Lindorff v. The American Federation of State, County, and Municipal Employees

FILED
2015 IL App (4th) 131025 July 7, 2015
Carla Bender
NO. 4-13-1025 4th District Appellate
Court, IL
IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

LOIS LINDORFF and DEBORAH FUQUA, ) Direct Review of
Petitioners, ) Illinois Labor Relations Board,
and ) State Panel,
THE AMERICAN FEDERATION OF STATE, ) No. S-DE-14-055
COUNTY, AND MUNICIPAL EMPLOYEES, )
COUNCIL 31, )
Realigned Petitioner, )
v. )
THE DEPARTMENT OF CENTRAL MANAGEMENT )
SERVICES/THE DEPARMENT OF CORRECTIONS; )
THE ILLINOIS LABOR RELATIONS BOARD, )
STATE PANEL; and MARY L. MILLER, )
Respondents.
______________________________________________________________________________

JUSTICE TURNER delivered the judgment of the court, with opinion.
Presiding Justice Pope and Justice Appleton concurred in the judgment and
opinion.

OPINION

¶1 Pursuant to Illinois Supreme Court Rule 335 (eff. Feb. 1, 1994) and section 11(e)

of the Illinois Public Labor Relations Act (Labor Act) (5 ILCS 315/11(e) (West 2012)),

petitioners, Lois Lindorff and Deborah Fuqua, seek direct review of a decision of respondent, the

Illinois Labor Relations Board, State Panel (Board), finding their positions qualified for a

gubernatorial designation for exclusion from collective bargaining under section 6.1(b)(5) of the

Labor Act (5 ILCS 315/6.1(b)(5) (West Supp. 2013)). With this court, the American Federation

of State, County, and Municipal Employees, Council 31 (AFSCME), filed a written appearance

and a brief in support of petitioners' position, and thus we realigned AFSCME as a petitioner.
Respondents, the Board and the Department of Central Management Services

(CMS)/Department of Corrections (DOC), filed a joint brief. Respondent, Mary L. Miller, was

the other employee in a position subject to the Board's order, but she did not enter a written

appearance with this court.

¶2 On review, petitioners (1) challenge the Board's interpretation of section 6.1(c)(i)

of the Labor Act (5 ILCS 315/6.1(c)(i) (West Supp. 2013)) and (2) argue the health-care-unit-

administrator position did not meet the requirements for a gubernatorial designation under

section 6.1(b)(5) of the Labor Act. We affirm.

¶3 I. BACKGROUND

¶4 On August 20, 2013, CMS filed a gubernatorial designation of exclusion petition

under section 6.1 of the Labor Act, seeking to exclude from collective bargaining three health

care unit administrators (two were public service administrators option 8N and one was public

service administrator option 6) in the DOC. The petition asserted the positions met the

requirements of section 6.1(b)(5) of the Labor Act (5 ILCS 315/6.1(b)(5) (West Supp. 2013)).

On August 30, 2013, petitioners and Miller filed separate objections to the petition, each

asserting her position did not qualify for a gubernatorial designation because it did not meet the

requirements of section 6.1(b)(5) of the Labor Act. On September 6, 2013, AFSCME filed its

objections to the gubernatorial designation of the positions at issue.

¶5 On September 12, 2013, the administrative law judge (ALJ) held an evidentiary

hearing in accordance with section 1300.60(d)(2)(B) of Title 80 of the Illinois Administrative

Code (80 Ill. Adm. Code 1300.60(d)(2)(B) (2013)). The evidence established the structure of

medical services within the DOC. At the correctional centers at issue in this case, the vendor,

Wexford Health Sources, Inc. (Wexford), provided all of the medical care for the inmates.

-2-
Wexford employed all of the health care workers, including a medical director and director of

nursing for each correctional center. DOC also employed a medical director, who at the relevant

time was Dr. Louis Shicker. The DOC medical director oversaw all of the health care services

for the entire inmate population in Illinois and was assisted by nurse coordinators. Each

correctional center was run by a warden, who had two assistant wardens, one for programs and

one for operations. The health care unit was the largest program under the assistant warden for

programs. The health care unit administrator was the employee under the assistant warden for

programs, who primarily monitored Wexford's compliance with the state and federal laws and

regulations, DOC administrative and institutional directives, and Wexford's contract with the

DOC.

