Board of Trustees of the University of Illinois v. Illinois Educational Labor Relations Board

FILED
April 16, 2018
Carla Bender
4th District Appellate
2018 IL App (4th) 170059 Court, IL
NO. 4-17-0059
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE BOARD OF TRUSTEES OF THE UNIVERSITY ) Review of Order of the
OF ILLINOIS, ) Illinois Educational Labor
Petitioner, ) Relations Board
v. ) No. 2016-RS-0006-S
THE ILLINOIS EDUCATIONAL LABOR )
RELATIONS BOARD and UNIVERSITY )
PROFESSIONALS OF ILLINOIS, LOCAL 4100, IFT- )
AFT, AFL-CIO, )
Respondents. )
JUSTICE KNECHT delivered the judgment of the court, with opinion.
Justices DeArmond and Turner concurred in the judgment and opinion.
OPINION
¶1 The Board of Trustees of the University of Illinois (Board of Trustees) seeks
direct review of a decision of the Illinois Educational Labor Relations Board (Board), finding
department chairs at its Springfield campus were entitled to be included in a bargaining unit
consisting of all tenured and tenure-track faculty. The Board of Trustees argues we should
reverse the Board’s decision because it is based on a clearly erroneous determination the
department chairs are not managerial employees, supervisors, or confidential employees as
defined by the Illinois Educational Labor Relations Act (Act) (115 ILCS 5/2(g), (n), (o) (West
2016)). The Board’s determination the department chairs are not managerial employees is clearly
erroneous. We reverse.
¶2 I. BACKGROUND
¶3 A. Overview of the University of Illinois
¶4 The University of Illinois (University) is a large public institution, employing
approximately 23,000 persons on three main campuses. The three main campuses are located in
Urbana-Champaign, Chicago, and Springfield. The University system is governed by the
University of Illinois Statutes (University Statutes). The University Statutes set forth the policies
and procedures of the University and defines the structure, positions, and functioning of the
University.
¶5 The Board of Trustees is the governing body of the University system. The Board
of Trustees elects a president, who serves as the University system’s chief executive officer. At
each campus, a chancellor/vice president serves as the chief executive officer. The
chancellor/vice president oversees campus affairs. Each campus also has a provost/vice
chancellor, who serves as its chief academic officer. The provost/vice chancellor oversees the
faculty and academic affairs as well as manages the budget for the functions he or she oversees.
¶6 Each campus is comprised of several academic colleges. Each academic college
covers a broad academic area of study. The University’s Springfield campus is divided into four
academic colleges: (1) the College of Liberal Arts and Sciences; (2) the College of Education
and Human Services; (3) the College of Public Affairs and Administration; and (4) the College
of Business and Management. A dean oversees each college, including its academic programs,
faculty, and the infrastructural aspects of the college.
¶7 Each college is divided into smaller areas of study, called departments. The
department is the primary unit of education and administration within the University. Each
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department has an executive officer, called the department head or chair.
¶8 The University system operates under a “shared governance” model, meaning the
faculty, administrators, and Board of Trustees share in the governance of the institution. The
University Statutes provide:
“As the responsible body in the teaching, research, and scholarly
activities of the [u]niversity, the faculty has inherent interests and
rights in academic policy and governance. Each college or other
academic unit shall be governed in its internal administration by its
faculty ***. Governance of each academic unit shall be based on
unit bylaws established and amended by the faculty of that unit.
The bylaws shall provide for the administrative organization and
procedure of the unit ***. Except that they may not conflict with
these Statutes, or other specific actions of the Board of Trustees, or
with the bylaws of a unit which encompasses it, the details of the
bylaws are left to the faculty of the unit.”
¶9 B. Certification of Tenure-System Faculty
¶ 10 In February 2015, the Board’s executive director certified the University
Professionals of Illinois, Local 4100, IFT-AFT, AFL-CIO (Union), as the exclusive
representative of a bargaining unit of tenured and tenure-track faculty employed at the
University’s Springfield campus. The certification specifically excluded department heads and
chairs and all managerial employees, supervisors, and confidential employees as defined by the
Act.
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¶ 11 C. Majority-Interest Representation Petition
¶ 12 In May 2016, the Union filed a majority-interest representation petition, seeking
to add 28 employees at the University’s Springfield campus with the title of department chair to
the existing tenure-system faculty bargaining unit. The Board of Trustees opposed the petition,
asserting the department chairs were ineligible for membership because they were managerial
employees, supervisors, and/or confidential employees as defined by the Act.
¶ 13 D. Administrative Hearing
¶ 14 In June 2016, an administrative law judge (ALJ) conducted a three-day hearing.
The Board of Trustees presented the testimony of six witnesses: (1) Renee Taylor, vice provost
for faculty affairs and professor of occupational therapy at the University’s Chicago campus; (2)
Leonard Branson, accountancy department chair at the University’s Springfield campus; (3)
Rassule Hadidi, management information systems head and former department chair at the
University’s Springfield campus; (4) James Ermatinger, provost/vice chancellor for academic
affairs and interim dean of the College of Public Affairs and Administration at the University’s
Springfield campus; (5) Hanfu Mi, dean of the College of Education and Human Services at the
University’s Springfield campus; and (6) Lucia Vasquez, acting dean of the College of Liberal
Arts and Sciences at the University’s Springfield campus. The Union presented the testimony of
five current or former department chairs at the University’s Springfield campus: (1) Deborah
Anthony, legal studies department chair; (2) Amy McEuen, biology department chair; (3)
Heather Bailey, history department chair; (4) Richard Gilman-Opalsky, political science
department chair; and (5) Kristi Barnwell, history department chair and vice president of the
tenure-system faculty bargaining unit. The parties also presented various exhibits, including,
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inter alia, the following relating to the Springfield campus: (1) the University Statutes, (2) the
faculty personnel policy, (3) the collective bargaining agreement between the University and its
graduate assistants, (4) grievance-arbitration procedure proposals relating to the first contract of
the tenure-system faculty bargaining unit, and (5) departmental faculty bylaws.
¶ 15 1. Departments at the University’s Springfield Campus
¶ 16 Within the four colleges at the University’s Springfield campus are 32 academic
departments, which employ 193 full-time faculty members and 165 part-time nontenure faculty
members (adjuncts). The Springfield campus has 28 department chairs. The 28 department chairs
serve 30 academic departments. The two remaining departments are served by department heads.
