Service Employees International Union, Local 73v. Illinois Labor Relations Board , 196 L.R.R.M. (BNA) 2044 ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Service Employees International Union, Local 73 v. Illinois Labor Relations Board, Local
Panel, 2013 IL App (1st) 120279
Appellate Court SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 73,
Caption Petitioner, v. ILLINOIS LABOR RELATIONS BOARD, LOCAL
PANEL, and CITY OF CHICAGO, Respondents.
District & No. First District, Sixth Division
Docket No. 1-12-0279
Filed June 14, 2013
Held A representation-certification petition with respect to supervising
(Note: This syllabus investigators for a city’s “Independent Police Review Authority” was
constitutes no part of properly denied by the Illinois Labor Relations Board on the ground that
the opinion of the court the investigators were supervisors for purposes of the Illinois Public
but has been prepared Labor Relations Act, since the supervising investigators employ
by the Reporter of independent judgment in their predominant tasks of assigning and
Decisions for the monitoring work, they have authority to approve days off, their authority
convenience of the affects subordinates’ employment in areas within the scope of union
reader.)
representation, including evaluations, discipline and grievances, and
under the circumstances, the Board’s decision was not clearly erroneous.
Decision Under Petition for review of order of Illinois Labor Relations Board, Local
Review Panel, No. L-RC-11-006.
Judgment Affirmed.
Counsel on Susan Matta, of Service Employees International Union, Local 73, of
Appeal Chicago, for petitioner.
Stephen Patton, Corporation Counsel, of Chicago (Benna Ruth Solomon,
Myriam Zreczny Kasper, and Suzanne M. Loose, Assistant Corporation
Counsel, of counsel), for respondents.
Panel JUSTICE REYES delivered the judgment of the court, with opinion.
Presiding Justice Lampkin and Justice Gordon concurred in the judgment
and opinion.
OPINION
¶1 Petitioner, Service Employees International Union, Local 73 (Union), brings this action
for direct review of a decision by the Illinois Labor Relations Board, Local Panel (Board),
denying the representation-certification petition brought by the Union to represent
supervising investigators employed by the City of Chicago’s (City) “Independent Police
Review Authority” (IPRA). The Board rejected the administrative law judge’s (ALJ)
recommendation, concluding the supervising investigators were supervisors within the
meaning of section 3(r) of the Illinois Public Labor Relations Act (Act) (5 ILCS 315/3(r)
(West 2010)). On appeal, the Union contends there are no indicia of supervisory authority
in this case, in particular that supervising investigators do not “direct” employees within the
meaning of the Act. For the following reasons, we conclude the Board’s decision was not
clearly erroneous.
¶2 BACKGROUND
¶3 The record on appeal discloses the following facts. In October 2010, the Union filed a
representation-certification petition1 with the Board, seeking to become the exclusive
bargaining representative of a bargaining unit of approximately 11 employees described as
“[a]ll full-time and regular part-time Supervising Investigators” employed by IPRA. In
November 2010, IPRA requested a hearing on the petition and submitted an offer of proof.
IPRA argued in part its supervising investigators were excluded from the proposed
bargaining unit based on their supervisory status under the Act. IPRA also noted the potential
for fragmentation, as the Union also represents public safety employees who would likely
1
The petition in this case was a “majority interest” petition, stating that a majority of the
employees in an appropriate unit wished to be represented by the Union for the purposes of
collective bargaining.
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be subject to IPRA investigations. After reviewing the offer of proof, the ALJ decided there
was reasonable cause to believe unresolved issues concerning representation required a
hearing on the petition.
¶4 On January 12, 2011, the ALJ held a hearing on the Union’s petition. Ilana Rosenzweig,
IPRA’s chief administrator, testified for IPRA, while two supervising investigators, Paula
Tillman and Nathaniel Freeman, testified on behalf of the Union. Both parties also presented
documentary evidence at the hearing.
¶5 The Organization of IPRA
¶6 Rosenzweig testified that IPRA, formerly known as the “Office of Professional
Standards,” became an independent agency of the City in 2007. IPRA’s mission is to receive
and investigate allegations of misconduct by members of the Chicago police department
(CPD), including claims of excessive force, domestic violence, coercion through threats of
violence, and verbal abuse based on bias. IPRA also investigates cases involving police
discharge of firearms or Tasers, as well as incidents of serious injury, attempted suicide, and
death in police custody.