¶6 The administrative directives for health care were created by the DOC medical

director. A correctional center could only deviate from an administrative directive by adopting

an institutional directive that was more stringent than the applicable administrative directive.

The health care unit administrators at issue in this case were registered nurses.

¶7 Fuqua testified every aspect of the operation of her health care unit was governed

by federal and state laws and administrative and institutional directives. She had no authority to

deviate from the directives and had no role in the promulgation of both administrative and

institutional directives. If she thought a directive needed to be changed, Fuqua would notify her

supervisor. Each month, Fuqua completed a report that measured Wexford's performance. The

report had six pages of instructions, of which the health care unit administrator had no role in

writing. According to Fuqua, if she discovered any noncompliance, she had to report it. The

discretionary language in the report's instructions was for the business administrators, not the

health care unit administrators. She had no role in any sanctions that could result from

-3-
noncompliance. Fuqua further testified the health care unit had a mission statement, and she had

no role in its creation. She also had no role in formulating a budget.

¶8 Fuqua also attended many monthly meetings. One was with the warden, during

which he updated all of the department heads on new administrative and institutional directives

and staff appointments. It was the health care unit administrator's responsibility to cover the new

directives at a monthly staff meeting with Wexford employees. The assistant warden of

programs also held a monthly meeting for department heads that covered similar topics.

Additionally, Fuqua met with the assistant warden of programs on a daily basis to report any

violations by Wexford. Health care unit administrators also had a quality improvement meeting

with a representative from Dr. Shicker's office, in which they discussed the parts of the contract

not being met. Last, Fuqua explained the job description for health care unit administrators

contained a lot of incorrect information.

¶9 Miller and Lindorff testified their correctional centers ran the same way as

Fuqua's did. However, Lindorff estimated her time spent on monitoring Wexford was 70-80%.

¶ 10 Dr. Shicker testified the health care unit administrators had discretion in reporting

deviations because only significant deviations needed to be reported. He explained missing one

offender's physical by the set date was insignificant, but a pattern of missing physicals would be

significant. Dr. Shicker also explained that, in reporting staff shortages, the health care unit

administrator had to weigh whether the services required by the contract were being done versus

the specific employee that had to fill the hours. Beyond the two aforementioned areas of the

report, the health care unit administrator had very little discretion with the rest of the report.

¶ 11 Ashby was the assistant warden of programs at Western Correctional Center, and

he testified his health care unit administrator was considered a department head and part of his

-4-
management team. He communicated with his health care unit administrator daily and relied on

the health care unit administrator and his Wexford director of nursing to make decisions

regarding medical matters, as he was not a nurse. If a decision was made Wexford had to pay

back hours not worked under the contract, Fuqua, his health care unit administrator, would be the

one to notify Wexford. Ashby also noted the health care unit administrator attended confidential

meetings.

¶ 12 On September 23, 2013, the ALJ issued a recommended decision and order,

finding the gubernatorial designations were properly made. Petitioners, Miller, and AFSCME

filed objections to the ALJ's recommended decision and order. On October 21, 2013, the Board

accepted the ALJ's decision and certified the gubernatorial designation of the three health-care-

unit-administrator positions.

¶ 13 On November 20, 2013, petitioners timely filed their petition for direct

administrative review in this court. In January 2015, this court discovered Miller, who was a

party before the Board, was not named as a respondent in petitioners' petition. Thus, under

section 3-113(b) of the Administrative Review Law (735 ILCS 5/3-113(b) (West 2012)), we

gave petitioners 35 days to name and serve Miller as a respondent. On February 9, 2015,

petitioners filed an amended petition for direct administrative review, naming Miller. As stated,

Miller did not enter her written appearance as a party to this appeal. Accordingly, we have

jurisdiction under Rule 335.

