American Federation of State, County, and Municipal Employees v. State of Illinois

2014 IL App (1st) 130655FIFTH DIVISION
December 31, 2014
No. 1-13-0655
)
AMERICAN FEDERATION OF STATE, COUNTY, and )
MUNICIPAL EMPLOYEES (AFSCME), COUNCIL 31, )
)
Petitioner-Appellant, ) Petition for Review of an
) Order of the Illinois Labor
v. ) Relations Board, State Panel
)
STATE OF ILLINOIS, ILLINOIS LABOR RELATIONS )
BOARD, STATE PANEL, and STATE OF ILLINOIS, )
DEPARTMENT OF CENTRAL MANAGEMENT ) No. S-RC-09-202
SERVICES (ILLINOIS COMMERCE COMMISSION), )
)
Respondents-Appellees. )
)
JUSTICE REYES delivered the judgment of the court, with opinion.
Justice McBride concurred in the judgment and opinion.
Justice Gordon dissenting, with opinion.
OPINION
¶1 Following a hearing before an administrative law judge (ALJ) of the Illinois Labor
Relations Board (Board), the American Federation of State, County and Municipal Employees
(AFSCME) timely filed a petition for review of the Board's decision pursuant to section 3-113 of
the Code of Civil Procedure (735 ILCS 5/3-113 (West 2012)). AFSCME argues on appeal that
the Board erred in designating James Weging, Richard Favoriti, and Christine Ericson
managerial employees. For the following reasons, we reverse the Board's decision as to Weging
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and Ericson, and affirm the Board's decision as to Favoriti.
¶2 BACKGROUND
¶3 The Illinois Commerce Commission (ICC or Commission) is a quasi-judicial body that
regulates public utility services in the state. 220 ILCS 5/2-101 et seq. (West 2012) (Public
Utilities Act). The ICC's stated mission is to pursue an appropriate balance between the interest
of consumers and existing and emerging service providers to ensure the provision of adequate,
efficient, reliable, safe and least-cost public utility services. 1 The Commission attempts to
achieve that mission, in part, by overseeing the certification of private entities that wish to
provide public utilities, setting the rates utility companies can charge, providing oversight for
various safety measures, and investigating and handling complaints against utility companies.
¶4 AFSCME is a national public services employees union. In 2012, AFSCME petitioned
the Illinois Labor Relations Board (Board) to include as part of the existing RC-10 bargaining
unit four ICC attorneys: John Feely, James Weging, Richard Favoriti, and Christine Ericson.
Following a hearing, the ALJ issued a recommended decision and order, finding all four lawyers
should be included in the bargaining unit as nonmanagerial employees. Both the State of Illinois
Department of Central Management Services and AFSCME filed exceptions to the
recommended decision.
¶5 I. The Board's Decision
¶6 A five-member panel of the Board issued a decision on January 28, 2013. The three-
member majority agreed with the ALJ regarding the status of John Feely, 2 but found the
1
This mission statement was referred to both in the record and on the Commission's
website. See Illinois Commerce Commission, http://www.icc.illinois.gov (last visited Nov. 24,
2014).
2
The parties do not dispute the status of John Feely on appeal.
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remaining three ICC attorneys—James Weging, Richard Favoriti, and Christine Ericson—were
managerial employees.
¶7 A. James Weging
¶8 James Weging works in the solicitor section of the ICC. The solicitor section handles
appeals when parties challenge ICC decisions, defends suits filed by utilities against the
Commission, and initiates actions to enforce ICC orders in court. According to the record,
Weging has worked in the same position and performed more or less the same duties since the
1980s.
¶9 The Board acknowledged Weging spends the "majority of his time" 3 representing the
ICC during judicial review of the Commission's determinations, deeming this function non-
managerial. Nevertheless, the Board noted Weging "also defends and otherwise represents the
ICC in state and federal court outside the context of administrative review, including in original
actions to enforce Commission orders." According to the Board, these additional duties "create[]
more opportunity for an attorney's litigation advice to spill into advice that concerns changing
the way the agency operates, or even its policy objectives." The Board found Weging's advice in
these instances to be "more in the nature of managerial work," citing two examples where
Weging acted as a managerial employee. In the first example, Weging convinced the ICC to
pursue a supervisory order in the Illinois Supreme Court, which would have likely had "a broad
impact on the ICC and its operations," if granted. 4 In the second example, Weging advised how
to revoke a utility's certificate of public necessity and convenience, ultimately establishing
3
According to the record, Weging spends 70% of his time on such functions.
