THE DEPARTMENT OF CENTRAL MANAGEMENT SERVICES/ILLINOIS COMMERCE COMMISSION, Petitioner-Appellant, v. THE ILLINOIS LABOR RELATIONS BOARD, STATE PANEL, et al., Respondents-Appellees.
Fourth District No. 4-09-0792
Fourth District
December 28, 2010
406 Ill. App. 3d 766
Argued August 8, 2010.
Melissa J. Auerbach (argued), of Cornfield & Feldman, of Chicago, for appellee American Federation of State, County, and Municipal Employees.
Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and Sharon A. Purcell (argued), Assistant Attorney General, of counsel), for other appellees.
JUSTICE APPLETON delivered the opinion of the court:
The Illinois Department of Central Management Services (CMS) seeks review of a decision by the Illinois Labor Relations Board, State Panel (Board), certifying the American Federation of State, County, and Municipal Employees, Council 31 (union), as the exclusive representative of one Administrative Law Judge IV (ILRB case No. S-RC-10-034) and seven Administrative Law Judge IIIs (ILRB case No. S-RC-10-036) (the ALJs), all of whom work at the Illinois Commerce Commission (Commission). CMS complains that the Board reached a decision solely on the basis of written submissions, without giving CMS an opportunity for an oral hearing, including the examination of witnesses.
We agree with CMS that the denial of an oral hearing was clearly erroneous because there is an unresolved issue as to whether the eight ALJs in question are managerial employees. It appears that, like managerial employees, the ALJs make effective recommendations. According to the position statement that CMS submitted to the Board, the Commission almost always accepts the ALJs’ recommended orders, without modification, and these recommended orders, adopted by the Commission, are the means by which the Commission fulfills its statutory mission of regulating public utilities. As far as we can see from the record, the Board‘s investigation yielded no basis for questioning the position statement in that regard. In short, the position statement describes the ALJs as exerting great influence within the Commission, and we do not understand either the union or the Board as contending otherwise. We have a firm and definite conviction that the certification of the union as the bargaining representative of the eight ALJs was premature because there is still a live question as to whether they are managerial employees. We do not purport to resolve that question one
I. BACKGROUND
On July 28, 2009, the union filed two majority-interest petitions, in which it requested to be certified as the exclusive representative of the eight ALJs.
On July 29, 2009, Lori Novak, an assistant of the Board‘s Executive Director, John F. Brosnan, wrote a letter to Greg Newton, the acting deputy general counsel for CMS at the time, asking him to file responses to the two majority-interest petitions. Newton said that these responses had to “include any issues [CMS] intend[ed] to raise concerning *** whether any employees sought by the petitioner should be excluded from the unit.”
A. CMS‘s Initial Position Statement
In its initial response, or position statement, filed on August 14, 2009, CMS contended that the ALJs should be excluded from the bargaining unit because they were managers and, as such, were ineligible to participate in collective bargaining. Essentially, CMS gave three reasons why the ALJs should be considered managers. First, the ALJs worked in the realm of policy. They conducted quasi-judicial hearings that involved rule-making, rates, citations, complaints, certificates, financial agreements, and the issuance of securities, and by issuing recommended orders in these matters, the ALJs created the policies of the Commission. Second, the ALJs’ recommendations were “effective” in that the Commission “rarely rejected” them. Third, the ALJs were managerial as a matter of law because
B. The Order To Show Cause
On August 14, 2009, an ALJ of the Board, Ellen M. Strizak, wrote in a letter to the parties that she had reviewed CMS‘s position statement of August 14, 2009, and that she had found nothing therein that warranted the convening of a hearing. Accordingly, she ordered CMS to show cause, by no later than September 9, 2009, as to why the union should not be certified as the bargaining representative of the eight employees in question. She cautioned that to support its claim of a statutory exclusion, CMS could not “rely[] on vague, generalized testimony or contentions as to an employee‘s job function” but that, instead, CMS had to “present specific examples of the alleged managerial authority,” including “all documentary evidence and affidavits[]
C. CMS‘s Supplemental Position Statement
On September 9, 2009, in response to Strizak‘s order to show cause, CMS filed a supplemental position statement, which had attached to it as exhibits A through F 1,785 pages of orders issued by the Commission in 13 public utility cases. According to CMS, the eight ALJs wrote these orders as recommendations to the Commission, and in all but one case, the Commission adopted the orders without modification.
