims the Board erred by concluding the Executives do not spend a
preponderance of their time performing supervisory functions. Specifically, the Secretary
contends (1) the preponderance test should not apply to state employees, and (2) the evidence
shows the Executives are engaged predominantly in supervisory functions. We disagree.
¶ 110 Section 3(r) of the Labor Act provides “the term ‘supervisor’ includes only those
individuals who devote a preponderance of their employment time to exercising that
authority, State supervisors notwithstanding.” 5 ILCS 315/3(r) (West 2010). The term
“preponderance” means that “the employee must spend more time on supervisory functions
than on any one nonsupervisory function.” City of Freeport, 135 Ill. 2d at 532, 554 N.E.2d
at 171. Our court has rejected the use of a strictly mathematical approach to determine
whether the “preponderance of time” component is met. Department of Central Management
Services v. Illinois State Labor Relations Board, 278 Ill. App. 3d 79, 86, 662 N.E.2d 131,
136 (1996). Rather, we noted “ ‘[p]reponderance’ ” can mean superiority in numbers or
superiority in importance. Department of Central Management Services, 278 Ill. App. 3d at
86, 662 N.E.2d at 136.
¶ 111 In Department of Central Management Services v. Illinois State Labor Relations Board,
249 Ill. App. 3d 740, 745, 619 N.E.2d 239, 243 (1993), this court concluded the
“ ‘preponderance requirement’ ” applies to state employees. The Secretary urges us to
reconsider that decision. We see no reason to do so. As we noted in Department of Central
Management Services, the plain and ordinary meaning of the word “notwithstanding” clearly
does not exempt state supervisors from the “preponderance” requirement. (Internal quotation
marks omitted.) Department of Central Management Services, 249 Ill. App. 3d at 745, 619
N.E.2d at 243.
¶ 112 Thus, we turn to whether the Board erred by concluding the Executives do not spend a
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preponderance of their time acting in a supervisory function. In reaching its conclusion, the
Board reasoned the Executives only exercise independent judgment when rewarding,
disciplining, and discharging employees, and the Secretary failed to show the Executives
spend a preponderance of their time in these functions. On appeal, the Secretary, referencing
Lazzerini’s testimony and a string cite of documentary evidence, contends the Board clearly
erred. We disagree.
¶ 113 Lazzerini testified, based on “being in the facility hundreds of times and spending weeks
at a time in a facility” and “conversations” with others, the Executives spend 75% of their
time “directing” their subordinates. As we have already explained, however, the Board’s
conclusion the Executives do not exercise independent judgment when directing employees
is supported by the evidence. Thus, Lazzerini’s testimony concerning the amount of time the
Executives spend “directing” does not provide any detail with respect to the amount of time
the Executives spend engaged in supervisory functions or the significance of these functions.
¶ 114 The documentary evidence cited by the Secretary also does not convince us the Board
clearly erred. The cited exhibits may demonstrate the Executives rewarding, disciplining, and
discharging their subordinates, but they do not show much time the Executives spend on
these functions or that these functions are more important than the Executives’ other
nonsupervisory tasks. For example, the documents the Secretary cites as “examples of
discipline” consist of disciplinary notices to subordinates and memorandum documenting
Executives’ counseling of subordinates with regard to policy violations. None of these
exhibits provide any detail about how much time the Executives spend disciplining; they
merely serve to show the Executives do, in fact, discipline their subordinates.
¶ 115 The Secretary also relies on the Executives’ job descriptions. However, as previously
explained, these descriptions contain generalized statements which the Board could
reasonably conclude were insufficient to meet the Secretary’s burden of proof. Moreover, to
the extent these descriptions detail the amount of time the Executives spend on the
supervisory functions of rewarding, disciplining, and discharging subordinates, the
descriptions do not support the Secretary’s contention the Executives devote a preponderance
of their time to executing these functions. As the Board points out, the cited job descriptions
estimate the Executives spend approximately 10% of their time on a consolidated description
of activities, which includes evaluating or disciplining.
