Chief Judge of 16th Judicial Cir. v. State Labor R. Bd.

687 N.E.2d 795, 178 Ill. 2d 333, 227 Ill. Dec. 313, 1997 Ill. LEXIS 405, 156 L.R.R.M. (BNA) 2425

• Court: Illinois Supreme Court
• Decided: September 11, 1997
• Docket: 80127, 80133 cons.
• Status: Published

Opinions

JUSTICE NICKELS

delivered the opinion of the court:

In these consolidated appeals, we decide whether Kane County assistant public defenders are considered "managerial employees” within the meaning of the Illinois Public Labor Relations Act (the Act) (5 ILCS 315/1 et seq. (West 1994)). The Illinois State Labor Relations Board (the Board) found that the assistant public defenders are not managerial employees. Based on this finding, it certified the American Federation of State, County, and Municipal Employees, Council 31, AFL-CIO (AFSCME), to represent the assistants for collective-bargaining purposes. On administrative review, the appellate court reversed, holding that the assistants are managerial employees. Because managerial employees are excluded from collective bargaining under the Act (see 5 ILCS 315/3(n), 6(a) (West 1994)), this holding precluded AFSCME from representing the assistants. The Board and AFSCME both filed petitions for leave to appeal (155 Ill. 2d R. 315(a)), which were allowed. We affirm the appellate court.

BACKGROUND

On February 7, 1994, AFSCME filed a representation petition with the Board. AFSCME sought to represent a collective-bargaining unit of all full-time and part-time Kane County assistant public defenders employed by the chief judge of the Sixteenth Judicial Circuit. The proposed unit excluded any supervisors, confidential employees, and managerial employees because the Act does not apply to those types of employees. See 5 ILCS 315/3(n), 6(a) (West 1994).

A hearing was held before an administrative law judge. AFSCME sought to include all of the assistants within the collective-bargaining unit, except Regina Harris. The parties stipulated that this particular assistant was a supervisor within the meaning of the Act. The administrative law judge heard extensive testimony concerning the nature of the Kane County public defender’s office and the duties of the assistants. We summarize that testimony.

The duties of the public defender are defined by statute. The purpose of the office is to provide quality legal representation in certain proceedings for indigent individuals who would otherwise not be able to retain quality legal representation. 55 ILCS 5/3 — 4000 (West 1994). Section 3 — 4006 of the Counties Code provides, in pertinent part:

"The Public Defender, as directed by the court, shall act as attorney, without fee, before any court within any county for all persons who are held in custody or who are charged with the commission of any criminal offense, and who the court finds are unable to employ counsel.

The Public Defender shall be the attorney, without fee, when so appointed by the court under Section 1 — 20 of the Juvenile Court Act or Section 1 — 5 of the Juvenile Court Act of 1987 or by any court under Section 5(b) of the Parental Notice of Abortion Act of 1983 for any party who the court finds is financially unable to employ counsel.” 55 ILCS 5/3 — 4006 (West 1994).

The public defender is authorized to appoint assistant public defenders to carry out the duties of the office. 55 ILCS 5/3 — 4008, 3 — 4008.1 (West 1994).

At the time of the hearing, the Kane County public defender’s office consisted of 13 full-time assistants and 3 part-time assistants. The office was arranged into several divisions, including felony trial, felony preliminary hearing, juvenile, DUI, and misdemeanor. The public defender supervised the felony trial division, while assistant Harris generally supervised the other divisions. The office had a caseload of over seven thousand cases per year, and assistants were assigned to handle this caseload.

The assistant public defenders have absolute discretion in handling their cases. The assistants generally do not consult with the public defender about their cases. The public defender testified that more than 90% of the decisionmaking in the felony division occurred without his knowledge or input. Much of the decisionmaking in the other divisions also occurred without his input and without the input of supervisor Harris. The public defender had never interfered with any of the decisions made by the assistants with respect to their cases. The public defender did not tell the assistants how to investigate or develop defenses in their individual cases. Assistants were not required to seek supervisory approval before entering into plea negotiations or entering a plea. They initiated their own investigations, directed investigators, met with clients, and issued subpoenas and other documents. The assistants were fully responsible for all stages of case development and exercised their own independent judgment. The public defender and supervisor Harris handled their own caseloads.