¶ 14 II. ANALYSIS

¶ 15 A. Standard of Review

¶ 16 With direct administrative review, this court reviews de novo the agency's

decision on a question of law. Niles Township High School District 219 v. Illinois Educational

-5-
Labor Relations Board, 379 Ill. App. 3d 22, 26, 883 N.E.2d 29, 33 (2007). On the other hand,

we afford deference to the agency's decision on a question of fact and will not reverse such a

decision unless it is against the manifest weight of the evidence. Niles Township, 379 Ill. App.

3d at 26, 883 N.E.2d at 33. An administrative agency's finding is "against the manifest weight of

the evidence only where the opposite conclusion is clearly evident." Peacock v. Board of

Trustees of the Police Pension Fund, 395 Ill. App. 3d 644, 652, 918 N.E.2d 243, 250 (2009).

¶ 17 Some agency decisions involve both questions of law and fact. " 'A mixed

question of law and fact asks the legal effect of a given set of facts.' " Niles Township, 379 Ill.

App. 3d at 26, 883 N.E.2d at 33 (quoting Elementary School District 159 v. Schiller, 221 Ill. 2d

130, 143, 849 N.E.2d 349, 358 (2006)). This court will not reverse an agency's decision on a

mixed question of law and fact unless it is clearly erroneous. Niles Township, 379 Ill. App. 3d at

26, 883 N.E.2d at 33. Our supreme court has defined the clearly erroneous standard as follows:

"An agency decision will be reversed because it is clearly

erroneous only if the reviewing court, based on the entirety of the

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

has been committed. [Citation.] While this standard is highly

deferential, it does not relegate judicial review to mere blind

deference of an agency's order." (Internal quotation marks

omitted.) SPEED District 802 v. Warning, 242 Ill. 2d 92, 112, 950

N.E.2d 1069, 1080-81 (2011) (quoting Board of Trustees of the

University of Illinois v. Illinois Labor Relations Board, 224 Ill. 2d

88, 97-98, 862 N.E.2d 944, 950-51 (2007)).

¶ 18 B. Gubernatorial Designation

-6-
¶ 19 This case involves a relatively new statute, which took effect in April 2013.

Section 6.1(a) of the Labor Act (5 ILCS 315/6.1(a) (West Supp. 2013)) authorizes the Governor

"to designate up to 3,580 State employment positions collectively within State agencies directly

responsible to the Governor, and, upon designation, those positions and employees in those

positions, if any, are hereby excluded from the self-organization and collective bargaining

provisions of Section 6 of this Act." To qualify for a designation under section 6.1(a), the

employment position must meet one or more of five enumerated requirements, and the one at

issue in this case is the position "must authorize an employee in that position to have significant

and independent discretionary authority as an employee." 5 ILCS 315/6.1(b)(5) (West Supp.

2013). Section 6.1(c) of the Labor Act (5 ILCS 315/6.1(c) (West Supp. 2013)) defines

"significant and independent discretionary authority" and provides an employee has such under

the following circumstances:

"if he or she (i) is engaged in executive and management functions

of a State agency and charged with the effectuation of management

policies and practices of a State agency or represents management

interests by taking or recommending discretionary actions that

effectively control or implement the policy of a State agency or (ii)

qualifies as a supervisor of a State agency as that term is defined

under Section 152 of the National Labor Relations Act or any

orders of the National Labor Relations Board interpreting that

provision or decisions of courts reviewing decisions of the

National Labor Relations Board."

Additionally, "[a]ny designation made by the Governor under this Section shall be presumed to

-7-
have been properly made." 5 ILCS 315/6.1(d) (West Supp. 2013).

¶ 20 In this case, the parties agree petitioners are not supervisors under section

6.1(c)(ii) of the Labor Act. Thus, we turn to section 6.1(c)(i) of the Labor Act (5 ILCS

315/6.1(c)(i) (West Supp. 2013)), which contains two different ways in which an employee is

authorized to exercise "significant and independent discretionary authority." See 5 ILCS

315/6.1(c)(i) (West Supp. 2013). The parties appear to be in dispute over how the two different

ways are defined, which presents a matter of statutory interpretation.