¶ 116 For the foregoing reasons, we conclude the Board did not clearly err by finding the
Executives do not spend a preponderance of their time engaged in supervisory functions.
¶ 117 E. The Secretary’s Claim He Proved the Executives
Are Managers Under the Labor Act
¶ 118 Finally, the Secretary asserts the Board clearly erred by concluding the Executives were
not managers under the Labor Act (5 ILCS 315/3(j) (West 2010)). Section 3(j) of the Labor
Act defines a “ ‘[m]anagerial employee’ ” as “an individual who is engaged predominantly
in executive and management functions and is charged with the responsibility of directing
the effectuation of management policies and practices.” 5 ILCS 315/3(j) (West 2010).
¶ 119 The Illinois Appellate Court has applied two tests to determine whether an employee is
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managerial: (1) the traditional test, which considers whether the employee is a managerial
employee as a matter of fact, and (2) the alternative test, which considers whether the
employee is a managerial employee as a matter of law. Department of Central Management
Services/The Department of Healthcare & Family Services v. Illinois Labor Relations Board,
State Panel, 388 Ill. App. 3d 319, 330, 902 N.E.2d 1122, 1130 (2009). Because the Secretary
stipulated during hearing he was only advancing the “matter of fact” test, we will not address
any of the Secretary’s arguments on appeal pertaining to the “matter of law” test. See Bloom
Township High School District 206 v. Illinois Educational Labor Relations Board, 312 Ill.
App. 3d 943, 952, 728 N.E.2d 612, 620 (2000) (“[A]rguments or objections not raised during
administrative proceedings are deemed waived and cannot be asserted for the first time on
judicial review.”).
¶ 120 1. The Traditional Test
¶ 121 To demonstrate a petitioned-for employee is managerial under the traditional test, the
employer must show the employee is (1) engaged predominantly in executive and
management functions and (2) charged with the responsibility of directing the effectuation
of management policies and practices. Department of Central Management Services/The
Department of Healthcare & Family Services, 388 Ill. App. 3d at 330, 902 N.E.2d at 1130.
¶ 122 With respect to the first element, the Board has defined “management functions” as
functions that “amount to running an agency or department” such as “establishing policies
and procedures, preparing the budget, or otherwise assuring that the agency or department
operates effectively.” (Internal quotation marks omitted.) Department of Central
Management Services/Illinois Commerce Comm’n v. Illinois Labor Relations Board, State
Panel, 406 Ill. App. 3d 766, 774, 943 N.E.2d 1136, 1143 (2010). Other management
functions include using independent discretion to make policy decisions, changing the focus
of an employer’s organization, being responsible for day-to-day operations, and negotiating
on behalf of an employer with its employees or the public. Department of Central
Management Services/The Department of Healthcare & Family Services, 388 Ill. App. 3d
at 330, 902 N.E.2d at 1130. An employee is not a managerial employee if he or she serves
merely as a subordinate or advisory function in the development of policy because “ ‘it is the
final responsibility and independent authority to establish and effectuate policy that
determines managerial status under the [Labor] Act.’ [Citation.]” Department of Central
Management Services/The Department of Healthcare & Family Services, 388 Ill. App. 3d
at 331, 902 N.E.2d at 1130.
¶ 123 The second part of the definition “emphasizes that a managerial employee’s authority
extends beyond the realm of theorizing and into the realm of practice.” Department of
Central Management Services/Illinois Commerce Comm’n, 406 Ill. App. 3d at 774, 943
N.E.2d at 1144. Thus, managerial employees do not merely recommend policies that a
superior is equally likely to take or leave; instead, they make effective recommendations.