The public defender, however, generally handled the day-to-day operations and administrative matters of the felony division. Supervisor Harris was generally responsible for administrative matters in the other divisions. The office was run in a fairly informal manner. The public defender assigned all cases in the felony trial division, but assistants were permitted to transfer cases among themselves. The office possessed no formal performance evaluations and no formal disciplinary system. The public defender and the assistants all received the same fringe benefits, vacation plan, sick leave and leave of absence policies, and health care options.

The public defender issued a general set of office rules and policies to the assistants, which governed such areas as office dress and hours. Occasionally, the public defender and supervisor Harris issued general directives regarding the handling of cases. The public defender reviewed closed files to determine the outcome of a case and how it was reached, and to make sure certain paperwork requirements were met. The public defender handled budget matters himself. He approved any large expenditures of money and any requests to hire expert witnesses. The public defender and the supervisor also controlled the interviewing and hiring of new assistants. The public defender and supervisor Harris had ultimate supervisory control over administrative matters, although the assistants provided input into some decisions.

After hearing testimony concerning the duties of the assistants, the administrative law judge determined that the assistants under consideration were not managerial employees. Based on this finding, he concluded that the assistants formed an appropriate collective-bargaining unit under the Act. The administrative law judge recommended that AFSCME’s representation petition be granted and ordered a representation election.

The Board adopted the administrative law judge’s recommendation, agreeing that the assistant public defenders were not managerial employees. A representation election was held among all full-time and part-time Kane County assistant public defenders, excluding Harris. AFSCME won the election, and the Board certified AFSCME as the collective-bargaining representative of this unit.

The chief judge petitioned directly to the appellate court for administrative review of the Board’s order. See 5 ILCS 315 /9(i) (West 1994). The appellate court reversed the Board, holding that the assistants are managerial employees. The appellate court based its holding on three factors:

"(1) the public defender delegates an overwhelming majority of the decision-making responsibilities to members of his staff; (2) the assistant public defenders, on a day-today basis, inherently exercise a great deal of authority and discretion in effectuating and achieving the goals of their office; and (3) the professional interests of the assistant public defenders are fundamentally identical to that of the public defender.” 275 Ill. App. 3d 853, 859.

In this appeal, we determine whether the assistants are managerial employees within the meaning of the Act.

ANALYSIS

I. The Managerial Exclusion

Section 3(j) of the Act defines a "managerial 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 1994). The Act excludes these managerial employees from the class of employees who are entitled to engage in collective bargaining. See 5 ILCS 315/3(n), 6(a) (West 1994). 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. See National Labor Relations Board v. Yeshiva University, 444 U.S. 672, 682, 63 L. Ed. 2d 115,125,100 S. Ct. 856, 862 (1980); National Labor Relations Board v. Bell Aerospace Co. Division of Textron, Inc., 416 U.S. 267, 281-82, 40 L. Ed. 2d 134, 146-47, 94 S. Ct. 1757, 1765 (1974).

The managerial exclusion in the Act was adopted from decisions of the National Labor Relations Board and the United States Supreme Court. See, e.g., Yeshiva, 444 U.S. 672, 63 L. Ed. 2d 115, 100 S. Ct. 856; Bell Aerospace, 416 U.S. 267, 40 L. Ed. 2d 134, 94 S. Ct. 1757. The statutory definition of managerial employee under the Act is very similar to the definition contained in the two foregoing United States Supreme Court decisions. The Supreme Court’s application of the managerial exclusion provides guidance to our analysis.

In Yeshiva, the Supreme Court applied the managerial exclusion to preclude the unionization of certain professional employees. Specifically, the Court held that members of the Yeshiva University faculty were managerial employees and therefore excluded from collective bargaining. In explaining the managerial exclusion, the Court stated:

"Managerial employees must exercise discretion within, or even independently of, established employer policy and must be aligned with management. *** [A]n employee may be excluded as managerial only if he represents management interests by taking or recommending discretionary actions that effectively control or implement employer policy.” Yeshiva, 444 U.S. at 683, 63 L. Ed. 2d at 126, 100 S. a. at 862.