The Union did not seek to add employees with the title of department head to the tenure-system
faculty bargaining unit.
¶ 17 2. The Selection and Removal of Department Chairs
¶ 18 The University Statutes provide department chairs are appointed annually by the
Board of Trustees on recommendation of the president and the chancellor/vice president after
consultation with the dean of the college and the executive committee of the department
concerned. A department’s executive committee is elected annually by and from a department’s
faculty.
¶ 19 Each department, through its bylaws, sets provisions for the selection of proposed
department chairs. Generally, chairs are selected from and by the department faculty for one or
more three-year terms, after which they resume their regular faculty role. In some departments,
chairs rotate terms among the tenured faculty. Other departments have long-standing chairs who
are chosen based on their seniority within the department. In other cases, a dean may solicit
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nominations and deliver ballots to the department’s tenure-system faculty to select their choice
for chair by a majority vote. Although not required, chairs normally are tenured faculty
members. Anthony explained her department typically chooses a tenured professor because
chairs might “have to stick their neck out a little bit,” and nontenured professors are “in a more
vulnerable position in doing that if they’re trying to represent the department to administration.”
¶ 20 After the faculty has selected their proposed department chair, the dean will
review the faculty’s selection. The dean rarely rejects the faculty’s selection. If the faculty’s
selection is rejected, the department may hold another vote, or the dean may elect to either
appoint a chair or have the dean’s office provide administrative support to the department. The
provost and the Board of Trustees must also approve the faculty’s selection. Taylor explained,
while the appointment of a chair involved significant collaboration with a department’s faculty,
the Board of Trustees did not allow the faculty to directly appoint a chair because the chair was
also responsible for carrying out the agendas of the college and the University.
¶ 21 Each department, through its bylaws, also sets provisions for the removal of
department chairs. Removal of a chair normally requires concurrence of both the department and
the dean. A dean can remove a chair without consent from the department’s faculty. A dean can
object to a faculty’s vote to remove a chair. If the dean objects to the faculty’s vote to remove a
chair, the faculty may override the dean’s wishes by a majority vote to remove.
¶ 22 3. The Responsibilities of Department Chairs
as Provided in the University Statutes
¶ 23 The University Statutes provide department chairs “shall be responsible for the
formulation and execution of departmental policies and the execution of University and college
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policies insofar as they affect the department.” Chairs are required to:
“(1) report on the teaching and research of the department; (2)
have general oversight of the work of students in the department;
(3) collaborate with the executive committee in the preparation of
the budget and be responsible for the expenditure of departmental
funds for the purposes approved by the executive committee; and
(4) call and preside at meetings of the executive committee and at
meetings of the department faculty of which there shall be not
fewer than one in each academic year for consideration of
questions of departmental governance and educational policy.”
¶ 24 The University Statutes provide department chairs have the power to “act
independently in such matters as are delegated to the chair by the executive committee.” A
department chair is ex officio a member and chair of the executive committee. When the
executive committee is in session to evaluate the chair’s performance, the chair does not partake
in the session and the committee is chaired by a different committee member.
¶ 25 The University Statutes provide both the department chair and the executive
committee “are responsible for the preparation of the budget and for such matters as may be
delegated to them by the faculty of the department.” The chair “together with the executive
committee is responsible for the organization of the work of the department and for the quality
and efficient progress of that work.”
¶ 26 Taylor described the roll of the executive committee as a committee that advises
the chair on a range of issues. She also indicated the chair has the ultimate authority as a decision
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maker.
¶ 27 4. The Responsibilities of Department Chairs
as Provided in the Faculty Personnel Policy
¶ 28 The faculty personnel policy in effect at the University’s Springfield campus
provides:
“Department administrators, irrespective of whether they are called
[d]irectors or [c]hairs, have similar functions and responsibilities.
Functions of department administrators are the following: provide
effective leadership for faculty in the department/division; assume
responsibility for seeing that decisions assigned to the
department/division by university policies and procedures are
made and communicated to others in the [u]niversity; convey
recommendations concerning such matters as curriculum
development, budgetary requests, position requests, multi-year
schedules, and faculty development activities. Responsibilities of
department administrators include overseeing, supervising[,]
and/or coordinating the following: the work of faculty in the
development of department curriculum, educational philosophy[,]
and academic standards and the department’s long-term planning
efforts; coordinate formal reviews of degrees and certificates (if
applicable), oversee preparation of documents for follow-up and
accreditation review, prepare documents for curricular changes,
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catalog revisions and other documents necessary to convey the
department’s curricular plans; develop multi-year course schedules
and staffing plans for curricular delivery, consistent with
institutional priorities and student needs. Prepare annual course
schedule documents and faculty assignment summary sheets for
faculty approval, and coordinate curricular delivery and make
recommendations about non-instructional assignments; lead and
participate in the selection and development of full and part-time
faculty; oversee faculty searches in accordance with [u]niversity
polices and procedures; develop and coordinate student
recruitment, retention, advising[,] and service activities of the unit;
implement and monitor admissions, student progress[,] and closure
requirements of the department’s degree(s) and certificates(s) (if
applicable), as well as professional certification or registration of
students; represent the department(s) to external organizations and
groups, inter-institutional activities and accrediting agencies; lead
the department(s) in developing budget requests and priorities and
approve expenditures according to them; oversee selection and
supervision of the department graduate assistants and student
workers as appropriate; direct the work of support staff;
communicate information to and from the dean and appropriate
governance bodies and report the results of department actions and
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deliberations; ensure representation of the department(s) on
appropriate [c]ollege-level committees; represent department(s) at
[c]ampus and [u]niversity level meetings; lead the development of
public affairs activities in the department(s) and the offering of
general education courses; oversee students’ clubs, honorary
societies, advisory committees, etc.”
¶ 29 The faculty personnel policy further provides that the necessary amount of
support required of department chairs will depend on a variety of factors relating to the
department being administered, such as the number of degree programs available.
