## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Secretary of

State v. Illin ois Labor Relation s Board, State Panel , 2012 IL App (4th) 111075

Appellate Court Caption THE SECR ETARY OF STATE, Petitioner, v. THE I L L I NOI S L AB OR REL ATI ONS BO ARD, STATE PANEL ; J ACAL YN J

. Z I MMERMAN, MI CHAEL HADE, MI CHAEL COL I
, AL BERT WASHI NGTON
, and J ESSI CA KI MBROUG H, the Members of Said Boa rd and Panel in Their Offic ial Capac ity O n ly ; J OHN F. BROSNAN, Ex ecutive Direc tor of Said Boa rd in His Offic ial Capac ity Only ; an d S ERVI CE EMPL OYEES I NTERNATI ONAL

UNI ON, L OCAL73, Respondents.

District & N o. Four th District Docke t No. 4-11-1075

Rule 23 Order

filed Rule 23 Order
withdrawn Opinion filed
Rehea ringdenied November 29, 2012

J anuar y 4, 2013 November

29, 2012
J anuar y 10, 2013

Held (No te : This syl lab us

con st it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Re

p ort er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The decision of the I llinois L abor Relations Boa rd cer tifying responde nt union as the exclusive barg aining repr esentative of a g roup of employ ees of the S ec re t ar y o f State with the title of “executives” based on the finding that the “executives” wer e not supervisors or manag ers under the I llinois Public L abor Relations Act was upheld, since the Secre tary failed
to prese nt evidenc e that the “executives” direc ted the eff ectuation of the Secre tary ’s policies.

Dec ision Under
Review Petition for revie w of order of I llinois L abor Relations B oard, State Panel, No. S-RC-11-006.J udg ment Affir med.

Counsel on Appea l J oseph M. Gag liardo and L awr ence J ay Weiner (a rgued), Special Assistant Attorney s Gene ral, of Chica g o, for pe titioner.

Susan M. Matta, of Chicag o, for responde nt Service Employ ees International Union, L ocal 73.

L isa Madig an, Attorney Gene ral, of Chicag o (Michae l A. Sco d ro , Solicitor Gene ral, and Christopher M.R. Turner (ar g ued), Assistant Attorney Gene ral, of counsel), for responde nt I llinois L ab o r Relations Boa rd.

Panel J USTI CE KNECHT delivere d the judgme nt of the court, with opinion. Presi ding J ustice Steigmann and J ustice Appleton concur red in the judgme nt and opinion.

OP INION

¶ 1 The Secre tary of State (Secr etar y ) seeks revie w o f a fi n al d ec i s i o n and order of the I llinois L abor Relat i o n s Board, State Panel (B oard)
, cer tifying Service Employ ees International Union, L ocal 73 (Union), as the ex clusive barg aining repr esentative of “appr ox imately

116” individuals employ ed by the Secr etar

y

. ¶ 2 T h e S ec re t ar y co n t en d s (1 ) t h e Boa rd lacke d jurisdiction to addre ss the Unio n ’s
repr esentation petitio n , an d (2) the Boa rd’s deter minations (a) the individuals wer e not supervisors under section 3(r) of the I llinois Public L abor Relations Act (L abor Act) (5 I L CS 315/3(r) (West 2010)) and (b) wer e not manag ers under section 3(j) of the L abor Act (5 I L CS 315/3(j) (West 2010)) we re c lear ly err oneous. We aff

irm.

¶ 3 I . BA CKGROUND ¶ 4 The Union is a l ab o r o rga n i zation as define d by section 3(i) of the L abor Act (5 I L CS 315/3(i) (W est 2010)). The Union repr esents a barg aining u nit that includes som e, but not all, employ ees with the title of executive I or executive I I

. The unit also includes employ ees with the following titles: acc ountant I V, acc ountant V, administrative assistant I
, administrative assistant I I
, a d mi n is tr a ti v e a s s is ta

nt I I I
, administrative cler

k, auto parts auditor supervisor, co m munications network technicia n, corpor ation specia list I I I
, driver fac ility

-2-manag er I
, driver fac ility manag er I I
, fac ility personne l office r, microfilm lab technicia n I I I
, motor car rier rec iprocity prorate audit o r, office operations supervisor, personne l office r I
, personne l office r I I
, personne l office r I I I
, printing equipment supervisor, private secr etar y I
, private se cre tary

I I , public service supervisor, a nd trainingspecia list. ¶ 5 The barg aining unit is cover ed under a collective barg aining ag ree ment that expired on J une 30, 2012. The Secre tary is a public employ er within section 3(o) of the L abor Act and

a unit of local g overnme nt under section 20 of the L abor Act (5 I L CS 315/3(o), 20(b) (West 2010)).

¶ 6 A. The Petition ¶ 7 I n J uly 2010, the Union filed an elec tion petition seeking to include 119 i n d i v i du al s employ ed by the S ec retary in its exis ting barg aining unit with the Secre tary

. (We note the Union’s petition soug ht the inclusion of 119 employ ees, but the Boa rd’s October 2011 order char acte rized the Union’s petition as see king only to add “a pproxi mately

116 employ ees.” The August 2011 rec ommended decision and order of the administrat i ve law judge (AL J ) explained while t he S ecr etar y contende d 119 employ ees were at i ssu e, o n e o f the Union’s exhibi ts, which was stipulated into evidenc e, listed only 116 employees.) The individuals all hold job desig n at i on of executive I or executive I I (her einaf ter ref err ed to collectively as Ex ecutives)

. L ater that month, the Union amende d the petition to a majority interest petition, providing car ds signe d by a majority

of employ ees. ¶ 8 On J uly 29, 2010, an AL J order ed the Secre tary to show cause why the petitioned-for unit should not be cer

tified. The AL J cautione d the Secre tary ag ainst rely ing on “vague, g ener alized testimony

or conte ntions as to an employ ee’ s job function.” ¶ 9 In August 2010, the Secre tary submitt ed its offe r of proof with respe ct to all positions at issue, arguing the Ex ecutives should be excluded from the proposed barg aining unit beca use of their supervisory status. See 5 I L CS 315/3(r) (West 2010). In support of its offe r of proof,
t h e S ecr etar

y attache d questionnaires that had been filled out by the supervisors of each Ex ecutive. ¶ 10 On May 4
, 2 0 1 1, a newly appointed AL J schedule d an oral hearing for May 23 to 25, 2011. That day
, the S ecr etar y filed a motion to dis m i s s , as serting the Board no longe r had jurisdiction over the matter beca use section 9(a- 5) of the L abor Act (5 I L CS 31 5 / 9 (a-5) (W est 2010)) require d the Boa rd to conclude the hear ing proce ss within 120 day s of th e filing of the Union’s majority interest petition. The Union also disputed the Boa rd’s failure
to resolve the matter within 120 day s, arguing beca use the 120-day due date had passed, the Boa rd should issue cer

tification nunc pro tunc to November 13, 2010. The AL J denied both parties’ motions, and the parties later rene wed their arguments at the administrative hear ing. ¶ 11 On May 18, 2011, the Secre tary submitt ed a p re h ea ri n g memorandum, adding as an additional argumen t 2 6 of the Ex ecutives should be excluded from the barg aining unit beca use they wer e manag eria l employ ees as define d by section 3(j) of the L abor Act (5 I L CS 315/3(j) (West 2010)). The Union objected, contending the Secre tary ’s manag eria l argument was untimely

and pre judiced the Union.

-3-¶ 12 B. The Administrative Hea ring ¶ 13 The Union and Secre tary ap p ea re d fo r an administrative hear ing on May 23, 2011, at which the AL J allowed the Se cre tary to proce ed on its manag eria l argument, with the require ment the Secr etar

y stipulate it was only

proce edingon the matter- of-f act test. ¶ 14 There afte r, the pa rties pre sented the f

ollowing e vidence

.

¶ 15 1. Gary Lazzerini’s Testimony ¶ 16 Gar

y L azzerini, direc tor of driver ser v i ce s (h ere inafter Driver Service s) for the metro

are a, testified as the Secre tary ’s sole witnes s

. Dr i v er S ervic es is one of the Secre tary ’s subsidiary divisions. I t maintains 25 fac ili t i es i n Chicag o and its collar counties and 105 fac iliti es in downstate I llinois

. Driver Service s issues and maintains the rec ords of driver’ s licenses and state i dentifica tion car ds and handles the s tate orga n donor and fede ral mot or voter prog rams. The parties stipulated L azzerini ’s t es t i m ony would be rele vant as to all Ex ecutives at issue. L azzerini’s testimony on direc t examination and cross-e x amination spanned 22 total pa g es of tra nscript and r evea led the followingfac ts.