¶7 According to Rosenzweig, IPRA has approximately 90 employees, over 70 of whom are
already represented in collective bargaining matters by the American Federation of State,
County and Municipal Employees, Council 31 (AFSCME). Rosenzweig explained an IPRA
organizational chart showing the agency’s investigators are divided into 11 teams, each
consisting of a supervising investigator, three to five employees in the classifications of
investigator I, II or III (representing increasing levels of experience) and intake aide. One
supervising investigator oversees the administrative staff. One team, designated as “rapid
intake,” handles cases for the first 24 to 48 hours following a complaint, collecting any time-
sensitive evidence.
¶8 Rosenzweig also testified that IPRA is staffed from 7 a.m. to 11 p.m., but employees are
also on call for the “Major Incident Response Team” (MIRT), which responds to shootings
and other serious incidents occurring overnight. Each supervising investigator is assigned to
MIRT in a 12-week rotation. MIRT must respond to all officer-involved shootings, but an
immediate response may fall within the discretion of the supervising investigator in other
cases.
¶9 The Assignment and Process of IPRA Investigations
¶ 10 Rosenzweig testified supervising investigators do not conduct investigations themselves.
When a team receives a case, the supervising investigator assigns it to an investigator, based
on factors including: balancing the workload among team members; the type of investigation
involved; the experience of the investigators; and developing skills of the investigators on
the team. The supervising investigator then monitors the investigation, responds to questions
from the investigator, and makes decisions regarding whether various tasks need to be
undertaken. Supervising investigators also set deadlines and priorities regarding the
investigations.
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¶ 11 For example, according to Rosenzweig, to proceed on an investigation, an investigator
generally must obtain an affidavit from someone who personally witnessed the incident.
Approximately half of IPRA complaints are closed because the investigator is unable to
obtain a witness affidavit. The supervising investigator decides whether the investigator put
forth sufficient effort to obtain the affidavit. A supervising investigator’s decision to close
a file in these cases generally is not reviewed by a superior.
¶ 12 In those cases where the investigator obtains a witness affidavit or similar evidence, the
supervising investigator may provide guidance to the investigator regarding potential
witnesses and ensure the collection of the appropriate physical evidence, video evidence,
police reports, medical records, police communications, GPS data from police vehicles,
computer records and photographs. Several supervising investigators developed a case
checklist to assist investigators in gathering these types of evidence. A supervising
investigator also ensures that relevant physical evidence is inventoried and subjected to
forensic testing when necessary.
¶ 13 Rosenzweig testified supervising investigators provide their investigators with feedback
and written notes during an investigation, identifying issues an investigator needs to address.
Supervising investigators also ensure investigators follow through in obtaining supplemental
police reports, forensic test results and any information ordered from the CPD. In addition,
Rosenzweig testified supervising investigators work with their investigators to determine
whether a police officer must be interviewed or provide a written statement. Supervising
investigators also oversee the investigators’ drafting of potential charges for rule violations.
¶ 14 According to Rosenzweig, when an investigation is complete, investigators make an
initial recommendation of whether the finding should be “sustained, not sustained,
unfounded, [or] exonerated.” Each case is then reviewed by the supervising investigator. If
the investigator approves of a finding other than “sustained,” the investigation is closed at
the IPRA and the recommendation is sent to the CPD.
¶ 15 Rosenzweig also testified, however, when a supervising investigator approves a finding
of “sustained,” the supervising investigator will recommend the amount of discipline to be
imposed. The supervising investigator’s recommendation in sustained cases is reviewed by
a deputy chief at the IPRA, and ultimately by Rosenzweig. Supervising investigators approve
a finding of “sustained” in approximately 3% of the cases, but Rosenzweig did not specify
the percentage of sustained cases in which the supervising investigator’s recommendation
is upheld.
¶ 16 Rosenzweig testified that when a final investigative report is drafted, the supervising
investigator edits it for grammar, spelling, and analysis, and may return the report to the
investigator for changes. In signing off to close an investigation, the supervising investigator
attests he or she directed the investigator to do everything necessary for the investigation, and
attests everything was done or explains why no further investigation was necessary.
¶ 17 Rosenzweig estimated supervising investigators spend 95.5% of their time assigning and
supervising cases. According to Rosenzweig, supervising investigators spend the remaining
4.5% of their time on performance evaluations, discipline, adjusting grievances, office
meetings and approving employee requests for time off.
