American Federation of State, County and Municipal Employees v. Illinois Labor Relations Board, Local Panel

2019 IL App (1st) 181685

• Court: Appellate Court of Illinois
• Decided: June 27, 2019
• Docket: 1-18-1685
• Status: Unpublished

Opinion

2019 IL App (1st) 181685 No. 1-18-1685 Fourth Division June 27, 2019 ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

) AMERICAN FEDERATION OF STATE, COUNTY ) AND MUNICIPAL EMPLOYEES, COUNCIL 31, ) ) Petition for Review of the Petitioner, ) Decision and Order of the ) Illinois Labor Relations Board, v. ) Local Panel. ) THE ILLINOIS LABOR RELATIONS BOARD, ) No. L-RC-16-031 LOCAL PANEL, and THE CITY OF CHICAGO, ) ) Respondents. ) ) _____________________________________________________________________________

JUSTICE GORDON delivered the judgment of the court, with opinion. Justices Reyes and Burke concurred in the judgment and opinion.

OPINION

¶1 The instant dispute comes to this court on direct administrative review of the decision and

order of the Illinois Labor Relations Board, Local Panel (Board). Petitioner American

Federation of State, County and Municipal Employees, Council 31 (union), filed a petition to

add 16 City of Chicago (City) employees to its existing bargaining unit, and the City

objected, claiming these employees, who all held the title of “Senior Procurement Specialist”

with the City’s department of procurement services (department), were managerial and

therefore ineligible to join the union. After a hearing, an administrative law judge (ALJ) No. 1-18-1685

issued a recommended decision and order, agreeing with the City’s position that these

employees were managerial, and the Board adopted the ALJ’s recommendation. The union

appeals and, for the reasons that follow, we affirm.

¶2 BACKGROUND

¶3 On June 3, 2016, the union filed a representation/certification petition with the Board,

seeking to add 16 employees with the title of “Senior Procurement Specialist” to its existing

bargaining unit. On June 30, 2016, the City objected to the union’s petition, claiming that the

employees were managerial employees under section 3(j) of the Illinois Public Labor

Relations Act (Act) (5 ILCS 315/3(j) (West 2014)) and were therefore excluded from the

ability to engage in collective bargaining. The parties proceeded to a hearing before an ALJ,

where Byron Whittaker, a deputy procurement officer with the department, was the sole

witness. As the department’s duties are largely statutory, it is helpful to first explain the

statutory framework of the department, followed by a discussion of Whittaker’s testimony

and the decisions of the ALJ and Board.

¶4 I. Statutory Duties

¶5 The department is governed by the Municipal Purchasing Act for Cities of 500,000 or

More Population (Purchasing Act) (65 ILCS 5/8-10-1 et seq. (West 2014)), and chapter 2-92

of the Municipal Code of Chicago (Municipal Code) (Chicago Municipal Code ch. 2-92).

Under the Purchasing Act, all purchase orders or contracts exceeding $10,000 are required to

be awarded through a free and open competitive bidding process, in which the contract is to

be awarded to the “lowest responsible bidder.” 65 ILCS 5/8-10-3(a) (West 2014). Certain

types of contracts are not subject to this bidding process, such as contracts for professional

services, single-source goods or services, utility services, publications, and certain printing

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and binding orders. 65 ILCS 5/8-10-4 (West 2014). The City has designated a chief

procurement officer to head the department and to be responsible for developing and

implementing department procurement plans pursuant to the Purchasing Act. Chicago

Municipal Code § 2-92-010 (amended Apr. 15, 2015); see 65 ILCS 5/8-10-15 (West 2014)

(providing for a purchasing agent to be designated in each municipality subject to the

Purchasing Act).

¶6 With respect to contracts subject to the competitive bidding process, proposals for such

contracts must be advertised in a local newspaper for at least 10 days. 65 ILCS 5/8-10-7

(West 2014). The advertisement must set forth the date, time, and place assigned for the

opening of the bids and must describe the character of the proposed contract in sufficient

detail to enable bidders to know what their obligations will be. 65 ILCS 5/8-10-7 (West

2014).

¶7 After the advertising period, the chief procurement officer awards the contract to the

lowest responsible bidder. 65 ILCS 5/8-10-10 (West 2014). Under the Purchasing Act, “[i]n

determining the responsibility of any bidder the [chief procurement officer] may take into

account other factors in addition to financial responsibility, such as past records of

transactions with the bidder, experience, adequacy of equipment, ability to complete

performance within a specified time limit and other pertinent considerations.” 65 ILCS 5/8­

10-11 (West 2014). Additionally, “[a]ny and all bids received in response to an

advertisement may be rejected by the [chief procurement officer] if the bidder is not deemed

responsible, or the character or quality of the services, supplies, materials, equipment or labor

does not conform to requirements or if the public interest may otherwise be served thereby.”

