important check on overreaching from the illinois labor relations for the overriding principle the highs and each of the arguments i'm going to talk about today is this court's repeated policy statement that bargaining rights are to be extended broadly and therefore exceptions to those bargaining rights should be narrowly construed for example when the court is called upon to determine whether someone's a confidential employee whether they have access to labor relat issues it applies that principle that applies the presumption that someone should have are any rights unless those bargaining rights are very clearly excluded from a clear policy exception most recently the court di thousand and fifteen bill at first one five zero seven nine four and this comes back to a supreme court case the city indicator one twenty two  so repeated throughout this argument is that when given two choices one to extend bargaining rights and one to limit this court should adopt the principles that extend those bargaining rights now i want to talk just for a moment about the standard of review much of what the union is asking this court to do is to look at the statute and interpret it in a vacuum without regard to any facts relevant to this case we are asking what does this not only exception language mean we're asking how these three components of the statute that to get those are pure questions of law and therefore no deference to the labor board decision is appropriate and this court should review those issues you know for three broad topics that i'm going to talk about today one is this the only exception language too is how these three parts of this provision of the statute fit together and three is the serious constitutional issues raised by this case if that statute is read the way that the board and the secretary of state suggests so i'd like to start with the nikolay exception language the union has repeatedly said that this nikolay exception language contained in the statute should be read in accordance with the case law from which the statute was taken and that is a well held principle jurisprudence on the other hand the secretary of state and the board have been totally unclear on what definition should apply to that that nikolay language have said that it means it really comes down to planning and the central question is does this individual who's being an analyze have the authority to determine what is to be done within the department and the dividing line is that those who fit the mcauley exception get to determine what is to be done within the office those who don't are responsible for implementing the plans determined by higher ups and under that analysis there can be no question that these drivers facility managers do not meet the ni not plan what is to be done within the secretary of state in its struggle to come up with an alternative definition for watt this language should mean the board's brief really emphasizes why it has no alternative definition so if you look at page forty four and forty five of the board's brief the board says that someone fits this nick only exception if they have more than ministerial instead they have this language it's in section three and so that can't be right they later say on page forty five that somebody will get this inequality exception if they have the authority to determine the manner in which those policies are and there's no evidence in this record that the fms make those plans and then lastly they say that somebody may fit the only exception if their duties involve fulfilling the department's mission of providing a consistent and satisfactory customer service well who in the world and the secretary of state's employ doesn't exist to serve the department's mission of providing consistent and satisfactory customer service  everybody presumably employed by the secretary of state so in going through what they say the cynically exception means they give no acceptable alternative definition if you want  so the reason i spend a lot of time on that is because this court has a choice and the court has a choice between a flying a very clear very well developed set of rules and princip take the clear path take the one that gives parties like me parties like the secretary of state an actual idea who will meet this test and who won't meet it going forward so that we believe is one of the most important reasons that you should interpret this language in accordance with the case law from our it was adopted and as i said the case farming sperry clear that you have the right to do that in fact there's a presumption that when the general assembly adopts language it knows what it's adopting and it is adopting the meaning that the court prescribe to that language adopts and going back to the point that i sat at the beginning another reason to interpret this the way that the union suggest we live in a state where the public policy is that bargaining rights should be extended and given a choice between the calling means whatever the labor board management wants it to mean or that it means a very narrow exception written into the law the one that extends broader bargaining rights broadly is that narrow exception so in response to all of these arguments all the board sat us all the secretary of state has said is there is a because in the provision right after this provision it says root and exempt employees are also x and they say surely it didn't mean to put route an exempt up here and then route an exempt again right down here but as we set forth in our brief we don't believe there's a redundancy because those are two alternative pasts with separate components that have to be met and we also don't believe there's a redundancy because in putting that nikolay language in the force first provision there's  and analysis based on three hundred forty cases of learned decisions about what titles fit this classification and lockdown so we don't think there is redundancy between those two provisions but even if there is forward because our interpretation extends bargaining