¶ 21 The fundamental rule of statutory construction requires courts to ascertain and

give effect to the legislature's intent. General Motors Corp. v. Pappas, 242 Ill. 2d 163, 180, 950

N.E.2d 1136, 1146 (2011). The statutory language, given its plain and ordinary meaning, best

indicates the legislature's intent. Pappas, 242 Ill. 2d at 180, 950 N.E.2d at 1146. In interpreting

a statutory provision, courts evaluate the statute as a whole, "with each provision construed in

connection with every other section." Pappas, 242 Ill. 2d at 180, 950 N.E.2d at 1146. When the

statutory language is clear and unambiguous, a court must give effect to the statute's plain

meaning without resorting to extrinsic statutory-construction aids. Pappas, 242 Ill. 2d at 180,

950 N.E.2d at 1146.

¶ 22 The dispute between the parties in interpreting section 6.1(c)(i) arises due to the

two conjunctions in that provision. Petitioners assert an employee must be "engaged in

executive and management functions of a State agency" and meet one of the phrases joined by

the "or." The Board appears to interpret the section as all of the language preceding the "or" is

one way to the meet the definition, and the language after the "or" is the second way. We agree

with the Board and note the language is not ambiguous, so we have not looked to legislative

history in reaching our conclusion. Under the plain language of section 6.1(c)(i) and by properly

-8-
keeping the verbs in tense agreement in respect to the conjunctions, an employee meets the

definition of section 6.1(b)(5) in the following two situations: (1) the employee "is [(a)] engaged

in executive and management functions of a State agency and [(b)] charged with the effectuation

of management policies and practices of a State agency" or (2) the employee "represents

management interests by taking or recommending discretionary actions that effectively control

or implement the policy of a State agency." (Emphasis added.) 5 ILCS 315/6.1(c)(i) (West

Supp. 2013). Moreover, unlike petitioners' interpretation, our interpretation does not render any

language superfluous. If an employee is already engaged in executive and management

functions, the employee would already be representing management interests. We will refer to

the first test set forth in section 6.1(c)(i) as managerial authority and the second as management

representation.

¶ 23 1. Managerial Authority

¶ 24 Petitioners assert we should interpret the managerial authority definition of

section 6(c)(i) the same as section 3(j) of the Labor Act (5 ILCS 315/3(j) (West Supp. 2013)).

Section 3(j) provides, in pertinent part, the following: " 'Managerial employee' means 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 Supp. 2013). While the Board's decision agreed with the contention the

managerial authority language of section 6.1(c)(i) tracks the language of section 3(j), it found the

managerial-authority provision did not have the same meaning because (1) that provision lacked

the "predominantly" language contained in section 3(j) and (2) the existence of the presumption

the designation was proper under section 6.1(d). We note the Board examined and the parties on

appeal all looked to cases interpreting section 3(j) in defining the managerial-authority test, and

-9-
thus we will begin our analysis there.

¶ 25 While section 6.1(c)(i) and the other provisions of the Labor Act do not define

"executive and management functions," this court has generally interpreted that language to

mean duties related to the running of a department, for example, by "formulating policies and

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

Labor Relations Board, State Panel, 2013 IL App (4th) 110877, ¶ 25, 982 N.E.2d 971

(hereinafter, Pollution Control Board). Illinois courts have found other duties include preparing

the budget or assuring the agency or department operates effectively. American Federation of

State, County & Municipal Employees (AFSCME), Council 31 v. Illinois Labor Relations Board,

State Panel, 2014 IL App (1st) 123426, ¶ 38, 17 N.E.3d 698. Additionally, " '[t]he employee

must possess and exercise authority and discretion which broadly effects a department's goals

and means of achieving its goals.' " AFSCME, 2014 IL App (1st) 123426, ¶ 38, 17 N.E.3d 698

(quoting Department of Central Management Services v. Illinois State Labor Relations Board,