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¶ 18 Tillman, who appeared on behalf of the Union, testified she typically spends the first
week of each month conducting case reviews with her team and meeting with any remaining
investigators during the second week of the month. During the third week, Tillman meets
with investigators regarding closing cases. During the remainder of the month, Tillman reads
cases and submits them for closing. Tillman further testified that she does her administrative
work between meetings with investigators.
¶ 19 Freeman, also appearing on behalf of the Union, testified that cases where the supervising
investigator and investigator disagree on a finding are subject to review by superiors,
including Rosenzweig. Freeman also testified supervising investigators rarely have to tell
investigators to gather more evidence on a case. Freeman added investigators are required
to know the steps to close an investigation without active input from their supervisor.
¶ 20 Freeman estimated he spent approximately 50% of his time reviewing cases, proof-
reading reports, ensuring the case reports are complete and discussing the reports with the
investigators. Freeman ensures all of the proper investigatory steps have been taken and that
the investigator’s findings match the facts developed in the investigation. Freeman also
estimated that of the time spent reviewing cases, 70% of that time was spent reading files and
30% was spent in discussions with investigators. Freeman further estimated spending 35%
of his time overall approving documents such as interview summaries, 5% to 10% of his time
giving guidance to investigators, and 5% to 10% of his time on administrative tasks and
meetings.
¶ 21 Performance Evaluations of IPRA Investigators
¶ 22 Rosenzweig testified supervising investigators conduct performance evaluations for their
investigators every six months. Supervising investigators may receive guidance in drafting
the details of evaluations, but Rosenzweig has never rejected a supervising investigator’s
performance evaluation. An investigator rated “excellent” or “good” may expect to receive
a 3% step salary increase, while those rated “marginal” or “unsatisfactory” will not receive
a raise. In addition, the AFSCME collective bargaining agreement requires that performance
evaluations be considered when an employee applies for a promotion. Furthermore,
according to Rosenzweig, supervising investigators as a group rate probationary employees,
deciding whether those employees will be retained or let go.
¶ 23 In contrast, Tillman and Freeman testified they had no authority to hire, transfer, lay off
or promote investigators. Freeman also testified supervising investigators were instructed to
draft performance evaluations for review by the administration.
¶ 24 The Discipline of IPRA Investigators
¶ 25 Rosenzweig testified supervising investigators have the authority to discipline their
investigators and staff. Supervising investigators may choose to give nondisciplinary oral
counseling, an oral reprimand (which is documented in writing), or a written reprimand or
suspend an employee. Rosenzweig identified a variety of notices of progressive discipline
previously imposed by supervising investigators as examples. According to Rosenzweig,
these decisions are generally final and unreviewable. Rosenzweig rarely offers input on
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discipline, typically when requested to do so by a supervising investigator.
¶ 26 Tillman and Freeman testified they would not impose any level of discipline on an
employee without consulting a superior. Tillman testified that supervising investigators are
told during their training that they should discuss any potential discipline with upper-level
management. Tillman and Freeman testified that where a supervising investigator does not
provide adequate discipline, the supervising investigator’s superiors will intervene. Tillman
testified that she has never issued an oral or written reprimand or a suspension because she
believed she lacked authority to do so without consultation with superiors.
¶ 27 Upon further questioning, Rosenzweig confirmed that a handout describing the City’s
progressive discipline process recommends consultation on discipline. Rosenzweig also
testified that she had intervened in disciplinary matters only twice out of a “couple dozen”
cases she could recall.
¶ 28 The Grievance Process at IPRA
¶ 29 Rosenzweig further testified supervising investigators hear and provide responses at the
first step in the employees’ grievance process. In April 2008, Rosenzweig sent an email to
supervising investigators instructing them to provide grievances to the IPRA’s director of
administration, Katherine Martinez, who would oversee the process. Thereafter, a January
2010 grievance response carried the signatures of both a supervising investigator and
Martinez. Responses from April and May 2010, however, bore only the signatures of the
supervising investigators and did not include Martinez’s signature.
¶ 30 Freeman testified he never responded to a grievance and was not trained to respond to
them. Tillman testified she never responded to a grievance and was not trained to respond
to them at this office.