¶ 30 5. Leadership Meetings
¶ 31 Department chairs are required to attend their respective colleges’ cabinet
meetings. The college cabinet consists of the dean and the chairs. At the cabinet meetings, the
dean and chairs discuss various issues concerning the college, including the budget, the direction
of the college, faculty resources, and strategic and policy issues. A dean may task chairs with
handling various assignments delegated from the provost’s office.
¶ 32 After the union certification of tenure-system faculty, department chairs attended
a meeting with the labor relations representative and the University’s labor relations lawyer. At
the meeting, they discussed the need for “confidentiality concerning the position of the
administration vis a vis the Union.” They also discussed acceptable communication between the
chair and other faculty members, such as the need to avoid any discussion of whether a particular
faculty member had signed a union card.
¶ 33 6. Adjunct Faculty
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¶ 34 Department chairs initiate the hiring of adjunct faculty. Chairs first determine
whether the need for additional classes exists based on enrollment and the course load of tenure-
system faculty. Some departments hire the same adjuncts on a regular basis. In other
departments, when the need to hire adjuncts arises, the chair finds a suitable candidate through
referrals or other means, without faculty input. In some departments, the chair consults with the
tenure-system faculty concerning the selection of adjuncts. In all cases, whether an adjunct
candidate is chosen unilaterally by the chair or by faculty consensus, the chair makes a
recommendation to the dean, who is the hiring authority. The dean rarely, if ever, declines to hire
a recommended candidate.
¶ 35 Department chairs are responsible for evaluating adjunct faculty. Some
department chairs evaluate adjunct faculty and make decisions regarding whether to retain or
rehire them without faculty input. A chair’s decision as to whether to retain an adjunct is not
subject to approval by the dean.
¶ 36 7. Graduate Assistants
¶ 37 Department chairs oversee graduate assistant hiring. Department committees are
delegated with the responsibility of selecting graduate assistants. Chairs are required to sign off
on a committee’s selection. The selection of graduate assistants must be approved by the dean,
though the dean rarely rejects the chair’s recommendation.
¶ 38 Department chairs are responsible for supervising, or choosing a supervisor for,
each graduate assistant. Chairs are also responsible for reviewing and evaluating the work of
graduate assistants. Chairs typically prepare evaluations and submit them to the dean and the
provost, who must sign off on the evaluations. As with adjuncts, chairs need not consult with
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other faculty in the department when deciding how to evaluate a graduate assistant’s work.
¶ 39 8. Tenure-System Faculty
¶ 40 Tenure-track faculty hiring follows a specific process. First, the department chair
must obtain approval, through the dean, to create or maintain a tenure-track position. If the chair
obtains approval, the department forms a search committee, which prepares a search plan setting
forth how it will search for and select candidates and submits it to the dean for approval. Upon
approval of the plan, the search committee advertises and recruits for the position, vets
candidates, and ultimately recommends three candidates to the dean. In some departments, the
chair serves on the selection committee and is responsible for preparing the search plan,
appointing faculty to serve on the selection committee, and ensuring the proper selection process
is followed. In other departments, the chair need not serve on the selection committee but still
must sign the search committee plans or reports. The dean makes the final candidate selection,
conveys the offer of employment, and negotiates salary with the incoming candidate.
¶ 41 A department-level personnel committee conducts tenure-system faculty
evaluations. While department chairs are not required to serve as chairs of the personnel
committee, chairs remain responsible for ensuring the department conducts the evaluation
process as prescribed by the University. The personnel committee reviews each faculty member,
including the chair, in the areas of teaching, service, and research. A recommendation letter is
then prepared summarizing the committee feedback and rating, identifying whether the faculty
member is recommended for “no merit,” “merit,” or “extra merit.” The chair typically, but not
always, prepares the letter.
¶ 42 Faculty evaluations are reviewed by a college-level committee, in accordance
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with campus-wide standards and college merit pay policies and procedures. In the College of
Business and Management, for example, the executive committee, comprised of one elected
member—typically the chair—from each department in the college, makes merit pay decisions.
The executive committee reviews all of the recommendations submitted by each department and
makes its own determination of which faculty members to nominate for salary increases. Those
nominations are submitted to the dean, who in most cases accepts the recommendations and
submits them to the provost.
¶ 43 9. Departmental Budgets
¶ 44 Department chairs operate as the fiscal officers responsible with managing their
department’s operational budget. Each department has an operational budget, which usually
consists of approximately $2000. Because of their fiscal responsibilities, chairs are required by
statute to submit a statement of economic interests to the Secretary of State each year. Chairs
may disburse money from the operational budget for any reasonable purchases in accordance
with University rules without approval from the dean. For example, the operational budget may
be used to cover the costs of laboratory supplies, office supplies, and computer equipment, or to
cover the costs associated with special events. In some departments, the faculty decides by
consensus how to spend the funds. Any requests to use the funds for purposes outside the norm
must be approved by the dean.
¶ 45 Department chairs also manage a department fund consisting of a portion of the
proceeds obtained through online course fees. The money may be used only for expenditures
related to online instruction, such as purchasing computer equipment to facilitate a course
offering or granting stipends for course development. The management information systems
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department’s annual online budget is approximately $20,000 to $25,000. Chairs may solicit
faculty input on how to expend the funds. A chair must submit a request to expend the money to
the dean, who typically approves the request.
¶ 46 Each department also has access to professional development funds through the
chancellor’s office. Faculty may apply for these funds to cover certain expenses, such as the cost
of attending or presenting at a professional conference. The chair is not involved in approving
disbursement of these funds.
¶ 47 10. Course Scheduling and Accreditation
¶ 48 Department chairs are responsible for ensuring department course schedules are
prepared and submitted to the dean. Chairs typically prepare the schedule, taking the previous
year’s schedule and faculty preferences into account. In some departments, the chair must
consult with other department chairs to compare schedules and ensure course requirements do
not conflict. In some cases, chairs prepare the schedule at faculty meetings.
¶ 49 On occasion, chairs must ask faculty to adjust their scheduling preferences to
ensure the necessary balance of course offerings. Conflict amongst faculty concerning
scheduling preferences is typically resolved collectively between the chair and the concerned
faculty members. In the event a conflict cannot be resolved, Gilman-Opalsky testified he did not
believe he had the authority to force a faculty member to teach a particular class. Conversely,
Hadidi testified to an incident where a faculty member left the University after Hadidi told the
faculty member, who refused to teach an online class, “that this is the direction that we are
going” and “[i]f you are here you need to teach online.”
