2014 IL App (1st) 123426 No. 1-12-3426 August 13, 2014
THIRD DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
AMERICAN FEDERATION OF STATE, ) Petition for Review of Order COUNTY and MUNICIPAL EMPLOYEES ) of Labor Relations Board, State Panel. (AFSCME), COUNCIL 31, ) ) Petitioner, ) ) S-RC-10-034 v. ) S-RC-10-036 ) THE ILLINOIS LABOR RELATIONS ) BOARD, STATE PANEL, and ) THE DEPARTMENT OF CENTRAL ) MANAGEMENT SERVICES ) (Illinois Commerce Commission), ) ) Respondents. )
JUSTICE NEVILLE delivered the judgment of the court, with opinion. Presiding Justice Hyman and Justice Mason concurred in the judgment and opinion.
OPINION
¶1 This case involves the application of the managerial employee exception codified in
section 3(n) of the Illinois Public Labor Relations Act (Act) (5 ILCS 315/3(n) (West 2010)).
The Illinois Labor Relations Board (Board) certified the American Federation of State, No. 1-12-3426
County and Municipal Employees, Council 31 (AFSCME) as the sole bargaining
representative for eight administrative law judges (ALJs) , 1 all of whom work at the Illinois
Commerce Commission (Commission). The Department of Central Management Services
(CMS) filed a petition in the appellate court seeking review of the Board's order certifying
AFSCME as the exclusive representative of the eight ALJs. The appellate court reversed the
Board's certification order and remanded the case to the Board for an evidentiary hearing to
determine whether the subject ALJs III and IV are managerial employees. Department of
Central Management Services/Illinois Commerce Commission v. Illinois Labor Relations
Board, State Panel, 406 Ill. App. 3d 766 (4th Dist. 2010). On remand, the Board conducted a
two-day evidentiary hearing and determined that the ALJs fell within the Act's definition for
managerial employees. 5 ILCS 315/3(j) (West 2010).
¶2 We find that the evidence supports the Board's finding that ALJs III and IV fall within
section 3(j), the Act's definition for managerial employees and, therefore, the ALJs are barred
by the managerial employee exception in section 3(n) of the Act from engaging in collective
bargaining. Accordingly, we affirm the Board's decision.
¶3 BACKGROUND
¶4 The 2010 Appeal
¶5 On July 28, 2009, AFSCME filed two majority interest petitions with the Board seeking
to be certified as the exclusive representative for eight ALJs (one ALJ IV and seven ALJ IIIs)
of the Commission. In each of the petitions, AFSCME stated that there was an existing
1 Only six ALJs participated in this appeal. 2 No. 1-12-3426
Board-certified collective bargaining unit and the ALJs wished to be included in the
bargaining unit.
¶6 On August 14, 2009, CMS filed a position statement in response to AFSCME's petition,
asserting that the ALJs should be excluded from the bargaining unit because they were
"managerial" employees as defined by section 3(j) of the Act (5 ILCS 315/3(j) (West 2008))
and, as such, were ineligible to participate in collective bargaining.
¶7 On August 14, 2009, the ALJ assigned to the case sent a letter to the parties, stating that
she had reviewed CMS's position statement and had found nothing therein necessitating a
hearing. The ALJ ordered CMS to show cause why AFSCME should not be certified as the
bargaining representative of the eight ALJs.
¶8 On September 9, 2009, in response to the Board's order to show cause, CMS filed a
supplemental position statement and asserted that the ALJs had a direct hand in formulating
policy through the preparation of orders for the Commission. According to CMS, the chief
ALJ had estimated that the Commission adopted the ALJs' recommendations 95% of the
time, that substantive modifications were rare, and outright reversals were even rarer.