¶ 31 Scheduling Work at IPRA
¶ 32 Rosenzweig testified that scheduling of annual vacations requires approval from IPRA’s
deputy chief, but supervising investigators had authority to grant a vacation day, as opposed
to the longer annual vacations. According to Rosenzweig, supervising investigators have the
authority to approve overtime, but must keep their superiors “in the loop” to monitor what
is happening on an officewide level. On August 24, 2009, an email from Rosenzweig
discussing the compensatory time policy stated any authorization for compensatory time
required prior approval by both the immediate supervisor and a deputy or coordinator. On
December 29, 2010, in an email to IPRA investigators and supervisors, Rosenzweig stated
that overtime and compensatory time were subject to the “[a]pproval of your superior at their
discretion.” Rosenzweig also testified supervising investigators have the authority to allow
investigators to switch their regular day off.
¶ 33 Tillman testified she lacked authority to grant overtime. According to Tillman, she would
sign off on requests and submit them to the deputy chief, who would check a box on the form
approving or disapproving the request. Freeman denied he had independent authority to grant
sick leave or vacations. Freeman similarly denied he had authority to approve any overtime
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request.
¶ 34 The ALJ and Board Decisions
¶ 35 On September 27, 2011, the ALJ issued his recommended decision and order. The ALJ
found Rosenzweig’s testimony generally reliable and credible, noting in particular her
testimony regarding case assignment was corroborated by one of the Union’s witnesses. The
ALJ concluded supervising investigators’ work was different from the work of the
investigators. The ALJ found supervising investigators retain and exercise discretion in the
reporting of misconduct and recommendation of discipline. The ALJ found supervising
investigators have the authority to process grievances and reward subordinate employees for
their performance. The ALJ found, however, that the instructions issued by supervising
investigators did not rise to the level of “direction” under the Act, because investigators were
free to appeal their disagreements with supervising investigators to superiors at IPRA.
Accordingly, the ALJ concluded supervising investigators were not engaged in supervisory
functions a preponderance of the time. The ALJ also concluded supervising investigators did
not have managerial status under the Act, as they did not implement sufficiently broad policy
determinations. Lastly, the ALJ rejected the argument that the Union’s proposed bargaining
unit would result in improper fragmentation of the employees’ bargaining strength. Thus, the
ALJ ordered the Union be certified as the exclusive representative of the employees of the
proposed unit.
¶ 36 On October 12, 2011, the City filed objections to the ALJ’s recommended decision and
order with the Board, as well as a brief in support of the exceptions. On October 21, 2011,
the Union filed its response to the City’s objections, as well as its own cross-objections to
the ALJ’s recommended decision and order.
¶ 37 On December 23, 2011, the Board issued its written decision and order. The Board
agreed with the ALJ’s determination that the supervising investigators met the first three
elements of supervisory status under the Act, insofar as they perform work substantially
different from their subordinates, they discipline, resolve grievances, and reward
subordinates, and exercise independent judgment in doing so. The Board, however, found
that the supervising investigators spent most of their time reviewing reports and giving
instructions that went unchallenged in the vast majority of cases. Thus, the Board disagreed
with the ALJ’s finding that the supervising investigators do not “direct” within the meaning
of the Act and found the supervising investigators spend a preponderance of their time
performing supervisory tasks. Accordingly, the Board dismissed the Union’s petition.
¶ 38 On January 26, 2012, the Union filed a timely petition for direct administrative review
by this court, pursuant to Illinois Supreme Court Rule 335 (eff. Feb. 1, 1994), and section
9(i) of the Act (5 ILCS 315/9(i) (West 2010)).
¶ 39 DISCUSSION
¶ 40 On appeal, the Union contends the Board erred in finding the supervising investigators
are supervisory employees within the meaning of section 3(r) of the Act (5 ILCS 315/3(r)
(West 2010)). The Union also contends the supervising investigators are not managerial
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employees within the meaning of section 3(j) of the Act (5 ILCS 315/3(j) (West 2010)). Our
disposition of this appeal only requires a consideration of the Board’s primary contention.