¶ 50 Department chairs oversee their programs’ formal reviews and accreditation
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reporting. Chairs receive data concerning their departments, which must be analyzed and
evaluated. Chairs may assign this task to faculty members, but the chair is responsible for
submitting the department’s internal evaluation. Chairs must assure accreditation reports are
completed.
¶ 51 11. Student Recruitment and Retention
¶ 52 To further the University’s goals of increasing the student body, department
chairs are expected to coordinate a representative from their department to be present at
University events. To help retain students, chairs are also expected to lead faculty by
encouraging student mentorship.
¶ 53 12. Complaints, Grievances, and Disciplinary Issues
¶ 54 Department chairs currently handle disputes between faculty and informal
complaints raised by students and University support staff. Chairs may take a variety of different
actions to resolve the disputes and complaints. If a dispute or complaint cannot be resolved with
the department chair, it is referred to the dean’s office.
¶ 55 The Board of Trustees and the Union are in the process of bargaining the tenure-
system faculty’s first contract. During bargaining, the Board of Trustees offered two proposals
and the Union offered a counterproposal concerning the contract’s grievance-arbitration
procedure. Under the Board of Trustees’ first proposal, the grievance-arbitration process would
begin by a faculty member filing a written grievance with its department’s chair or head. After
the chair or head rendered a written decision, the faculty member could appeal the decision to the
dean of the college in which the faculty member was appointed. The Union’s counterproposal
provided the grievance-arbitration process would begin with a faculty member informally
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discussing the situation with his or her “immediate supervisor.” If the informal conference did
not prompt a solution, the faculty member would be allowed to file a formal written grievance
with the vice chancellor of academic affairs. Under the Board of Trustees’ responding proposal,
the grievance-arbitration process would begin with a faculty member informally discussing the
situation with his or her “Department Head/Chair.” If the informal conference did not prompt a
solution, the faculty member would be allowed to file a formal written grievance with the dean
of the college in which the faculty member was appointed. The University’s collective-
bargaining agreement with its graduate assistants employed at the Springfield campus follows a
similar grievance-arbitration approach as the Board of Trustees’ responding proposal.
¶ 56 The University Statutes provide procedures for faculty discipline. At a minimum,
faculty members are provided notice and an opportunity for a hearing. Chairs have no authority
to suspend or discharge tenure-system faculty. Department chairs are obligated, however, to
report to the dean a faculty member’s failure to do their job. For instance, Ermatinger testified to
an occasion where a chair reported a faculty member was refusing to communicate with the
chair. Ermatinger met with the chair and had discussions to work on strategies to resolve the
issue. Ermatinger described the meetings as sensitive in nature and voiced concern over
disclosure of the conversation to third-parties, such as the faculty member in question.
¶ 57 13. Reduced Teaching Schedule
¶ 58 Department chairs are allowed to have a reduced teaching schedule to compensate
for the chair duties. Taylor testified chairs are given teaching relief so they may “function as an
administrator and do the management and the supervising that that person needs to do.”
¶ 59 Tenure-system faculty members are expected to teach three courses per semester,
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for a total of six classes per academic year. Of the 28 department chairs, 23 teach a half-
schedule. Chairs are expected to continue their general faculty responsibilities relating to
research and service to the University. In addition to their faculty duties of advising current
students, chairs must also advise new students, incoming transfers, and former students seeking
to complete advanced degrees.
¶ 60 14. Time Spent on Chair Duties and Responsibilities
¶ 61 The majority of the department chairs and former chairs who testified at the
hearing reported, as a general rule, they spent approximately one-third, or slightly more, of their
time discharging chair duties and responsibilities. One chair testified he spent more than half of
his time performing his chair duties. Another chair testified he spent “significantly more” time
on his chair functions than his faculty responsibilities. Chairs typically receive one-month’s
compensation, the equivalent of teaching a summer school course, for serving as a chair.
¶ 62 15. Strain on Faculty Duties
¶ 63 Branson testified:
“As a department chair the scope is much bigger. [You are]
responsible for more than just yourself and your own classes, your
own research. So the biggest difference is, I guess, the scope of the
work and then the nature of it is *** planning for the whole
department as opposed to planning your own courses and, again, I
think it boils down to scope of the work and then the nature of the
work is, it’s different to teach a class than it is to plan all the
classes and make them fit together. It’s a different function.”
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With respect to his department, Gilman-Opalsky indicated the faculty lacked a desire to be a
chair because the duties with such a position are “spate from the normal faculty commitments
and they *** regrettably crowd out some of the time we can spend on the [those] faculty
commitments.” Vasquez indicated at one point in her career she resigned from being a chair
because she was “exhausted” from its responsibilities. Branson indicated at one point in his
career he resigned from being a chair to have more time to pursue his interests in research and
professional outreach, “which were very difficult to do when you’re serving as a department
chair.”
¶ 64 E. Recommended Decision and Order
¶ 65 In September 2016, the ALJ issued a recommended decision and order. The ALJ
(1) found the department chairs are neither managerial employees, supervisors, nor confidential
employees as defined by the Act and (2) recommended the Board certify the Union as the
exclusive bargaining representative for the chairs.
¶ 66 F. The Board of Trustees’ Exceptions
¶ 67 In October 2016, the Board of Trustees filed exceptions to the ALJ’s
recommended decision and order. The Board of Trustees argued, inter alia, the ALJ erred in
concluding the department chairs are neither managerial employees, supervisors, nor confidential
employees as defined by the Act.
¶ 68 G. The Board’s Decision and Order
¶ 69 In December 2016, the Board issued a decision and order, affirming the ALJ’s
recommended decision and directing certification of the bargaining unit. The Board found the
department chairs were entitled to inclusion in the tenure-system bargaining unit because they
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are neither managerial employees, supervisors, nor confidential employees as defined by the Act.