4
Weging's motion asked the Illinois Supreme Court to find the Second District Appellate
Court had jurisdiction over a particular matter instead of the First District. The Illinois Supreme
Court denied the motion.
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guidelines for the particular task. The Board ultimately characterized it as a "close matter," but
found "Weging's activities in representing the ICC outside the context of administrative review
and in developing litigation strategy so "qualitatively different" as to "render[] him a managerial
employee."
¶ 10 B. Richard Favoriti
¶ 11 Richard Favoriti works in the advisory section of the ICC, which functions as in-house
counsel to the Commission. 5 In determining the nature of Favoriti's employment, the Board
relied on the ALJ's general description of his duties, stating:
" '[Favoriti] researches and drafts legislation, analyzes proposed legislation, and advises
the ICC on legislative initiatives; he plans and conducts extensive and complex research
to determine statutory compliance by applying legal methods and procedures with
reference to the legal implications involved; he confers and advises ICC staff on complex
issues of statutory interpretation and compliance; he also performs other duties, special
projects or research, as required or assigned which are reasonably within the scope of
duties enumerated within his job description. In addition, Favoriti has special expertise
in pipeline safety and accordingly handles related matters.' "
The Board additionally examined specific instances of Favoriti's work. In particular, the Board
noted Favoriti has drafted legal advice while "serv[ing] as an assistant to the Commission,"
helped draft amendments to legislation, and drafted orders initiating citation proceedings. 6
5
According to his testimony, Favoriti began in this role approximately three years prior
to the December 2011 hearing in this matter.
6
The ICC institutes citation proceedings against utilities that have failed to comply with
Commission orders, the Public Utilities Act, or other safety guidelines. ICC staff first drafts a
report identifying the alleged violation. Favoriti then reviews the report and drafts the initiation
order to put before the Commission. According to the record, the ICC routinely accepts
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Favoriti also on one occasion helped draft a proposed rule concerning "the disclosure of gas
pipeline inspections and audit information to the public." The Board "[found] these tasks to be
executive and management functions." Further, the Board cited another instance where the ICC
asked Favoriti whether it was required to follow an executive order from the Governor
implementing a furlough program. After Favoriti advised the Commission it would not be
obligated to follow the order, the ICC chose not to implement the program. According to the
Board, Favoriti's involvement regarding the executive order indicated his "managerial status
because [the ICC's decision] broadly concern[ed] how the agency will be run and concern[ed] the
means the agency will use to achieve its mandate." The Board then found that, in sum, "the
evidence sufficiently establishe[d] that Favoriti is a managerial employee."
¶ 12 C. Christine Ericson
¶ 13 Christine Ericson's employment with the ICC primarily relates to the interaction between
the Commission and outside entities, namely, federal agencies with the capacity to impose
restrictions on the ICC, such as the Federal Energy Regulatory Commission (FERC). Her
responsibilities in this role involve both litigation-related tasks and advisory functions. Her
primary duties include representing the ICC in matters pending before the FERC and advising
the ICC's "Federal Energy Policy" group (FEP). Relying on Ericson's advice, the FEP then
counsels the Commission on whether it should intervene in certain FERC actions—for example,
"proceedings initiated by consumers against an Illinois utility." If the ICC decides to intervene,
Ericson initiates the process by drafting and filing the necessary documents on the Commission's
behalf.
¶ 14 Additionally, Ericson's position involves her monitoring the activities of external
Favoriti's eventual recommendation to initiate citation proceedings.
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organizations in the field of utility and energy policy. She participates in work groups of multi-
state agencies that oversee the interstate electrical grid and reviews their monthly agendas.
Using this experience, Ericson then flags issues for the FEP's attention she deems may be of
potential interest to the ICC.
¶ 15 Ultimately, the Board found the drafting of documents by Ericson did not constitute
managerial duties. The Board, however, found Ericson's "role as an advisor and gatekeeper with
respect to those areas in which the ICC chooses to become involved in arenas outside the State
and outside its role as regulator *** indicative of managerial status." The Board noted Ericson is
responsible for "flagging" which issues pending before outside entities are important to the ICC
from a legal perspective. This means that "[i]f she does not flag a matter that is important to the
ICC or the State of Illinois *** the ICC decision-makers will not be able to act on that important
matter." (Emphases in original.) Thus the Board concluded, even though her recommendations
may not necessarily be followed all of the time, her gatekeeping role demonstrated a "power and
influence on managerial decision-making sufficient to constitute managerial authority."