¶ 41 The Standard of Review
¶ 42 The Administrative Review Law (735 ILCS 5/3-101 to 3-113 (West 2010)) governs the
judicial review of a decision by the Board to dismiss a certification petition. 5 ILCS 315/9(i)
(West 2010).2 Accordingly, our “hearing and determination shall extend to all questions of
law and fact presented by the entire record.” 735 ILCS 5/3-110 (West 2010). “The applicable
standard of review depends upon whether the question presented is one of fact, one of law,
or a mixed question of fact and law.” American Federation of State, County & Municipal
Employees, Council 31 v. Illinois State Labor Relations Board, State Panel, 216 Ill. 2d 569,
577 (2005).
¶ 43 The Board’s findings of fact are “held to be prima facie true and correct” (735 ILCS 5/3-
110 (West 2010)) and will be disturbed on review only if they are against the manifest weight
of the evidence. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191,
204 (1998). The Board’s findings of fact are against the manifest weight of the evidence only
if the opposite conclusion is clearly evident. Cinkus v. Village of Stickney Municipal Officers
Electoral Board, 228 Ill. 2d 200, 210 (2008) (citing City of Belvidere, 181 Ill. 2d at 204).
¶ 44 The Board’s conclusions of law are reviewed de novo. Cinkus, 228 Ill. 2d at 210-11. The
Board’s decision on a question of law is not binding on the reviewing court and, thus, the
court’s review is independent and not deferential. Id. at 210. The court, however, will make
an exception and grant some deference to the Board’s expertise where it resolved a genuine
ambiguity in a statute or regulation it is charged with administering. Department of Central
Management Services/The Department of Public Health v. Illinois Labor Relations Board,
State Panel, 2012 IL App (4th) 110013, ¶ 51.
¶ 45 Cases that involve mixed questions of law and fact are subject to a clearly erroneous
standard of review. AFM Messenger Service, Inc. v. Department of Employment Security,
198 Ill. 2d 380, 392 (2001). A mixed question of law and fact typically arises when “the
historical facts are not in dispute and the issue is whether the established facts satisfy the
statutory standard.” Village of Hazel Crest v. Illinois Labor Relations Board, 385 Ill. App.
3d 109, 113 (2008). An agency’s decision is 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.’ ” AFM Messenger Service, 198 Ill. 2d at 395 (quoting United States v.
United States Gypsum Co., 333 U.S. 364, 395 (1948)). “While this standard is highly
deferential, it does not relegate judicial review to mere blind deference of an agency’s order.”
Board of Trustees of the University of Illinois v. Illinois Labor Relations Board, 224 Ill. 2d
88, 98 (2007).
2
Given the partial disagreement between the Board and the ALJ, it should be noted this
court’s review is of the decision rendered by the Board, not that of the ALJ. International
Brotherhood of Electrical Workers, Local 21 v. Illinois Labor Relations Board, 2011 IL App (1st)
101671, ¶ 33.
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¶ 46 In this case, this court is asked to review the Board’s application of the undisputed facts
to section 3(r) of the Act, defining the term “supervisor,” which is a mixed question of law
and fact. Village of Hazel Crest, 385 Ill. App. 3d at 113. Accordingly, the Board’s decision
will be reversed only if this court is left with the definite and firm conviction that a mistake
has been committed. AFM Messenger Service, 198 Ill. 2d at 395.
¶ 47 The Status of Supervising Investigators Under Section 3(r) of the Act
¶ 48 The Act provides a comprehensive system of collective bargaining for those public
employees and employers who fall within its scope. City of Freeport v. Illinois State Labor
Relations Board, 135 Ill. 2d 499, 505 (1990). Our supreme court has explained:
“Supervisors are excluded from bargaining units under the Act to avoid the conflict
of interest which arises when supervisors, who must apply the employer’s policies to
subordinates, are subject to control by the same union representing those subordinates.”
City of Freeport, 135 Ill. 2d at 517.
As the party seeking to exclude the employees from the Union, IPRA had the burden of
proving, by a preponderance of the evidence, the employees were “supervisors.” Department
of Central Management Services (State Police) v. Illinois Labor Relations Board, State
Panel, 382 Ill. App. 3d 208, 220-21 (2008).
¶ 49 The term “supervisor” is defined in section 3(r) of the Act as follows:
“[A]n employee whose principal work is substantially different from that of his or her
subordinates and who has authority, in the interest of the employer, to hire, transfer,
suspend, lay off, recall, promote, discharge, direct, reward, or discipline employees, to
adjust their grievances, or to effectively recommend any of those actions, if the exercise
of that authority is not of a merely routine or clerical nature, but requires the consistent
use of independent judgment. Except with respect to police employment, the term
‘supervisor’ includes only those individuals who devote a preponderance of their
employment time to exercising that authority ***.” 5 ILCS 315/3(r) (West 2010).
