dissenting:
The majority, relying on this court’s opinion in Office of the Cook County State’s Attorney v. Illinois Local Labor Relations Board, 166 Ill. 2d 296 (1995), holds that the Kane County assistant public defenders are managerial employees as a matter of law and, as such, are precluded from collective bargaining. I disagreed with the holding in Cook County State’s Attorney then and I disagree that it is dispositive of the issue before this court now. I, therefore, respectfully dissent.
Citing National Labor Relations Board v. Yeshiva University, 444 U.S. 276, 63 L. Ed. 2d 115, 100 S. Ct. 856 (1980), and National Labor Relations Board v. Bell Aerospace Co. Division of Textron, Inc., 416 U.S. 267, 40 L. Ed. 2d 134, 94 S. Ct. 1757 (1974), the majority here acknowledges that the managerial exclusion in Illinois’ Labor Relations Act was born out of decisions of the National Labor Relations Board and the Supreme Court. The majority then further acknowledges the Supreme Court’s application of the managerial exclusion as having "provide[d] guidance” to its analysis. See 178 Ill. 2d at 339. No sooner than it acknowledges these precedents, however, the majority veers off course. Quite contrary to Yeshiva and Bell Aerospace, the majority here has taken a direction guaranteed to insure every statutorily defined public employer of professional employees absolute freedom from organized labor.
The nature of the managerial exclusion is clear and the principles to be applied in making the managerial status determination may be stated briefly. As defined in Bell Aerospace, 416 U.S. 267, 40 L. Ed. 2d 134, 94 S. Ct. 1757, managerial employees are those employees whose interests are more closely identified with those of management or who are representatives of management, although their work does not generally entail the supervision of bargaining unit employees. The "touchstone of managerial status is *** an alliance with management.” See Yeshiva, 444 U.S. at 695, 63 L. Ed. 2d at 134, 100 S. Ct. at 869 (Brennan, J., dissenting, joined by White, Marshall and Blackmun, JJ.). Yeshiva recognizes the existence of such an alliance as being when the employee 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. Ct. at 862. In contrast, employees whose decisionmaking is limited to the routine discharge of professional duties in projects to which they have been assigned cannot be excluded from unionized bargaining even if union membership arguably may involve some divided loyalty. Key to the managerial exclusion determination is a recognition that "/o]nly if an employee’s activities fall outside the scope of the duties routinely performed by similarly situated professionals will [the employee] be found aligned with management.” (Emphasis added.) Yeshiva, 444 U.S. at 690, 63 L. Ed. 2d at 130, 100 S. Ct. at 866.
The principles espoused in Yeshiva have been adopted to answer the managerial exclusion inquiry in other than academic settings. In Montefiore Hospital & Medical Center, 261 N.L.R.B. 569 (1982), for example, the medical center, as employer, attempted to exclude medical doctors from the bargaining units because the center viewed the doctors as a part of management. The Board noted that as professional employees, the doctors might also be managerial, but their managerial status could not be based on decisionmaking which was merely part of the routine discharge of their professional duties. Consistent with Yeshiva, the Board stated that "[o]nly if the activities of professional employees fall outside the scope of the duties routinely performed by similarly situated professionals will they be found aligned with management.” Montefiore, 261 N.L.R.B. at 570.
Relevant to the managerial determination in the health care area is whether the decisions alleged to be managerial or supervisory are "incidental to” or "in addition to” the treatment of patients. See 2 C. Morris, The Developing Labor Law 1459 n.199 (2d ed. 1983). Decisions which are merely incidental to treatment are not considered managerial, but are viewed merely as being within the scope of the employee’s duties.
