COOK COUNTY RECORD

Eight administrative law judges for the Illinois Commerce Commission will not be allowed to unionize after a state appeals court determined the power they hold to influence the ICC and shape its policies – if not set the policies outright - means they qualify as management under labor laws.

In an unpublished order issued earlier this month, a panel of the First District Appellate Court upheld a 2012 ruling of the Illinois Labor Relations Board (ILRB) to deny an attempt by public employee union American Federation of State, County and Municipal Employees Council 31 (AFSCME) to certify the eight ALJs as a collective bargaining unit.

The June 11 order was authored by Justice P. Scott Neville, with justices Michael B. Hyman and Mary Anne Mason concurring.

“We find that the ALJs direct the effectuation of the commission’s policies on utility regulation through their recommended orders and that the commissioners almost always adopt the ALJs’ recommended orders,” Neville wrote for the panel. “Therefore, we hold that the ALJs are managerial employees … and are barred by the managerial exception … from engaging in collective bargaining.”

The case arose in 2009, when AFSCME asked the ILRB to certify it as the bargaining unit representing the eight ALJs. In its ILRB filings, the union noted it already represented other workers employed by the ICC, and the eight ALJs wished to be included in that collective bargaining unit.

According to the panel's order, ALJs spend the bulk of their time – perhaps as much as 90 percent of their paid hours – “conducting hearings and issuing recommendations” on cases that come before the ICC, including those dealing with rate increases sought by regulated public utilities and consumer complaint cases, among others.

The ALJs' reports and recommendations from the hearings are then forwarded to the ICC, which decide the cases.

AFSCME maintained the ALJs, while presiding over cases brought before the ICC, do not form or set policy, as the commission can still vote to approve, reject or modify the judges' recommendations.

Initially, the ILRB agreed, certifying AFSCME to represent the ALJs.

However, shortly after, the Illinois Department of Central Management Services (CMS) appealed the decision, and a state appellate court reversed the ILRB decision and instructed it to reconsider the case to determine if, as CMS argued, the ALJs could be considered managerial employees under state labor law.

On remand, the ILRB in January 2012 denied AFSCME’s request, determining that the eight ALJs were management and thus, exempt from collective bargaining rights.

The ruling on remand was appealed, and the First District panel earlier this month upheld the ILRB’s decision, saying the ALJs are more than just mere advisors as they are actively engaged in shaping ICC policy.

On behalf of the panel, Neville pointed to evidence and testimony showing, on matters pending before the ICC, the eight ALJs were typically “the whole game” and “the main avenue by which the commission carries out its statutory duty to enforce laws related to public utilities.”

The justices also noted testimony indicating the ICC simply rubber-stamped the ALJs’ determinations in 99 percent of the cases before it. Between 2009 and 2011, for instance, Neville said the eight ALJs proposed action in 82 contested cases before the ICC. Of those, commissioners “changed three and overturned one.”

“Because the ALJs’ recommended orders assist the commissioners, it logically follows that the ALJs assist the commissioners in formulating policy,” Neville wrote. “Therefore, because the commission almost always adopts the ALJs’ recommended orders, the ALJs direct the effectuation of the state’s policies regarding public utilities.”