The Court further stated that, given the concern for divided loyalty between employer and union, "the relevont consideration is effective recommendation or control rather than final authority” over employer policy. Yeshiva, 444 U.S. at 683 n.17, 63 L. Ed. 2d at 126 n.17, 100 S. Ct. at 863 n.17. See also Bell Aerospace, 416 U.S. at 288, 40 L. Ed. 2d at 150, 94 S. Ct. at 1768 (definition of managerial employee includes generally all employees who " 'formulate and effectuate management policies by expressing and making operative the decisions of their employer’ ” and is not limited to those employees who have some involvement in labor relations matters); Board of Regents of the Regency Universities System v. Illinois Educational Labor Relations Board, 166 Ill. App. 3d 730, 740-41 (1988) (managerial exclusion is not limited to employees who have some potential to affect labor relations matters, such as wages, hours, and other terms and conditions of employment).

In Yeshiva, the National Labor Relations Board argued that faculty decisionmaking was exercised in the faculty’s own professional interest rather than in the employer’s interest. The Court found no justification for such a distinction. Instead, it concluded that the interests of the faculty and the employer were indistinguishable, and any attempt to separate these interests would divide faculty loyalty between employer and union. Yeshiva, 444 U.S. at 686-87, 63 L. Ed. 2d at 128-29, 100 S. Ct. at 864-65. In applying the managerial exclusion to the Yeshiva faculty, the Court stated that the Yeshiva faculty was intimately involved in policy decisions in a number of areas, including course offerings, course scheduling, teaching methods, grading policies, admissions standards, graduation standards, size of the student body, tuition, and location of a school. Yeshiva, 444 U.S. at 686, 63 L. Ed. 2d at 128, 100 S. Ct. at 864.

The Court conceded that there was some tension between the managerial exclusion and the inclusion of professionals in collective bargaining. By its ruling, the Court did not intend to prevent all professionals from engaging in collective bargaining. The Court stated that employees who only engage in "the routine discharge of professional duties in projects to which they have been assigned cannot be excluded from coverage even if union membership arguably may involve some divided loyalty.” Yeshiva, 444 U.S. at 690, 63 L. Ed. 2d at 130, 100 S. Ct. at 866. The Court, however, determined that the Yeshiva faculty exercised "authority which in any other context unquestionably would be managerial.” Yeshiva, 444 U.S. at 686, 63 L. Ed. 2d at 128, 100 S. Ct. at 864.

Illinois courts have also considered the application of the managerial exclusion to professionals. Most significantly, in Office of the Cook County State’s Attorney v. Illinois Local Labor Relations Board, 166 Ill. 2d 296 (1995), this court held that assistant Cook County State’s Attorneys were managerial employees and excluded from collective bargaining under the Act. This court discussed the statutory powers and duties of the State’s Attorney and assistants. These powers and duties include representing the county and the state in the prosecution of civil and criminal actions, prosecuting and defending actions involving a county officer acting in an official capacity, and giving legal advice to county officers. See Cook County State’s Attorney, 166 Ill. 2d at 302-03. Given the procedural posture of Cook County State’s Attorney, the Board had not conducted any fact finding at the time of the appeal. This court found that such fact finding was unnecessary because the pertinent inquiry focused on the statutory duties of the assistants, rather than the specific tasks performed by particular individuals. Cook County State’s Attorney, 166 Ill. 2d at 305. The court therefore decided the issue as a matter of law, based on statute and case law detailing the role of the assistant State’s Attorneys.

In determining whether the assistant State’s Attorneys were managerial employees, this court stated that' "[t]he 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.” Cook County State’s Attorney, 166 Ill. 2d at 301. This court determined that the assistants were vested with the authority to exercise the power of the State’s Attorney and played a substantial part in discharging the statutory mission of the State’s Attorney’s office. This court stated that the assistants act as "surrogates for the State’s Attorney” in performing the statutory duties of the State’s Attorney. Cook County State’s Attorney, 166 Ill. 2d at 303. Because of this close affiliation with the State’s Attorney, the assistant State’s Attorneys were found to be managerial employees.