Finally and, I believe, most importantly, managerial status of employees must be decided on the particular facts of each case. See Yeshiva, 444 U.S. at 691, 63 L. Ed. 2d at 131, 100 S. Ct. at 867. In Bell Aerospace, the Court noted that the status determination requires consideration of the employees’ actual job responsibilities, their authority to act, as well as their relationship with their employer. Bell Aerospace, 416 U.S. at 290 n.19, 40 L. Ed. 2d at 151 n.19, 94 S. Ct. at 1769 n.19; see also Montefiore Hospital & Medical Center, 261 N.L.R.B. 569 (1982) (noting that in the health care context, the Board must evaluate the facts of each case to determine whether decisions alleged to be managerial are incidental to the professional’s treatment of patients).
Although purportedly "guided” by the Supreme Court’s application of the exclusion, which requires consideration of the facts of each case, the majority engages in a very different analysis — one which allows for the total disregard of the Board’s factual findings. Contrary to Yeshiva or Bell Aerospace, the majority here decides that "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.” 178 Ill. 2d at 343.
Aside from my disagreement that managerial status can be determined simply as a matter of law (see Yeshiva, 444 U.S. at 691, 63 L. Ed. 2d at 131, 100 S. Ct. at 867 (whether college professors were managerial employees presented mixed question of law and fact); Boston University Chapter, American Ass’n of University Professors v. National Labor Relations Board, 835 F.2d 399, 401 (1st Cir. 1987); see also Bloomquist v. Ely, 247 Ill. App. 3d 656, 667 (1993) (whether a certain device constitutes implement of husbandry as defined by statute raises mixed question of law and fact)), the relevant statute and case law tell us of no more than the purpose and function of every public defender’s office, generally. Neither describes, nor could it, the actual duties of the Kane County assistant public defenders in particular.
Beyond the lack of particularity concerning the Kane County office, the majority’s statutory analysis presents a more fundamental problem: What quantum of statutory detail is sufficient to defeat the need for fact finding? In Cook County State’s Attorney, the court declined the Board’s invitation for administrative agency fact finding as unnecessary to the disposition of the case. In so doing, the court opined that the statutes and the case law provided "sufficient” detail concerning the duties of the State’s Attorney and his assistants for determining the issue of the assistant State’s Attorneys’ status as a matter of law. Cook County State’s Attorney, 166 Ill. 2d at 305.
Even accepting the Cook County State’s Attorney court’s declination of fact finding as proper to the analysis, the statutory details pertaining to the public defender’s office are, to say the least, at a minimum. Thus, even a correct application of the faulty reasoning in Cook County State’s Attorney to this case should dictate that the status of the assistant public defenders cannot be decided as a matter of law.
A simple comparison of the statutory provisions pertaining to public defenders and those pertaining to State’s Attorneys serves to demonstrate the problems, first, with defining what amount of detail is "sufficient” and, second, with finding the level of detail "sufficient” in this case. Specifically, the Counties Code provides, generally, for the creation of the public defender’s office. The statute also provides that the purpose of the office is to provide quality legal representation in criminal and related proceedings for persons who would otherwise have no ability to retain quality legal representation. See 55 ILCS 5/3 — 4000 (West 1994). The duties of the public defender are to provide legal representation in criminal, juvenile, and parental notice of abortion cases. See 55 ILCS 5/3 — 4006 (West 1994). Further, the statute empowers the public defender to appoint assistant public defenders for the proper discharge of the duties of the office, and who serve at the pleasure of the public defender. 55 ILCS 5/3 — 4008, 3 — 4008.1 (West 1994). Case law adds that the representation of indigent defendants is a requirement of due process of law which constitutes a delegation of sovereignty to the public defender’s office (see People ex rel. Cook County v. Majewski, 28 Ill. App. 3d 269, 272 (1975)), and that the public defender is responsible for the professional conduct and acts of his assistants (see People v. Dread, 27 Ill. App. 3d 106 (1975)). As is apparent, the statute pertaining to the public defender’s office provides nothing more than the legislative authorization for the provision of legal representation in particular types of cases.