65 ILCS 5/8-10-12 (West 2014). The Municipal Code includes additional considerations,

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such as bid incentives and bid preferences for certain types of bidders (see, e.g., Chicago

Municipal Code § 2-92-405 (added Apr. 15, 2015), § 2-92-407 (added June 27, 2018), § 2­

92-410 (amended Apr. 15, 2015), § 2-92-940 (added June 28, 2017)), as well as contract

requirements for minority-owned and women-owned businesses (see Chicago Municipal

Code § 2-92-430 (amended July 19, 2000)) and City and project-area residents (see Chicago

Municipal Code § 2-92-330 (amended Apr. 10, 2013)).

¶8 With respect to contracts not subject to the competitive bidding process, the department

prequalifies certain contractors pursuant to a “request for qualifications” (RFQ), which

results in a list of “exclusive responsible bidders” for projects concerning roof repair,

building demolition, board-up work, or emergency bridge or viaduct repair. 1 Chicago

Municipal Code § 2-92-340 (amended Apr. 18, 2018). The responsible bidder list for each

RFQ is compiled by an evaluation committee designated by the chief procurement officer,

which includes members of the departments likely to require the type of work addressed by

the RFQ. Chicago Municipal Code § 2-92-350 (amended July 19, 2000). The evaluation

committee evaluates responses to the RFQ in accordance with the criteria set forth in the

RFQ and recommends to the chief procurement officer those contractors satisfying the

criteria. Chicago Municipal Code § 2-92-350 (amended July 19, 2000). Based on these

recommendations, the chief procurement officer develops a list of contractors who are

prequalified as the exclusive responsible bidders on contracts for the type of work addressed

in the RFQ. Chicago Municipal Code § 2-92-350 (amended July 19, 2000). If the chief

procurement officer determines at any time that the contractor is “nonresponsible,” the chief

1 As explained in more detail when discussing Whittaker’s testimony, the department uses the RFQ process more broadly than the way in which it is described in the Municipal Code, to apply to professional services in addition to architectural and engineering services. As noted, contracts for professional services are not subject to the competitive bidding requirement under the Purchasing Act. 65 ILCS 5/8-10-4 (West 2014). -4­ No. 1-18-1685

procurement officer may delete the contractor from the responsible bidder list. Chicago

Municipal Code § 2-92-350 (amended July 19, 2000).

¶9 II. Whittaker’s Testimony

¶ 10 As noted, the sole witness at the hearing on the union’s petition was Byron Whittaker, a

deputy procurement officer with the department, who testified that he has been working in

that capacity for 7 to 8 years and has been an employee within the department for 30 years.

Whittaker testified that as a deputy procurement officer, his responsibility was to provide

direction and supervision to a staff of procurement specialists and senior procurement

specialists. Whittaker testified that he was responsible for overseeing several units of the

department: the architectural and engineering unit; the construction unit; and the

commodities unit, which also included the small orders unit. Whittaker testified that the

department was a “service department” and that their “client departments” were all of the

City’s user departments. The client departments requisitioned the department for various

goods and services required for their day-to-day functions and operations, and the department

worked with the client department to develop specification documents for the purpose of

preparing either bid documents or solicitation documents that detailed the goods and services

required.

¶ 11 Whittaker testified that, as to the procedural steps in the procurement process, the client

department would first enter a requisition request into the computerized system and the

department would determine whether a competitive process or an evaluative process was

required. Then, the department would work with the client department to develop a detailed

specification document, with the client department being primarily responsible for setting

forth the scope of services that it wished the department to procure. After that document was

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developed, the department “will then pretty much take over the process,” including soliciting

bids, receiving the bids, and either performing a bid tabulation or leading a committee

evaluation process.

¶ 12 Whittaker testified to the organizational structure of the department, which was depicted

in an organizational chart that was admitted into evidence at the hearing. Under the chart, the

chief procurement officer was the head of the department. Directly under him was the first

deputy procurement officer, followed by deputy procurement officers in six divisions. Three

of these divisions were grouped into the “Contract Administration” section: (1) the

construction, architectural and engineering, commodities, and small orders division; (2) the

work services, heavy equipment, and “pro-serve” division; and (3) the aviation division.

Under the deputy procurement officer in each division there is an assistant procurement

officer, followed by senior procurement specialists and procurement specialists.