¶ 17 a. Dire ctingEmploy ees ¶ 18 Ex ecutive I s ar e t y p i ca l ly assistant manag ers and executive I I s are ty pically fac ility
manag ers. In personne l hiera rchy
, Ex ecutives are subordinate to direc tors, deputy direc tors,

a d ministrator s, and zone manag ers. Be neath the Ex ecutives are public s e r v ic e r e p r e s e nta

ti v e s and cler ks. The number of employ ees eac h Ex ecutive supervises depends on the siz e of the fac ility at which the Ex ecutive works. The Ex ecutives ty pically do not have on-site superiors at their fa cilities. ¶ 19 Acc ording to L azzerini, the primary function of the Ex ecutives “is to direc t, manag e, and supervise the employ ees of the fac ility .” When asked what Ex ecutives direc t their employ ees to d o , L azzerini testified “they ’re direc ting them to do their job *** that’s in the job descr iption, they ’re direc ting them as fa r as the differ ent shifts, the differ ent brea ks, job assig nments, job duties.” He explained Ex ecutives assig n staff to differ ent work are as within their fa cilities, such as at the gree ter’s de sk, based on the ope rational ne eds of the f acility

. ¶ 20 Ov er al l
, L az z erini estimated the Ex ecutives spend 75% to 80% of their t i m e i n a supervisory

or mana g eria l function.

¶ 21 b. EvaluatingEmploy ees’ Perfor mance ¶ 22 Acc ording to L azzerini, the Ex ecutives evaluate probat i o n ary employ ees twice a y ear , and those evaluatio ns deter mine whether a probationar y employee become s a full-time employ ee. The Ex ecutives also evaluate nonprobationar y employ ees once a y ear , and those evaluations “[have] a signific ance ” in deter mining pay rais es an d promotions. L azzerini explained employ ee pay incre ases as a whol e are calc ulated acc ording to collectivebarg aining ag ree ments; howeve r, if an employee rec eives a score of two or below on a fourpoint s ca l e i n t wo evaluation periods, the employ ee may not rec eive a pay raise and could lose his job.

-4-¶ 23 After the Ex ecutives fill out employ ee evaluations, the depar tment of personne l review s the evaluations “to make sure that the justifications fit with the scoring

. ” T h e d ep artment bring s any problems with the evaluations to the Ex ecutives, who make chang es acc ording ly

. L azzerini testified zone manag ers a lso r eview the evaluations “ at times,” but the manag ers do not direc t the Ex ecutives “at all”; rathe r, the manag ers serve as a “sounding board” to the Ex ecutives.

¶ 24 c. Disciplining Employ ees ¶ 25 L azzerini testified Driver Service s has a prog ressive discipline sy stem which starts with

o ra l war nings, followed by written warning s, suspensions, and then discharg e. Ex ecutives initiate the disciplinary proce ss by identifying and bring ing to the administration’s attention
any disciplinary reque sts. Ex ecutives only have auth o ri t y to issue oral, verba l, or written

war nings but may rec ommend highe r disciplinary action. When an Ex ecutive rec ommends suspension, the direc tor conduc ts a g round-leve l inve stigation, obtains witness statements, and sends the investigation’s results to the personne l depar tment. L azzerini t es t i fi ed the Ex ecutives’ disciplinary

rec ommendations are acc epted a majority of the time.

¶ 26 d. SchedulingEmploy ees ¶ 27 Ac co rd ing to L azzerini, Ex ecutives also “handle t h e d ay -t o -d ay at t en d an ce ” o f employ ees. He explained the Se cr et ary ’s policy require s fac ility employ ees to submit

vacation reque sts toward the beg inning of the y ea r. The Ex ecutives then approve vacation
reque sts based on (1) seniority
, (2) the c ollective-ba rg ainingag ree ment’s re quired staf fing levels and allowanc e for two employ ees at a facility to be on vac ation at a g iven t ime, and (3) the workload at the fac ility

. L azzerini did not know if the Ex ecutives ever deny time off when the r equisite staff le vels are met.

¶ 28 2. Docume ntary Evidenc e ¶ 29 In addition to L az z er i n i ’s t es t i m o n y , the Secre tary submitt ed over 3,000 pag es of exhibi ts, consisting of (1) org anizational char ts; (2) employ ee questionnaires completed by supervisors of the Ex ecutives; (3) position descr iptions; (4) oral and written war ning notices made by the Ex ecutives; (5) perf ormanc e evaluations com p l et ed b y the Ex ecutives; (6) perf ormanc e evaluations about the Ex ecutives completed by their supervisors; and (7) various memoranda and emails purporting to s h ow the Ex ecutives direc ting their subordinates. Following the hear ing, the Secre tary also s ubmitted a char t providing information about 108 of the Ex ecutives, including their working titles, depar tments and lo ca t i o n assig nments, number of supervised subordinates, and whether they are the topranke d employ ees at their work locations. The document shows the Ex ecutives are all either
manag ers , a s s is ta

nt ma n g ers, or assistant manag ers curr ently serving as manag ers. Six ty -nine of the Ex ecut i v es are the highe st-ranke d employ ees at their fac iliti es. The Ex ecutives supervise be tween 1 a

nd 51 subordinates. ¶ 30 The Union stipulated to the authenticity of the Secre tary ’s documents, rese rving the rig ht

-5-to argue the applicability of the documents to the law. For its part, the Union offe red into

evidenc e the collective- barg aining ag ree ment betwee n the Union and the Secre tary as well

as a document providing inf o rm ati on about eac h Ex ecutive’ s supervisor. The Union’s document listed 116 Executives–73 executive I s and 43 executive I I s. ¶ 31 In J une 2011, the Union and Secre tary both filed p o s t h ea ri n g b ri ef s

. In his brief, the Secre tary expanded his manag eria l argume nt to argue that all of the Ex ecutives at issue should be excluded bec ause the y wer e mana g ers unde r the L abor A ct.

¶ 32 C. The AL J ’S Recommended D ecision ¶ 33 In August 2011, the AL J issued a rec ommended decision and order
, rec ommending the Boa rd g rant the Union’s petition. First, the AL J reject ed the Secre tary ’s jurisdictional
argument, con cl u d ing section 9(a- 5) of the L abor Act is not jurisdictional in nature

. L ikewise, the AL J reje cted the Union’s content i o n t he passag e of the 120-day deadline entitled it to nunc pro tunccer tification.

¶ 34 1. Supervisory Ex ception ¶ 35 Wit h respe ct to the Ex ecutives’ alleg ed supervisory status, the AL J found the Secre tary failed to show the Ex ecutives spe nd a pre pondera nce of their t ime perf

orming supervisory functions. Specifica lly
, the AL J found the Secre tary failed to show the Ex ecutives exercise supervisory authority when direc ting their subordinates beca use the evidenc e did not show the Ex ecutives’ direc tory role require d them to consistently use independe nt judgme nt. The AL J noted the Secre tary relied on conclusory testimony and survey statements and vague ref ere nces to examples in the record. The few specific examples the S ecr etar y did provide failed to show the Ex ecutives exercised independent judgme nt when overse eing their subordinates. ¶ 36 Whil e the AL J did not find the Ex ecutives exercise supervisory authority when dire cting employ ees, the AL J did find the Ex ecutives act in a supervisory role when they (1) issue discipline, (2) rew ard employ ees, and (3) discharg e nonprobationar y employ ees. Howeve r, the AL J found t he S ecr etar y failed to show the Ex ecutives spend a prepo n d er an ce of t heir time perf orming these fu n ct ions. The AL J noted the Secre tary did not descr ibe the Ex ecutives’ day-to-day activities in sufficie nt detail but, rathe r, relie d o n L az zerini’s conclusory testimony and broad citations to the survey s and job descr iptions submitt ed into evidenc e. Fur

ther, the AL J pointed out L azzerini asser ted the Ex ecutives spend at least 75%

o f their time direc ting employ ees. Thus, the AL J rea soned the Ex ecutives must spend no

m o re t h an 25% of their time issuing discipline, rew arding employ ees, and discharg in g nonprobationar

y employ ees. Ba sed on this, the AL J conclude d the Secre tary failed to show the Executives spend a pr eponder ance of their time exerc ising super visory authority

.

¶ 37 2. Managerial Exc eption ¶ 38 L i k ew i s e, t h e ALJ co n cl u d ed t h e Secre tary failed to show the Ex ecutives we re manag eria l employ ees b e c a u s e th e e v id e n c e d id n o t establish the Ex ecutives formulate policy

-6-and proc edure or ef fec tuate policy

throug h their re commendations.