In contrast, and as recited in Cook County State’s Attorney, the statute pertaining to the State’s Attorneys provides, in significantly greater detail, that
"[t]he State’s Attorney is required, among other things:
'(1) To commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in the circuit court for his county, in which the people of the State or county may be concerned.
(2) To prosecute all forfeited bonds and recognizances, and all actions and proceedings for the recovery of debts, revenues, moneys, fines, penalties and forfeitures accruing to the State or his county, or to any school district or road district in his county; also, to prosecute all suits in his county against railroad or transportation companies, which may be prosecuted in the name of the People of the State of Illinois.
(3) To commence and prosecute all actions and proceedings brought by any county officer in his official capacity.
(4) To defend all actions and proceedings brought against his county, or against any county or State officer, in his official capacity, within his county.
* * *
(7) To give his opinion, without fee or reward, to any county officer in his county, upon any question or law relating to any criminal or other matter, in which the people or the county may be concerned.
* * *
(11) To perform such other and further duties as may, from time to time, be enjoined on him by law.
(12) To appear in all proceedings by collectors of taxes against delinquent taxpayers for judgments to sell real estate, and see that all the necessary preliminary steps have been legally taken to make the judgment legal and binding.’ ” Cook County State’s Attorney, 166 Ill. 2d at 302-03, quoting 55 ILCS 5/3 — 9005(a) (West 1992).
I read Cook County State’s Attorney to at least recognize that, in the absence of "sufficient” statutory detail, the managerial exclusion determination should be treated as a question of fact. In fact, the court in Cook County State’s Attorney, 166 Ill. 2d at 304-05, explained fact finding in Chief Judge of the Circuit Court v. American Federation of State, County & Municipal Employees, Council 31, 229 Ill. App. 3d 180 (1992), involving guardians ad litem, and Salaried Employees of North America (SENA) v. Illinois Local Labor Relations Board, 202 Ill. App. 3d 1013 (1990), involving lawyers of the municipal law department, as necessary because no detailed statutory apparatus, similar to that for State’s Attorneys, describes the function of those employees. Here, we have little more than the statutory authorization for the existence of an office, and the majority equates that with Cook County State’s Attorney’s "sufficient” statutory detail.
At any rate, to be truly guided by the analysis in Yeshiva requires not merely consideration of case law and statutory provisions, but also consideration of an employee’s actual job responsibilities. A view of the Kane County assistant public defenders’ actual responsibilities can support but one conclusion — that the assistants’ duties are not managerial in nature, but are merely routine; their decisions are not in addition, but are merely "incidental,” to their professional responsibility to render legal services to indigent clients.
Although apparently not relevant to its determination, the majority recites several of the factual findings made by the Board. Because the Board’s findings form the basis of my dissent, however, I find it apt to recount them here in somewhat greater detail. At the time of these proceedings Michael Mclnerney held the position of Kane County public defender. According to Mclnerney, he assigns each assistant to one of four divisions in the public defender’s office. The daily operations and administrative matters of the felony division are Mclnerney’s responsibility, while Supervisor Harris is responsible for the other divisions. Mclnerney personally handles a caseload of 10 to 15 serious felony cases.
Ordinarily, Mclnerney assigns all felony trial division cases. In assigning cases, he considers the type of case, the experience of the assistants and the size of their current caseloads. In March 1994, while Mclnerney was away from the office for a one-week period, he assigned the senior felony division attorney the task of case assignments. However, the senior attorney was given explicit instruction by Mclnerney concerning how assignments were to be made. Mclnerney testified that this was an isolated incident. With respect to juvenile cases, the two assistants assigned to that division decide between themselves their specific case assignments.
Once cases are assigned, the assistants are expected to exercise their professional judgment with respect to their representation. Assistants decide how to handle the case, the strategies involved, whether to engage in plea bargaining and what defenses to assert. Decisions made by assistants in connection with their cases are governed solely by the interests of their clients, with the overriding objective being the provision of quality legal representation. As long as the assistants process cases within the guidelines established by Mclnerney and Harris, Mclnerney expects the assistants neither to consider his interests nor to take into account how Mclnerney, himself, would handle a case in the same situation.