¶9 After CMS submitted its supplemental position statement, the ALJ wrote the parties and
stated that she found "no issues of law or fact in these matters" and that she would
recommend that the Board's Executive Director certify AFSCME as the bargaining
representative for the eight ALJs. On September 10, 2009, the Board's Executive Director
certified AFSCME as the exclusive representative of the eight ALJs and ordered their
inclusion in the existing RC-10 bargaining unit.
3 No. 1-12-3426
¶ 10 CMS filed a petition seeking a review of the Board's order in the Appellate Court, Fourth
District, and argued that the ALJs were exempt from collective bargaining because they were
managerial employees and that the Board erred when it certified AFSCME as the exclusive
representative of the ALJs without holding an oral hearing.
¶ 11 The appellate court found that the ALJs were not managerial employees as a matter of
law because members of the Commission retained the power and duty to issue their own
decisions after receipt of the ALJs' recommended orders. Department of Central
Management Services, 406 Ill. App. 3d at 782. The appellate court also found that the
Board's decision to certify AFSCME as the exclusive representative for the ALJs without an
oral hearing was clearly erroneous because there was still "a live question" as to whether the
eight ALJs were managerial employees. Department of Central Management Services, 406
Ill. App. 3d at 767. Therefore, the appellate court remanded the case to the Board for further
proceedings on whether the ALJs are managerial employees. Department of Central
Management Services, 406 Ill. App. 3d at 783.
¶ 12 The Evidentiary Hearing
¶ 13 On remand, the Board held an evidentiary hearing on January 18 and 19, 2012. The
following is a summary of the relevant evidence presented at the hearing.
¶ 14 The Commission's Structure
¶ 15 The testimony and exhibits revealed that there are five commissioners employed by the
Commission and they have extensive expertise in utility regulation. The duties of the
Commission are defined by statute. The purpose of the Commission is to regulate public
utilities, including gas, electricity, water, telephone and sewer. The Commission employs
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ALJs and assistants. The assistants may be attorneys, economists or analysts and they assist
the commissioners with their review of the ALJs' recommendations. Each commissioner has
at least one assistant. The Executive Director oversees the Commission's day-to-day
operations. Mike Wallace is the chief ALJ and ALJ Glennon Dolan is the assistant director.
At the evidentiary hearing, Wallace testified that there were five ALJ IIIs (Katina Baker,
Bonita Benn, Ethan Kimbrel, Sonya Teague and Stephen Yoder) and one ALJ IV (John
Riley).
¶ 16 Types of Cases
¶ 17 Between 2002 and 2012, the Commission decided approximately 775 cases, 2 divided into
the following categories: 20 rate cases; 125 certificate cases; 125 consumer complaint cases;
40 negotiated agreement cases; 5 reorganization cases; 20 electric supplier act cases; 60
citation cases; 40 reconciliation cases; 60 gas miscellaneous cases; 60 electric miscellaneous
cases; 30 water miscellaneous cases; 20 rulemaking cases; 120 confidentiality cases, and 50
miscellaneous cases. In addition to the aforementioned cases, Wallace testified that the
Commission also hears approximately 10 to 15 new legislation cases each year. The
Commission's orders on each case effectuate a Commission policy, though not every order
announces a policy.
¶ 18 Wallace also testified that rate cases and cases arising from new legislation are the two
main areas where the Commission formulates new policies. ALJs preside over rate cases
2 "[E]mployer exhibit 3" indicates that there were 755 cases. We counted the cases and there
were 775 cases (excluding the 10 to 15 new legislation cases).
5 No. 1-12-3426
where regulated utilities seek to increase the rates that they charge their customers. Rate
cases involve creating new riders, which utilities use to collect revenue, determining rate
design, and assessing the types of adjustments that must be made to the rate base. Wallace
further testified that in hearing and deciding rate cases, the ALJs sometimes break new
ground and advance "new scenario[s] for public utility regulation." In cases that arise from
new legislation, the ALJs' recommendations assist the Commission in setting up new ways of
procuring electricity.