¶ 70 1. Managerial Employees
¶ 71 The Board rejected the Board of Trustees’ argument suggesting the department
chairs are managerial employee as defined by the Act. It found:
“[T]he department chairs at [the] University’s Springfield campus
do not have the authority and discretion which are necessary to
establish managerial status. Rather, the University Statutes and the
testimony establish that, as in [Board of Trustees of Southern
Illinois University, 5 PERI ¶ 1197 (IELRB 1988)], the faculty
share authority with the chairs. In addition, as in [Board of
Trustees of Southern Illinois University], the chairs’ role is to
represent the departments to higher levels of administration rather
than the reverse. The chairs’ role in the college cabinets is to act as
liaisons between the deans and the department faculty rather than
to exercise the type of independent authority to determine the
means by which the University’s goals will be achieved which is
necessary for managerial status. In any event, the department
chairs’ participation in the college cabinets is not ‘uppermost in
importance and influence’ among their functions. The chairs’
predominant role is to work with the faculty in operating the
departments. We conclude that the department chairs are not
managerial employees.”
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¶ 72 2. Supervisors
¶ 73 The Board rejected the Board of Trustees’ argument suggesting the department
chairs are supervisors as defined by the Act. The Board conceded the chairs have the authority to
perform or to effectively recommend some of the functions of a supervisor with respect to
adjunct faculty, such as hiring and discharging. However, it found they did not spend a
preponderance of their employment time supervising adjunct faculty. The Board reasoned:
“Here, almost all department chairs have a half-time or more
teaching load. They also perform other duties which are not
supervisory, including research, service to the community, and
their non-supervisory duties as department chairs. Therefore, it is
not mathematically possible for the department chairs to spend
more time on supervisory functions than on any one non-
supervisory function with respect to adjunct faculty.”
The Board also found the chairs did not exercise independent judgment when scheduling classes.
¶ 74 3. Confidential Employees
¶ 75 The Board rejected the Board of Trustees’ argument suggesting the department
chairs are confidential employees as defined by the Act. It found:
“Assuming that it is reasonable to expect that the department chairs
will become the first step in the grievance procedure in the
collective bargaining agreement covering the tenure system faculty
at the University’s Springfield campus, they still would not have
access to the type of information [related to the collective-
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bargaining process between labor and management]. Accordingly,
we conclude that the department chairs are not now and will not
become confidential employees.”
¶ 76 H. Certification
¶ 77 In January 2017, the Board’s executive director issued an order certifying the
bargaining unit to include all full-time “tenured and tenure track employees and department
chairs.”
¶ 78 The Board of Trustees now seeks direct review of the Board’s decision.
¶ 79 II. ANALYSIS
¶ 80 The Board of Trustees argues we should reverse the Board’s decision because it
was based on a clearly erroneous determination that department chairs at its Springfield campus
are neither managerial employees, supervisors, nor confidential employees as defined by the Act.
Both the Board and the Union disagree.
¶ 81 A. The Act
¶ 82 The Act grants all educational employees the right to engage in collective
bargaining. 115 ILCS 5/3(a) (West 2016). It excludes from the definition of “ ‘[e]ducational
employee’ ” those who are managerial employees, supervisors, or confidential employees. Id.
§ 2(b). Managerial employee, supervisor, and confidential employee are terms specifically
defined by the Act. Id. § 2(g), (n), (o).
¶ 83 B. Standard of Review
¶ 84 In reviewing whether the Board erred in determining the department chairs are
neither managerial employees, supervisors, nor confidential employees as defined by the Act, the
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parties contend we should apply the clearly erroneous standard of review. We agree. The Board
of Trustees’ argument requires us to consider the Board’s application of the facts to the pertinent
statutory definitions or exemptions. That is, we are presented with a mixed question of fact and
law, which warrants application of the clearly erroneous standard of review. Board of Education
of Glenview Community Consolidated School District No. 34 v. Illinois Educational Labor
Relations Board, 374 Ill. App. 3d 892, 899, 874 N.E.2d 158, 164 (2007). We will reverse the
Board’s decision only if its determinations concerning the applicability of the statutory
definitions or exemptions are clearly erroneous. Id. A determination will be deemed clearly
erroneous if we, based on the entire record, are “ ‘left with the definite and firm conviction that a
mistake has been committed.’ ” (Internal quotation marks omitted.) Id. (quoting AFM Messenger
Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 393, 763 N.E.2d 272, 280-
81 (2001)).
¶ 85 C. Board of Trustees’ Burden
¶ 86 Because the pertinent statutory definitions or exemptions preclude educational
employees from exercising the panoply of rights set forth in the Act, we construe them narrowly.
One Equal Voice v. Illinois Educational Labor Relations Board, 333 Ill. App. 3d 1036, 1042,
777 N.E.2d 648, 653 (2002). Additionally, the Board of Trustees, as the party asserting the
exemptions, had the burden of producing sufficient evidence to support its position. Board of
Education of Glenview Community Consolidated School District No. 34, 374 Ill. App. 3d at 899.
¶ 87 D. Managerial Employees
¶ 88 The Board of Trustees contends we should reverse the Board’s decision because it
was based on a clearly erroneous determination that the department chairs are not managerial
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employees. The Board of Trustees asserts the record shows the chairs are predominantly engaged
in executive and management functions and charged with the responsibility of directing the
effectuation of management policies and practices.
¶ 89 To resolve this issue, we turn to the statutory language and the case law and
administrative decisions applying that language. In addition, because an identical definition for
“ ‘[m]anagerial employee’ ” can be found in the Illinois Public Labor Relations Act (5 ILCS
315/3(j) (West 2016)), we consider case law applying that language. See Chicago Teachers
Union v. Illinois Educational Labor Relations Board, 296 Ill. App. 3d 785, 791, 695 N.E.2d
1332, 1336 (1998).
¶ 90 Section 2(o) of the Act (115 ILCS 5/2(o) (West 2016)) defines “ ‘[m]anagerial
employee’ ” as
“an individual who is engaged predominantly in executive and
management functions and is charged with the responsibility of
directing the effectuation of such management policies and
practices.”
Accordingly, to be excluded from collective bargaining as a managerial employee, department
chairs must be (1) engaged predominantly in executive and management functions and (2)
charged with the responsibility of directing the effectuation of management policies and
practices.