¶ 13 Whittaker testified that, with respect to the division under his control, the construction,

commodities, and small orders units generally employed competitive bidding. Under that

process, the department worked with the client department to develop a detailed specification

of the services required by the client department, resulting in the development of a

specification document. The specification document would be prepared for solicitation by

either the senior procurement specialist or a procurement specialist, who would then receive

and review the bids, perform bid tabulations, and work with the client department to

recommend a bid award. The department would then award the bid and secure the contract

documents, so that the service could be performed or the product could be obtained.

¶ 14 With respect to the architectural and engineering unit, Whittaker testified that this unit

was considered a “professional service unit” and participated in a “more evaluative process”

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that involved either a RFQ or request for proposals (RFP). As with the other units, this

process began with gathering documents from the client department concerning the scope of

the services required. After that, an evaluation committee was established for the purpose of

identifying the appropriate evaluation criteria; this evaluation committee was always chaired

by a procurement specialist. The committee then received responses to its solicitation

documents and made a recommendation to the client department’s commissioner, who, in

turn, made a recommendation to the chief procurement officer.

¶ 15 Whittaker testified that the department maintained a “department of service tool kit,”

which was a reference guide for the department’s staff, as well as the client departments; the

guide was admitted into evidence at the hearing. The purpose of the guide was to provide a

“standard operating procedure type document,” so that new staff and the client departments

would understand the procurement process. With respect to the differences between the RFP

and RFQ processes, the guide explained that the RFP was a solicitation issued when

competitive bidding was not practicable or advantageous to the City and “where price is a

factor, but not the only factor, such as when the degree of professional skill of an individual

or firm plays an important part.” The proposals would be submitted to the evaluation

committee and the contract award was based on “the best qualified firm(s) submitting the

proposal most advantageous to the City, taking into consideration all of the evaluation

criteria.” The RFQ was a “qualification-based solicitation that requests the submittal of

technical and professional qualifications” and was used to select the individuals or firms

most qualified to provide technical expertise. RFQs would be issued for architectural and

engineering services, as well as other professional services such as financial services,

auditing, accounting, medical services, information technology consulting and software

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development and maintenance, management consulting, legislative consulting, and property

management. An evaluation committee selected the individuals or firms most qualified,

taking into account all of the criteria stated in the RFQ. The firm or individual could then

become part of a prequalified vendor pool and be eligible to receive task orders periodically

issued by the City for individual projects.

¶ 16 With respect to the specific duties of the senior procurement specialists, Whittaker

testified to the job description of the role, which was contained in a document that was

admitted into evidence at the hearing. According to the document, the “essential duties” of

the senior procurement specialist were to review and clarify specifications submitted by

operating departments to ensure completeness and compliance with the City’s procurement

standards, to review checklists compiled by staff in user departments and complete

designated portions of those checklists, to verify the validity of supplemental documentation,

to advise and provide technical assistance to operating departments regarding the City’s

procurement processes, to prepare documentation for the advertisement and solicitation of

bids, to evaluate vendor bids for responsiveness to contract specifications, to calculate bid

tabulations and make recommendations for the selection of the lowest bidder, to review and

approve contract modifications and to prepare addendums to notify prospective bidders of

changes, to schedule and facilitate pre-bid and post-bid conferences to review the contract

scope and respond to participant questions, to participate in and facilitate evaluation

committees to review submitted proposals in response to RFPs and RFQs and to interview

potential vendors, and to maintain copes of contract documentation for imaging and

recordkeeping purposes.

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¶ 17 Whittaker also testified to the senior procurement specialist’s role in the procurement

process. With respect to competitive bids, the senior procurement specialist worked with the

client department to ensure that the specification document contained all of the necessary

criteria for the service being solicited, as well as ensuring that the document was compliant

with the law. Whittaker testified that the department had templates to be used for invitations

to bid, but that it was the senior procurement specialist’s duty to select the correct template

and to ensure that the solicitation document was accurate and complete. Whittaker testified

that the senior procurement specialist could not substantively modify the template itself, but

could work with the client department in ensuring that the specifications set forth in that

template were appropriate. In developing the specifications, the senior procurement specialist

worked with the client department to ensure that the request for services or goods was clear

and that there were no proprietary issues or issues such that the document itself “doesn’t lend

itself to be directed or solicited towards one firm or one manufacturer.” However, the senior

procurement specialist was not involved in negotiating prices between the client and a vendor

during the bidding process.