rights brought in because frankly it just makes more sense it makes sense that the general assembly did not pull this very peculiar phrase out of thin air it pulled it from them and therefore it should be interpreted in accordance with  where any court has determined that people who have the limited type of discretion that the afghans have that within the only exception they haven't found one because there is in fact the most on point case it's been a genocide in these proceedings as givens versus talks in missouri there are branch managers and branch managers do a lot of the same stuff that and if you run three those different factors that courts have relied upon it's clearly the fms don't fit within any of the first question asks whether they are at or near the top of the office holders here there's at least five layers of organization between them and the secretary of state they are not at or near the top the second factor is whether they have a role in determining how the budget for the public office she spent there is not one reference in this record to any budgetary responsibilities significant budgetary responsibilities or developing the budget for their office that the next factor is where whether there are specific examples of policies that they've been instrumental in implementing later in our brief we give a block well of the whole evidence presented here and with regard to these the fms and put into policy and i'll tell you it wasn't impressed that it was said that there are sometimes meetings that the chief of staff holds with them and in those meetings the chief of staff wants to tell them things and while he's there the he also takes their employer but that is not creating policies in fact in one of our earlier briefs we said if giving the opportunity to give employees is enough to make someone the only exams then i'll make the next factor is whether these things have frequent interactions with public officials other top advisors and here again i go back to that block well there was no evidence presented about the frequency or the import of these meetings that they have a higher ups just that they exist the next factor is whether there's an independent expenditure authority here there is no evidence that you have them have significant independent expenditure of your last factors whether there's any significant supervisory authority over major terms and conditions of employment firing setting wages hiring there's no evidence in the record that the f m stool and so when we go through those factors  so after that i'd like to move to the second point of the union's argument which is how these three components of the statute together or at least of this provision that and the union said sense the outside that the way that this provision should be rad is by applying to individuals who hold the classification of executive won or higher and either that within the nic only exception or else are exempt under the m and let me tell you why i believe that we have the right interpretation because before hearing when we were arguing about whether d f tens or even him impacted by these amendments the union set forth its position which i just explained to you and the secretary of state agreed with us  so the party who is trying to exclude these folks in every and just in the world to read this provision as nearly as possible union rights read it and said yeah the unions got it right the union interpreted this provision correct another reason why i think this provision should be read the way that the union suggests is because if you look at every other instance in these amendments where the general assembly and tended a this war that or that option a choice as to between three or more items it separately and numerator by either roman numerals in some places letters and others numbers and others but they were always a n and so we know that when the general assembly intended a this or that or that option at a numerated the different options it did not do so in this provision had it done so then the board would be correct the secretary state would be correct but it didn't do so and then the last reason that we believe this should be interpreted the way that the union's it just goes back to that first point that i made which option grants bargaining rights more properly which is the policy of the state of illinois and the option that grants bargaining rights more broadly is the one that limits this exclusion to executives who also meet other criteria now finally and before i conclude i just want to say a few things about the constitution should this court disagree with the union's interpretation of how these provisions that to get out and say that executives want one liar are automatically excluded then we have an unconstitutional statu and that statute is unconstitutional because the evidence in the record is the secretary of state's witness and self's that executives one in chicago who work in drivers and they made a big point of that at the hearing to talk about all the similarities between these two types but if they do the same thing if the positions are interchangeable as the secretary  you now there are protections in the illinois constitution of equal protections and against special legislation there has to be a reasonable basis for distinctions that cannot be  and if this provision is read to save the only executives lose their union that is an arbitrary classification this removes two titles and should be held unconstitutional and i should say in closing the that's yet another reason that the provisions when we go back to the second point should be read as a multipart pass as opposed to want but automatically excludes individuals if they fit into any one of the three can that's all you have  in april twenty third team the board's decision here is consistent with the language of the provision at issue with the statute gasohol and with the intent of the legislature when it and they acted public yeah and the board's decision should be affirmed board's interpretation of this provision