¶ 19 The Decision Making Pro
¶ 20 ALJ Decisions
¶ 21 The ALJs spend approximately 90% of their time conducting hearings and issuing
recommendations on matters that arise under the Public Utilities Act (220 ILCS 5/1-101 et
seq. (West 2010)) and other statutes administered by the Commission. "Employer exhibit[s]"
1 and 2 outline the duties of ALJ IIIs and IV and state, in part, that the ALJs are responsible
for conducting "hearings in cases involving generic and rulemaking matters, rates, citations
*** and all other matters, required under statutes affecting or administered by the
Commission, including federal legislation, the Public Utilities Act and the Illinois
Administrative Procedure Act." Exhibits 1 and 2 indicate that the ALJs must present
recommended orders to the Commission for decisions, which requires developing and
maintaining the requisite knowledge of other disciplines involved in regulation. Wallace
testified that every ALJ order effectuates a Commission policy.
¶ 22 The ALJs do not have the power to dispose of a case and no case may be completed until
the Commission enters a final order. However, Wallace testified that in telephone arbitration
6 No. 1-12-3426
cases, where the commissioners fail to act on a case within a specified period of time, the
ALJ's order automatically becomes the Commission's order.
¶ 23 The cases that come before the Commission may be contested or uncontested. In a
contested case, the ALJ may schedule prehearing conferences, set hearings, examine
pleadings, analyze issues, interrogate witnesses, rule on motions and on the admissibility of
evidence, and otherwise manage the case. After the parties have submitted their evidence
and briefed the relevant issues, the ALJ prepares an order containing his recommended
disposition of the case. If the recommended disposition is adverse to any party, the order
takes on the form of a proposed order. Each proposed order is reviewed by either Dolan or
Wallace for scrivener's errors, but they are not reviewed substantively. The proposed order is
then given to the parties, who may choose to file exceptions to the proposed order. The ALJ
reviews the exceptions, replies and the parties' corresponding briefs and, if necessary,
modifies the proposed order. The ALJ then issues the postexceptions proposed order. The
order is then posted on the Commission's e-docket along with a memorandum explaining its
salient points to the commissioners, and the full evidentiary record is also available on the
Commission's e-docket.
¶ 24 In uncontested cases, the ALJs may hold evidentiary hearings. Some uncontested cases
do not require a hearing if the parties settle or if a party fails to appear at the hearing. An
uncontested case does not involve an adverse ruling. In uncontested cases, such as,
negotiated agreements, certificate and confidentiality cases, the ALJs often rely on the staff's
expertise to make their recommendations to the commissioners. However, the ALJ is not
7 No. 1-12-3426
required to accept the staff's recommendations and is expected to apply his/her own
knowledge of the relevant discipline to the issue.
¶ 25 From 2009 through 2011, the subject ALJs III and IV drafted proposed orders in 82 of the
993 cases that they resolved. 3 The remaining 911 cases did not contain contested issues and
therefore did not require a proposed order. Of the 82 proposed orders, the commissioners
changed 3 and overturned 1. Wallace testified that in 99% of the cases, the commissioners
agreed with the ALJs' dispositions.
¶ 26 Commission Decisions
¶ 27 The commissioners generally meet three times each month to review the orders that the
ALJs have posted to their e-docket. Prior to the meeting, each commissioner is provided
with the ALJs' proposed orders and the accompanying memorandums for each case set for
that meeting's agenda. In uncontested cases, the commissioners and their assistants review
only the memorandums and the orders that the ALJs proffer. In contested cases, the
commissioners review the parties' testimony, the ALJs' proposed orders and the
memorandums. The commissioners do not have to accept the ALJs' findings of fact or legal
conclusions.