¶ 18 The senior procurement specialist would engage in a “back-and-forth” with the client

department in revising the bid document and, once the document was ready, would

coordinate the publishing of the bid document; the senior procurement specialist had no

discretion to choose the newspaper in which the requests for bids were published. The

solicitation period was generally between 10 and 30 days, and then the senior procurement

specialist would open the bids and tabulate and review each bid. This involved determining

the “apparent” low bidder, as well as a determination that the apparent low bidder was a

responsible bidder as required by the Purchasing Act and Municipal Code. Whittaker

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testified that “there is some judgment involved in terms of evaluating the documents and the

information” in determining whether a bidder was a responsible bidder. Whittaker estimated

that, in determining whether a bidder was a responsible, there were 20 to 30 factors that were

used to make that determination. After the senior procurement specialist had identified the

lowest responsible bidder, the recommendation would be forwarded to the manager.

Whittaker testified that he agreed with the senior procurement specialist’s recommendation

“[p]retty much *** all the time.” The chief procurement officer would then sign off on the

recommendation, and the recommendation would then be forwarded to the client department,

which responded as to whether it wanted to move forward with the award.

¶ 19 With respect to the RFP and RFQ processes, Whittaker testified that, as with the

competitive bidding process, the senior procurement specialist worked with the client

department on a specification document and would be responsible for advertising and

receiving the bids. However, the senior procurement specialist also worked with the client

department to determine the composition of the evaluation committee. The committee would

include representatives from the client department and other subject matter experts that they

chose to add to the committee; the committee also always included the senior procurement

specialist, who would chair the committee as a nonvoting member. Once the responses to the

publication arrived, the senior procurement specialist would ensure that each member of the

committee signed a confidentiality agreement and would then distribute the responses. Once

the evaluation committee has had the opportunity to evaluate each of the responses based on

the evaluation criteria, the committee made recommendations for the selection of certain

firms, which would be forwarded to the client department’s commissioner, followed by the

chief procurement officer. Once the RFP or RFQ was approved, the senior procurement

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specialist would be responsible for coordinating the processing of a contract with the selected

firm.

¶ 20 Whittaker testified that there were occasions in which senior procurement specialists

were involved in recommending changes to department policy. He provided the example of a

senior procurement specialist in the demolition area, where the unique requirements of that

area resulted in the senior procurement specialist augmenting the way that these requests

were processed.

¶ 21 III. ALJ and Board Decisions

¶ 22 On February 8, 2018, the ALJ 2 issued a recommended decision and order, finding that

the senior procurement specialists were managerial employees under the Act. The ALJ found

that senior procurement specialists were engaged in executive and management functions and

assisted in running the department because they were “broadly involved” in the procurement

process. The ALJ found that the department accomplishes its mission through the senior

procurement specialists, “who are responsible for administering the procurement process

from start to finish.” The ALJ noted that under the Purchasing Act and the Municipal Code,

the chief procurement officer had the sole authority to bind the City to contracts for goods

and services and “[t]he evidence here is that he does so in reliance on the recommendations

of the [senior procurement specialist] employees who are responsible for conducting the

competitive bidding, RFP, and RFQ processes when a user department identifies a requisition

need.” The ALJ found that the evidence demonstrated that, with respect to the competitive

bidding process, the senior procurement specialists determined whether the lowest bidder

was also the lowest responsive and responsible bidder and should be awarded the contract

2 The ALJ who issued the recommended decision and order was a different ALJ than the one who presided over the hearing. - 11 ­ No. 1-18-1685

and that they made recommendations regarding the lowest responsible bidder, “which the

Chief Procurement Officer almost always accepts.”

¶ 23 The ALJ found unpersuasive the union’s argument that the employees were not

managerial because the procurement process was largely restricted by statutes and guidelines.

The ALJ found that the existence of statutory requirements “does not, of itself, mean that the

[senior procurement specialist] employees cannot be managers within the meaning of section

3(j).” The ALJ noted that the senior procurement specialists “are responsible for the

procurement process from the beginning, when a user department submits a requisition to the

Department, until the end of the process, when a contract for the requisition is completed.”

The ALJ further found that the Purchasing Act and the Municipal Code “require employees

in the [senior procurement specialist] position to exercise discretion in ascertaining whether a

bidder is the lowest responsible bidder.” The ALJ found that, to determine if the lowest

bidder is also the lowest responsible bidder, the senior procurement specialist is required to

consider a number of factors, noting that Whittaker testified that a senior procurement

specialist may consider approximately 30 factors to determine the lowest responsible bidder.

The ALJ also noted that “the record does not indicate that the [senior procurement specialist]

employees are told how much weight to give to each of the factors separately or in relation to

each other. Although [the union] insists that the [senior procurement specialist’s] duties

consist of little more than checking boxes and collecting documents, nothing in the record

suggests that City contracts are awarded through the rote process [the union] describes.”