In its supplemental position statement, CMS said that by the “conservative estimate” of the chief ALJ of the Commission, the Commission adopted the ALJ‘s recommendations 95% of the time. “Substantive modifications [were] rare[,] and outright reversals [were] even rarer.” According to CMS, the ALJs had “a direct hand in formulating policy through the preparation of orders to the Commission. This reliance on the ALJs to set up the language of the policies that the Commission want[ed] to implement as well as to see that past policy [was] followed support[ed] the Employer‘s position that these ALJs [met] the managerial exclusion,” CMS argued.
D. Certification of the Union
On September 9, 2009, Strizak wrote the parties that she had reviewed CMS‘s response to the majority-interest petitions and that she had found “no issues of law or fact in these matters.” Consequently, she announced that she would recommend to the Board‘s Executive Director that he certify the union.
On September 10, 2009, Brosnan prepared tallies of majority interest and certified the union as the exclusive representative of the eight ALJs employed at the Commission, ordering their inclusion in the union‘s existing RC-10 bargaining unit.
This appeal followed.
II. ANALYSIS
A. Standard of Review
On appeal, we ask whether the Board committed clear error by deciding that an oral hearing was unnecessary. City of Chicago v. Illinois Labor Relations Board, Local Panel, 396 Ill. App. 3d 61, 72, 918 N.E.2d 1103, 1113-14 (2009), appeal denied, 236 Ill. 2d 503, 930 N.E.2d 407 (2010) (table); Illinois Council of Police v. Illinois Labor Relations Board, Local Panel, 387 Ill. App. 3d 641, 658, 899 N.E.2d 1199, 1213 (2008). (We use the term “oral hearing” because the denial of an oral hearing is not necessarily the denial of a hearing: a hearing could be “written” in the sense that parties could be heard solely through their presentation of written arguments and documentary evidence to the agency. See Lawless v. Central Production Credit Ass‘n, 228 Ill. App. 3d 500, 515, 592 N.E.2d 1210, 1219 (1992); Lewis v. Superior Court, 19 Cal. 4th 1232, 1248-49, 970 P.2d 872, 884, 82 Cal. Rptr. 2d 85, 97 (1999); Black‘s Law Dictionary 737 (8th ed. 2004) (defining a “hearing” in the administrative-law context as “[a]ny setting in which an affected person presents arguments to an agency decision-maker“).) Under this standard of clear error, we will uphold the Board‘s decision unless our review of the entire record leaves us with ” ’ “the definite and firm conviction that a mistake has been committed.” ’ ” City of Chicago, 396 Ill. App. 3d at 72, 918 N.E.2d at 1114, quoting Illinois Council of Police, 387 Ill. App. 3d at 658, 899 N.E.2d at 1213, quoting AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 395, 763 N.E.2d 272, 282 (2001), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 766, 68 S. Ct. 525, 542 (1948).
B. Lengthy Quotations
Reading the argument of CMS‘s brief, we encounter page after page of lengthy single-spaced block quotations. Although Illinois Supreme Court Rule 341(a) allows the single-spacing of quotations that are two or more lines long, the rule warns that “lengthy quotations are not favored and should be included only where they will aid the court‘s comprehension of the argument.” Ill. S. Ct. R. 341(a) (eff. July 1, 2008). Long quotations are difficult to read, especially if they are single-spaced, and we remind CMS to avoid them in its brief whenever possible.
C. A Fair Hearing
1. The State Has No Constitutional Right to Due Process
CMS argues that “the failure to provide an evidentiary hearing, and the opportunity for review before the State Panel of the ILRB unfairly deprived the State of its right to a hearing and/or due process.” CMS cites Niles Township High School District 219 v. Illinois Educational Labor Relations Board, 369 Ill. App. 3d 128, 136, 859 N.E.2d 57, 64 (2006), in which the First District held that by making a decision in a case without first conducting an evidentiary hearing, the Illinois Educational Labor Relations Board violated a school district‘s “procedural[-]due[-]process rights.”
