concurring in part and dissenting in part:
I disagree with the majority’s conclusion that the 12 alleged supervisors (the employees) should not be withheld from the bargaining unit. Giving the findings of the Labor Relations Board (the Board) all the deference they deserve, I still conclude that they are manifestly erroneous. Therefore, I respectfully dissent from the portion of the opinion that affirms the finding that these employees are not supervisors and were therefore correctly included in the bargaining unit.
As noted by the majority, this court laid down the four requirements to meet the definition of “supervisor” in City of Freeport v. Illinois State Labor Relations Board (1990), 135 Ill. 2d 499, 506. The chief judge challenged the hearing officer’s finding that, although the employees perform some supervisory functions, they do not exercise independent judgment in their performance. I agree with the chief judge that the record clearly shows the opposite; and since the rest of the factors in Freeport are present, the employees should be deemed supervisors and excluded from the bargaining unit.
The majority notes that a single indicium (of 11 possible indicia) of supervisory authority accompanied by independent judgment is enough to establish supervisory status. (153 Ill. 2d at 516.) I find two such indicia established by the record for the nine employees at adult probation (the probation people); the record indicates that independent judgment is used both in directing and disciplining subordinates. Further, I find one such indicium established for the three employees at social casework services (the caseworkers), who also use independent judgment in disciplining subordinates.
The record clearly establishes that the probation people use independent judgment in directing their subordinates. The Board has defined the authority to direct as possessing “the authority to assign work to subordinates and direct them in the performance of their duties.” (Illinois Department of Central Management Services, 5 Pub. Employee Rep. (Ill.) par. 2012, at X — 132, No. S— RC — 88—76 (ISLRB April 28, 1989).) The majority concedes that the probation people have the responsibility of assigning work to their subordinates. Following the hearing officer’s lead, however, they classify this as merely maintaining balanced workloads among subordinates.
An examination of the record reveals, however, that in addition to monitoring workload, the probation people prioritize assignments and assign specific tasks when necessary. They also hold monthly meetings to discuss performance and to address problems. There are no formal guidelines for these tasks, and they require the exercise of independent judgment. As in St. Clair Housing Authority, 5 Pub. Employee Rep. (Ill.) par. 2017, No. S — RC—88—108 (ISLRB Mar. 30, 1989), where property managers were found to use independent judgment to direct maintenance workers, the probation people “clearly have a wide range of options regarding what type of work will be performed and the priority such work will receive. Furthermore, their decisions are not reviewed in any way by their superiors.” Like the property managers, the probation people “have authority to direct their subordinates with the use of independent judgment.” 5 Pub. Employee Rep. (Ill.) par. 2017, at X — 156.
In addition, the probation people use independent judgment in disciplining their subordinates. Everyone agrees that they have independent authority to issue oral and written reprimands, and that this authority is actually exercised. (153 Ill. 2d at 517.) However, the hearing officer ruled that this is not enough; since any discipline beyond these reprimands requires a discussion with a clerical manager, it cannot be said that these people disciplined with independent judgment.
This is contrary to previous decisions by both this court and the Labor Relations Board, where the ability to reprimand was sufficient to establish independent judgment in disciplining subordinates. In City of Freeport v. Illinois State Labor Relations Board (1990), 135 Ill. 2d 499, 521, this court examined whether certain supervisory functions performed by police officers required the exercise of independent judgment. This court concluded that the officers did not use independent judgment when they issued certain suspensions for tardiness, since the suspensions were required whenever a subordinate was 30 minutes late. However, independent judgment was required for issuing written reprimands, since discretion was involved. “[W]hen the ranking officers exercise their authority to issue written reprimands and to recommend disciplinary suspension, they ordinarily must choose between two or more significant courses of action. Accordingly, the ranking officers consistently use independent judgment when exercising their authority to discipline patrol officers.” City of Freeport, 135 Ill. 2d at 521.
The Board has adopted similar findings. In Illinois Department of Central Management Services & Revenue, 4 Pub. Employee Rep. (Ill.) par. 2027, No. S — RC—88—1 (ISLRB May 22, 1988), the Board adopted a hearing officer’s conclusion that independent judgment was used when the supervisors had the authority to discipline by issuing oral reprimands. “The Supervisors have the authority to issue oral reprimands. Although they do so infrequently, the authority has been exercised, approval was not needed and a written note was placed in the agent’s personal file. *** I therefore find that the Supervisors are supervisors within the meaning of Section 3(r) of the Act.” 4 Pub. Employee Rep. (Ill.) par. 2027, at X — 165.
Similarly, in St. Clair Housing Authority, 5 Pub. Employee Rep. (Ill.) par. 2017, No. S-RC-88-108 (ISLRB Mar. 30, 1989), property managers who issued oral and written reprimands were found to use independent judgment in their authority to discipline. “Property Managers have authority to discipline through oral and written reprimand. Although exercised infrequently, discipline was accomplished without prior approval and resulted in written notes being placed in the personnel files. Since Managers may issue reprimands without consultation or approval from their superiors, I find that Property Managers have the authority to discipline with the use of their independent judgment.” 5 Pub. Employee Rep. (Ill.) par. 2017, at X — 156.
In the instant case, the probation people have discretion similar to the officers in Freeport and the managers in St. Clair, and have more discretion than those in Central Management Services. They certainly “choose between two or more significant courses of action,” the dispositive factor in City of Freeport, 135 Ill. 2d at 521. Based on the Board’s previous holdings, as well as our own, a conclusion that the probation people do not use independent judgment in disciplining their subordinates is contrary to law and clearly erroneous. Therefore, the probation people should be deemed supervisors, and withheld from the bargaining unit.
The caseworkers also use independent judgment in disciplining subordinates. Social casework services uses a five-part disciplinary plan. The caseworkers meet with the employee at the early stages of this plan and make a decision whether the problem can be resolved by merely talking with the employee, or whether further action must be taken by a higher authority. The caseworkers use independent judgment when they decide whether the situation requires further attention. The caseworkers “choose between two or more significant courses of action” (City of Freeport, 135 Ill. 2d at 521), and the conclusion that they do not meet the definition of supervisor is clearly erroneous.
Based on the foregoing, these 12 employees should be deemed supervisors. I dissent from the majority’s holding that they are not.
I also express my doubts as to the correctness of the hearing officer’s finding concerning the six alleged confidential employees. As the majority correctly notes, these six women are secretaries to potentially confidential employees, but the hearing officer found that they were not themselves confidential.
It seems to me that these women are probably confidential employees. Certainly, if the people they work for satisfy the definition of “confidential employee,” then the women themselves are; the “authorized access test,” which indicates that people with access to matters related to the collective-bargaining process are themselves confidential (153 Ill. 2d at 523-24), would certainly apply to secretaries. As anyone in the business world knows, a secretary necessarily has access to just about anything her superior does. One would be hard-pressed to come up with a scenario where the authorized access test would not apply to a confidential employee’s secretary.
However, I agree with the majority that the correct procedural route to determine the status of these women is for the chief judge to repetition for a finding of confidential status. This is because the positions of these women have changed greatly since the hearing officer made the findings at issue; further, many of the chief judge’s arguments rely on the secretaries’ anticipated responsibilities, rather than responsibilities the women presently hold. I therefore concur in the part of the opinion that leaves for another day the determination of the status of these six women.
CHIEF JUSTICE MILLER joins in this partial concurrence and partial dissent.