278 Ill. App. 3d 79, 87, 662 N.E.2d 131, 136 (1996)). We find these cases would also apply

under the first part of section 6.1(c)(i). However, section 6.1(c)(i) does lack the "predominantly"

language, which narrows section 3(j)'s definition of "managerial employee." See County of Cook

v. Illinois Labor Relations Board—Local Panel, 351 Ill. App. 3d 379, 387 n.1, 813 N.E.2d 1107,

1115 n.1 (2004). "Predominantly" generally means: "for the most part: MAINLY." Merriam-

Webster's Collegiate Dictionary 916 (10th ed. 2000). Thus, unlike section 3(j), the "executive

and management functions" do not have to comprise most of the employee's work for the

employee to meet the first part of the managerial-authority test.

¶ 26 As to section 3(j)'s language that is similar to the second part of the managerial-

authority test, this court has found the employee must not merely have the "authority to make

- 10 -
policy but also bear[] the responsibility of making that policy happen." (Internal quotation marks

omitted.) Pollution Control Board, 2013 IL App (4th) 110877, ¶ 26, 982 N.E.2d 971 (quoting

Department of Central Management Services v. Illinois Labor Relations Board, State Panel,

2011 IL App (4th) 090966, ¶ 135, 959 N.E.2d 114). However, we find our case law regarding

section 3(j) inapplicable to this part of the managerial-authority test contained in section 6.1(c)(i)

because that section lacks "the responsibility of directing" language contained in section 3(j).

Thus, under the second part of the managerial-authority test, the employee would just need to

effectuate management policies and practices. For purposes of the managerial-authority test,

effectuate means "to put into operation." Merriam-Webster's Collegiate Dictionary 367 (10th ed.

2000) (we note the definition of "effectuate" refers to the second definition of "effect," and the

quoted language comes from part 2b of the second definition of "effect").

¶ 27 2. Management Representation

¶ 28 Both petitioners and the Board note the language of the management-

representation part of section 6.1(c)(i) is the same language used by the United States Supreme

Court in National Labor Relations Board v. Yeshiva University, 444 U.S. 672, 683 (1980). Our

supreme court applied the reasoning in Yeshiva for determining a managerial employee under the

Labor Act in Chief Judge of the Sixteenth Judicial Circuit v. Illinois State Labor Relations

Board, 178 Ill. 2d 333, 339-41, 687 N.E.2d 795, 797-98 (1997) (hereinafter, Chief Judge).

There, our supreme court recognized that, "[i]n 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." Chief Judge, 178 Ill. 2d at 340, 687 N.E.2d at 798 (citing Yeshiva, 444

- 11 -
U.S. at 686). "[G]iven the concern for divided loyalty between employer and union, 'the relevant

consideration is effective recommendation or control rather than final authority' over employer

policy." Chief Judge, 178 Ill. 2d at 339-40, 687 N.E.2d at 798 (quoting Yeshiva, 444 U.S. at 683

n.17). However, the Yeshiva decision "did not intend to prevent all professionals from engaging

in collective bargaining." Chief Judge, 178 Ill. 2d at 341, 687 N.E.2d at 798. "[E]mployees 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.' " Chief Judge, 178 Ill. 2d at 341, 687 N.E.2d at 798 (quoting Yeshiva, 444

U.S. at 690). We disagree with AFSCME's assertion that application of the aforementioned

interpretation of the management-representation test results in the Governor being able to

designate any professional employee as being excluded from collective bargaining under section

6.1(b)(5). Since the management-representation language of section 6.1(c)(i) is the same as the

Supreme Court's in Yeshiva, we find the analysis of Yeshiva by our supreme court in Chief Judge

also applies to the management-representation test of section 6.1(c)(i) of the Labor Act.

¶ 29 C. The Positions at Issue

¶ 30 In this case, the Board found the positions at issue met the tests for both

managerial authority and management representation. Generally, Illinois courts treat the Board's

determination of whether an employee meets the definition of managerial employee as a mixed

question of law and fact, and thus we review whether the positions at issue met the requirements

of section 6.1(c)(i) under the clearly erroneous standard. Department of Central Management

Services/The Department of State Police v. Illinois Labor Relations Board, State Panel, 2012 IL

App (4th) 110356, ¶ 15, 980 N.E.2d 1259.