•1 A state and the political subdivisions of a state have no constitutional right to due process, because they are not “persons” within the meaning of the due-process clause of the fifth amendment (
2. The Board‘s Compliance With Its Own Rules
Even though CMS lacks a constitutional right to due process, it can insist on the Board‘s compliance with its own rules. Administrative rules have the force and effect of law, and an agency must follow its own rules. People v. Scates, 393 Ill. App. 3d 566, 570, 914 N.E.2d 243, 245 (2009); Springwood Associates v. Health Facilities Planning Board, 269 Ill. App. 3d 944, 948, 646 N.E.2d 1374, 1376 (1995). In this case, CMS contends that by failing to conduct an oral hearing, with the presentation of live witnesses, the Board violated its own rules and therefore violated the law. To evaluate that contention, we first will turn to section 1210.100(b) of the Board‘s rules (
According to section 1210.100(b)(3) (
After the employer files its position statement—supported or unsupported by evidence, depending on whether the employer alleges fraud or coercion—the Board “or its agent,” i.e., an ALJ, will investigate the union‘s majority-interest petition.
One may reasonably infer that the goal behind this investigative procedure is to discover ahead of time, through documentary submissions, any fatal deficiency in either party‘s case instead of discovering the deficiency later on, after wasting time and resources in an administrative “trial.” In this respect, the procedure in section 1210.100(b) is comparable to a summary-judgment procedure, except
Thus, the ALJ can call on the parties to assist in the investigation by supplying evidence to overcome or eliminate apparent problems, factual or legal, that the investigation discloses. If the problem is with a “defense,” “[f]ailure to provide sufficient evidence” in response to a rule to show cause can result in a “waiver” (or, to use the correct term, forfeiture) of that defense.
This collaborative investigation will culminate in one of three outcomes: (1) dismissal of the petition (
Having described the procedure that the Board was to follow in this case, we now turn our attention to the substantive law upon which that procedure operates. This is the law relating to “managerial employees.”
D. Managerial Status
CMS maintains that the sought-after employees, the eight ALJs employed at the Commission, are managerial employees. Whether the eight ALJs are managerial employees is of determinative importance to this case because the Illinois Public Labor Relations Act (Act)
What is a “managerial employee“?
The Act does not define “executive and management functions,” but the Board has explained that these functions amount to running an agency or department, such as by establishing policies and procedures, preparing the budget, or otherwise assuring that the agency or department operates effectively. American Federation of State, County & Municipal Employees, Council 31, 25 Pub. Employee Rep. (Ill.) par. 68, No. S-RC-07-174, at 277 (Illinois Labor Board, State Panel, May 12, 2009) (hereinafter 25 Pub. Employee Rep. (Ill.) par. 68); City of Freeport, 2 Pub. Employee Rep. (Ill.) par. 2052, No. S-RC-181, at 381 (Illinois State Labor Relations Board, November 5, 1986). Unless a statute specially defines a term, we are to give the term its plain and ordinary meaning (Wahlman v. C. Becker Milling Co., 279 Ill. 612, 622, 117 N.E. 140, 144 (1917); Gekas v. Williamson, 393 Ill. App. 3d 573, 579, 912 N.E.2d 347, 353 (2009)), and the Board‘s definition of “executive and management functions” accords with the plain and ordinary meaning of “executive” and “management.” An “executive” is someone who “exercises administrative or managerial control” (Merriam-Webster‘s Collegiate Dictionary 437 (11th ed. 2003)), and “management” is “the collective body of those who manage or direct an enterprise” (Merriam-Webster‘s Collegiate Dictionary 754 (11th ed. 2003)). In other words, executives or managers run the organization. Formulating policies and procedures and preparing the budget are among the types of things that executives or managers typically would have the authority to do.
Whereas the first part of the statutory definition of a “managerial employee” describes the nature of the work to which the individual devotes most of his or her time, i.e., the performance of “executive or management functions,” that is, running the agency, 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. See
In other words, managerial employees do not merely recommend policies or give advice that someone higher up is equally apt to take or leave; rather, they actually direct the governmental enterprise in a hands-on way. “If the employee‘s role is advisory and subordinate, the employee is not a managerial employee because it is the final responsibility and independent authority to establish and effectuate policy that determines management status.” Department of Central Management Services, 278 Ill. App. 3d at 87, 662 N.E.2d at 136-37.