The assistants do not enjoy complete freedom from Mclnerney’s control, however. Mclnerney and Harris promulgate some of the procedures for case management. For example, Mclnerney issued a memorandum to the assistants in the felony preliminary hearing division indicating that, based upon his review, the assistants had not prepared case notes thoroughly enough. He set in place an office policy which prohibits (1) pleading a client guilty unless the assistant has read the police report and (2) waiving a preliminary hearing without a plea agreement by the State’s Attorney. Additionally, Mclnerney advised the assistants how to deal with cases in which a client wishes to enter a plea against the assistant’s recommendation.
As supervisor, Harris has issued a memorandum establishing a procedure for assistants to follow in cases where a client fails to appear in court. Also, she has issued memoranda concerning the assignment of cases and the specific steps to be followed in custody cases.
It does not appear from the record that the assistants share a similar supervisory function in the management of the office. In fact, the record reveals that in the event that an assistant becomes aware that an investigator employed by the public defender is not following office procedures, the assistant has no authority to direct that individual. The assistant must instead bring the concern either to Mclnerney’s attention or to the attention of the head investigator.
Further, the assistant public defenders have no fiscal oversight responsibilities for the office. Although Mclnerney has solicited the assistants’ opinion concerning what needs the budget should address, the assistants do not prepare the annual budget, they are never asked to prepare draft proposals of the budget, and they are not invited to offer budget recommendations.
Mclnerney and Supervisor Harris make even those fiscal decisions involving the use and availability of office funds. In that respect, the assistants have been given limited authority to spend "a couple hundred dollars” of office funds for items relating to their cases, such as hearing transcripts or expert witness fees. Any expenditure in excess of that amount, however, requires Mclnerney’s prior approval. Only Mclnerney and the office manager know the amount of money maintained in the office account and only those two have access to the office budget figures.
On a single occasion, Mclnerney allowed one assistant to determine the type of computer equipment that would be appropriate for the office. In this instance, the office had received a prior monetary grant to purchase the equipment. Mclnerney’s reliance on the assistant was necessary only because Mclnerney lacked adequate knowledge concerning computer technology.
The clearest example of the assistants’ nonmanagerial status is the fact that Mclnerney determines office policies with respect to working hours, office conduct, dress code, requests for time off and vacation. While, on occasion, Mclnerney seeks input from the assistants on such issues, Mclnerney has the final say in such matters. Finally, the assistants do not make decisions concerning the hiring of new staff. Mclnerney testified that, with the exception of one particular instance, he and Supervisor Harris conduct interviews with prospective employees.
Critical to the managerial employee determination in Yeshiva was the fact that the faculty’s power extended beyond strictly academic concerns; they were not limited to the routine discharge of their professional duties. In fact, the Yeshiva faculty "substantially and pervasively” ran the university. Cf. Salaried Employees of North America, 202 Ill. App. 3d 1013 (attorneys held to be managerial where they all were involved in hiring, had access to all files, and could be assigned to labor-related matters). While in this case there are isolated incidents where the assistants have performed, at Mclnerney’s request, beyond the scope of their legal representation function, Mclnerney testified that the assistants do not make any decisions on a regular basis except those decisions which directly relate to representation of their clients. The facts clearly demonstrate that in this case, unlike the faculty in Yeshiva, it is Mclnerney and Supervisor Harris who "substantially and pervasively” operate the public defender’s office.
The public defender and Harris set policy with respect to the greater number of labor relations issues. More than that, however, the public defender and Harris determine policy with respect to (1) the preparation of case notes, (2) when a guilty plea may be offered, (3) the management of clients who wish to plead other than as recommended by the assistant, (4) the procedure for handling cases in which defendants fail to appear, and (5) the specific steps in the management of custody cases.