The managerial exclusion has been addressed by the appellate court in other cases. In Salaried Employees of North America (SENA) v. Illinois Local Labor Relations Board, 202 Ill. App. 3d 1013 (1990), the appellate court held that, based on the facts presented to the Board, law department attorneys employed by the City of Chicago were managerial employees. The court stated that "[mjanagerial employees are those involved in the direction of the governmental enterprise or a major unit thereof who possesses authority to broadly affect its mission or fundamental methods.” Salaried Employees, 202 Ill. App. 3d at 1020. The court relied on three factors in finding the employees to be managerial: (1) the informal setup of the office, allowing an employee to work in different divisions of the law department; (2) the authority of all the attorneys to recommend changes in the city’s operation and policy; and (3) the large amount of discretion exercised by the attorneys on behalf of the city. The court concluded that the interests of the law department employees were identical to those of the city.

In Chief Judge of the Circuit Court v. American Federation of State, County & Municipal Employees, Council 31, 229 Ill. App. 3d 180 (1992), the appellate court held that, based on the facts presented to the Board, guardians ad litem employed in the office of the Cook County public guardian were managerial employees. Pursuant to statute, the public guardian, Patrick Murphy, had been appointed to represent individuals who were found to be incompetent due to age or disability. Because of the caseload, the individual cases were assigned to guardians ad litem, who made almost all of the decisions in their respective cases. The Board argued that the guardians ad litem did not represent the interests of their employer but, instead, represented the many individual wards of the court. The court rejected this argument. The court concluded that the guardians ad litem, through their exercise of extensive discretionary decisionmaking, effectively directed the policies of the Cook County public guardian’s office. .

II. Assistant Public Defenders

In applying the managerial exclusion as defined in the Act, we find that this court’s recent decision in Cook County State’s Attorney is dispositive of the issue. We note that the Board reached its decision in the instant case before Cook County State’s Attorney was decided and that the appellate court relied heavily on that case in reaching its conclusion. As in Cook County State’s Attorney, the statute and case law define the duties of the public defender and assistants, such that the instant case can be decided as a matter of law. We hold, as a matter of law, that the assistant public defenders are managerial employees and therefore not subject to the collective-bargaining provisions of the Act.

As noted, the statutory purpose of the public defender’s office is to provide quality legal representation in criminal and related proceedings for indigent individuais. 55 ILCS 5/3 — 4000 (West 1994). The statutory duties of the public defender’s office are to provide quality legal representation for certain individuals in criminal cases, juvenile cases, and parental notice of abortion cases. 55 ILCS 5/3 — 4006 (West 1994). As was true of assistant State’s Attorneys, the assistant public defenders act as officers for the performance of the general duties of the public defender’s office, exercise some portion of the sovereign power of the state, and perform acts that are generally regarded as acts of the public defender. See 55 ILCS 5/3 — 4008, 3 — 4008.1 (West 1994); Warren v. Stone, 958 F.2d 1419, 1424 (7th Cir. 1992); People v. Benford, 31 Ill. App. 3d 892, 895 (1975); People ex rel. Cook County v. Majewski, 28 Ill. App. 3d 269, 271-73 (1975).

Although no exact criteria define a managerial employee, this court, in Cook County State’s Attorney, 166 Ill. 2d at 304, relied heavily on the existence of three factors in determining that assistant State’s Attorneys are managerial employees: (1) the close identification of a State’s Attorney with the actions of his or her assistants, (2) the unity of their professional interests, and (3) the power of the assistants to act on behalf of the State’s Attorney. The relationship between the public defender and the assistants also manifests these characteristics. The assistant public defenders possess significant authority and discretion to discharge the mission of the public defender’s office. In effect, they act as surrogates for the public defender.

The Board and AFSCME argue that Cook County State’s Attorney is distinguishable from the instant case. They assert that assistant State’s Attorneys, in general, provide legal representation on behalf of the state. In contrast, the Board and AFSCME argue, the assistant public defenders represent the interests of their indigent clients but do not represent the interests of the state or chief judge.