¶ 91 The first part of the statutory definition of managerial employee relates to what an
employee does—the “ ‘executive and management functions.’ ” (Internal quotation marks
omitted.) American Federation of State, County, & Municipal Employees (AFSCME), Council
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31 v. State, 2014 IL App (1st) 130655, ¶ 20, 25 N.E.3d 52 (Department of Central Management
Services, respondent (Illinois Commerce Commission)). While the Act does not define
“executive and management functions,” we have previously found those functions relate to
“ ‘running an agency or department, such as by establishing policies and procedures, preparing
the budget, or otherwise assuring that the agency or department operates effectively.’ ”
Department of Central Management Services v. Illinois Labor Relations Board, State Panel,
2011 IL App (4th) 090966, ¶ 134, 959 N.E.2d 114 (quoting Department of Central Management
Services/Illinois Commerce Comm’n v. Illinois Labor Relations Board, State Panel, 406 Ill. App.
3d 766, 774, 943 N.E.2d 1136, 1143 (2010)).
¶ 92 The first part of the statutory definition also requires the employee to be
“engaged predominantly” in executive and management functions. To determine whether an
employee is engaged predominantly in executive and management functions, we look not only to
the time spent on those functions but also their significance. American Federation of State,
County, & Municipal Employees (AFSCME), Council 31, 2014 IL App (1st) 130655, ¶ 29. That
is, we consider whether the functions “are ‘uppermost in importance and influence.’ ” Chicago
Teachers Union, 296 Ill. App. 3d at 793 (quoting Board of Trustees of Southern Illinois
University, 5 PERI ¶ 1197).
¶ 93 The second part of the statutory definition relates to how the agency or
department is run—whether the employee in question has the responsibility of directing the
effectuation of management policies and practices. Department of Central Management Services,
2011 IL App (4th) 090966, ¶ 135. “[M]anagerial employees do not merely recommend policies
or give advice to those higher up the employment chain, ‘they actually direct the governmental
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enterprise in a hands-on way.’ ” Id. (quoting Department of Central Management
Services/Illinois Commerce Comm’n, 406 Ill. App. 3d at 775). The requisite responsibility to
confer managerial status will be found where an employee has (1) the independent authority to
establish and effectuate policy, or (2) the ability to make recommendations that are almost
always implemented. Id.; see also Office of the Cook County State’s Attorney v. Illinois Local
Labor Relations Board, 166 Ill. 2d 296, 301, 652 N.E.2d 301, 303 (1995) (“ ‘[A]n employee may
be excluded as managerial only if he represents management interests by taking or
recommending discretionary actions that effectively control or implement employer policy.’ ”
(quoting National Labor Relations Board v. Yeshiva University, 444 U.S. 672, 683 (1980))).
¶ 94 In Board of Regents of the Regency Universities System v. Illinois Educational
Labor Relations Board, 166 Ill. App. 3d 730, 737-43, 520 N.E.2d 1150, 1154-59 (1988), this
court considered whether the Board erred in concluding center directors employed at Sangamon
State University were not managerial employees as defined by the Act. The center directors,
along with other staff, operated the university’s public affairs centers. Id. at 737. In concluding
the center directors were not managerial employees, the Board reasoned, in part, the (1)
“directors’ authority over the day-to-day operations [was] restricted by other entities, and their
authority over personnel [was] substantially ‘diffused’ through the entire faculty in the process of
faculty self-governance” and (2) directors shared “a ‘community of interest’ with other [faculty
members], retain[ed] rank as tenured faculty in academic programs, and spen[t] much of their
employment time performing duties similar to those of other faculty.” Id. at 739.
¶ 95 In reviewing the Board’s decision, we acknowledged the diffusion of governing
authority practiced by many institutions of higher learning and agreed with the Board’s finding
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that center directors shared a community interest with other faculty. Id. at 742-43. However, we
concluded the center directors’ duties and responsibilities were such that they should “not be in a
position requiring them to divide their loyalty to the administration of [the university] with their
loyalty to an exclusive collective-bargaining representative.” Id. at 743. We found the center
directors performed a variety of managerial functions through their responsibilities and duties,
which, in part, related to (1) maintaining the day-to-day operations of the centers, (2) seeking
personnel for the center and having absolute power to reject any faculty member from working at
the center, (3) seeking grants and projects, (4) negotiating on behalf of the university with
outsiders and faculty over the shape and focus of projects and having the responsibility of
assuring projects were completed within the objectives and capabilities of the center, (5)
rejecting proposed projects, (6) having the ability to change the focus of a center, (7) matching
faculty with projects, and (8) monitoring projects conducted by faculty. Id. at 742.
¶ 96 In reversing the Board’s decision, we acknowledged the Board’s decision in
University Professionals of Illinois, Local 4100, 2 PERI ¶ 1069 (IELRB 1986), which rejected an
ALJ’s determination that department chairs at Illinois State University and Northern Illinois
University should be excluded from inclusion in a bargaining unit consisting of tenure-system
faculty because they were both supervisors and managerial employees as defined by the Act.
Board of Regents of the Regency Universities System, 166 Ill. App. 3d at 742. Without
addressing the correctness of the Board’s decision, we found it to be distinguishable. We found,
unlike the department chairs which the Board found to represent the faculty and its concerns at
the higher level of administration, the center directors represented the higher administration in
negotiation and otherwise dealing with the faculty and the public. Id. Because the Board’s
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decision was distinguishable, we did not consider it further.
¶ 97 Shortly after issuing our decision in Board of Regents of the Regency Universities
System, the Board issued a decision in Board of Trustees of Southern Illinois University, 5 PERI
¶ 1197. In that decision, the Board addressed, in part, whether department chairs employed at
Southern Illinois University at Carbondale, Southern Illinois University at Edwardsville, and
Southern Illinois University at Edwardsville School of Dental Medicine were managerial
employees as defined the Act. The majority of the Board initially acknowledged the question
presented was a “difficult” one. The majority concluded the chairs were not managerial
employees, in part, because (1) they represented their departments to higher administration, (2)
their authority emanated from the faculty as they were subject to recall and votes of confidence
by the faculty, and (3) their authority was diffused by concurrent faculty votes and
recommendations or by review by upper management. The majority also found several of the
chairs’ duties were ministerial, rather than executive or management, functions. In part, the
majority found the chairs’ duties in assigning and scheduling classes was ministerial as it was a
routine activity, which relied on faculty preferences, and the chairs were powerless to force a
faculty member to teach a particular course. The majority also found the chairs’ role in
disciplinary matters to be negligible, if not nonexistent, given the rarity of such action and the
fact the dean was ultimately responsible for investigating and imposing discipline. The majority
concluded the predominant function of department chairs was neither executive nor management
but rather ministerial and academic.