¶ 39 3. ALJ Rec ommends Certification ¶ 40 Ba s ed on the fore g oing, the AL J rec ommended the Boa rd cer ti fy t h e Un i o n as t h e exclusive repr esentative o f the Ex ecutives. There afte r, the parties both filed exceptions to the AL J ’s finding s and re sponses to eac h other’s e x ceptions.

¶ 41 D. The B oard’ s Dec ision ¶ 42 I n Oc t o b er 2 0 1 1
, t h e Bo ard issued a written d ec i s i o n , ad o p t i n g t h e ALJ ’s

rec ommendations and g ranting the Union’s petition to add the Ex ecutives t o its cer tified collective- barg aining ag ree ment with th e Se cre tary

. Servic e Employe es International Union, Local 73
, 28 PERI ¶ 68 (I L RB State Panel 2011). L ike the AL J
, the Boa rd reje cted both the Secre tary ’s and the Union’s arguments with respe ct to the Boa rd’s failure to hold a hear ing within 120 day s. ¶ 43 The Boa

rd also reje cted the Secre tary ’s argument the Ex ecutives wer e supervisors within the m eaning of section 3(r) of t he L abor Act. The Boar d con cl u d ed t h e Secre tary failed to
prese nt evidenc e showing how much time the Ex ecutives spend rew arding
, disciplining, and discharg ing employ ees, there by failing to satisfy the “pre pondera nce- of-time” require ment. Fur ther, the Boa

rd fo u n d t h e Secre tary failed to show the Ex ecutives use independe nt judgme nt to direc t subordinates beca use (1) the Secre tary relied on conclusory testimony and job descr iptions, and (2) the questi onnaire s and other documentar y evide n ce submitt ed by the Secre tary mere ly showed the Ex ecutives direc ting subordinates to do ro u t ine tasks outlined in their job descr iptio n s

– d ir e c ti o n th a t d o e s n o t r e q

uire independe nt judgme nt. Thus, the Boa rd conclude d the evidenc e failed to show the Ex ecutives exercise sup er v i s o ry authority when dire ctingsubordinates. ¶ 44 In addition, the Boa rd found the Secre tary failed to show the Ex ecutives wer e manag eria l employ ees beca

use the Secre tary did not show the Ex ecutives (1) we re eng ag ed predominantly in executive and manag ement functions or (2) exercised responsibility for direc ting the ef

fec tuation of manag ement policies and functions. In so holding, the Boa rd reje cted the Secre tary ’s contention the Ex ecutives who wer e the highe st-ranking employ ees at their fa cilities were nece ssarily manag eria l. ¶ 45 The Boa

rd direc ted its Ex ecutive Direc tor to issue a cer tification consistent with its or d er. In November 2011, the Boa rd’s Ex ecutive Di re ct or issued a cer tificate of repr esentation,

cer tifying the Union as the e x clusive re prese ntative of the Executives. ¶ 46 This appea l followed.

¶ 47 I I . ANALYSI S ¶ 48 On appea l, the Secre tary contends (1) the Boa rd err ed by denying the Secre tary ’s motion
to dismiss beca

use t h e Bo ar d lacke d jurisdiction to addre ss the Union’s repr esentation petition, and (2) the B oard’ s determinations (a ) the individuals wer e not supe rvisors under section 3(r) of the L abor Act (5 I L CS 315/3(r) (West 2010)) and (b) the individuals wer e not

-7-manag eria l employ ees under section 3(j) of the L ab o r Act (5 I L CS 315/3(j) (West 2010))

wer e cle arly

err oneous. We addre ss the Secre tary ’s contentions in turn.

¶ 49 A. Standard of Review ¶ 50 Our revie w of the Boa rd’s decision is g overne d by the Administrative Review L aw ( 735 I L CS 5/3-101 to 3-113 (West 2010)). American Fede ration of State, Count y & Municipal Employe es, Council 31 v. Illinois State Labor Relations Board, State Panel
, 216 I ll. 2d 569, 577, 839 N.E.2d 479, 485 (2005). We revie w questions of pure fac t under a manifest weig ht of the evidenc e standard, whi l e we re v i ew pure questions of law de novo

. Departme nt of Central Managem ent Servic es/The Departme nt of Public Health v. Illinois Labor Relations Board, State Panel
, 2012 I L App (4th) 110013, ¶¶ 50-51. W here an ag ency ’s decision
prese nts mix ed questions of law and fac t, we revie w the dec i s i o n u n d er a “ ‘cle arly

err oneous’ ” standard. American Fede ration of State, County & Municipal Employe es , 216 I ll. 2d at 577, 839 N.E.2d at 485. Applying this “e x tremely defe rential” standard, we will

reve rse an ag ency ’s decision only when we are “lef t with the definite and firm conviction that

a mistake has been committed.” (Interna l quotation marks omitted.) Board of E ducation of Glenvie w Community Consol idated School District No. 34 v. Illinois Educational Labor Relations Board , 374 I ll. App. 3d 892, 899, 874 N.E.2d 158, 164-65 (2007)

.

¶ 51 B. The Union’s Asser tion the Secre tary

Has F orfe ited His Arguments ¶ 52 Be fore turning to the Secre tary ’s substantive arguments, we wish to addre ss the Union’s

asser tion we should deem the Secre tary ’s arg uments forf eited in this case. ( We note, in its brief, the Union argued the Secre tary “wa ived” his arguments. Howeve r, “wa iver” ref ers to

a v o l u ntary relinquishment of a rig ht, wher eas “for feiture ” ref ers to proce dural defa

ult. People v . Blair , 215 I ll. 2d 427, 444 n.2, 831 N.E.2d 604, 615 n.2 (2005).) ¶ 53 The Union asser ts the S ecr etar

y “fa iled to put on a compet en t ca s e” b y (1) callingone witness at the administrative hear ing, which lasted less than three hours, (2) failing to show how the thousands of exhibi ts he submitt ed to th e Bo ar d d emons trate the Ex ecutives’ supervisory or manag eria l status, and (3) rely ing extensively on block quotations in his brief
on appea l. ¶ 54 The Union’s complaints are well taken. In May 2011, the AL J acc orded the Secre tary the opportunity of a hearing to prove the Ex ecutives’ supervisory or manag erial status. Upon being g rante d that hear ing, the Secre tary ’s attorney , L awr ence Weiner, elec ted to call a single witness, L azzerini, and proce eded to conduct a direc t examination of L azzerini consisting of roug hly 50 questions and answers comprisi ng 10 transcr ipt pag es. The Secre tary also submitt ed approximately 14 volumes of exhibi ts. In his brief to this court, the Secre tary cites these exhibi ts for broad propositions–such as “[f]or examples of Ex ec u t i ves’ direc tion of subordinates, see R 740-744”–b u t fails to articulate exactly what these exhibi ts alleg edly show. In two separ ate footnotes, the S ec re t ary mere ly instructs us to “[s] ee Appendix for complete list of exhibit s.” ¶ 55 As the party seeking to exclude the Ex ecutives f ro m t h e barg aining unit, the Secr etar y

car ri ed the burden of proving the Ex ecutives’ supervisory or manag eria l status by a

-8-preponde ranc e of the evidenc e. See Departme nt of Central Managem ent Servic es ( State Police) v. Illinois La b o r R elations Board, State Panel
, 382 I ll. App. 3d 208, 220-21, 888 N.E.2d 562, 575 (2008). To do so, the Secre tary need ed to prese nt specific evidenc e as to each Ex ecutive and connec t that evidenc e to the controlling law. The Secre tary may not foist his b u rd en on the AL J
, the Boa rd, or this court. See People v. Snow
, 2012 I L App (4th) 110415, ¶ 11, 964 N.E.2d 1139 (“[T]his court is n o t a d eposi tory into which the appellant can dump his burde n of ar g ument and re sear ch.”)