Our remark about advisory employees’ not being managerial employees is subject, however, to an important qualification, which the Board overlooks in its brief: an advisory employee who makes ” ‘effective recommendations’ ” can be managerial. Chief Judge of the Sixteenth Judicial Circuit v. Illinois State Labor Relations Board, 178 Ill. 2d 333, 339-40, 687 N.E.2d 795, 798 (1997), quoting National Labor Relations Board v. Yeshiva University, 444 U.S. 672, 683 n.17, 63 L. Ed. 2d 115, 126 n.17, 100 S. Ct. 856, 863 n.17 (1980). What are “effective recommendations“? In a purely linguistic sense, they are, quite simply, recommendations that are followed. To be “effective” means to “produc[e] a decided, decisive, or desired effect.” Merriam-Webster‘s Collegiate Dictionary 397 (11th ed. 2006). Among the synonyms of “effective” are “powerful” and “influential.” Bartlett‘s Roget‘s Thesaurus 412.10 (1996). Hence, recommendations are “effective” if they produce the effect they seek, that is, if they are implemented.
In Yeshiva, the Supreme Court seemed to understand the term “effective recommendations” in this ordinary sense. In that case, the faculty members of a university, whom the union had petitioned to represent, not only controlled the academic policy of the university,
According to our own supreme court, the definition of a “managerial employee” in
The problem, however, is that the Board has qualified the concept of “effective recommendations,” and really, there should be no qualification, because, under Yeshiva, the concept means what it says. The Board has held that in order for recommendations to be effective,
E. The Possible Managerial Status of the Eight ALJs
1. The Effectiveness of Their Recommendations
After this introduction to the managerial exclusion, we now turn our attention to the eight ALJ positions, as they are described in CMS‘s documentary submissions to the Board, to determine whether the Board committed clear error by finding no “unresolved issue” as the ALJs’ managerial status (
One way of approaching this question is to compare the job functions of these ALJs to the overall mission of the Illinois Commerce Commission. If the responsibilities of a job title encompass the agency‘s entire mission, or a major component of its mission, one might reasonably argue that by fulfilling those responsibilities, an employee helps to run the agency. In other words, if the ALJs are, as a practical matter, the whole game when it comes to utility regulation—just as the faculty members in Yeshiva were the whole game when it came to academic policy—they arguably are managerial employees. In Yeshiva, 444 U.S. at 686, 63 L. Ed. 2d at 127-28, 100 S. Ct. at 864, the faculty had absolute authority over academic matters, such as what courses would be offered, when they would be scheduled, and to whom they would be taught. The faculty also determined the teaching methods, grading policies, and graduation standards. Yeshiva, 444 U.S. at 686, 63 L. Ed. 2d at 128, 100 S. Ct. at 864. The subject matter of the faculty‘s authority, or the subject matter on which the faculty made effective recommendations, pretty much described what the university was all about. The Supreme Court remarked: “When one considers the function of a university, it is difficult to imagine decisions more managerial than these.” Yeshiva, 444 U.S. at 686, 63 L. Ed. 2d at 128, 100 S. Ct. at 864.
Likewise, when we consider the function of the Commission, as set forth in
It appears, then, that this procedure by which the ALJs hold hearings and issue recommended orders, which the Commission adopts almost all the time, is the primary means, if not the exclusive means, by which the Commission fulfills its statutory mandate of regulating public utilities. CMS made, at minimum, a plausible claim when it wrote to the Board: “[T]hese [ALJs] are the employees the Employer primarily relies upon to effectively carry out the Commission‘s regulatory duties.” If the members of the Commission make and implement policy through the issuance of orders, and if their orders are almost always the ALJs’ recommended orders (with the title of the document changed and the chairman‘s signature added at the end), a good argument could be made that the ALJs make effective recommendations on major policy and the implementation of such policy. See Yeshiva, 444 U.S. at 683 n.17, 63 L. Ed. 2d at 126 n.17, 100 S. Ct. at 863 n.17.
If an ostensibly advisory employee exercises managerial authority through his or her recommendations on major policy issues, which the superiors almost always accept, we will look beyond the formal structure of the employee‘s participation in the enterprise, i.e., the making of recommendations, and take account of the power that the employee actually wields. Functionally, if there is not much difference between the employee‘s recommendation and a managerial order, we will treat them as the same for purposes of the managerial exclusion. See Chief Judge, 178 Ill. 2d at 339-40, 687 N.E.2d at 798.