A similar argument was recently rejected by the Supreme Court. In National Labor Relations Board v. Health Care & Retirement Corp. of America, 511 U.S. 571, 128 L. Ed. 2d 586, 114 S. Ct. 1778 (1994), the Court was required to determine whether certain nurses should be considered "supervisors” within the meaning of the National Labor Relations Act. The National Labor Relations Board argued that the nurses were not supervisors because they acted in their own professional interests, not in the interests of their employer. The Court rejected that argument and noted that such an argument had also been rejected in Yeshiva:

"The Board’s interpretation, that a nurse’s supervisory activity is not exercised in the interest of the employer if it is incidental to the treatment of patients, is similar to an approach the Board took, and we rejected, in NLRB v. Yeshiva Univ., 444 U.S. 672 (1980). There, we had to determine whether faculty members at Yeshiva were 'managerial employees.’ *** Like supervisory employees, managerial employees are excluded from the Act’s coverage. [Citation.] The Board in Yeshiva argued that the faculty members were not managerial, contending that faculty authority was 'exercised in the faculty’s own interest rather than in the interest of the university.’ [Citation.]

The Board’s reasoning fares no better here than it did in Yeshiva. As in Yeshiva, the Board has created a false dichotomy — in this case, a dichotomy between acts taken in connection with patient care and acts taken in the interest of the employer. That dichotomy makes no sense. Patient care is the business of a nursing home, and it follows that attending to the needs of the nursing home patients, who are the employer’s customers, is in the interest of the employer. [Citation.] We thus see no basis for the Board’s blanket assertion that supervisory authority exercised in connection with patient care is somehow not in the interest of the employer.” Health Care, 511 U.S. at 577-78, 128 L. Ed. 2d at 593-94, 114 S. Ct. at 1782.

See also Chief Judge, 229 Ill. App. 3d at 187-88 (rejecting the Board’s argument that Cook County guardians ad litem represented the many individual wards of the court instead of representing the interests of their employer). For similar reasons, we reject the purported distinction as meaningless.

The Board also relies on conflict of interest cases to suggest that the assistant public defenders are not closely aligned with the public defender’s office. See People v. Spreitzer, 123 Ill. 2d 1 (1988); People v. Banks, 121 Ill. 2d 36 (1987); People v. Robinson, 79 Ill. 2d 147 (1979). In these cases, the relevant question was whether an assistant could represent a client even if other attorneys in the office had a conflict of interest involving that client. This court found no per se conflict of interest. This court determined that the attorneys in the public defender’s office could act in the professional interests of their clients and perform the statutory duties of the office despite any allegiance to the office and the other attorneys in the office. See, e.g., Banks, 121 Ill. 2d at 42-43.

The conflict of interest cases cited by the Board are not helpful in the context of collective bargaining. As stated, like the relationship between the State’s Attorney and his or her assistants, the assistant public defenders act on behalf of the public defender in carrying out the statutory duties of the public defender’s office. The nature of this affiliation is not affected by the ability of the assistants to set aside any personal allegiance in a particular case and perform the statutory duties of the office. The professional interests of the public defender, his or her assistants, and the office remain the same: to provide quality legal representation to indigent individuals. In addition, the assistants retain broad authority to act on behalf of the public defender.

Finally, the Board and AFSCME argue that certain public sector attorneys in Illinois and other jurisdictions have been allowed to organize into collective-bargaining units. The cases and certification orders cited provide little support to the matter involved here. In many of these decisions, the question of managerial status was not even at issue. In addition, the duties of these public sector attorneys are generally different from the duties of the assistant public defenders, as provided by Illinois statute and case law. We emphasize, as we did in Cook County State’s Attorney, that the holding of the instant case should not be broadly interpreted to mean that all publicly employed attorneys or other professional employees are deemed managerial employees under the Act. Instead, we hold only that the assistant public defenders meet the definition of managerial employees under the Act.

CONCLUSION

The Kane County assistant public defenders are managerial employees, within the meaning of the Act. They are excluded from collective bargaining under the Act. For the foregoing reasons, the judgment of the appellate court is affirmed.

Affirmed.