. ¶ 56 Be cause we conclude the Secre tary ’s perf ormanc e g oes to whether he car ried his burden of proof, and not to whether he forf eited his case , we will addre ss the Secre tary ’s claims on the merits. In doing so, howeve r, we are mindful i t i s not this court’s responsibility to sift throug h the re cord a

nd make the Sec reta

ry ’s ar g uments for him. ¶ 57 In addition, we note the Secre tary ’s choice to call a single witness in this case serve d as a detriment to meeting his burden of proof. L azzerini’s t es t i mony failed to provide details about any of the Ex ecut i v es ’ d ay -to-day activities and failed to provide background information about any of the thousands of exhibi ts the Secre tary submitt ed–information that would have been useful in deter mining how, exactly
, the exhibi ts demonstrated the Ex ecu t i v es acting in a supervisory or manag eria l function. Perhaps this was due to the Secre tary ’s limit ed questioning of L azzerini, or perha ps this was due to L azzerini’s position

as the direc tor of Driver Service s for the metro are a–a position that did not a llow L azzerini
to observe eac h of the Ex ecutives on a daily basis. Whatever the rea son, in this case , wher e the Union soug ht to include in its barg aining unit over 100 employ ees who worke d in various subdivisions of the Secre tary of State, the Secre tary ’s relianc e on L azzerini’s testimony did littl e to assi s t h i m i n proving
, by a preponde ranc e of the evidenc e, the Ex ecutives wer e supervisors or manag ers. We reiter ate, to meet his burden of proof, the Secre tary neede d to develop his arg uments as t o eac h specific employ ee, providing citations to the recor d, that is, to (1) sy

nthesize, (2) analy

ze, and (3) explain to the finder of fac t exactly how the various fac ts within the items of stipulated evidenc e proved the employ ees we re supervisors or manag ers unde r the L abor A ct.

¶ 58 C. The Secr etar y ’s Contention the Boa

rd L acke d
J urisdiction To Address the Petition ¶ 59 The Secre tary first ar gu es , wi thout citation to authority
, the Boa rd err ed by holding it
reta ined jurisdiction over the Union’s petition. Spec ifically
, the Secre tary contends section 9(a- 5) is mandatory and require s the Boa rd to conclude its hearing proce ss and issue a

cer tification within 120 day s. The Union and Boa rd respond the 120-day time period set forth in section 9(a- 5) is direc tory , not mandatory

. ¶ 60 Whether a statutory command is mandat o ry o r d i re ct o ry i s a question of statutory construction, which we revie w de novo

. People v. Robinson
, 217 I ll. 2d 43, 54, 838 N.E.2d 930, 936 (2005). Sec tion 9(a-5) of the L abor A ct provides, in re levant par t, as follows:
“I f a hear ing is ne cessa

ry to r esolve any issues of repr esenta tion unde r this Sec tion, the Boa rd shall conclude its hear ing proce ss and issue a cer tification of the entire appropr iate unit not later than 120 day s afte r the date the petition was filed. The 120-day period may

-9-be extended one or more times by the ag ree ment of all parties to a h ea ri n g t o a date

cer tain.” 5 I L CS 315/ 9(a- 5) (West 2010). ¶ 61 In support of its contention section 9(a- 5) is mandatory
, the Secre tary points to the L abor Act’s languag e the Boa

rd “shall” act within 120 day s. Our supreme court has clarified, howeve r, “the word ‘shall’ is not deter minative” in deter

mining whether a statute is mandatory or direc tory

. Robinson
, 217 I ll. 2d at 54, 838 N.E.2d at 936. Rather, we deter mine whether a statutory command is mandatory or direc tory by asce rtaining the leg islative intent behind the statute. Id. ¶ 62 We presume a statute issuing a proce dural command to a g over nme nt o f f icial is directory

. People v. Delvillar
, 235 I ll. 2d 507, 517, 922 N.E.2d 330, 336 (2009). This presumption may be over co m e, h oweve r, when either (1) the statute contains neg ative languag e prohibiting further action in the case of noncompliance
, or (2) the rig ht the statute is desig ned to protec t would be injured unde r a dire ctory rea ding. Id. ¶ 63 The S ecr etar

y contends the second c ondition is met here

. Namely
, the S ecr etar y posits

on e of the L abor Act’s purposes is to “pre scribe the leg itimate rig hts of both public employ ees a

nd public employ ers.” 5 I L CS 315/2 (West 2010) . Acc ordingto the Secre tary , the Boa rd’s failure to resolve a case within 120 day s would result i n a chang e in the workfor ce and thus prejudice (1) employ ers’ rig hts to have a m aj ority of their curr ent employ ees i n fa v o r of unioniz ation, and (2) employ ees’ rights to choose whether they become members of

a barg ainingunit. ¶ 64 We find the Secre tary ’s arg ument unpersua sive. In County ofDu Page v. Illinois Labor Relations Board
, 231 I ll. 2d 593, 607, 900 N.E.2d 1095, 1103 (2008), the supreme court revie wed the leg islative history of section 9(a- 5) and deter mined the l eg islature’s intent in

enac ting the statute was “to provide an alternative to the ‘leng thy and cumber some’ statutory elec tion proce dure.” In 2009, Public Act 96-813 (Pub. Act 96-813, § 5 (ef f. Oct. 30, 2009)) amende d section 9(a- 5) to add, among other things, t h e 1 2 0-day time period to resolve majority interest petitions. The bill’s sponsor, Represe ntative L inda Chapa L aVia, explained the bill’s amendments would protec t employ ees from having “the i r i n t ere sts unfairly compromised by the tremendous delay s in the proce ss of the case s.” 96th I ll. Ge n. Assem., House Proce eding s, Apr. 2, 2009, at 76 ( statements of Repr esentative Chapa L aVia)

. ¶ 65 The fore g oing revie w of the leg islative history behind section 9(a- 5) leads us to c onclude finding the statute is mandatory would, in fac t, injure the rig hts the L abor Act was desig ned
to protec t. I f the 120-day deadline set forth in section 9(a- 5) wer e mandatory
, eac h time the deadline passed, the Union would be require d to f ile a new petition and reinitiate the entire petition process, ther eby

causing substantial delay s. ¶ 66 Ba sed on the fore g oing, we conclude section 9(a- 5) is discretionar y

. There fore
, the B oard
reta ined jurisdiction to address the Union’s petition.

¶ 67 D. The Sec reta ry ’s Asser

tion the Ex ecutives Are “ Supervisors” ¶ 68 The Secre tary next contends the Boa rd’s decision he failed to prove the Ex ecutives wer e supervisors within the mea ning of the L abor A ct was c lear ly err oneous. We disag ree

.

-10-¶ 69 Th e L ab o r Ac t p ro h i b i t s a b ar gai n ing unit from including both employ ees a nd supervisors. 5 I L CS 315/3(s)(1) (West 2010). This prohibition “ensur es employ ers that prounio n bias will not impair the supervisor’ s ability to apply the employ er’ s policies to subordinates acc o rd i n g to the employ er’ s best interests.” City of Freeport v. Illinois State Labor Relations Board
, 135 I ll. 2d 499, 506, 554 N.E.2d 155, 159 (1990). Section 3(r) define s a “ ‘ [s] upervisor’ ” as f ollows:
“ ‘Supervisor’ is a

n employ ee whose principal work is substantially differ ent from that of his or her subordinates and who has authority
, in the interest of the employ er, to hire,
t ransf er, suspend, lay off, rec all, promote, discharg e, direc t, rew ard, or di s ci p l i n e employ ees, to adjust their g rieva nces, or to eff

ectively rec ommend any of those actions, if the exercise of that authority is not of a mere ly routine or cler ical nature , but require s the consistent use of independe nt judgme nt. Ex cept with respe ct to police employ ment, the term ‘super

visor’ includes o n l y those individuals who devote a preponde ranc e of their employ

ment time to exercising that authority
, State supervisors notwithstanding.” 5 I L CS 315/ 3(r) (West 2010). ¶ 70 Thus, employ ees are supervisors pursuant to the L abor Act if they (1) perf orm principal work that is substantially differ ent from that of their subordinates; (2) have authority in the interest of the employer to perf orm some or all of the 11 enumer ated supervisory functions; (3) consistently use independe nt judgme nt in perf orming the enumer ated functions; and (4) devote a prepon d era

nce of their time to perf orming those functions. Chief Judge of the Circuit Court v. American Fede ration of State, County & Municipal Employe es, Council 31
, 153 I ll. 2d 508, 515, 607 N.E.2d 182, 18 6 (1 9 9 2 ). As the party seeking to exclude the Ex ecutives from the bargai ning unit, the Secre tary car ried the burden of proving
, by a preponde ranc e of the evidenc e, the Ex ecutives wer e “super visors” within the meaning of the L abor Act. See Departme nt of Central Managem ent Servic es ( State Police)
, 382 I ll. App. 3d at 220-21, 888 N.E.2d a

t 575. ¶ 71 Her e, t h e Bo ar d fo u n d t h e S ec re t ar y fa i l ed t o prove the Ex ecutives spend a preponde ranc e of their time using independe nt judgme nt to perf orm the tasks enumer ated in section 3(r) o f t h e L abor Act. Specifica lly
, the Boa rd found the Ex ecutives exercise independe nt judgme nt only when they (1) rew ard, (2) discipline, an d (3) discharg e probationar

y employ ees–ta sks the Ex ecutives d o n ot spend a preponde ranc e of their time completing

. The Secre tary asser ts the Boa rd’s decision was clea

rly err oneous beca

use (1) the Ex ecutives also exercise independent judgment when direc ting their subordi n at es, and (2) the Ex ec uti v e s devote a preponde ranc e of their time to perf orming supervisory functions. We addre ss the Secre tary ’s asser tions in turn.