Thus, employees are supervisors pursuant to the Act if they: (1) perform principal work that
is substantially different from that of their subordinates; (2) have authority in the interest of
the employer to perform some or all of the 11 enumerated supervisory functions; (3)
consistently use independent judgment in performing the enumerated functions; and (4)
devote a preponderance of their time to performing those functions. Chief Judge of the
Circuit Court v. American Federation of State, County & Municipal Employees, Council 31,
153 Ill. 2d 508, 515 (1992).
¶ 50 In this case, the Union does not argue the principal work of supervising investigators is
not substantially different from that of their subordinates. Rather, the Union contends there
are no indicia of supervisory authority in this case, primarily arguing supervising
investigators do not “direct” employees within the meaning of the Act. This issue is critical,
given the reasoning of the Board’s decision and Rosenzweig’s testimony that supervising
investigators spend 95.5% of their time assigning and supervising cases. Generally, one
indicium of supervisory authority accompanied by independent judgment is sufficient to
indicate supervisory status. Id. at 516.
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¶ 51 This court, however, has ruled that to “direct” employees within the meaning of the Act,
supervisors also must have the authority to affect the employees’ terms and conditions of
employment. Department of Central Management Services/Department of Public Health v.
Illinois Labor Relations Board, State Panel, 2012 IL App (4th) 110209, ¶ 27. “Overseeing
functions in areas likely to fall within the scope of union representation, such as wages,
discipline, transfer, promotion, hiring, or other working conditions, is insufficient to
constitute supervisory ‘direction’ within the meaning of the Act.” Id. The alleged supervisor
must have both the authority to make operational decisions and exercise significant
discretionary authority that impacts his subordinates’ employment status in areas most likely
to fall within their terms and conditions of employment. Id. ¶ 28. Accordingly, an analysis
of whether supervising investigators are supervisory under the Act requires a consideration
not only of whether they “direct” their employees (or make effective recommendations in this
arena), but also whether they exercise significant discretionary authority that affects wages,
discipline and other working conditions. This court addresses both elements in turn.
¶ 52 An employee exercises the authority to direct subordinates where he or she approves
overtime and personal holiday requests, reviews subordinates’ reports, assigns subordinates
to jobs or teams, and occasionally takes command of the work. See City of Freeport, 135 Ill.
2d at 513 (involving police lieutenants and sergeants). “This court has found the ‘authority
to independently assign and monitor work, evaluate employees, and approve time off for ***
subordinates’ ‘clearly satisfies the requirement under the Act that a supervisor “direct” his
subordinates with independent judgment.’ (Emphasis in original.)” Department of Central
Management Services/Department of Transportation v. Illinois Labor Relations Board, State
Panel, 2013 IL App (4th) 110825, ¶ 49 (quoting Department of Central Management
Services v. Illinois Labor Relations Board, State Panel, 2011 IL App (4th) 090966, ¶ 201).
Where the assignment of work merely balances the workload among employees, however,
the assignment does not involve the use of independent judgment. Chief Judge of the Circuit
Court, 153 Ill. 2d at 518. The independent monitoring of subordinates’ work includes the
review of subordinates’ reports for clarity, thoroughness and accuracy, as well as the review
of the findings and recommendations of the reports. Department of Central Management
Services, 2012 IL App (4th) 110013, ¶¶ 61-69.
¶ 53 In this case, the record sets forth supervising investigators assign cases to their
subordinates. The assignment of work is not a simple balancing of caseloads. Instead,
supervising investigators also assign work based on the complexity and newsworthiness of
the case, the experience of the investigators and the need to develop particular skills by
investigators. Although the ALJ or the Board did not specifically rule on the authority to
assign work in analyzing whether supervising investigators “direct” under the Act, such
evidence buttresses the Board’s decision in this case.
¶ 54 The Union, like the Board’s decision, does not specifically address the authority of
supervising investigators regarding their subordinates’ work schedules. The ALJ made
findings of fact on the issue and concluded supervising investigators lacked “wide discretion
in granting overtime or sick time or the like.” The discretion exercised by supervising
investigators appears to be more limited than that exercised by the police personnel in City
of Freeport or the field technicians in Department of Central Management
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Services/Department of Transportation. Nevertheless, the evidence that supervising
investigators possess limited discretion in this area lends some support to the Board’s
decision.