¶ 16 II. The Dissent
¶ 17 Two panel members dissented as to the Board's determination of Weging, Favoriti, and
Ericson as managerial employees. The dissent acknowledged "these attorneys play an important
role in the ICC's operations," but argued "that role is nevertheless purely advisory and
subordinate." The dissent noted "there is nothing in the record to suggest that Weging's,
Favoriti's, or Ericson's legal recommendations 'almost always persuade' their superiors," which
would imply they possess managerial authority. Instead, the dissent urged, "the predominant
function of all four of the positions at issue is to perform the classic role of an attorney."
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¶ 18 ANALYSIS
¶ 19 The Illinois Public Labor Relations Act (Act) "grant[s] public employees full freedom of
association, self-organization, and designation of representatives of their own choosing for the
purpose of negotiating wages, hours and other conditions of employment or other mutual aid or
protection." 5 ILCS 315/2 (West 2012). The Act excludes managerial employees from the
definition of a "public employee," thereby limiting their rights to engage in collective bargaining.
5 ILCS 315/3(n) (West 2012). AFSCME challenges on appeal the Board's decision to classify
Weging, Favoriti, and Ericson as managerial employees.
¶ 20 " '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 2012). This definition has yielded a
two-part test—referred to as the "traditional test" 7—to determine an employee's managerial
status. Department of Central Management Services/Pollution Control Board v. Illinois Labor
Relations Board, State Panel, 2013 IL App (4th) 110877, ¶ 24. The traditional test requires the
employee be: (1) " 'engaged predominantly in executive and management functions' "; and
(2) " 'charged with the responsibility of directing the effectuation of [such] management policies
and practices.' " Id. (quoting 5 ILCS 315/3(j) (West 2010)). The first part of the test relates to
what an employee does, i.e., "executive and management functions." See id. ¶ 25. Although the
Act does not define "executive and management functions," this court has generally interpreted
the language to mean duties related to the running of a department, for example, by "formulating
7
The Board may deem an employee managerial as a "matter of law" or as a "matter of
fact." Department of Central Management Services/Pollution Control Board, 2013 IL App (4th)
110877, ¶¶ 22-28. The traditional test determines whether an employee is managerial as a matter
of fact. Id. ¶ 22. Whether the employees in this case are managerial as a matter of law is not at
issue on appeal.
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policies and procedures." Id. The second part of the test relates to who is responsible for the
running of the department; that is, to be managerial, an employee must not merely have the "
'authority to make policy but also bear[] the responsibility of making that policy happen.' "
(Internal quotation marks omitted.) Id. ¶ 26 (quoting Department of Central Management
Services v. Illinois Labor Relations Board, State Panel, 2011 IL App (4th) 090966, ¶ 135).
¶ 21 Under the Illinois Administrative Review Law, our examination of an agency's decision
"shall extend to all questions of law and fact presented by the entire record before the court."
735 ILCS 5/3-110 (West 2012). The standard of review "turns on whether the issue presented is
a question of fact, a question of law, or a mixed question of law and fact." Elementary School
District 159 v. Schiller, 221 Ill. 2d 130, 142 (2006). We reverse an agency's findings of fact only
if they are against the manifest weight of the evidence. Comprehensive Community Solutions,
Inc. v. Rockford School District No. 205, 216 Ill. 2d 455, 471-72 (2005); 735 ILCS 5/3-110
(West 2012) ("The findings and conclusions of the administrative agency on questions of fact
shall be held to be prima facie true and correct."). Conversely, we review an agency's conclusion
on a question of law de novo. Elementary School District 159, 221 Ill. 2d at 142.
¶ 22 A mixed question of law and fact asks the legal effect of a given set of facts. Id. at 143.
Thus, upon review, we must determine whether established facts satisfy applicable legal rules.