¶ 72 1. W hether the Ex ecutive

s Use Inde

pendent J udgment
To “Dir ect” Their Subordinates ¶ 73 The Secre tary first posits the Boa rd’s finding the Ex ecutives do not exercise indepe ndent judgme nt when dire ctingtheir subordinate s was cle arly err oneous. We disag ree

. ¶ 74 The statutory

term “direct” e ncompasses r elated ove rsig ht functions such as r eviewing and monitoring work activities, instructing on how work is to be perf ormed, scheduling work

-11-hours, approving time-off and overtime reque sts, assig ning duties
, and evaluating job

perf ormanc e. Departme nt of Central Managem ent Servic es ( State Police)
, 382 I ll. App. 3d
at 224, 888 N.E.2d at 578. Ex erc ising “indepe ndent judgme nt” means “ ‘the alleg ed supervisor must make choice s betwee n two or more significan t course s of action without substantial revie w by superiors.’ ” Chief Judge
, 153 I ll. 2d at 516, 607 N.E.2d at 186. Some supervisory functions “are routine or m inisterial in nature and do not g ener ally require the use of indepe ndent judg ment.” City of Freeport , 135 I ll. 2d at 521, 554 N.E.2d at 166. ¶ 75 Her e, the Secre tary co n t en d s h e proved the Ex ecutives” direc t” their subordinates by
prese nting evidenc e showing the Ex ecutives (1) are responsible for the overa ll dire ction of their fac iliti es, (2) assig n work to their subordinates, (3) complete perf ormanc e evaluations of their subordinates, and (4) approve and disapprove time-off r equests.

¶ 76 a. The Ex ecutives’ Over all Direc tion of Their F acilities ¶ 77 The Secre tary asser ts the Ex ecuti v es gen er al l y manag e the overa ll direc tion of their fa ci l ities. In support of his asser tion, the Secre tary cites the following evidenc e: (1 )
org anizational chart s s h o wing the executive I I s are usually the top employ ees at their fac iliti es and the executive I s are usually “ s e c o nd in command”; (2) L azzerini’s “undisputed”
t es t i m ony the Ex ecutives “run[ ] the show” and manag e the “over all direc tion” of th ei r fac iliti es, a

n d ( 3 ) th r e e E xecutives’ job descriptions and five other documents detailed below. ¶ 78 First, the Secre tary contends the Ex ecutives’ status as the top or second top employ ee at their fac iliti es is sufficie nt, in and of itself, to show the Ex ecutives direc t their subordinates. In support of his contention, the Secre tary cites City of Sandwich v. Illinois Labor Relations Board, State Panel
, 406 I ll. App. 3d 1006, 942 N.E.2d 675 (2 0 1 1 ), in which the Second District held the petitioned-for police serg eants wer e “super visors” within the meaning of the L abor Act. In rea ching its holding, the Secon d District noted when the chief of the police depar tment was ab s en t

–which was a majority of the time–the on-duty serg eant was the highe st-ranke d employ ee at the headqua rters for the police depar

tment. The court stated “[i] t is unrea listi c to concl u d e t h at patrol office rs are unsupervised two-thirds to almost three

quarte rs of the time.” City of Sandwi ch , 406 I ll. App. 3d at 1012, 942 N.E.2d at 681. ¶ 79 As the Boa

rd points out, howeve r, City of Sandwich is inapposite beca use there
, the onduty serg eant was the highe st-ranke d employ ee at the head q u ar t ers for the entire police depar tment. By contra st, here
, the Ex ecutives are the h i ghest-ra nked on-site employ ees at their facilities
, but they are not the highe st-ranke d employ ees in the entire depart m en t

. L azzerini testified, in the Driver Service s depar tment, Ex ecutives rank below direc tor s, deputy direc tors, administrators, and zone mana g ers. ¶ 80 Moreove r, in City ofSandwich
, the Second District did not rely solely on the fac t that the petitioned-for serg eants wer e the highe st-ranke d active employ ee for the police depar tment. The court also noted (1) the city ordinanc e and depar tment policies clea

rly demonstrated the city ’s plan to utiliz e serg eants as supervisors, and (2) the serg ea n t s were require d to investigate, re port, and re commend discipline. ¶ 81 Finally
, we note our court reje cted a simil ar argument in County of Vermilion v. Illinois Labor Relations Board
, 344 I ll. App. 3d 1126, 800 N.E.2d 875 (2003). There
, the employ er

-12-had asserted that, beca use t he poli ce serg eants were often the only on-duty employ ees in a supervising ca p acity
, they must nece ssarily be spending a preponde ranc e of their time
eng ag ed in supervision. County of Vermilion , 344 I ll. App. 3d at 1136, 800 N.E.2d at 882. We disag ree d that such a conclusion could be made “whe re, as here
, deciding whet h er a person is a ‘super

visor’ must be made in acc ordanc e with the particula r leg islative formula set forth in sec tion 3(r) of the [L abor] Act.” Id. ¶ 82 For the fore g oing rea sons, we reje ct the Secre tary ’s contention the Ex ecutives’ status a s the top or second in c ommand at their fac iliti es nece ssarily showed the Ex ecutives spend a preponde ranc e of the ir time supervisingtheir subordinate s. ¶ 83 T h e S ec reta

ry also asser

ts L azzerini’s “undisputed testimony ” sufficie ntly proved t h e Ex ecutives direc t their employees. L azzerini stated the Ex ecutives’ p r im a r y d uty “is to direc t, manag e, and supervise the employees of the fac ilit[ ies].” He also said the Ex ecutives “run[ ] the show” and manag e th e “ o v era ll direc tion” of the fac iliti es. Howeve r, the Boa rd conclude d L azzerini’s testimony was too co n clusory to meet the Secre tary ’s burden of proof. The Boa rd’s de cision in that reg ard is not clea rly err oneous. ¶ 84 Finally
, the Secre tary ’s brief s ta te s “ [L azze r in i’ s] testimony is supported by the stipulated exhibi ts and survey s, which contain job descr iptions and other work documents,” and provides an acc ompanying footnote direc ting us to see three d o cuments in the rec ord as “examples of Ex ecutive[s]’ job descr iptions” and five documents in the rec ord as “examples of Executives’ dire ction of subordinate s.” ¶ 85 The three job descr iptions cited by the S ecr etar y are those of Matthew Adduci, J oseph Bog g s, and B renda

Bostic, a ll ex ecutive I s. ¶ 86 Matthew Adduci’s position descr iption states he spends 30% o f h i s t i m e “plan[ni ng ],
org aniz[ ing], direc t[ ing], supervis[ing] and evaluat[ in g ] staff” ; “super vis[ ing] staff within established policies; exercis[ing] respo n s i b ility for assig nment of daily work tasks;

rec ommend[i ng ] personne l actions a f f e c ti n g s u b o r d in a te [s ]” a n d “ a p p r o v [i n g ] e mp lo ye e ti me off.” He spends 20% of his time deter mining, establishing, and implementing operat ional
proce dures to addre ss workflow, 20% of his time partic i p at i n g in policy and proce dure development, 10% perf

orming driver service s duties, 10% prepa ring repor ts “ perta ining to day -to-day

operations,” and 10% pe rfor ming other

duties. ¶ 87 J o s ep h Bo ggs ’ p o s i t i o n d escription say s he spends 35% of his time “plan[ning]
, org aniz[ ing], direc t[ ing], and evaluat[ ing] the activities of his employ ees and responding to t heir inquiries, 25% of his time “ensur ing adequate” staffing levels, developing tr ai n i n g prog rams, and confe rring with the administrator to develop and implement work proce dures. Bog g s also spends 15% of his time maintaining and monitoring production repor ts and revie wing and rec ommending to the administrator “ar eas for policy /proce dural revisions for impr oved eff

iciency .” Bog g s spends the other 25% of his time responding to public inquiries, initiating prog ressive discipl i n ary actions, approving schedule d time off for staff, and perf orming other duties. ¶ 88 Br enda Bostic’ s position descr iption say s Bostic spends 40% of her time “ [p] lan[ning], supervis[ing]” and “eva luat[i ng ] staff ,” administering prog ressive discipline, arr ang ing for employ ees’ training
, deter mining work schedule s and time-off reque sts, assig ning overtime