¶ 55 The Board found the evidence clearly establishes the supervising investigators spend
most of their time instructing their subordinates and reviewing their reports and
investigations. The Board also found the supervising investigators’ instructions are
unchallenged in the vast majority of cases. Thus, the Board concluded the supervising
investigators’ instructions were direction, rather than mere suggestions or advice.
¶ 56 The Union compares supervising investigators’ case review to “mere proofreading” or
quality control on an assembly line. The Union also compares case review to the direction
which lieutenants give to firefighters at a fire scene, which is derived from their superior
skill, experience and technical expertise, and thus does not require the use of independent
judgment in the interest of the employer as required by the Act. See City of Freeport, 135 Ill.
2d at 532. Rosenzweig, however, testified supervising investigators give their investigators
feedback and written notes during an investigation, identifying issues an investigator needs
to address. Supervising investigators also ensure investigators follow through in obtaining
supplemental police reports, forensic test results and any other supplemental information.
Freeman, a witness for the Union, testified he ensures all of the proper investigatory steps
have been taken and that the investigator’s findings match the facts developed in the
investigation. Although the Board did not focus on the nature of these activities, the record
indicates the work involves more than proofreading or mere quality control, though the work
includes both of these elements. See Department of Central Management Services, 2012 IL
App (4th) 110013, ¶¶ 61-69. Moreover, as case law classifies the work involved in case
review as involving independent judgment (id.), the Board did not err in concluding
supervising investigators employed independent judgment and we need not consider whether
such work is comparable to the direction given firefighters by their lieutenants, as important
as that direction is.
¶ 57 The Union argues supervising investigators have little real input into the process because
the overwhelming majority of cases are either closed for a lack of affidavit or closed with a
decision not sustaining the complaint. In the first category of cases, however, the record
shows the supervising investigator decides whether the investigator put forth sufficient effort
to obtain an affidavit. In the second category of cases, the record reveals supervising
investigators provide their investigators feedback and written notes during an investigation,
identifying issues an investigator needs to address. Supervising investigators also ensure that
investigators follow through in obtaining supplemental information and evidence.
¶ 58 The Union claims the IPRA culture “encourages [i]nvestigators, at their whim, to openly
flout the [s]upervising [i]nvestigators’ requests.” The Union relies on Tillman’s testimony.
That testimony, however, indicates in the few cases per month in which a supervising
investigator and investigator disagree about the need for additional evidence, the investigator
will seek out a superior or a “Grade 3 investigator” (i.e., another employee subordinate to the
supervising investigator), to attempt to convince the supervising investigator that no further
evidence is necessary. The infrequency of disagreements itself is evidence that even where
supervising investigators are not directing particular action by subordinates, they are
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providing effective recommendations of their subordinates’ actions, insofar as the
supervising investigators’ decisions on cases are almost always adopted. See Department of
Central Management Services/Illinois Commerce Comm’n v. Illinois Labor Relations Board,
State Panel, 406 Ill. App. 3d 766, 777 (2010) (discussing effective recommendations of
discipline).
¶ 59 In sum, the record demonstrates supervising investigators employ independent judgment
in assigning work to their subordinates and monitoring that work, but exercise limited
discretion in scheduling time off for the subordinates. Supervising investigators have
authority to approve an occasional day off, but annual vacation scheduling falls within the
authority of higher-level officials. The record also indicates assigning and monitoring the
investigators’ work are the most important and predominant tasks performed by supervising
investigators. Case law establishes these tasks are considered “direction” within the meaning
of the Act. Department of Central Management Services/Department of Transportation,
2013 IL App (4th) 110825, ¶ 49; Department of Central Management Services, 2012 IL App
(4th) 110013, ¶¶ 61-69. Thus, this court is not left with the firm and definite conviction that
the Board’s conclusion that supervising investigators “direct” employees under the Act is
mistaken. Accordingly, we must conclude the Board’s conclusion on this point is not clearly
erroneous.