Department of Central Management Services/Illinois Commerce Comm’n, 406 Ill. App. 3d
at 775, 943 N.E.2d at 1144. “[E]ffective recommendations” are those recommendations that
are accepted almost all of the time. (Internal quotation marks omitted.) Department of
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Central Management Services/Illinois Commerce Comm’n, 406 Ill. App. 3d at 776-77, 943
N.E.2d at 1145. A managerial employee does not merely perform duties essential to the
employer’s ability to accomplish its mission. Department of Central Management
Services/The Department of Healthcare & Family Services, 388 Ill. App. 3d at 331, 902
N.E.2d at 1131. Rather, the employee must possess the authority or responsibility to
determine the specific methods or means of how the employer’s services will be provided.
Id.¶ 124 2. The Board’s Findings
¶ 125 Here, the Board concluded the Secretary failed to establish either prong of the managerial
test. Specifically, the Board rejected the Secretary’s argument that, based on this court’s
holding in Department of Central Management Services/The Department of Healthcare &
Family Services, 388 Ill. App. 3d at 330, 902 N.E.2d at 1130, managerial employees need
not meet the first prong of the managerial test. To the contrary, the Board reiterated the
Secretary needed to establish both prongs of the test. The Board further found the Secretary
failed to establish the second prong because the record did not establish the Executives
“ ‘develop[ ] means and methods of achieving policy objectives, determine[ ] the extent to
which the objectives will be achieved, and [are] empowered with a substantial amount of
discretion to determine how policies will be effected’ ” (quoting Department of Central
Management Services/The Department of Healthcare & Family Services, 388 Ill. App. 3d
at 331, 902 N.E.2d at 1131).
¶ 126 The Board also rejected the Secretary’s argument the Executives who are the highest-
ranking employees at their particular facilities “run the show” and are therefore managerial.
The Board reasoned the Secretary’s evidence did not show the Executives make managerial
decisions to provide services in a unique way at their respective facilities; rather, the
evidence revealed each facility performs the same tasks in the same manner.
¶ 127 3. The Secretary’s Claims on Appeal
¶ 128 On appeal, the Secretary claims the Board’s denial of management status to the
Executives was clearly erroneous. First, the Secretary quotes this court’s statement in
Department of Central Management Services/Illinois Commerce Comm’n, 406 Ill. App. 3d
at 780, 943 N.E.2d at 1148, that “[r]unning the department might or might not entail the
creation of new policies, but it will always entail ‘directing the effectuation’ of existing
policies. [Citation.]” Based on this, the Secretary claims it established both prongs of the
two-part test because “the undisputed evidence” shows the Executives “run their locations
and facilities by independently directing, rewarding, disciplining, and discharging their
subordinates and implementing and effectuating the Secretary of State’s procedures and
policies.” In support of his claim, the Secretary provides a lengthy string citation to (1)
portions of Lazzerini’s testimony, (2) the Executives’ job descriptions, (3) performance
evaluations completed by the Executives, (4) documents allegedly showing “examples of
Executives’ direction of subordinates,” and (5) documents purporting to demonstrate
“examples of discipline.” Again, the Secretary does not offer any explanation as to how the
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string-cited evidence connects to the controlling law.
¶ 129 Our statement in Department of Central Management Services/Illinois Commerce
Comm’n does not lend support for the Secretary’s contention the Executives at issue here are
managers, nor does our review of the cited evidence convince us the Board clearly erred by
concluding on this hearing evidence the Executives were not managers. We made our
statement in Department of Central Management Services/Illinois Commerce Comm’n in the
context of envisioning a scenario in which the highest-ranked official of an agency, the
director, could determine existing regulations and procedures were adequate and thus see no
need to create any new policies. Department of Central Management Services/Illinois
Commerce Comm’n, 406 Ill. App. 3d at 780, 943 N.E.2d at 1148. However, we reasoned “it
would be absurd to deny that such a director is a managerial employee, because, as the
highest-ranking employee, this director has the responsibility of running the department.” Id.
We noted “[r]unning the department” will “always entail ‘directing the effectuation’ of
existing policies.” Id.