Id. We review an agency's conclusion on a mixed question of law and fact for clear error. Id.Clear error review "is significantly deferential to an agency's experience in construing and
applying the statutes that it administers." Id. We will therefore deem an agency's decision to be
"clearly erroneous" only where we are " ' "left with the definite and firm conviction that a
mistake has been committed." ' " Comprehensive Community Solutions, Inc., 216 Ill. 2d at 472(quoting AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380,
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395 (2001), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).
¶ 23 AFSCME does not challenge the factual findings of the Board, but argues: (1) the Board
failed to apply what it refers to as the "predominance requirement" or "predominance test" of
section 3(j) of the Act; and (2) the Board incorrectly concluded Weging, Favoriti, and Ericson
are managerial employees. We review the first contention—which requires us to examine the
appropriate statutory standard and determine whether the Board applied that statutory standard—
de novo. Elementary School District 159, 221 Ill. 2d at 142. We review the second contention—
which asks "whether the facts satisfy the statutory standard"—for "clear error." County of Cook
v. Illinois Labor Relations Board - Local Panel, 351 Ill. App. 3d 379, 385 (2004).
¶ 24 I. Proper Legal Standard
¶ 25 As noted above, the first part of the traditional test asks whether an employee is "engaged
predominantly in executive and management functions." (Emphasis added and internal
quotation marks omitted.) Department of Central Management Services/Pollution Control
Board, 2013 IL App (4th) 110877, ¶ 24; 5 ILCS 315/3(j) (West 2012). Referring to it as the
"predominance test" or "predominance requirement," AFSCME argues the Board "inexplicably"
failed to first consider whether the employees spent a majority of their time on managerial duties
as a necessary prerequisite to their managerial status. According to AFSCME, the lack of a
specific referral to the "predominance test" or "predominance requirement" evidences the Board
having "forgot the predominance requirement existed when making its decision." AFSCME
therefore asserts we "should, at a minimum, [reverse and remand] to the Board for the
application of the proper legal standard."
¶ 26 We first note that no case AFSCME cites specifically refers to the first part of the
traditional test as "predominance test" or "predominance requirement." See generally
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Department of Central Management Services Illinois Commerce Comm'n v. Illinois Labor
Relations Board, State Panel, 406 Ill. App. 3d 766 (2010); County of Cook v. Illinois Labor
Relations Board - Local Panel, 351 Ill. App. 3d 379 (2004). Thus, contrary to AFSCME's
assertion, the mere fact the Board "did not mention the predominance requirement" as a term of
art in its analysis does not necessarily imply it failed to take the actual requirements of the statute
into consideration.
¶ 27 Moreover, AFSCME's contention raises the question whether the strict numerical
approach it advocates is necessarily the correct one. In one instance, this court stated that the
"first part of the statutory definition of a 'managerial employee' describes the nature of the work
to which the individual devotes most of his or her time." Department of Central Management
Services Illinois Commerce Comm'n v. Illinois Labor Relations Board, State Panel,
406 Ill. App. 3d 766, 774 (2010). Relying on this language, AFSCME contends employees must
spend more than half of their time on managerial duties to be "engaged predominantly in
executive and management functions." We find such a rule would be inconsistent with the body
of law in this area.
¶ 28 In similar cases challenging an employee's status as a supervisor, this court has explicitly
stated we do not require mathematical certainty in determining whether employees spend a
preponderance of their time on supervisory functions. 8 Secretary of State v. Illinois Labor
Relations Board, State Panel, 2012 IL App (4th) 111075, ¶ 110; Department of Central
Management Services v. Illinois State Labor Relations Board, 278 Ill. App. 3d 79, 86 (1996). In
8
The Act defines "supervisor," in part, as "[a]n employee *** 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" and "devote[s] a preponderance of their employment time to exercising that
authority." 5 ILCS 315/3(r)(1) (West 2012). Supervisors, like managerial employees, are
excluded from collective bargaining under the Act. 5 ILCS 315/3(n) (West 2012).
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articulating the reason for such a rule, this court first noted, " '[p]reponderance' can mean
superiority in numbers or superiority in importance." Department of Central Management
Services, 278 Ill. App. 3d at 86 (citing Webster's Third New International Dictionary 1791
(1986)). The court then added:
"If an employee spends 51% of employment time doing administrative functions
and 49% in supervisory functions, the most significant part of the job may not be
the administrative matters because of the importance of employee relations.