¶ 60 The remaining question is whether supervising investigators also exercise authority to
affect the terms of the subordinates’ employment in areas likely to fall within the scope of
union representation. If supervising investigators spend the preponderance of their time
assigning and monitoring their subordinates’ work, the key inquiry on the remaining question
is whether they use independent judgment in exercising such authority, not the amount of
time or number of times the authority is exercised. See City of Freeport, 135 Ill. 2d at 521;
Department of Central Management Services, 2012 IL App (4th) 110209, ¶ 42.
¶ 61 For example, the Union asserts supervising investigators have no authority to reward
subordinates because superiors make suggestions regarding the employee evaluations. The
fact that a superior may be involved in the decision-making process does not exclude the
supervising investigators from supervisory status under the Act. See Department of Central
Management Services, 2011 IL App (4th) 090966, ¶¶ 192-93. Rosenzweig testified she has
never rejected a supervising investigator’s performance evaluation. Thus, the supervising
investigators’ evaluations are at least effective recommendations. See Department of Central
Management Services/Illinois Commerce Comm’n, 406 Ill. App. 3d at 777. Moreover, the
record indicates the AFSCME collective bargaining agreement requires performance
evaluations be considered when a subordinate employee applies for a promotion. Thus, the
Board’s conclusion that supervising investigators exercise authority to reward their
subordinates through evaluations affecting their subordinates’ wages and promotions is not
clearly erroneous.
¶ 62 The Union, relying upon American Federation of State, County & Municipal Employees,
Council 31, 16 PERI ¶ 3009 (ILLRB 1999) (hereinafter, County of Cook), also asserts
supervising investigators have no authority to discipline subordinates, arguing they do not
consistently exercise discretion regarding discipline and the discretion to report misconduct
does not rise to the level of supervisory authority. In County of Cook, however, the alleged
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supervisors had no role in the imposition of discipline, and could not even suggest the
penalty he or she believed was appropriate under the circumstances. In this case, the record
indicates supervising investigators have the authority to impose discipline and these
decisions are generally final and unreviewable. Thus, the supervising investigators’
evaluations are at least effective recommendations. Department of Central Management
Services/Illinois Commerce Comm’n, 406 Ill. App. 3d at 777. Tillman testified that she has
never issued an oral or written reprimand, or a suspension, but this does not mean she lacks
the authority to do so, or that supervising investigators as a class do not consistently impose
discipline. City of Freeport, 135 Ill. 2d at 521. Moreover, on this point, Rosenzweig
identified a variety of notices of progressive discipline previously imposed by supervising
investigators.
¶ 63 Lastly, the Union asserts supervising investigators have no authority to adjust employee
grievances. The ALJ found supervising investigators are to receive and respond to grievances
in the first instance pursuant to the AFSCME collective bargaining agreement covering the
subordinates. The ALJ also found supervising investigators have the apparent authority and
on almost all occasions the actual authority to resolve grievances. The Board agreed with this
aspect of the ALJ’s decision. The Union, relying upon American Federation of State, County
& Municipal Employees, Council 31, 23 PERI ¶ 38 (ILRB State Panel 2007) (hereinafter,
Departments of Central Management Services & State Police), contends the Board erred
where Tillman and Freeman testified they never responded to a grievance and were not
trained to respond to them. In Departments of Central Management Services & State Police,
however, the ALJ addressed the grievance issue, but the Board did not and declined to accept
the ALJ’s recommended decision. Id. Moreover, the testimony does not establish supervising
investigators lack the authority or as a class do not consistently exercise it. See City of
Freeport, 135 Ill. 2d at 521. The record indicates Rosenzweig instructed supervising
investigators to provide grievances to IPRA’s director of administration, but more recent
responses to grievances bear only the signatures of supervising investigators. On this
particular issue, this court may be less persuaded than the ALJ and the Board were by this
record, but we are not left with the firm and definite conviction the Board was mistaken, and
do not find this point crucial to the overall determination in this case.
¶ 64 Examining the record as a whole, this court is not left with the definite and firm
conviction that the Board was mistaken in concluding supervising investigators not only
direct their subordinates, but also exercise significant discretionary authority that affects
wages, discipline and other working conditions likely to fall within the scope of union
representation. Accordingly, the Board’s decision was not clearly erroneous. Given our
disposition of this issue, we need not reach the Union’s contention that supervising
investigators are not managerial employees under the Act.
¶ 65 CONCLUSION
¶ 66 For all of the aforementioned reasons, we affirm the Board’s decision.
¶ 67 Affirmed.
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