¶ 24 The ALJ cited several cases in noting that it was “well-established” that a public body

exercises a great deal of discretion in determining the lowest responsible bidder. The ALJ

found that the department “exercises its discretionary power granted under the laws through

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its [senior procurement specialist] employees who are tasked with administering the

procurement process.” Thus, the ALJ found that the senior procurement specialists were

engaged in executive and management functions.

¶ 25 The ALJ also found that the senior procurement specialists directed the effectuation of

the department’s policies. The ALJ found that the procurement process generally culminated

in a recommendation by the senior procurement specialist, and Whittaker’s uncontroverted

testimony established that the “the Chief Procurement Officer almost always accepts the

recommendation.” Thus, the recommendations of the senior procurement specialist “almost

always result in procurement contracts awarded as determined by the [senior procurement

specialist].” Accordingly, the ALJ found that “the [senior procurement specialist] employees

make effective recommendations.” Therefore, since the ALJ found that the senior

procurement specialists were managerial employees under the Act, they were ineligible to be

included in the bargaining unit, and the ALJ recommended that the union’s petition be

denied.

¶ 26 The union filed a number of exceptions to the ALJ’s recommended decision and order.

As relevant to the instant appeal, the union claimed that the ALJ failed to hold the City to its

burden of proof in establishing that the senior procurement specialists exercised the

significant discretion required of a managerial employee because the ALJ did not require the

City to establish how the various factors considered in awarding a contract were weighted.

The union also claimed that the ALJ improperly relied on case law suggesting that the

determination of who is the lowest responsible bidder involves a great deal of discretion to

“fill[ ] the gaps in the record.”

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¶ 27 On July 10, 2018, the Board issued its decision and order, accepting the ALJ’s

recommendation and denying the union’s petition. This appeal follows.

¶ 28 ANALYSIS

¶ 29 On appeal, the union claims that the Board erred in finding that senior procurement

specialists are managerial employees (1) because the ALJ improperly eased the City’s burden

of proof by not requiring specific evidence as to how each factor was weighted in

determining the lowest responsible bidder and (2) because the ALJ improperly used case law

to “bridge the gap in the record” and find that the determination of the lowest responsible

bidder involved a great deal of discretion.

¶ 30 This matter comes to us on direct appellate review pursuant to section 9(i) of the Act,

which permits direct appeals to the appellate court of an order of the Board dismissing a

representation petition. 5 ILCS 315/9(i) (West 2014); Health & Hospital System v. Illinois

Labor Relations Board, Local Panel, 2015 IL App (1st) 150794, ¶ 49. Our review is

governed by the Illinois Administrative Review Law, which provides that our review “shall

extend to all questions of law and fact presented by the entire record before the court.” 735

ILCS 5/3-110 (West 2014); 5 ILCS 315/9(i) (West 2014) (Administrative Review Law

applies to judicial review of Board decisions). The standard of review, which determines the

degree of deference given to the agency’s decision, turns on whether the issue presented is a

question of law, a question of fact, or a mixed question of law and fact. Elementary School

District 159 v. Schiller, 221 Ill. 2d 130, 142 (2006).

¶ 31 An agency’s conclusion on a question of law is reviewed de novo. Schiller, 221 Ill. 2d at

142. However, while the reviewing court is not bound by the agency’s interpretation of a

statute, such an interpretation remains relevant where there is a reasonable debate about the

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meaning of the statute. Schiller, 221 Ill. 2d at 142. An agency’s conclusion on a question of

fact is afforded more deference. Comprehensive Community Solutions, Inc. v. Rockford

School District No. 205, 216 Ill. 2d 455, 471 (2005). “The findings and conclusions of the

administrative agency on questions of fact shall be held to be prima facie true and correct.”

735 ILCS 5/3-110 (West 2014). The reviewing court does not reweigh the evidence before

the agency, but simply determines whether the agency’s decision is against the manifest

weight of the evidence. Comprehensive Community Solutions, 216 Ill. 2d at 471-72.

¶ 32 Finally, a mixed question of law and fact asks the legal effect of a given set of facts.

Schiller, 221 Ill. 2d at 143. “That is, in resolving a mixed question of law and fact, a

reviewing court must determine whether established facts satisfy applicable legal rules.”