What the majority does here is to erroneously elevate the assistants’ independent exercise of professional judgment to the level of managerial discretion. Clearly,
"[wjork which is based on professional competence necessarily involves a consistent exercise of discretion and judgment, else professionalism would not be involved. Nevertheless, professional employees plainly are not the same as management employees either by definition or in authority, and managerial authority is not vested in professional employees merely by virtue of their professional status, or because work performed in that status may have a bearing on company direction.” Neighborhood Legal Services, Inc., 236 N.L.R.B. 1269, 1273 (1978).
Accord General Dynamics Corp., 213 N.L.R.B. 851 (1974).
As an attempt to bolster its analysis, the majority finds significant that, similar to the State’s Attorney and his assistants in Cook County State’s Attorney, (1) the public defender has a close identification with the actions of his assistants, (2) the public defender and the assistants have a unity of professional interest and (3) the assistants have the power to act on behalf of the public defender. The majority additionally points out that the assistants act as surrogates for the public defender. See 178 Ill. 2d at 344. These characteristics, of course, define the nature of most any professional employer-employee relationship. They are, for that reason, unremarkable for purposes of determining managerial status.
The duties performed by the Kane County assistant public defenders are merely incidental, not in addition, to the rendition of their legal representation; their activities — the rendition of quality legal representation — do not fall outside the scope of those duties routinely performed by similarly situated professionals. The assistants are simply the rank and file employees of the office who exercise professional judgment in the performance of their assigned duties. They are not, therefore, sufficiently aligned with either the chief judge or the public defender and they are not, for that reason, managerial employees. The Board’s finding to that effect was both reasonable and consistent with Illinois’ Labor Relations Act and should be affirmed.
Before concluding, I find it necessary to address one additional point. To make the holding here more palatable, the majority, just as the majority did in Cook County State’s Attorney, offers that its holding is limited, in that not all publicly employed attorneys or other professional employees are deemed managerial employees under the Act. See 178 Ill. 2d at 347. Barring the existence of a statute defining the nature and purpose of the employment, that might be true. Where such a statute exists, however, under Cook County State’s Attorney and now this case, it appears certain that all such employees must be deemed managerial as a matter of law, regardless of their actual job duties and, apparently, regardless of the sufficiency of the statutory detail.
In conclusion, the majority’s application of the managerial exclusion in this case is wholly inconsistent with both the Supreme Court’s application of the exclusion in Yeshiva as well as with the National Labor Relations Board’s interpretation. Although the majority would argue otherwise, I believe that its misapplication of Yeshiva was improperly motivated by concerns with some of the more difficult realities of organized labor, i.e., the potential for work stoppages and strikes. Considering the impact of a work stoppage in the public defender’s office, the concerns are, admittedly, valid. Such concerns, however, properly rest within the legislature’s domain and should be left to be addressed either by that body (see 5 ILCS 315/14(m) (West 1994) (Illinois Public Labor Relations Act expressly forbids certain public employees to strike, e.g., firefighters and paramedics)), or by the parties at the collective-bargaining table (see 1 C. Morris, The Developing Labor Law 815 (2d ed. 1983) (under the National Labor Relations Act, an employer may bargain for a no-strike clause to the point of impasse)); see also 22 Ill. Jur. Labor and Employment § 12:37 (1995) (it is unlawful for public employees to strike if, inter alla, a collective-bargaining agreement prohibits a strike or the parties have mutually agreed to submit disputed issues to binding arbitration).
Today’s holding is an inappropriate usurpation of the legislature’s authority to determine who may be invited to sit at the collective-bargaining table. Worse than that, however, the holding unfairly deprives the Kane County assistant public defenders — intended beneficiaries of the Illinois Public Labor Relations Act’s coverage — a right enjoyed by other publicly employed professionals — the right to participate in defining the nature and terms of their employment. For all of the reasons stated, I dissent.
JUSTICES HARRISON and McMORROW join in this dissent.