¶ 31 We recognize section 6.1(d) of the Labor Act (5 ILCS 315/6.1(d) (West Supp.

- 12 -
2013)) creates the presumption any designation made by the Governor under section 6.1 was

properly made. Because of the presumption, petitioners had to present sufficient evidence

rebutting the presumption.

¶ 32 In this case, the Board found petitioners did not refute the presumption they met

both the managerial-authority and management-representation tests set forth in section 6.1(c)(i)

of the Labor Act when they (1) monitored Wexford and reported on its compliance and (2)

promulgated and implemented administrative and institutional directives. As to all of petitioners'

other functions, the Board found they did show those functions did not meet the tests set forth in

section 6.1(c)(i).

¶ 33 1. Managerial Authority

¶ 34 In finding the health care unit administrators engaged in executive and

management functions in monitoring Wexford, the Board noted the administrators ensured the

health care units ran effectively. They were authorized to use discretion as to whether and how

to report their observations because they could report the noncompliance immediately or in the

monthly report. The Board also found the health care unit administrators determined whether

noncompliance by Wexford was of sufficient significance to be reported. Petitioners assert the

aforementioned discretion does not broadly affect the DOC's goals and the means of achieving

them.

¶ 35 Clearly, providing proper health care to the inmates is a major goal of DOC. It is

the largest program under the assistant warden of programs. The evidence showed the health

care unit administrators were the frontline DOC employees in ensuring both Wexford complied

with the DOC contract and the inmates received, at a minimum, the health care required by law.

Assistant Warden Ashby testified he met with his health care unit administrator on a daily basis

- 13 -
to ensure the inmates were receiving good medical care. The discretion of when to report

noncompliance with the Wexford contract affects how quickly DOC can respond to issues within

the health care unit and with the Wexford contract. Moreover, the discretion in determining

what deviation from the contract is significant also impacts how effectively the health care unit is

run as the more deviations excused, the less effective the unit may run. While the discretion the

health care unit administrators did possess was arguably small in size, it was large in impact

because they were the DOC employees directly observing and reporting on Wexford's day-to-

day operations of the health care unit. Thus, we disagree with petitioners that the health care unit

administrator's discretion did not have a broad effect. Accordingly, we find the Board's

determination the objectors failed to prove the health care unit administrators did not engage in

management and executive functions in monitoring Wexford was not clearly erroneous.

¶ 36 As to effectuation of the management policies and practices of a state agency, the

health care unit administrator's monitoring of Wexford puts into operation the administrative

directives, institutional directives, and the DOC contract with Wexford. The health care unit

administrator's discretion is the initial enforcement of the policies and practices, as the health

care unit administrator makes the initial determination of whether to report the violation and then

whether to report it immediately or in the monthly report. Such discretion can have a significant

impact on the effectiveness of the health care unit. Ashby emphasized his reliance on the health

care unit administrator's opinions. Thus, we find the Board's determination the objectors failed

to show the health care unit administrators did not effectuate DOC policies and practices when

they monitored Wexford was not clearly erroneous.

¶ 37 Because our review of the entirety of the record does not leave us with a definite

and firm conviction that a mistake has been committed, we find the Board properly certified the

- 14 -
positions at issue as excluded from collective bargaining under section 6.1 of the Labor Act.

Based on our aforementioned finding, we need not address the Board's findings as to the health

care unit administrator's role in the promulgation and implementation of administrative and

institutional directives.

¶ 38 2. Management Representation

¶ 39 As a result of our conclusion the health care unit administrators meet the

managerial-authority test when monitoring Wexford, we also need not address whether the

positions at issue also meet the management-representation test.

¶ 40 III. CONCLUSION

¶ 41 For the reasons stated, we affirm the Board's judgment.

¶ 42 Affirmed.

- 15 -