Schiller, 221 Ill. 2d at 143. The agency’s conclusion on a mixed question of law and fact is

reviewed for clear error, which is “significantly deferential to an agency’s experience in

construing and applying the statutes that it administers.” Schiller, 221 Ill. 2d at 143. “Thus,

when the decision of an administrative agency presents a mixed question of law and fact, the

agency decision will be deemed ‘clearly erroneous’ only where the reviewing court, on the

entire record, is left with the definite and firm conviction that a mistake has been

committed.” (Internal quotation marks omitted.) Schiller, 221 Ill. 2d at 143. In the case at

bar, the parties agree that the question of whether the senior procurement specialists are

considered “managerial” under the Act is a mixed question of fact and law subject to the

“clearly erroneous” standard of review. See American Federation of State, County &

Municipal Employees, Council 31 v. State, 2018 IL App (1st) 140656, ¶ 26 (reviewing the

question of whether employees are managerial under “clearly erroneous” standard);

American Federation of State, County, & Municipal Employees (AFSCME), Council 31 v.

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State, 2014 IL App (1st) 130655, ¶ 23 (same); County of Cook v. Illinois Labor Relations

Board—Local Panel, 351 Ill. App. 3d 379, 385 (2004) (same).

¶ 33 Under the Act, with certain exceptions, “public employees” have the right to self­

organize and may join labor organizations for purposes of collective bargaining. 5 ILCS

315/6(a) (West 2014). The Act defines a “public employee” as “any individual employed by

a public employer *** but excluding *** managerial employees.” 5 ILCS 315/3(n) (West

2014). “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).

¶ 34 The 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 2014).

Thus, the Act sets forth a two-part test to determine if an individual is a managerial

employee: “[t]he person must be both (1) ‘engaged predominantly in executive and

management functions’ and (2) ‘charged with the responsibility of directing the effectuation

of management policies and practices.’ ” American Federation of State, County & Municipal

Employees, Council 31, 2018 IL App (1st) 140656, ¶ 17 (quoting 5 ILCS 315/3(j) (West

2010)). “The first part of the test relates to what an employee does, i.e., ‘executive and

management functions.’ ” (Emphasis in original.) American Federation of State, County, &

Municipal Employees (AFSCME), Council 31, 2014 IL App (1st) 130655, ¶ 20 (quoting

Department of Central Management Services/Pollution Control Board v. Illinois Labor

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Relations Board, State Panel, 2013 IL App (4th) 110877, ¶ 25). “The second part of the test

relates to who is responsible for the running of the department; that is, to be managerial, an

employee must not merely have the authority to make policy but also bear[ ] the

responsibility of making that policy happen.” (Emphasis in original and internal quotation

marks omitted.) American Federation of State, County, & Municipal Employees (AFSCME),

Council 31, 2014 IL App (1st) 130655, ¶ 20.

¶ 35 In the case at bar, the Board determined that the senior procurement specialists satisfied

both prongs of this test. First, the Board adopted the ALJ’s recommendations and found that

the senior procurement specialists were engaged predominantly in executive and

management functions. “ ‘[E]xecutive and management functions specifically relate to the

running of the agency or department, including the establishment of policies and procedures,

preparation of the budget, and responsibility that the agency or department operates

effectively and efficiently.’ ” County of Cook, 351 Ill. App. 3d at 386 (quoting Department of

Central Management Services v. Illinois State Labor Relations Board, 278 Ill. App. 3d 79, 87

(1996)). 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.”

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

¶ 122.

¶ 36 Managerial status is not limited to those at the highest level of the governmental entity;

“it is enough if the functions performed by the employee sufficiently align him with

management such that the employees should not be in a position requiring them to divide

their loyalty to the administration *** with their loyalty to an exclusive collective-bargaining

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representative.” (Internal quotation marks omitted.) Office of the Cook County State’s

Attorney v. Illinois Local Labor Relations Board, 166 Ill. 2d 296, 301 (1995). However, an

employee is not a managerial employee simply because he or she exercises professional

discretion and technical expertise or performs duties that are essential to the employer’s

ability to accomplish its mission. American Federation of State, County & Municipal

Employees, Council 31, 2018 IL App (1st) 140656, ¶ 18. “Managerial employees ‘possess

and exercise authority and discretion which broadly effects [sic] a department’s goals and

means of achieving its goals.’ ” American Federation of State, County & Municipal

Employees, Council 31, 2018 IL App (1st) 140656, ¶ 18 (quoting County of Cook, 351 Ill.

App. 3d at 386). “The authority to make independent decisions and the consequent alignment

of the employee’s interests with management’s are hallmarks of managerial status for

purposes of labor law.” Office of the Cook County State’s Attorney, 166 Ill. 2d at 301.

¶ 37 In the case at bar, the union points to two issues that it claims render the Board’s decision

clearly erroneous. First, the union claims that the Board eased the City’s burden of proof by

failing to require the City to provide specific evidence concerning the weighing of factors in

the procurement process. Second, the union claims that the ALJ improperly relied on case

law to establish that determining the lowest responsible bidder was a discretionary decision.