Whether a person is a 'supervisor' should be defined by the significance of what
that person does for the employer, regardless of the time spent on particular types
of functions." Id.
¶ 29 We see no reason why the approach should be any different in cases determining whether
an employee is managerial. First, we note "predominant"—like the meaning of
"preponderance"—also means superiority in importance or numbers. See Merriam-Webster's
Collegiate Dictionary 978 (11th ed. 2004) (defining "predominant" as "having superior strength,
influence, or authority" or "being most frequent or common"). Likewise, we do not believe
whether a person is a "managerial employee" should be defined solely by the time spent on
managerial duties, but also by the significance of those duties. Our case law in this area reflects
this principle.
¶ 30 In Salaried Employees of North America (SENA) v. Illinois Local Labor Relations Board,
202 Ill. App. 3d 1013 (1990), this court reviewed a decision of the board finding all of the
attorneys in the City of Chicago's law department to be managerial employees. Id. at 1014. In
its analysis, the court noted "the key inquiry is whether the duties and responsibilities of the
employees in question are such that the employees should not be placed in a position requiring
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them to divide their loyalty between the employer and the collective bargaining unit." Id. at
1021. The SENA court then examined the "diffused" structure of the law department, concluding
it was "impossible to determine how the Law Department could efficiently operate if it was to be
divided into union/nonunion attorneys." Id. at 1022. The SENA court next shifted its focus to
the duties of the attorneys and found the attorneys "have the authority to recommend changes in
the manner in which the city operates." Id. at 1022-23. Ultimately, the SENA court affirmed the
board's decision, notably doing so without ever discussing the amount of time each employee
spent on managerial duties versus nonmanagerial duties. Id. at 1023.
¶ 31 While the SENA court acknowledged the facts of the case were unique, the decision still
illustrates that a purely time-based approach in determining an employee's predominant function
can be difficult to reconcile with the purpose of the managerial exclusion. The line that separates
when an employee is acting in a managerial capacity and a nonmanagerial capacity is often
opaque; "there is no hard and fast rule regarding what duties and responsibilities qualify" as
managerial. SENA, 202 Ill. App. 3d at 1020. Accordingly, we reject AFSCME's argument that
time spent on managerial tasks is determinative of managerial status and conclude that the
significance of the duties must also be considered. See, e.g., Board of Regents of the Regency
Universities System v. Illinois Educational Labor Relations Board, 166 Ill. App. 3d 730, 743
(1988) (finding employees to be managerial despite spending at most half of their time on
managerial tasks).
¶ 32 In this case, the Board outlined the various responsibilities of each employee, identifying
those which took up the "majority of [the employee's] time" or qualified as the employee's "main
task." The Board then explained which duties it found to be managerial, citing specific examples
of an employee's managerial influence. It weighed the significance of that influence before
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ultimately concluding whether the respective employee was managerial. We do not believe the
Board's methodology indicates it simply ignored consideration of the time each employee spent
on managerial functions. Accordingly, the appropriate question on appeal is not whether the
Board applied the proper legal standard, but whether the Board erred in its ultimate conclusions
in applying that legal standard. With this in mind, we review the Board's decision regarding
each employee in turn.
¶ 33 II. James Weging
¶ 34 AFSCME notes the Board found Weging spends the "majority of his time" in the role of
a traditional attorney, representing the ICC during judicial review of the Commission's
determinations. This fact, according to AFSCME, should have thereby precluded the Board
from finding Weging is a managerial employee because the Board also found this duty was non-
managerial. The Board noted:
"In that capacity, an attorney's role is to defend the agency's decision, not to alter or help
derive the agency's rationale. In this role, [Weging] does not meet the first element of
managerial status because he does 'nothing amount[ing] to the running of an agency or
department *** . [Weging] does not meet the second element because he does not
'oversee[] or coordinate[] policy implementation through development of means and
methods of achieving policy objectives, determine[] the extent which the objectives will
be achieved, and is [not] powered with a substantial amount of discretion to determine
how policies will be effected.' "
AFSCME's argument rests on the assumption that spending more than half of one's time on non-
managerial tasks necessarily forecloses the possibility of being a managerial employee; our
previous discussion defeats this assumption. See supra ¶¶ 25-32. Nevertheless, we still find the
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Board erred in designating Weging as a managerial employee because he does not meet the first
prong of the traditional test.