2. Formulating, or Directing the Effectuation of, Policy
The union contends that although the eight ALJs are “involved in carrying out” policy, they neither formulate policy nor direct the effectuation of policy. Again, to be a managerial employee, an individual must do two things. First, the individual must be “engaged predominantly in executive and management functions.”
As for the first element, it is not absolutely essential that a managerial employee formulate policy. Formulating policy is merely one example of running an agency. If formulating policy were the sine qua non of the managerial exclusion, one could envision a situation in which the highest-ranking official of an agency, the director, would not be a managerial employee. Theoretically, a director could consider the existing regulations and procedures of an agency to be perfectly adequate, and the director might see no need to create any new policies. Yet 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.
Running the department might or might not entail the creation of new policies, but it will always entail “directing the effectuation” of existing policies.
F. The Question of Managerial Status as a Matter of Law
Simultaneously with this opinion, we are issuing an opinion in Department of Central Management Services/Human Rights Comm‘n v. Illinois Labor Relations Board, State Panel, 406 Ill. App. 3d 310 (2010), (CMS/HRC), in which we conclude that ALJs of the Illinois Human Rights Commission are managerial employees as a matter of law (CMS/HRC, 406 Ill. App. 3d at 317). In that opinion, we compare the ALJs of the Human Rights Commission to the assistant State‘s Attorneys in Cook County State‘s Attorney v. Illinois Local Labor Relations Board, 166 Ill. 2d 296, 652 N.E.2d 301 (1995), and the assistant public defenders in Chief Judge. CMS/HRC, 406 Ill. App. 3d at 315-16. The supreme court held, in Cook County State‘s Attorney, 166 Ill. 2d at 303, 652 N.E.2d at 304, that assistant State‘s Attorneys were managerial employees as a matter of law because they were “surrogates” of State‘s Attorneys. Likewise, in Chief Judge, 178 Ill. 2d at 344, 687 N.E.2d at 800, the supreme court held that assistant public defenders were managerial employees as a matter of law because they were “surrogates” of public defenders. In CMS/HRC, 406 Ill. App. 3d at 316-17, we conclude that “the ALJs’ actions are closely identified with those of the [Human Rights] Commission” in the way that the actions of assistant State‘s Attorneys and assistant public defenders are closely identified with those of their superiors, of which they are surrogates.
Naturally, then, the question might be asked, Why do we not draw an analogous conclusion in the present case: why do we not conclude that the ALJs in this case are so closely identified with the members of the Illinois Commerce Commission as to be their surrogates and therefore managerial employees as a matter of law? The reason is a difference in administrative procedures from one agency to the other, specifically the procedures relating to “exceptions.”
“Exceptions” are a party‘s written arguments against the recommended order that an ALJ issues after an evidentiary hearing or administrative trial. It appears that under the statutory law and administrative rules, the lack of exceptions does not have the same legal consequence before the Commerce Commission as before the Human Rights Commission. In CMS/HRC, 406 Ill. App. 3d at 316, we note that under
We are unaware, however, of any comparable procedural provision in the Public Utilities Act (
Hence, unlike an ALJ of the Human Rights Commission, an ALJ of the Commerce Commission does not become a surrogate, i.e., a substitute or alter ego, of the commission members whenever there is an absence of exceptions. Exceptions or no exceptions, the members of the Commerce Commission retain the power and duty to issue their own order, their own decision, after receipt of the ALJ‘s recommended order. Under no circumstances is an ALJ of the Commerce Commission clothed with the ultimate power of the commission members; therefore, the ALJ is not a managerial employee as a matter of law within the meaning of Chief Judge and Cook County State‘s Attorney. Cf. Cook County State‘s Attorney, 166 Ill. 2d at 303, 652 N.E.2d at 304, quoting People v. Nahas, 9 Ill. App. 3d 570, 575, 292 N.E.2d 466, 470 (1973) (” ‘An Assistant State‘s Attorney is generally clothed with all the powers and privileges of the State‘s Attorney ***’ “).
III. CONCLUSION
For the foregoing reasons, we reverse the Board‘s decision in cases Nos. S-RC-10-034 and S-RC-10-036 and remand those cases for further administrative proceedings on the question of whether the eight ALJs in question are managerial employees.
Reversed and remanded.
STEIGMANN and McCULLOUGH, JJ., concur.