-13-and travel assig nments, and handling employ ee work complaints. Sh e d ev o t es 20% of her

time to maintaining rec ords of money collecte d by the fac ility
, 20% of her time administering road examinations and perf orming cashie r functi o n s , and the rema ining 20% of her time completingother duties. ¶ 89 The Boa

rd, in a footnote in its decision, found the job descriptions cited by the Secre tary “suff er from the same defe ct as much of the testimony

. In conclusory terms, they provide that the Ex ecutive I s and I I s ‘direc t’ their subordinates.” Servic e Employe es International Union, Local 73
, 28 PERI ¶ 68, at 306 n.7 (I L RB State Panel 2011). We ag ree with the Boa rd in this
reg ard. The job descriptions do not specify –nor does the Secre tary ’s brief explain–the extent to which the Ex ecutives use independe nt judgme nt to complete the tasks outlined in their job descr iptions. Instead, the descr iptions contain g ener alized statements, s uch as the Ex ecutives plan, direc t, supervise and evalua te. Ba sed on these g ener alized statements, the Boa rd could

rea sonably conclude the S ecr etar y failed to car

ry his burden of p ro v i n g the Ex ecutives act in a supervisory role when direc ting their employ ees. See Departme nt of Centr al Managem ent Servic es (

State Police)
, 382 I ll. App. 3d at 228, 888 N.E.2d at 581 (conc luding the Boa rd could rea sonably find, despite broad languag e in the employ ees’ job descr iption, the employ ees do not, in prac tice, have significan t discretionar y authority to aff

ect their subordinates’ e mploy

ment). ¶ 90 The Secre tary also cites five documents as supportive of L azze ri n i ’s t es t i m o ny the Ex ecutives’ “pr i mary function is to direc t, manag e, and supervise the employ ees of the fac ility .” The first of these documents is a handout p re p ar ed b y Christine Works, an executive I
, for a J anuar

y 2010 staff meeting

. The handout instructs employ ees on matters such as communicating via email and setting task reminder s on their computers. The handout also details how work will be divided amo n g available employ ees when an employ ee is unavailable

. The handout further instructs employ ees on c o nfidentiality
, time-off, and call-in policies, providinga link to the policy manual. ¶ 91 The second document the Secre tary d i re ct s u s to consider is a document prepa red by L oretta Cass, an executive I I
, which the Secre tary say s shows Cass’ “[p] raise of [a] subordinat e” an d “dire ction of work.” The document contains various reminder s to employ ees about proce ssing forms as well as policies relating to cellular phone usag e and bever ag e consumption duringwork. ¶ 92 The third document the Secre tary ci t es as an example of the Ex ecutives’ direc tion of subordinates is a Marc h 2010 email from De n i s e Westnedg e, an executive I I
, to her employ ee s

. T he email contains the subject line “Of fice policies 2010” and contains instructions to subordinates reg arding (1) office hours, (2) cellular phone usag e, (3) brea ks, (4) talking to other cowor

kers, (5) email usag e, (6) rec eiving visitors from other depar tments, and (7) reque sts for time off a nd switching brea

k times. ¶ 93 The Secre t ar y ’s fo u rt h ci t ed ex am p l e o f E x ec u t i ves’ direc tion is a per formanc e evaluation of Marsha Dirks, an ex ecutive I , completed by her supervisor, an executive I V. Dirks’ supervisor’ s comments indicate h e m eets with Dirks monthly
, at which time Dirks “will prese nt problematic situations that need ad m i n i s t rative revie w or action.” The
comments also say Dirks “is challeng ed by new ideas or interpre taions [ sic ] of policies and

-14-is one that prese nts differ ent perspe ctives to assist in solutions.” The evaluation also contains

“g oals” for Dirks’ nex t repor ting period, including the following : (1) initiate nece ssary disciplinary actions, (2) provide evaluations of all employ ees, (3) keep employ ees informed of all proce dural, policy
, and/or leg islative chang es, (4) continue to supervise and revie w the activities of employ ees, “re porting any problems immediately to Administrat o r, ” (5) “[ a] n aly ze workloads of employ ees to maintain maxi mum productivity and eff icienc y throug hout the fac ility and rec ommend any improvements to workflow and proce dures in the vehicle are a,” and (6) identify any neede d training issues and bring them to the administrator. ¶ 94 T h e Secre tary ’s final cited example of Ex ecutives’ direc tion is a one-pa g e doc u m en t entitled “Goa ls-Public Inquiry Division.” The document appea rs to have been attache d to a perf ormanc e eva luation completed by Danny Nef f, an executive I

. The document contains advice to employ ees on being courte ous, dealing with ang ry caller s, and avoiding bad habits such as “ chew ing while talking” and “holdingtwo conver sations at the same time.” ¶ 95 None of the afor ementioned documents leave us with the “def inite and firm conviction” the Boa rd committed an err or by concluding the Ex ecutives do not ex ercise supervisory authority when direc ting their subordinates. American Fede ration of State, County & Municipal Employe es , 216 I ll. 2d at 577-78, 839 N.E.2d at 485. The Secre tary ’s bald citation
to these documents–without any arg ument or explanation as to how, specific ally
, t h e documents show the Ex ecutives using indep endent judgme nt–fails to convince us the Boa rd’s finding s were err oneous.

¶ 96 b. AssigningWork ¶ 97 The S ecr etar

y next claims the Ex ecutives “direc t” t h ei r subordinates when they assig n work. In support of his claim, the Secre tary cites the following documents: (1) an email from Gra nt L akin, an executive I
, direc ting employ ees to g ive “coded m ai l ” t o one of the employ ees; (2) a handout prepa red by Christine Works, an executive I
, direc ting employ ees

on various tasks such as chec king email and using computer prog rams; and (3) an email from Thomas Kovalichuk, an executive I
, in which he tells another employ ee (pre sumably his supervisor) he assig ned a subordinate to complete an assig nment (“the Bizflows”) eac h day befor e “g oing to VIA.” The Secre tary also points out L azzerin i t es t i fi ed that “base d upon operational needs, manag ement will assig n staff to those various locations in order to ensure that the fa cility

is running pr operly .” ¶ 98 The Boa

rd found L azzerini’s testimony mere ly showed the Ex ecutives “i n s t ruct their subordinates to perf

orm t he duties as outlined in their job descr iptions and as neede d to addre ss the flow of work at the fac ility

. That sort of instruction does not involve the use of independe nt judgme nt by the supervisor.” T h e B o a r d ’ s f in d in g w a s not clea

rly err oneous. See City of Freeport
, 135 I ll. 2d at 531, 554 N.E.2d at 170 (conc luding Boa rd did not clea

rly err by finding t h at l i eu tenants do not use independe nt judgme nt when direc ting firef ighte rs beca use t asks are assigned acc ordingto agree d-upon sy stem and st andar ds set forth in fire chief ’s manual)

. ¶ 99 L ike L azzerini’s testimony
, the Secre tary ’s citation to the documents–ag ain, without a ny argument or explanation as to what, specific ally
, the documents show–does not convince us

-15-the Boa rd err ed. The documents mere ly show the Ex ecutives assig ning tasks in a routine fashion to manag e workloads and d o not convince us the Boa rd’s finding s wer e clea

rly

err oneous. See Chief Judge
, 153 I ll. 2d at 521 -2 2
, 6 0 7 N.E.2d at 188-89 (quoting with
approva l the ap p ellate court’s finding the supervisors’ assig nment of work on a pro rata basis is a routine func tion not requiringthe exercise of independe nt judgment)

.