¶ 35 While the fact that Weging spends most of his time on nonmanagerial litigation-related
responsibilities is not automatically fatal to his case, we note his additional duties are not
necessarily managerial either. As the Board acknowledged, Weging's remaining duties are
mostly advisory. Generally, "merely recommend[ing] policies or giv[ing] advice" does not
amount to managerial work; managerial employees "actually direct the governmental enterprise
in a hands-on way." Department of Central Management Services, 406 Ill. App. 3d at 775.
Nonetheless, "managerial status can also include those who make 'effective recommendations'—
that is, those employees who make recommendations that are almost always implemented."
(Emphasis added.) Department of Central Management Services, 2011 IL App (4th) 090966,
¶ 135. The Board found Weging had the "opportunity" to act as a managerial employee in this
advisory capacity, citing two specific instances of effective recommendations. The first involved
Weging's advice in pursuing a supervisory order. The other instance involved Weging advising
how to revoke a utility's certificate of public necessity and convenience. The ICC followed
Weging's recommendations on both occasions.
¶ 36 Two examples during the course of more than 20 years, however, hardly supports the
notion that Weging's recommendations are "almost always implemented" by his superiors.
While it appears Weging's intermittent advisory role allows him to occasionally impact ICC
policy, that role is neither frequent enough nor significant enough to support a finding of
managerial status. See Department of Central Management Services/Department of Healthcare
& Family Services v. Illinois Labor Relations Board, State Panel, 388 Ill. App. 3d 319, 332
(2009). We do not believe Weging is "predominantly" engaged in managerial duties in either
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sense of the word and therefore reverse the Board as to his status.
¶ 37 III. Richard Favoriti
¶ 38 AFSCME argues the Board erred in finding Favoriti performs any managerial duties. In
one sentence without any citation to authority, AFSCME argues that Favoriti's role in initiating
citation proceedings does not constitute a managerial function because "it is clear from the ALJ's
own discussion that [Favoriti] is but one step in a conveyor process that cannot possibly be
equated to running an agency." We reject this contention for several reasons. First, cursory
arguments that do not to cite relevant authority violate Illinois Supreme Court Rule 341 (eff. Feb.
6, 2013), resulting in forfeiture of the issue. Kic v. Bianucci, 2011 IL App (1st) 100622, ¶ 23.
Second, we review the final decision of the Board, not the ALJ. Wilson v. Department of
Professional Regulation, 317 Ill. App. 3d 57, 64-65 (2000). Notwithstanding this fact, AFSCME
still mischaracterizes the ALJ's decision; the ALJ found Favoriti's role in citation proceedings is
managerial despite participation from multiple parties because Favoriti is responsible for
"spur[ring] the Commission's formal action."
¶ 39 AFSCME additionally challenges the Board's finding that the advice Favoriti gave
regarding the executive order is "indicative of managerial status" as an effective
recommendation. 9 According to AFSCME, Favoriti merely tells the ICC "what the law requires"
and the commission still decides how it will act based on that information. To put it another
way, because the Commission asked Favoriti whether it could ignore the executive order as
opposed to whether it should, Favoriti's advice does not amount to an effective recommendation.
The lone case AFSCME cites in support of its argument does not discuss effective
recommendations and is likewise not helpful in guiding our decision here. See Department of
9
Although the Board did not specifically refer to Favoriti's role in this regard as an
"effective recommendation," its discussion indicates that is how it treated the advice.
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Central Management Services/Department of Healthcare & Family Services, 388 Ill. App. 3d at
332. Regardless, even assuming AFSCME is correct on this point, the record still supports the
Board finding Favoriti as managerial.
¶ 40 In determining his status, the Board collectively relied on several examples of Favoriti
making effective recommendations. In addition to the example involving the executive order,
the Board cited another specific instance of Favoriti's participation in the rule-making process.
Most importantly, however, the Board also found Favoriti makes effective recommendations
when he participates in the initiation of citation proceedings. Favoriti's participation in this
manner is frequent and, according to the record, his recommendations are accepted "almost 98
percent of the time." Thus, even though the Board believed Favoriti's role in reviewing the
Governor's executive order was "indicative of managerial status" because it reflected his
proximity to the "most fundamental" of the ICC's policy decisions, the instance is not necessary
to the ultimate conclusion Favoriti performs managerial functions. To reverse, we must be
" ' "left with the definite and firm conviction that a mistake has been committed." ' "
Comprehensive Community Solutions, Inc., 216 Ill. 2d at 472 (quoting AFM Messenger Service,
Inc., 198 Ill. 2d at 395, quoting United States Gypsum Co., 333 U.S. at 395). Given Favoriti's
significant role in initiating citation proceedings, we cannot say the Board committed clear error.