¶ 28 In reviewing the ALJs' recommended orders, the commissioners may request the
assistance of technical staff in nonroutine cases and sometimes send written questions to the
ALJ assigned to the case. If the commissioners intend to make changes to an ALJ's order,
they draft proposed language with their assistants and circulate it to the other commissioners'
assistants. The assistants share the recommended changes with their commissioners and
3 The cases for ALJ Riley were for the years 2010 and 2011 only. 8 No. 1-12-3426
obtain their feedback. Once the commissioners have reached a consensus, the assistants draft
language to reflect the commissioners' desired outcome. Wallace testified that the
commissioners generally adopt the ALJs' "proposed" orders verbatim. However, if the
commissioners revise an ALJ's order, the revised order is voted on by the commissioners.
Once the commissioners rule on the ALJ's order, the order is designated a Commission order
and served on the parties.
¶ 29 The ALJ's Recommended Decision
¶ 30 The Board's ALJ found that (1) the subject ALJs are the "whole game" because they help
run the agency by hearing and making recommendations on every type of case that comes
before the Commission; (2) the ALJs' orders are the main avenue by which the Commission
carries out its statutory duty to enforce laws related to public utilities; and (3) the ALJs
predominantly perform management and executive functions, spending 90% of their time
issuing recommendations through which they exercise independent judgment that broadly
affects the Commission's goals. The ALJ also found that the ALJs' proposed orders in rate
cases clearly qualify as managerial because they "innovate" rather than merely "nudge" the
law in a particular direction within established standards.
¶ 31 Finally, the ALJ recommended that the subject ALJs III and IV be found to be
managerial employees within the meaning of the Act and that the Board dismiss the petitions
for representation.
¶ 32 The Board's Decision
¶ 33 The Board stated that the issue was whether the subject ALJs were managerial employees
under the Act's traditional fact based test. The Board concluded that the ALJ's determination
9 No. 1-12-3426
that the ALJs were managerial employees was supported by the evidence and consistent with
the appellate court's analysis in Department of Central Management Services, 406 Ill. App.
3d at 778-79. Accordingly, the Board adopted the ALJ's recommended decision and
dismissed the petitions for representation. This appeal followed.
¶ 34 ANALYSIS
¶ 35 In this appeal, we must determine whether the ALJs are managerial employees within the
meaning of the Act. Judicial review of a board's decision is governed by the Administrative
Review Law. 735 ILCS 5/3-102 (West 2010). The deference given to an agency's decision
depends upon whether the question is one of fact, one of law, or a mixed question of fact and
law. Marconi v. Chicago Heights Police Pension Board, 225 Ill. 2d 497, 532 (2006). The
Board's findings of fact are given considerable deference, and they are subject to reversal
only if they are against the manifest weight of the evidence. Kouzoukas v. Retirement Board
of the Policemen's Annuity & Benefit Fund, 234 Ill. 2d 446, 463 (2009). While questions of
law are reviewed de novo, mixed questions of fact and law are reviewed under the clearly
erroneous standard. Kouzoukas, 234 Ill. 2d at 463. Because this case involves an
examination of the legal effect of a given set of facts, it involves a mixed question of fact and
law, and the clearly erroneous standard of review applies. City of Belvidere v. Illinois State
Labor Relations Board, 181 Ill. 2d 191, 205 (1998). The supreme court has held that an
administrative decision is clearly erroneous only where the reviewing court, based upon the
entire record, is "left with the definite and firm conviction" that a mistake has been made.
(Internal quotation marks omitted.) AFM Messenger Service, Inc. v. Department of
Employment Security, 198 Ill. 2d 380, 395 (2001).
10 No. 1-12-3426
¶ 36 AFSCME maintains that the ALJs are not managerial employees and therefore not
excluded from collective bargaining. Employees of the state of Illinois have and are
protected in the exercise of the right of self organization and may form, join or assist any
labor organization to bargain collectively through representatives of their own choosing on
questions of wages, hours and other conditions of employment. 5 ILCS 315/6(a) (West
2010). The Act defines an employee as "any individual employed by a public employer, ***
but excluding *** managerial employees." 5 ILCS 315/3(n) (West 2010). "Managerial
employee" is defined 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). The exclusion is
intended to maintain the distinction between management and labor and to provide the
employer with undivided loyalty from its representatives in management. Chief Judge of the
Sixteenth Judicial Circuit v. Illinois State Labor Relations Board, 178 Ill. 2d 333, 339
(1997).
