CHICAGO — A panel of Illinois appellate judges has ruled that six directors at the Illinois Commerce Commission can't be represented by a union because they are managerial employees.

The Jan. 22 decision, which was authored by Justice Mary Mikva of the Illinois First District Appellate Court in Chicago, upholds a decision by the Illinois Labor Relations Board barring six employees from being including in a bargaining unit for the American Federation of State, County and Municipal Employees. Justices Daniel J. Pierce and Sheldon A. Harris concurred with the decision.

The dispute began in 2010 when the union filed a petition with the board seeking to include nine ICC directors in one of its bargaining units. The Illinois Commerce Commission, however, objected to the petition, arguing the directors were excluded from collective bargaining because they were considered managerial employees, supervisory employees and confidential employees under the Illinois Public Labor Relations Act.

Though the union ultimately conceded that three of the nine directors should not be included in the bargaining unit, the dispute over the remaining six directors moved before an administrative law judge (ALJ).

The six directors in question were Torsten Clausen, director of the office of retail market development; Jerry Oxley, director of information technology services; Peter Muntaner, director of the consumer services division, Harry Stoller, director of energy; Joy Nicdao-Cuyugan, director of financial analysis; and Jim Zolnierek, director of telecommunications.

In 2013, the ALJ held that three of the remaining six must be excluded from the unit. The other three, however, were “public employees with full collective bargaining rights,” according to the ALJ.

The ICC and union both objected, which landed the case before the state Labor Relations Board. The board ultimately found that “all six directors were managerial employees,” according to the appellate court decision.

The union appealed to the Illinois First District Appellate Court, arguing the board used improper legal standards when interpreting the definition of “predominantly” in the Labor Relations Act as “superiority in importance or numbers.”

While the Labor Relations Act stipulates the employee in question has to be “engaged predominantly in executive and management functions,” the appellate justices agreed with the board’s decision.

“We reject the union’s first argument that it was improper for the board to construe the word ‘predominantly’… to mean either ‘superiority in importance or numbers,’” Mikva wrote in the decision. “[W]e concluded that the amount of time an employee spends on managerial tasks is not determinative of the employee’s managerial status.”

Additionally, the union contended that the board used “an improper legal standard when it concluded that two of the directors… were managerial employees based solely on their function as informational ‘gatekeepers,’” according to the appellate court decision.

Mikva said the panel of appellate judges used the two-part test in the Labor Relations Act to determine if the labor board erred in deciding if the six directors are managerial employees.

The first part holds the employee in question must be “engaged predominantly in executive and management functions” and “charged with the responsibility of directing the effectuation of management policies and practices.”

“Courts have construed the phrase ‘executive and management functions’ in the first part of the test to mean those functions that ‘relate to running a department,’ including ‘formulating department policy, preparing the budget, and assuring efficient and effective operations of the department,’” Mikva wrote. “An employee is not managerial simply because he or she ‘exercise[s] professional discretion and technical expertise’ or performs duties that are ‘essential to the employer’s ability to accomplish its mission.’”

The second part of the test measures the employee’s authority to make policy decisions.

“‘[A] managerial employee not only has the authority to make policy but also bears the responsibility of making that policy happen,’” Mikva wrote. “Such an individual ‘oversees or coordinates policy implementation through [the] development of means and methods of achieving policy objectives, determines the extent to which the objectives will be achieved and is empowered with a substantial amount of discretion to determine how policies will be effected.’”

The appellate judges also rejected the union’s second argument.

“… Although the board relied on Mr. Clausen’s role as an informational gatekeeper, its conclusion that he was a managerial employee can be upheld on the alternative basis that the statute that created his job makes it clear that he is a manager as a matter of law,” Mikva wrote.

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