We thus affirm the Board's decision as to Favoriti.
¶ 41 IV. Christine Ericson
¶ 42 With regard to Ericson, AFSCME contends the Board erred in finding her managerial
because her role in flagging matters of importance to the ICC is not a managerial function. In its
decision, the Board acknowledged that many of Ericson's duties—namely, her drafting and
litigation-related duties—were not managerial. It further recognized Ericson's recommendations
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were only followed "on some occasions," thereby eliminating the possibility Ericson could be
considered managerial based on "effective recommendations." The Board thus based its
conclusion as to Ericson's status solely on her responsibility as a "gatekeeper," flagging legal
matters she believes may be important to the ICC. Accordingly, Ericson's status inevitably
hinges on whether "flagging" issues is a managerial function. We conclude that it is not.
¶ 43 Respondents' argument mirrors that of the Board, contending Ericson "effectively
decid[es whether] the ICC will not act on various issues," because if she does not flag a matter
the ICC will not be able to take action on it. Neither party cites to any authority directly on point
and we are unaware of any in existence dealing with the issue of a "gatekeeper." Nevertheless,
we hesitate to conclude Ericson's control over Commission policy in this respect is significant
enough to warrant her status as managerial. For Ericson to be managerial, she must either
"actually direct the governmental enterprise in a hands-on way" or make effective
recommendations. (Internal quotation marks omitted.) Department of Central Management
Services, 2011 IL App (4th) 090966, ¶ 135. Ericson does neither. According to respondents,
Ericson affects ICC policy in her role as a "gatekeeper" through omission, that is by not bringing
a matter to the ICC's attention in which it might otherwise be interested. In this sense, Ericson's
influence on ICC policy is rather limited. She lacks any sort of the direct involvement typically
required of managerial employees. Nor does she even recommend a particular course of action.
Ericson merely filters which issues may or may not be important. Accordingly, we find her
influence to be tenuous at best. Moreover, as respondents' argument implies, such influence can
only result from Ericson inadequately performing her duties, either by actively or negligently
failing to flag an issue that should otherwise have been flagged. For these reasons, we find
Ericson's "gatekeeper" function non-managerial and reverse the Board's decision as to her status.
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¶ 44 CONCLUSION
¶ 45 For the foregoing reasons, we affirm the Board's decision as to Richard Favoriti and
reverse the Board's decision as to James Weging and Christine Ericson.
¶ 46 Affirmed in part and reversed in part.
¶ 47 JUSTICE GORDON, dissenting.
¶ 48 I must respectfully dissent, as I disagree with the majority and would affirm the Board’s
decision. A litigation attorney is in a unique position when representing a governmental unit. In
considering whether an attorney is a managerial employee, this court has found that “the key
inquiry is whether the duties and responsibilities of the employees in question are such that the
employees should not be placed in a position requiring them to divide their loyalty between the
employer and the collective bargaining unit.” Salaried Employees of North America (SENA) v.
Illinois Local Labor Relations Board, 202 Ill. App. 3d 1013, 1021 (1990).
¶ 49 By classifying the attorneys as nonmanagerial, we could be placing them in that divided
loyalty category. In SENA, this court reviewed the decision of the Board finding all of the
attorneys in the City of Chicago’s law department to be managerial employees and affirmed that
decision. SENA, 202 Ill. App. 3d at 1014-15. As we found in SENA, the attorneys “have the
authority to recommend changes in the manner in which the city operates.” SENA, 202 Ill. App.
3d at 1022-23. In the instant case, all of the attorneys were litigators who have even more
authority to recommend changes in the manner in which the agency does business because of the
effect that the litigation process has on the way the agency performs their business. The majority
has not cited any authority that would classify a litigation attorney as a nonmanagerial employee,
and I would follow the reasoning in SENA. In the evidence in the instant case, there are many
examples where all four attorneys provided recommendations that changed agency policy and
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the way the agency was doing business.
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