¶ 100 c. Completing Per formanc e Eva luations ¶ 101 Next, the S ecr etar y argues t he Ex ecutives direct their employees t h ro u gh perf ormanc e evaluations. Specifica lly
, the S ecretar y asser ts the evaluations “evide nce the authority and

ex er ci se of that authority to direc t as they can impact the terms of their subordinates’ employ ment throug h salary

adjustments and opportunities for a dvance s.” ¶ 102 T h e S ec re t ary ra i s ed an identical argument in his exceptions to the AL J ’s finding s , contending “the evaluations” contained “a my riad of examples of direc tion.” In reje cting the Secre tary ’s arg ument , the Board, in its order
, responde d as follows: “[T] he AL J found t he Ex ecutive I s and I I s rew ard, discharg e, and discipline subordinates ***, finding s to which the evaluations *** would no doubt be most rele vant, but the eviden ce demonstrates that perf ormanc e of those tasks, without more, cannot meet the preponde ranc e of time element.” ¶ 103 Whether we cons i d er the evaluations in the context of showing Ex ecutives’ “re war d, discharg e, and discipline” of subordinates or view the evaluations as showing Ex ecutives’ “dire ction” of subor dinates, the e valuations are insufficient to c onvince us the B oard e rre d beca use the Secre tary has not shown the Ex ecutives spend a substantial amount of their time completing the evaluations. Indeed, L azzerini testified the Ex ecutives evaluate probationar y employ ees twic e a year

and eva luate nonprobationary employ ees onc e a year

.

¶ 104 d. Approvingand Disappr oving T ime-Off Requests ¶ 105 Finally
, the S ec re t ary cl aims the Ex ecutives direc t their employ ees by approvingand disapproving t i m e-off reque sts. Citi ng L azzerini’s testimony
, the Secre tary contends the evidenc e shows the following : (1) the Ex ecutives have the authority based on operational needs to g rant or deny time off outside of the contra ct’s para meters, and (2) the Ex ecutives i n d ep en d ently deter

mine whether overtime, which does not need to be prea pproved b y a reg ional manag er, is nee ded. ¶ 106 L azzerini testified Ex ecutives g ener ally approve time-off reque sts based on (1) se niority
, (2) operational needs, and (3) contra ct require ments. L azzerini also stated Ex ecutives can deny time off, even when requisite staffing levels are met. Howeve r, on cross-e x amination, the Union’s at t o rn ey asked L azzerini whether the Ex ecutives, in fac t, ever deny time off when staf finglevels ar e met, and the following colloquy ensued: “[L AZ Z ERI

NI ]: Yea h. I ’m not the re ever

y day

. I would imag ine they do or else the

vacation tim e would just be rubber stamped. And I know there ’s been vacation denied. [UNI ON ATTO RNEY]: Based on staf fingneeds, c orre ct? [L AZ Z ERI

NI ]: Correc t. [UNI ON ATTORNEY]: Okay but what I ’m talking about is if the staffing needs are

-16-met, they don’t deny

time off, right? [L AZ Z ERI

NI ]: You know, I ’m not there ever y day

. I don’t know ever y d en i al of

vacation tim e. [UNI ON ATTO RNEY]: S o y ou don’t know? [L AZ Z ERI

NI ]: Idon’t know.” ¶ 107 T h e au t o m ati c approva l of vacation and sick leave reque sts d o es n o t re q u i re t h e consistent use of independe nt judgme nt. Chief Judge
, 153 I ll. 2d at 518, 607 N.E.2d at 187. L az zerini’s testimony reve aled that he did not actua lly know whether Ex ecutives d en y

vacation time when staff i n g l ev el s are met; thus, the testimony fails to establish by a preponde ranc e of the evidenc e the Ex ecutives’ approva l or denial of vacation time was not automatic. L ikewise, L azzerini’ s cu rs ory testimony the Ex ecutives “make the call” with
respe ct to scheduling overtime–without any evidence as to how often overtime is, in fac t, considere d or assig ned–is insufficient to convince us the Boa rd err ed by concluding the Ex ecutives do not e x erc ise independe nt judgment with re spect to sche duling.

¶ 108 2. W

hether the Ex ecutive

s Dev ote a Preponde rance of Their Time To Performing Supervisory Func tions ¶ 109 The Secre tary next claims the Boa rd err ed by concluding the Ex ecutives do not spend a preponde ranc e of their time perf orming supervisory functions. Specifica lly
, the S ec re t ary contends (1) the preponde ranc e test should not apply to state employ ees, and (2) the evidenc e shows the Executives are eng ag ed pre dominantly in supervisory

functions. We disag ree

. ¶ 110 Section 3(r) of the L abor Act provides “the term ‘s up er v i s o r’ i n cl u d es only those individuals who devote a preponde ranc e of their employ men t time to exercising that authority
, State supervisors notwithstanding.” 5 I L CS 315/3(r) (West 2 0 10). The term “pre pondera

nce” means that “the employ ee must spend more time on supervisory functions than on any one nonsupervisory function.” City of Freeport
, 135 I ll. 2d at 532, 554 N.E.2d
at 1 7 1. Our court has reje cted the use of a strictly mathematica l approa ch to deter mine whet h e r th e “ p r e pondera

nce of time” component is met. Departme nt of Central Managem ent Servic es v. Illinois State Labor Relations Board
, 278 I ll. App. 3d 79, 8 6
, 6 6 2 N.E.2d 131, 136 (1996). Rather, we noted “ ‘[p] reponde ra n ce’ ” can mean superiority in numbers or superiority in importance

. Departme nt of Central Managem ent Servic es , 278 I ll. App. 3d at 86, 662 N.E.2d at 136. ¶ 111 In Departme nt of Central Managem ent Servic es v. Illinois State Labor Relations Board
, 249 I ll. App. 3d 740, 745, 619 N.E.2d 2 39, 243 (1993), this court conclude d the “ ‘pre pondera

nce require ment’ ” applies to state employ ees. Th e S ec retary urg es us to

rec onsider that decision. We see no rea son to do so. As we noted in Departme nt of Central Managem ent Servic es , the plain and ordinary meaning of the word “notwithstanding ” clea rly does not e xe mp t s ta

te supervisors from the “pre pondera nce” require ment. (I

nterna l quotation marks omitted.) Departme nt of Central Managem ent Servic es , 249 I ll. App. 3d at 745, 619 N.E.2d at 243. ¶ 112 Thus, we turn to whether the B oard e rre d by

concludingthe Executives do not spend a

-17-preponde ranc e of their time acting in a supervisory function. In rea ching its conclusion, the

Boa rd rea soned the Ex ecutives onl y ex er cis e independe nt judgme nt when rew arding
, disciplining, and discharg ing employ ees, and the Secre tary failed to show the Ex ecutives spend a preponde ranc e of their time in these functions. On appea l, the Secre tary , ref ere ncing L azzerini’s testimony and a string cite of documentar y evidenc e, contends the Boa rd clea rly

err ed. We disag ree

. ¶ 113 L azzerini testified, based on “being in the fac ility hundreds of times and spending wee ks
at a time in a facility ” and “conve rsations” with others, the Ex ecutives spend 75% of their time “dire cting ” their subordinates. As we have alre ady explained, howeve r, the Boa rd’s conclusion the Ex ecutives do not exercise independe nt judgme nt when direc ting employ ees is supported by the evidenc e. Thus, L azzerini’s testimony conce rning the amount of time the Ex ecutives spend “dire cting ” does not provide any detail with respe ct to the amount of time the Ex ecutives spend eng ag ed in supervisory functions or the signific ance of these functions. ¶ 114 The documentar y evid ence cited by the Secre tary also does not convince us the B oard clea rly err ed. The cited exhibi ts may d e mo n s tr a te th e E xecutives rew arding
, disciplining, and discharg ing their subordinates, but they do not show much t i me t h e Ex ecutives spend on these functions or that these functions are m o re i m p o rt ant than the Ex ecutives’ other nonsupervisory tasks. For example, t h e d o cu m ents the Secre tary cites as “examples of discipline” consist of disciplinary notices to subordinates and memo ra n du m documenting Ex ecutives’ cou n s el i n g of subordinates with reg ard to policy violations. None of these

ex h i b i t s provide any detail about how much time the Ex ecutives spend disciplining; they

mere ly serve to show the Executives do, in fact, discipline their subor dinates. ¶ 115 The S ec re t ary also relies on the Ex ecutives’ job descr iptions. Howeve r, as pre viously explained, these descriptions cont ai n g ener alized statements which the Boa rd could

rea sonably conclude wer e insufficient to meet the Secre tary ’s burden of proof. Moreove r, to the extent these descr iptions detail the amount of time the Ex ecutives spend on the

su pervisory functions of rew arding
, disciplining, and discharg ing subordinates, the descr iptions do not support the Secre tary ’s contention the Ex ecutiv e s d e v o te a p r e p o n d e r a n c e of their time to executing these functions. As the Boa rd points out, the cited job descr iptions estimate the Ex ecutives spend approximately 10% of their time on a consolidated de s cription of ac tiviti es, which inc ludes eva luating or disciplining. ¶ 116 For th e fo re go i n g re as o ns, we conclude the Boa rd did not clea

rly err by finding the Ex ecutives do not spend a preponde ranc e of the ir time eng ag ed in supervisory functions.