¶ 98 The Board’s dissenting member found the department chairs to be managerial
employees as defined by the Act. The dissent found the chairs made a significant number of
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independent recommendations on important personnel and budgetary matters. In part, the dissent
highlighted the chairs’ roles in (1) hiring, evaluating, and terminating adjuncts; (2) evaluating
graduate assistants; (3) representing the university in the first step of the grievance process; (4)
serving as the fiscal officers of departmental budgets; and (5) representing the department and
the university in accreditation matters. While the dissent agreed with the majority’s conclusion
the chairs served the faculty, the dissent also found the chairs served the higher administration.
In effect, the dissent found the chairs served two masters: the faculty and the higher
administration. In comparing the chairs’ executive and management functions against their other
faculty duties and responsibilities, the dissent found the chairs were predominantly engaged in
the executive and management functions and those functions showed they were charged with the
responsibility of directing the effectuation of management’s policies and practices. In reaching
this conclusion, the dissent distinguished University Professionals of Illinois, Local 4100, 2
PERI ¶ 1069, noting, unlike the chairs in that case which did not independently and effectively
make recommendations in important employment areas, the chairs’ recommendations were often
effective. The dissent found our prior decision in Board of Regents of the Regency Universities
System, 166 Ill. App. 3d 730, “compel[led]” the conclusion the chairs were managerial
employees as the center directors in that case had comparable, but generally far less, authority
than the chairs. Board of Trustees of Southern Illinois University, 5 PERI ¶ 1197 (dissenting
opinion).
¶ 99 In the present case, the Board, relying primarily on its prior decision in Board of
Trustees of Southern Illinois University, 5 PERI ¶ 1197, concluded the department chairs are not
managerial employees as defined by the Act. Again, the Board’s reasoning for its conclusion is
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as follows:
“[T]he department chairs at [the] University’s Springfield campus
do not have the authority and discretion which are necessary to
establish managerial status. Rather, the University Statutes and the
testimony establish that *** the faculty share authority with the
chairs. In addition, *** the chairs’ role is to represent the
departments to higher levels of administration rather than the
reverse. The chairs’ role in the college cabinets is to act as liaisons
between the deans and the department faculty rather than to
exercise the type of independent authority to determine the means
by which the University’s goals will be achieved which is
necessary for managerial status. In any event, the department
chairs’ participation in the college cabinets is not ‘uppermost in
importance and influence’ among their functions. The chairs’
predominant role is to work with the faculty in operating the
departments.”
¶ 100 In reaching its decision, the Board did not make an express finding as to whether
the chairs perform executive and management functions. The Board appears to concede the
chairs perform at least some executive and management functions, given its comments
concerning the chairs’ participation in college cabinets (leadership committees) and its finding
indicating “[t]he chairs predominant role is to work with the faculty in operating the
departments.” (Emphasis added.) See also Department of Central Management Services, 2011 IL
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App (4th) 090966, ¶ 134 (finding executive and management functions include running a
department and assuring it operates effectively). Before this court, neither the Board nor the
Union address whether the chairs perform executive and management functions.
¶ 101 Based on the record before us—and in the absence of any argument to the
contrary—we conclude the department chairs perform executive and management functions. As
the Board of Trustees asserts, chairs are responsible for (1) hiring, evaluating, and removing
adjuncts; (2) controlling their departmental budgets; (3) ensuring various academic and
accreditation reports are completed; and (4) maintaining the student population. In addition,
chairs (1) attend leadership meetings; (2) oversee the hiring, supervising, and evaluating of
graduate assistants; (3) ensure course schedules are prepared and submitted to the dean; and (4)
handle disputes between faculty and complaints raised by students and University support staff.
In short, the chairs are responsible for running their departments. See Board of Regents of the
Regency Universities System, 166 Ill. App. 3d at 742 (finding the center directors performed
managerial functions based on their responsibilities and duties relating to running the
university’s public affairs centers).
¶ 102 In reaching its decision, the Board found “the department chairs’ participation in
the college cabinets [(leadership meetings)] is not ‘uppermost in importance and influence’
among their functions.” It also, again, found “[t]he chairs’ predominant role is to work with the
faculty in operating the departments.” Before this court, the Board asserts:
“[T]o the extent that chairs exercise independent authority to hire
or discharge adjuncts, those functions are not ‘uppermost in
importance and influence.’ [Citation.] Chairs thus are not
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predominately engaged in that activity. Rather, *** their
predominant role is to work with the faculty in operating the
department.”
The Union argues, citing our decision in Board of Regents of Regency Universities System, the
managerial exclusion does not apply because the evidence showed the chairs spent a majority of
their time on faculty, as opposed to managerial, duties.
¶ 103 We initially reject the Union’s argument as it is contrary to established case law.
In Board of Regents of the Regency Universities System, 166 Ill. App. 3d at 743, we noted, given
the fact the center directors had half-time faculty appointments, the evidence was close as to
whether they spent a sufficient portion of their time on managerial duties to be considered
engaged predominantly in executive and management functions. However, because the
predominance issue had neither been addressed nor considered by the Board, we did not address
the issue further. Id. Thereafter, in Board of Trustees of Southern Illinois University, 5 PERI
¶ 1197, the Board addressed the “predominance” issue. It found “ ‘predominantly’ ” was not a
pure quantity of time measurement—it was not a “50-percent-plus-one-test.” Id. Rather, it
included a consideration of whether the management and executive functions were “ ‘uppermost
in importance and influence.’ ” Id. Our courts have since adopted the Board’s predominance
analysis. See Chicago Teachers Union, 296 Ill. App. 3d at 793 (citing Board of Trustees of
Southern Illinois University, 5 PERI ¶ 1197); American Federation of State, County, &
Municipal Employees (AFSCME), Council 31, 2014 IL App (1st) 130655, ¶ 29. Accordingly,
even if we found the record supported a finding the chairs spent a majority of their time on
faculty duties, that finding alone would not preclude a finding of managerial status.