¶ 37 The Illinois courts employ two tests to determine whether an employee is a managerial
employee for purposes of the Act: (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 (2009). In the first appeal, the
appellate court found that the ALJs were not managerial employees as a matter of law but
remanded the case for further administrative proceedings to determine whether the ALJs are
11 No. 1-12-3426
managerial employees. Department of Central Management Services, 406 Ill. App. 3d at
782-83. CMS did not appeal the appellate court's finding and, therefore, the appellate court's
conclusion that the ALJs were not managerial employees as a matter of law became the law
of the case. See In re Christopher K., 217 Ill. 2d 348, 365 (2005). Accordingly, we can only
consider the traditional test to determine whether the facts presented at the evidentiary
hearing support the Board's finding that the ALJs in question are managerial employees as a
matter of fact.
¶ 38 The traditional test considers the facts to determine whether an employee comes within
the purview of the definition of a managerial employee in section 3(j) of the Act. Although
the Act does not define "executive and management functions," we note that these functions
amount to running an agency or department, such as by establishing policies and procedures,
preparing the budget, or otherwise assuring the agency or department operates effectively.
Department of Central Management Services, 406 Ill. App. 3d at 774. However, the
managerial exclusion is not limited to employees who have the potential to affect labor
relations matters, such as wages, hours, and other terms and conditions of employment.
Board of Regents of the Regency Universities System v. Illinois Educational Labor Relations
Board, 166 Ill. App. 3d 730, 740-41 (1988). "The employee must possess and exercise
authority and discretion which broadly effects a department's goals and means of achieving
its goals." Department of Central Management Services v. Illinois State Labor Relations
Board, 278 Ill. App. 3d 79, 87 (1996).
¶ 39 A managerial employee not only has the authority to make policy but also bears the
responsibility of effectuating that policy. Department of Central Management Services, 406
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Ill. App. 3d at 774-75. In other words, managerial employees do not merely recommend
policies or give advice to those higher up the employment chain, they actually direct the
governmental enterprise in a hands-on way. Department of Central Management Services,
406 Ill. App. 3d at 775. Managerial employees are those involved in the direction of the
governmental enterprise or a major unit thereof, and who possess authority to broadly affect
its mission or fundamental methods. Salaried Employees of North America (SENA) v.
Illinois Local Labor Relations Board, 202 Ill. App. 3d 1013, 1020 (1990).
¶ 40 If the employee's role is advisory and subordinate, the employee is not a managerial
employee. Department of Central Management Services, 278 Ill. App. 3d at 87. However,
as explained in Chief Judge, " 'the relevant consideration is effective recommendation or
control rather than final authority' over employer policy." Chief Judge, 178 Ill. 2d at 339-40
(quoting National Labor Relations Board v. Yeshun University, 444 U.S. 672, 683 n. 17
(1980)). As such, an advisory employee who makes effective recommendations can be
managerial. See Chief Judge, 178 Ill. 2d at 339-40. To be effective means to produce a
decided, decisive or desired effect. Department of Central Management Services, 406 Ill.
App. 3d at 775. Therefore, recommendations are effective if they are almost always
implemented or followed. Department of Central Management Services/Pollution Control
Board v. Illinois Labor Relations Board, State Panel, 2013 IL App (4th) 110877, ¶ 26;
Department of Central Management Services, 406 Ill. App. 3d at 775.