We do not find either of the union’s arguments persuasive.

¶ 38 The parties agree that, as the party seeking to exclude the senior procurement specialists

from the bargaining unit, the City carried the burden of proving their managerial status by a

preponderance of the evidence. See Secretary of State, 2012 IL App (4th) 111075, ¶ 55. To

do so, the City was required to present specific evidence as to each employee and connect

that evidence to the controlling law. Secretary of State, 2012 IL App (4th) 111075, ¶ 55. As

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the sole witness at the hearing, Whittaker testified as to the role of the senior procurement

specialist during the procurement process and identified a number of internal documents

discussing that process. This evidence and testimony included the job description of the role,

which included a list of “essential responsibilities.” Whittaker further expanded on this job

description by explaining the senior procurement specialist’s role in both the competitive

bidding process, as well as the evaluative RFP and RFQ processes. With respect to the

competitive bidding process, Whittaker specifically testified that there was an exercise of

judgment involved in determining whether a bidder was a responsible bidder, which included

the consideration of 20 to 30 factors.

¶ 39 The exhibits admitted into evidence also provide insight as to some of these factors. For

instance, the “department of service tool kit” contains a glossary of useful terms, in which it

provides that “[r]esponsibility includes such considerations as financial capacity, past

performance, experience, adequacy of equipment, and the ability to perform the contract

within the time frame required.” The department’s “procurement fundamentals” brochure

contains a similar definition, providing that “[r]esponsibility includes such considerations as

financial capacity, past performance, experience, adequacy of equipment, and the ability to

perform the contract within the time frame required by the City.”

¶ 40 Additionally, the Purchasing Act and Municipal Code both specify some of the factors

that are considered in determining whether a bidder is a responsible bidder. We note that the

relevant provisions of the Purchasing Act and the Municipal Code were also set forth in the

exhibits admitted into evidence, and the parties do not dispute that these laws govern the

department. The Purchasing Act sets forth factors such as past records of transactions with

the bidder, experience, adequacy of equipment, ability to complete performance within a

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specified time limit, and “other pertinent considerations” that may be considered. 65 ILCS

5/8-10-11 (West 2014). Additionally, the Purchasing Act makes clear that a bid may be

rejected if the bidder is not considered responsible “or the character or quality of the services,

supplies, materials, equipment or labor does not conform to requirements or if the public

interest may otherwise be served thereby.” 65 ILCS 5/8-10-12 (West 2014). The Municipal

Code includes additional considerations, such as bid incentives and bid preferences for

certain types of bidders (see, e.g., Chicago Municipal Code § 2-92-405 (added Apr. 15,

2015), § 2-92-407 (added June 27, 2018), § 2-92-410 (amended Apr. 15, 2015), § 2-92-940

(added June 28, 2017)), as well as contract requirements for minority-owned and women­

owned businesses (see Chicago Municipal Code § 2-92-430 (amended July 19, 2000)) and

City and project-area residents (see Chicago Municipal Code § 2-92-330 (amended Apr. 10,

2013)). All of these factors set forth in the department’s brochures, the Purchasing Act, and

the Municipal Code support Whittaker’s testimony that a senior procurement specialist

considers numerous factors in determining whether a bidder is responsible.

¶ 41 The union argues that there was no evidence proving that the senior procurement

specialists exercised significant discretion because there was no evidence as to how they

weighed these factors. However, in the union’s cross-examination of Whittaker, the only

witness in this case, the union did not bring out any evidence that would show that the senior

procurement specialists did not exercise significant discretion in determining whether a

bidder was a responsible bidder after Whittaker specifically testified that there was an

exercise of judgment involving whether a bidder was a responsible bidder or not. Whittaker

testified that there were 20 to 30 factors that the senior procurement specialist used in making

this determination. The union failed to present any witnesses or provide any evidence that

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these factors were not used to make the determination that a bidder was or was not

responsible.

¶ 42 In addition, the union points to no authority establishing that the manner of weighing

these factors is necessary in the determination of whether the employees are managerial.