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¶ 104 As to the Board’s findings and argument before this court, we again note the
Board does not address the majority of the executive and management functions performed by
the department chairs and whether those functions can be considered uppermost in importance
and influence. In its written decision, the Board found “the chairs’ participation in the college
cabinets [(leadership meetings)] is not ‘uppermost in importance and influence’ among their
functions.” Before this court, the Board further argues the chairs’ authority to hire and discharge
adjuncts is “not ‘uppermost in importance and influence.’ ” We reject the Board’s conclusory
findings and argument. On a campus which employs 193 full-time faculty members and 165
adjunct faculty members, we find the function of hiring, evaluating, and discharging the adjunct
faculty to be of the uppermost in importance and influence. We also find the chairs participation
in college cabinet meetings, where discussion occurs concerning the college budgets, the
direction of the college, faculty resources, and strategic and policy issues, to be of the uppermost
in importance and influence. These executive and management functions, amongst others, have a
direct and critical impact on the University, the campus, and the individual colleges and
departments. While the evidence varied as to the amount of time chairs spent on their
departmental duties, it is clear those duties were of the uppermost in importance and influence.
As the Board of Trustees argues, we find the record shows department chairs are predominantly
engaged in performing their executive and management functions.
¶ 105 In reaching its decision, the Board, relying primarily on its prior decision in
Board of Trustees of Southern Illinois University, 5 PERI ¶ 1197, found department chairs did
not have the requisite responsibility for running their departments to be considered managerial
employees. Specifically, the Board found chairs (1) shared their decision-making authority with
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other faculty members, (2) represented the departments to higher levels of administration rather
than the reverse, and (3) did not exercise the type of independent authority—at least as it related
to their participation in college cabinets—to determine the means by which the Board of
Trustees’ goals would be achieved. Before this court, the Board, continuing to rely on Board of
Trustees of Southern Illinois University, 5 PERI ¶ 1197, asserts the chairs do not meaningfully
direct the effectuation of departmental policies and practices given the fact the (1) University
system operates under a model of shared governance, (2) chairs’ authority emanates from the
faculty, and (3) chairs often work collaboratively with the faculty to fulfill the academic mission
of the department. The Union makes similar assertions.
¶ 106 We recognize the diffusion of governing authority practiced by many institutions
of higher learning and agree with the Board’s finding the department chairs share a community
interest with other faculty in fulfilling the academic mission of their respective departments.
However, as we found in Board of Regents of the Regency Universities System, 166 Ill. App. 3d
at 742-43, a community interest and the diffusion of governing authority alone do not preclude a
finding of managerial status under the Act. See also Department of Central Management
Services, 2011 IL App (4th) 090966, ¶ 186 (“[E]xclusivity in the implementation of management
policy is not a requirement under that Act.”).
¶ 107 The evidence showed the department chairs had independent authority to establish
and effectuate departmental policy. As provided in the University Statutes, chairs are
“responsible for the formulation and execution of departmental policies.” We acknowledge many
chairs collaborate with their fellow faculty members in fulfilling their executive and management
duties. However, the chairs are not required to do so. That is, the chairs exercise their
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independent judgment in deciding when it is appropriate or necessary to collaborate with their
colleagues. The chairs’ consultation does not abdicate their independent judgment. The chairs
alone are responsible for fulfilling their executive and management duties. The means by which
the chairs execute their duties establish and effectuate departmental policy. The execution of
these duties has a direct impact on the working conditions of the tenure-system faculty. That is,
the chairs have the power to affect the working conditions of their colleagues. While several of
the chairs’ decisions are reviewed by higher level administration, the evidence shows the chairs’
decisions are often effective. See Department of Central Managment Services, 2011 IL App
(4th) 090966, ¶ 135 (noting managerial status will be found where an employee has the ability to
make recommendations that are almost always implemented). Additionally, while the faculty
may move to remove a sitting chair, a dean may object to such removal, which would require the
faculty to take additional procedures to attempt to override the dean’s objection.
¶ 108 The evidence also showed the department chairs are responsible with effectuating
University and college policies. As provided in the University Statutes, chairs are “responsible
for *** the execution of [u]niversity and college policies insofar as they affect the department.”
We agree with the Board’s finding the chairs represent the faculty before the Board of Trustees.
However, the evidence also shows the chairs represent the Board of Trustees before the faculty.
While a department’s faculty selects a proposed chair, the dean must review that selection and
the chair must receive a recommendation of appointment by the president and chancellor/vice
president. As Taylor explained, while the appointment of a chair involved significant
collaboration with a department’s faculty, the Board of Trustees did not allow the faculty to
directly appoint a chair because the chair was also responsible for carrying out the agendas of the
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college and the Board of Trustees. The evidence shows the chairs currently resolve grievances,
and it is expected they will continue to do so under the first contract of the tenure-system faculty
bargaining unit. That is, the chairs are in a position to resolve grievances in the interest of the
Board of Trustees. At college cabinet meetings, the chairs discuss with the dean various issues
concerning the college, and the dean may task the chairs with handling assignments delegated
from the provost’s office. Chairs are also responsible for representing the University in
accreditation matters. Importantly, unlike a department’s faculty, a dean has the ability to
unilaterally remove a sitting chair.
¶ 109 We find the record demonstrates the department chairs have the requisite
responsibility of directing the effectuation of management policies and practices to be considered
a managerial employee. In sum, the record shows department chairs are managerial employees as
defined by the Act. The Board’s decision to the contrary is clearly erroneous.
¶ 110 Our supreme court has stated the managerial exclusion “is intended to maintain
the distinction between management and labor and to provide the employer with undivided
loyalty from its representatives in management.” Chief Judge of the Sixteenth Judicial Circuit v.
Illinois State Labor Relations Board, 178 Ill. 2d 333, 339, 687 N.E.2d 795, 797 (1997); see also
Chicago Teachers Union, 296 Ill. App. 3d at 793-94. As it stands, the Board’s decision requires
the department chairs to divide their loyalty between the University’s administration and the
tenure-system faculty bargaining unit. Such a decision cannot stand.
¶ 111 III. CONCLUSION
¶ 112 We reverse the Board’s decision.
¶ 113 Reversed.
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