¶ 41 Our supreme court explained in Chief Judge that the managerial exclusion in the Act was
adopted from decisions of the National Labor Relations Board and the United States
Supreme Court. Chief Judge, 178 Ill. 2d at 339. The Chief Judge court held that the
13 No. 1-12-3426
definition of managerial employee in section 3(j) of the Act is very similar to the exclusion
for managerial employee the Supreme Court read into the National Labor Relations Act (29
U.S.C. § 151 et seq.(1994) - as per Yeshiva) in National Labor Relations Board v. Yeshiva
University, 444 U.S. 672 (1980). Chief Judge, 178 Ill. 2d at 339. In addition, the Chief
Judge court made it clear that the concept of effective recommendations, which the Supreme
Court held to be applicable to the managerial exclusion in Yeshiva, applies with equal force
to the managerial exclusion under the Illinois statute. See Chief Judge, 178 Ill. 2d at 339-40.
¶ 42 In Yeshiva, the union filed a petition to represent the faculty members of a university by
arguing that the faculty's authority was merely advisory. The Yeshiva Court explained that a
managerial employee recommends discretionary actions that effectively control or implement
employer policy. Yeshiva, 444 U.S. at 683. The Yeshiva court found that the faculty at each
school made recommendations to the dean or director in every case of faculty hiring, tenure,
sabbaticals, termination and promotion. And although the final decision was reached by the
central administration on the advice of the dean or director, the overwhelming majority of the
faculty recommendations were implemented. Yeshiva, 444 U.S. at 677. The Supreme Court
noted that the fact the administration held a rarely exercised veto power did not diminish the
faculty's effective power in policymaking and implementation. Yeshiva, 444 U.S. at 683
n.17. Accordingly, the Yeshiva court held that the faculty members were managerial
employees and therefore excluded from collective bargaining under the National Labor
Relations Act. Yeshiva, 444 U.S. at 682, 686.
¶ 43 The duties of the Commission are set forth in sections 4-101 and 4-201 of the Public
Utilities Act. 220 ILCS 5/4-101, 4-201 (West 2010). Section 4-101 provides "[t]he
14 No. 1-12-3426
Commerce Commission shall have general supervision of all public utilities." 220 ILCS 5/4-
101 (West 2010). Section 4-201 makes it "the duty of the Commission to see that the
provisions of the Constitution and statutes of this State affecting public utilities *** are
enforced and obeyed." 220 ILCS 5/4-201 (West 2010). The functions of the ALJs III and IV
are outlined in CMS' exhibits 1 and 2, which provide that the ALJs are responsible for
conducting "hearings in cases involving generic and rulemaking matters, rates, citations***
and all other matters, required under statutes affecting or administered by the Commission,
including federal legislation, the Public Utilities Act and the Illinois Administrative
Procedure Act." The ALJs assist the commissioners with their recommended orders and the
commissioners review and approve the recommended orders drafted by the ALJs. The
evidence establishes that the ALJs have a prominent role in the fulfillment of the
Commission's duties and are the "whole game" with regard to the agency's mission.
Therefore, when we compare the job functions of the ALJs to the overall mission of the
Commission, and when we consider that the ALJs are 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—we find that the ALJs are managerial employees. See Yeshiva, 444 U.S.
at 682-86; Chief Judge, 178 Ill. 2d at 339-47.
¶ 44 We also note that although the ALJs' recommended orders are reviewed by the
commissioners and their assistants, the review does not diminish the ALJs' effective power in
directing the effectuation of the Commission's policies and practices. See Yeshiva, 444 U.S.
at 683 n.17. The test is not the presence or absence of review. Department of Central
Management Services, 406 Ill. App. 3d at 777. Rather, the test is the effectiveness, power, or
15 No. 1-12-3426
influence of the recommendations. Department of Central Management Services, 406 Ill.
App. 3d at 777. The determining factor is the influence of the recommendations and whether
they almost always persuade the superiors. See Yeshiva, 444 U.S. at 677.