is the correct interpretation be construed as a three part test where if employees in a of the first of the secretary of state's office meet one of the three parts of the test only two of which are addition they are excluded from collective bargaining or followed fundamental canons of statute of statutory construction when it came to its determination the most fundamental of which is to give effect to the intent of the legislature when it enact in this provision within ninety seven eleven seventy two and it's important to understand yes  a couple of years leading up to the acts unionization of the state workforce had reached ninety six percent higher than any other state in the union and the general assembly was aware of problems that were being brought to it by the state agencies and by constitutional officers who were faced with that having me on a jury all type person now in their including allowing the governor to make designations of certain employees under his jurisdiction who are managerial and rightly should be excluded from under the secretary of state's jurisdiction here is also included in the within exclusions provided for the comptroller and the treasurer in the office of the attorney general however they are provided separately so that this is the only officer has all three obviously consistent with the other exclusions criteria excluding employees under the other constitutional officers it makes the statute needs to be grabbed yes these are three stand alone tests otherwise it creates an inconsistency between what is who is excluded and what the criteria is for secretary of state's employees who must be according to the union of executive one or two or higher and meet one of the other two criteria where as for instance with the attorney general you can be an attorney somebody with a long license and issues where there is room for principled disagreement and goals are the implementation it should not be the general simply could not have intended such this inconsistency in the statute when it was in acting all of these at the same time with regard to the second's criteria here it's important to realize that all of the cases the acts the union is relying on is language that the federal courts have given to it to determine whether or not party affiliation is an appropriate criteria to be considered in hiring firing other personnel decisions here the can't text is th m employees here are appropriately included in the bargaining unit and they used this language that the board of the general assembly provided as a mechanism to identify who these employees are the board is not charged with determining whether or not party affiliation is in say appropriate consideration for whether or mediately following provision applying to the secretary of state what employees are in or out it used it in other provisions other sections of the act clearly if the general should be given a different interpretation and that's what the board did here and it did it in the context of what is the general somewhat was the general assembly trying to do here when it enacted this legislation after it realized there was ninety six percent and climbing of a than fifty three thousand employee state employee work force with which was unionized and issues where there is room for principled disagreement on goals of their implementation whether the amendments or the act as interpreted by the board are constitutional and whether the dems hold the position classification of executive one  we respectfully submit that the answers to each of those questions is yes this is not an exaggeration to say that other than paying taxes perhaps one of the most regular interactions the public has with its government services is throughout obtaining beagle registrations driver's licenses and other related services for the secretaries of state office indeed the experience of going to the department of motor vehicles is a common side of all reference fortunately in the state of illinois due to the  the d f m service the public face of the secretary of state's office the d f m service the highest ranking employee in the downstate drivers services facilities they are responsible for providing driver services to illinois residen secretaries half they undeniably are responsible for overseeing the individual drivers facilities and ensuring that their operations comply with all of the department's policies and procedures is evident that the adam's job function is to ensure the overall effect due and efficient operation of the individual facilities to this in the d s m share the responsibility for the individual facilities day to day operational activities as stated by the director of the secretar state's downstate services in his testimony in this case mike there said the d s m to accord the captains of the ship and that is very similar to the language used by the sponsor of the a consider what a certain life said well i mean a good whether i think it i don't believe is a big word but in the event that you do i think that the legislative intent is is necessary or it's appropriate to look at true that the department does have certain guidelines on what documentation may be required certain circumstances but it's a d f m who's on the ground that in looking at the documentation determines whether or not their documentation is actually sufficient whether it meets the guidelines whether it's a forgery or whether it's otherwise inappropriate or appropriate term or whether or not an id or driver's license or other fishel state can be issued another example would be the one cited in the record with respect to the soul of the manager making the decision to open a facility on a day that was otherwise closed the driver so these are typically closed on sundays and mondays and open tuesdays saturdays and this particular case in order to help a mental health facility in the area whose residence didn't feel comfortable coming to the facility during regular business hours the facility manager made the decision to open the facility on monday in order