While the City was required to present specific evidence as to the employee’s duties, it did so

in this case. Whittaker testified as to the procurement process step-by-step, from the time that

the initial requisition request is entered into the computer system until the time that the

procurement process is completed, and identified the senior procurement specialist’s role in

each step of that process. The union presented no evidence to controvert Whittaker’s

testimony in any respect. We cannot find that the Board’s decision was clearly erroneous

simply because Whittaker was not asked to enumerate each of the 20 to 30 factors and

explain what weight was afforded to each of those factors, even assuming that there is such a

formula that could be applied to every situation. The union relies on a Board decision in

which the state panel of the Board affirmed an ALJ’s finding that certain employees were not

managerial because the county had not provided any evidence explaining how the employees

used discretion in applying relevant regulations. American Federation of State County &

Municipal Employees, Council 31, 34 PERI ¶ 91 (ILRB State Panel 2017). However, the

Board made clear in that case that the issue was with the quality of the evidence provided, as

opposed to the type of evidence presented. American Federation of State County &

Municipal Employees, Council 31, 34 PERI ¶ 91 (ILRB State Panel 2017). In the case at bar,

as noted, Whittaker testified as to the step-by-step detail of the procurement process, and

identified the senior procurement specialist’s role in that process. Thus, we cannot find that

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the Board’s finding that senior procurement specialists were engaged in executive and

management functions was clearly erroneous.

¶ 43 We similarly find unpersuasive the union’s suggestion that the ALJ “bridged [the] gap in

the record” by citing to the general proposition that a public body exercises a great deal of

discretion in determining the lowest responsible bidder. This statement by the ALJ is amply

supported by the law—our supreme court has made clear that “a public body exercises a

great deal of discretion in determining the lowest responsible bidder.” Court Street Steak

House, Inc. v. County of Tazewell, 163 Ill. 2d 159, 165 (1994). The fact that the ALJ noted

that the department’s determination of the lowest responsible bidder involves the exercise of

discretion is thus in no way improper. Contrary to the union’s contention, there is absolutely

no evidence that the ALJ used this case law in order to “bridge[ ] [any] gap in the record.”

Instead, the ALJ found that “[h]ere, the Department exercises its discretionary power granted

under the laws through its [senior procurement specialist] employees who are tasked with

administering the procurement process.” Thus, we cannot find that the ALJ’s citation to case

law rendered the Board’s decision clearly erroneous.

¶ 44 With respect to the second prong of the management test, the Board adopted the ALJ’s

recommendation and found that the senior procurement specialists were charged with the

responsibility of directing the effectuation of management policies and practices. “The

second part of the statutory test emphasizes that a managerial employee’s authority ‘extends

beyond the realm of theorizing and into the realm of practice.’ ” American Federation of

State, County & Municipal Employees, Council 31, 2018 IL App (1st) 140656, ¶ 19 (quoting

Department of Central Management Services/Illinois Commerce Comm’n v. Illinois Labor

Relations Board, State Panel, 406 Ill. App. 3d 766, 774 (2010)). In other words, “ ‘[a]

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managerial employee not only has the authority to make policy but also bears the

responsibility of making that policy happen.’ ” American Federation of State, County &

Municipal Employees, Council 31, 2018 IL App (1st) 140656, ¶ 19 (quoting Department of

Central Management Services/Illinois Commerce Comm’n, 406 Ill. App. 3d at 774-75).

However, “ ‘ “the relevant consideration is effective recommendation or control rather than

final authority” over employer policy.’ ” American Federation of State, County & Municipal

Employees (AFSCME), Council 31 v. Illinois Labor Relations Board, State Panel, 2014 IL

App (1st) 123426, ¶ 40 (quoting Chief Judge of the Sixteenth Judicial Circuit, 178 Ill. 2d at

339-40, quoting National Labor Relations Board v. Yeshiva University, 444 U.S. 672, 683

n.17 (1980)). Accordingly, an advisory employee who makes effective recommendations can

be managerial. American Federation of State, County & Municipal Employees (AFSCME),

Council 31, 2014 IL App (1st) 123426, ¶ 40. Recommendations are “effective” if “they are

almost always implemented or followed.” American Federation of State, County &

Municipal Employees (AFSCME), Council 31, 2014 IL App (1st) 123426, ¶ 40.

¶ 45 In the case at bar, the union’s only argument as to the second prong is that the senior

procurement specialists did not direct the effectuation of the department’s policies in a

managerial fashion because they did not exercise sufficient discretion when implementing

those policies. However, this is merely a rehashing of the union’s arguments concerning the

first prong, which we have already found unpersuasive. Additionally, the uncontroverted

testimony of Whittaker established that the senior procurement specialist’s recommendation

as to the lowest responsible bidder was accepted “[p]retty much *** all the time.” Since the

employees’ recommendations are effective, we cannot find the Board’s decision that the

senior procurement specialists were managerial employees to be clearly erroneous.

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¶ 46 CONCLUSION

¶ 47 For the reasons set forth above, the Board’s determination that senior procurement

specialists are managerial employees was not clearly erroneous.

¶ 48 Affirmed.

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