¶ 45 Here, CMS maintains that the Commission rarely makes any substantive modification of
the ALJs' recommended orders and that outright reversals are even rarer. Wallace testified
that the Commission adopts the ALJs' recommendations 99% of the time. Specifically, the
ALJs at issue wrote 82 proposed orders between 2009 and 2011 and the commissioners
accepted all but 1 order and only 3 orders were amended. Like the faculty members in
Yeshiva, the ALJs issue recommended orders in every case that comes before the
Commission relating to public utilities and, although the final decision is reached by the
commissioners on the advice of their assistants, the overwhelming majority of the ALJs'
recommended orders are implemented. Yeshiva, 444 U.S. at 677.
¶ 46 As this court noted in Department of Central Management Services, the 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. Department of
Central Management Services, 406 Ill. App. 3d at 779. Therefore, the ALJs, through the
issuance of their recommended orders, are engaged predominantly in executive and
managerial functions and are charged with directing the effectuation of management policies
and practices within the purview of section 3(j) of the Act because the commissioners (1)
almost always accept the ALJs' recommended orders, and (2) make and implement policy
16 No. 1-12-3426
through the issuance of orders which are recommended by the ALJs. Yeshiva, 444 U.S. at
682, 686; Chief Judge, 178 Ill. 2d at 339-47.
¶ 47 AFSCME contends that although the ALJs are involved in carrying out the existing
policies of the Commission, they neither formulate policy nor direct the effectuation of
policy. But, it is not absolutely necessary that a managerial employee formulate policy.
Department of Central Management Services, 406 Ill. App. 3d at 780. "Formulating policy
is merely one example of running an agency." Department of Central Management Services,
406 Ill. App. 3d at 780. Running a department might not entail the creation of new policies,
but it will always entail directing the effectuation of existing policies. Department of Central
Management Services, 406 Ill. App. 3d at 780. We note that Wallace testified that
formulating policy is not a major part of the Commission's function, but that the
Commission's orders always direct the effectuation of its existing policies. The evidence
shows that the ALJs help formulate policy through their recommended orders in rate cases
and in cases that arise from new legislation. Because the ALJs' recommended orders assist
the commissioners, it logically follows that the ALJs assist the commissioners in formulating
policy. Therefore, because the Commission almost always adopts the ALJs' recommended
orders, the ALJs direct the effectuation of the State's policies regarding public utilities.
¶ 48 AFSCME relies on the Act's definition of "professional employee," which provides:
" '[p]rofessional employee' means any employee engaged in work predominantly intellectual
and varied in character rather than routine mental, manual, mechanical or physical work;
involving the consistent exercise of discretion and adjustment in its performance." 5 ILCS
315/3(m) (West 2010). AFSCME also contends that the Act includes professional
17 No. 1-12-3426
employees in the class of employees entitled to collective bargaining rights. Here, although
the Board could have concluded that ALJs III and IV fit within this definition, it did not, and
we would be substituting our judgment for that of the Board to reverse on that basis. Cinkus
v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 210 (2008) (a
reviewing court should not substitute its judgment or reweigh the evidence in reviewing an
agency's factual findings).
¶ 49 After a review of the record, we find that we are not left with a definitive and firm
conviction that the Board's decision was clearly erroneous. Therefore, we hold that the
evidence supports the Board's finding that the ALJs are managerial employees as defined by
section 3(j) of the Act and are barred by the managerial employee exception in section 3(n)
of the Act from engaging in collective bargaining.
¶ 50 CONCLUSION
¶ 51 We find that the ALJs direct the effectuation of the Commission's policies on utility
regulation through their recommended orders and that the commissioners almost always
adopt the ALJs' recommended orders. Therefore, we hold that the ALJs are managerial
employees as defined by section 3(j) of the Act and are barred by the managerial exception in
section 3(n) of the Act from engaging in collective bargaining. Accordingly, the Board's
order finding that the ALJs were managerial employees was not clearly erroneous.
¶ 52 Affirmed.