to process  individuals she did talk to her supervisors because she had to make sure she had access to the computer systems which are normally shut down and that a secretary of state and then a decision that she made would have required the issu is you know whether or not to process individuals who come into just the syllabi towards the end of the day what services they need whether or not there's sufficient staff to you to handle that whether or not to keep staff over and i know that  the record also is clear that they have the authority to order overtime and the union has claimed well that's not really a discretion of all because overtime set forth in the collective bargaining well is true that the club by the agreement says if somebody works overtime this is what they get paid or if there is over overtime available here's who should be working it but it's the facility manager who doesn't have to get any prior approval whatsoever according to the record that determines whether or not on the first instance overtime is necessary and if how many people work it's only after the decision is made where they're committing the funds of the secretary of state that then the collective bargaining agreement becoming the place of kate who is supposed to stay at work it is true that the facility manager facility manager would determine whether or not this individual is worthy of staying on in the secretary of state's office or whether or not they should like those patients period the facility manager makes the recommendation to the regional manager and the record was clear the regional manager follows that sit further with respect to other forms of discipline so the managers have the authority to issue oral reprimands and they also have the authority to this to determine or the regional manager or any other people in the chain of command would never even know that this employee is performing subpar it's only if the facility manager makes them aware and even the union's own witness on this point which stand on the arguments we raise in our brief but i do want to point out his union has consistently tried to rely on the givens case as supporting the fact that these employees do not meet the county stand but the given this case which is a circuit case out of the serious state that their case was decided whether or not the facility manager whether or not they could still do their job appropriately if they're republican democrat or independent or no matter what their political affiliation the statute in this case that what you're being asked to decide is whether or facility managers in illinois can appropriately do their job when they're in the same union as a people that they supervise when they are the individual that's in charge of the facility and then  machines you heard about well this is the management so surely anybody who looks like a manager must be excluded because that was the legislative but i go back to those first cases that we're talking about the confidentiality exclusion exclusion for confidential reasoning you could say well the legislature really wanted to short of the confidential employees didn't have a union so anybody who looks like a confidential employee has to be out but that's not what this court has done the court decided no the presumption  individual should have bargaining rights and therefore the exclusion should be read merrily nothing about that has change now i don't know how anybody could make sense of the plain reading meaning of this provision of the act that i referenced as the only exception but to the extent that any sense can be gleaned from what i see is that individuals have to have meaningful input into government decision making what these folks do is they sometimes acts are same size and discretion in determining what best to do in their facilities but i think that's a far cry to say that that's a government decision making that's where i go back to the planning the policies for the department they don't plan the policies for the department which is a government decision they implement those policies and  room for principle disagreement i haven't referenced it yet but there are green there were so many policies that we couldn't give them to you all in paper form so we gave you a death there are probably six thousand pages minimum of policies that the director for the secretary of state said cover anything that could possibly happen in the facility you referred to it as there by these are not polls who develop policies they aren't able to determine on the fly what should happen within their facilities to the extent there's a question they go to those thousands of pages of policy i don't know that we do much good about squabbling about these particular areas of discretion the that mr bennett talked about but if i could spend a couple of minutes to his credit i think you did a very good job explaining the points and counterpoints but just to  policy that talks about how to determine if that's happened that has not been developing and thank god they can develop and determine on their own whether someone should get ninety they referenced the policy they don't make that decision themselves the decision to up i believe the testimony on the record is pretty clear about whether to service somebody at the end of the day the policy is that it's something simple you do it say over and do it if it's something more complicated you give them a rain check and ask them to come back and they can come to the front of the line when they come back that's in rafters this is not something that they have discretion over their policies and then discipline is opposing counsel was candid in admitting to you all if we get into the extensive decide we're talking about discharge suspensions to terminations by the higher somebody on the other end you have that happens at a much higher level than what they exercised them so it's so even under this plain meaning interpretation the best that they can have done it by is not important government decision making it is very important function