¶ 130 While some of the Executives at issue are the top employee at their facilities, they do not
“run” those facilities like the director we envisioned in Department of Central Management
Services/Illinois Commerce Comm’n, who, by virtue of his status as the top-ranked official
in an entire agency, would necessarily have the authority to perform the other “management
functions” that “amount to running an agency or department” such as “establishing policies
and procedures, preparing the budget, or otherwise assuring that the agency or department
operates effectively.” Department of Central Management Services/Illinois Commerce
Comm’n, 406 Ill. App. 3d at 774, 943 N.E.2d at 1143.
¶ 131 By contrast, here the Secretary presented no evidence the Executives serve anything other
than a subordinate or advisory function. See Department of Central Management
Services/The Department of Healthcare & Family Services, 388 Ill. App. 3d at 331, 902
N.E.2d at 1130. The Secretary’s documentary evidence demonstrates the Executives
completing such tasks as documenting subordinates’ policy violations, reminding
subordinates about break and computer usage policies, and completing performance
evaluations of their subordinates. To show the Executives were managers, however, the
Secretary needed to provide evidence of them doing more than merely performing “duties
essential to the employer’s ability to accomplish its mission.” (Internal quotation marks
omitted.) See Department of Central Management Services/The Department of Healthcare
& Family Services, 388 Ill. App. 3d at 331, 902 N.E.2d at 1131.
¶ 132 Likewise, the Secretary has failed to establish the Executives direct the effectuation of
the Secretary of State’s policies. In Department of Central Management Services/Illinois
Commerce Comm’n, 406 Ill. App. 3d at 775, 943 N.E.2d at 1144, we explained an individual
“directs the effectuation of management policies and practices if he or she ‘oversees or
coordinates policy implementation through development of means and methods of achieving
policy objectives, determines the extent to which the objectives will be achieved, and is
empowered with a substantial amount of discretion to determine how policies will be
effected.’ Department of Central Management Services v. Illinois State Labor Relations
Board, 278 Ill. App. 3d 79, 87, 662 N.E.2d 131, 137 (1996) ***.” Here, Lazzerini testified
the Executives do not formulate policies for the Secretary of State, nor do they have the
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authority to decide not to enforce a policy unless a safety emergency exists. Thus, the
Secretary failed to establish the Executives direct the effectuation of the Secretary of State’s
policies.
¶ 133 Based on the evidence presented, the Board could reasonably conclude the Executives
were not managers under the traditional test.
¶ 134 In its brief, the Secretary also references an “implied managerial exclusion,” contending
under the Labor Act, petitioned-for employees are deemed managers when they are aligned
with management such that allowing them to join a bargaining unit would create a division
of loyalty between their employee and the Union. Illinois courts have expressed concern over
placing employees in a bargaining unit requiring the employees to divide their loyalty
between the unit and their employer. See Salaried Employees of North America (SENA) v.
Illinois Local Labor Relations Board, 202 Ill. App. 3d 1013, 1021, 560 N.E.2d 926, 932
(1990) (“[T]he key inquiry is whether the duties and responsibilities of the employees in
question are such that the employees should not be placed in a position requiring them to
divide their loyalty between the employer and the bargaining unit.”).
¶ 135 However, this concern over a potential conflict of interest is not a test in and of itself for
determining whether an employee is “managerial.” Rather, the traditional two-pronged test
is designed to address this concern by determining whether certification would result in a
conflict of interest. See Village of Elk Grove Village v. Illinois State Labor Relations Board,
245 Ill. App. 3d 109, 123-24, 613 N.E.2d 311, 320-21 (1993) (rejecting the employer’s
assertion the court should reverse the Board’s decision, even after finding the petitioned-for
employees were not supervisors or managers, based on a conflict of interest).
¶ 136 III. CONCLUSION
¶ 137 For the reasons stated, we affirm the Board’s decision certifying the Union as the
Executives’ exclusive bargaining representative.
¶ 138 Affirmed.
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