¶ 117 E. The Sec reta ry ’s Claim He Proved the E x ecutives
Are Manag ers Unde r the L abor A ct ¶ 118 Finally
, the Secre tary asser ts the Boa rd clea rly err ed by concluding the Ex ecutives wer e not manag ers under the L abor Act (5 I L CS 315/3(j) (West 2010)). Section 3(j) of the L abor Act define s a “ ‘[m] anag eria l employ ee’ ” as “an individual who is eng ag ed predominantly in executive and manag ement functions and is char g ed with the responsibil ity of direc ting the ef fec tuation of manag ement policies a nd prac tices.” 5 I L CS 315/ 3(j) (West 2010). ¶ 119 The I llinois Appellate Court has applied two tests to deter mine whether an employ ee is

-18-manag eria l: (1) the traditional test, which considers whether the empl oy ee is a manag eria l

employ ee as a matter of fac t, and (2) the alternative test, wh i ch co n s i d ers whether the employ ee is a manag eria l employ ee as a matter of law. Departme nt of Central Managem ent Servic es/The Departme nt of Healthcare & Family Servic es v. I llin o is La b o r R e la ti ons Board
, State Panel
, 388 I ll. App. 3d 319, 330, 902 N.E.2d 1122, 1130 (2009). Be cause the Secre tary stipulated during hearing he was only advanc ing the “matter of fac t” test, we will not addre ss any of the Secre tary ’s arguments on appea l perta ining to the “matter of law” test. See Bloom Townshi p High School District 206 v. Illinois Educ ational Labor Relations Board
, 312 I ll. App. 3d 943, 952, 728 N.E.2d 612, 620 (2000) (“[A]rgume nts or objections not raised during administrative proc eeding s are deeme d waived and ca nnot be asser

ted for the first time on judicial revie w.”)

.

¶ 120 1. The Tradit ional Test ¶ 121 To demonstrate a petitioned -f o r em p l o y ee is manag eria l under the traditional test, the employ er m u s t s how the employ ee is (1) eng ag ed predominantly in executive and
manag ement func tions and (2) char g ed with the responsibility of direc ting the e ffe ctuation of manag ement policies and prac tices. Departme nt of Central Managemen t Servic es/The Departme nt of Healthcare & Family Servic es , 388 I ll. App. 3d at 330, 902 N.E.2d at 1130. ¶ 122 Wit h respe ct to the first el em en t , t h e Bo ard has define d “mana g ement functions” a s functions that “a

mount to running a

n ag ency or depa rtment” such a s “establishingpolicies and procedure s, prepa

ringthe budg et, or otherwise assuring that the age ncy or department
operates effectively .” (Interna l quotation marks omitted.) Departme nt of Central Managem ent Servic es/Illinois Commerce Comm’n v. Illinois Labor Relations Board
, State Pan el
, 406 I ll. App. 3d 766, 774, 943 N.E.2d 1136, 1143 (2010). Other manag ement functions include using independe nt discretion to make policy decisions, chang ing the focus of an employ er’ s org anization, being responsible for day -to-day operations, and neg otiating

on behalf of an employ er with its empl o y ee s o r t he public. Departme nt of Central Mana g em ent Servic es/The Departme nt of Healthcare & Family Services
, 388 I ll. App. 3d at 330, 902 N.E.2d at 1130. An employ ee is not a ma nag eria l employ ee if he or she ser ves

mere ly as a subordinate or advisory function in the development of policy beca use “ ‘it is the final responsibility and independe nt authority to establish and eff ect u ate policy that deter mines manag eria l status under the [ L ab o r] Act.’ [C itation.] ” Departme nt of Central Manage me n t Servic es/The Departme nt of Healthcare & Family Services
, 388 I ll. App. 3d at 331, 902 N.E.2d at 1130. ¶ 123 The second part of the definition “empha siz es that a manag eria l empl o y ee ’s authority extends beyond the rea lm of theorizing and into the rea lm of p rac tice.” Departme nt of Central Managem ent Servic es/Illinois Commerce Comm’n
, 40 6 I l l

. App. 3d at 774, 943 N.E.2d at 1 1 4 4

. Thus, manag eria l employ ees do not mere ly rec ommend policies that a superior is equally likely to take or leave ; instead, they make eff ective recommendations. Departme nt of Central Managem ent Servic es/Illinois Commerce Comm’n
, 406 I ll. App. 3d
at 775, 943 N.E.2d at 1144. “[E] ffe ctive rec ommendations” are those rec ommendations that

are acc epted al m o s t all of the time. (Interna l quotation marks omitted.) Departme nt of

-19-Central Managem ent Servic es/Illinois Commerce Comm’n
, 406 I ll. App. 3d at 776-77, 943

N.E.2d at 114 5

. A manag eria l employ ee does not mere ly perf orm duties essential to the employ er’ s ability to acc omplish its m i s s ion. Departme nt of Central Managem ent Servic es/The Departme nt of Healthcare & Family Servic es , 388 I ll. App. 3d at 331, 902 N.E.2d at 1131. Rather, the employ ee must possess t h e authority or responsibility to deter mine the specific methods or means of how the employ er’ s service s will be provided. Id.

¶ 124 2. The Board’s Findings ¶ 125 Her e, the Boa

rd conclude d the Secre tary failed to establish either prong of the manag eria l
test. Specifica lly
, the Bo ar d reje cted the Secre tary ’s argument that, based on this court’s holding in Departme nt of Central M anageme nt Service

s/The Department of Healthcare & Family Services
, 388 I ll. App. 3d at 3 3 0
, 902 N.E.2d at 1130, manag eria l employ ees need
not meet the first prong of the manag eria l test. T o t h e contra ry , the Boa

rd reiter ated the Secre tary neede d to establish both prong s of the test. The Boa rd further found the Secre tary failed to establish the second prong beca use the rec ord did not establish the Ex ecutives “ ‘deve lop[ ] mea

ns and methods of a chievingpolicy objectives, de termine[ ] the extent to which the objectiv es will be achie ved, and [are] empower ed with a substantial amount of discretion to deter

mine how policies will be effec t ed’ ” (quoting Departme nt of Central Managem ent Services/The Department of Health ca r e & Family Services
, 388 I ll. App. 3d at 331, 902 N.E.2d at 1131). ¶ 126 The Boa

rd also reje cted the Secre tary ’s ar gument the Ex ecutives who are the hig hestranking employ ees at their particula r fac iliti es “run the show” and are there fore manag eria l. The Boa rd rea soned the Secre tary ’s evidenc e did not show the Ex ecutives make manag eria l decisions to provide service s in a unique way at their respe ctive fac il i t i es ; ra t her, the evidenc e re veale d eac h fac ility perf orms the same ta sks in the same manne r.

¶ 127 3. The Secre tary’s Claims on Appeal ¶ 128 On appea l, the Secre tar y cl ai m s t h e Bo ar d ’s d en i al o f manag ement status to the Ex ecutives was clea

rly err oneous. First, the Secre tary quotes this court’s statement in Departme nt of Central Managem ent Servic es/Illinois Commerce Comm’n
, 406 I ll. App. 3d
at 780, 943 N.E.2d at 1148, that “[r]unni ng the d ep ar t m en t might or might not entail the

cre ation of new p o l i ci es , but it will alway s entail ‘direc ting the eff ectuation’ of exis ting policies. [C itation.] ” Ba sed on this, the S ecretar y claims it established both prong s of the two-par t test beca use “the undisputed evidenc e” show s the Ex ecutives “ run their locations and fac iliti es b y i n depende ntly direc ting, rew arding
, disciplining, and discharg ing their subordinates and implementing and eff ectuating the Secre tary of State’s p ro ce dures and policies.” In support of his claim, the Secre tary provides a leng thy string citation to (1)
p o rt ions of L azzerini’s testimony
, (2) the Ex ecutives’ job descr iptions, (3) perf orm an ce evaluations completed by the Ex ecutives, (4) documents alleg edly showin g “examples of Ex ecut i v es’ direc tion of subordinates,” and (5) documents purporting to demonstrate “examples of discipline.” Ag ain, the Secre tary does not offe r any explanation as to how the

-20-string- cited evide nce c onnects to the c ontrolling law

.

¶ 129 Our statement in Departme nt of Central Managem ent S er vi ce s/ Il l i n o i s Co mmerc e Comm’n does not lend support for the Secre tary ’s contention the Ex ecutives at issue here are manag ers, nor does our revie w of the cited evidenc e convince us the Boa rd clea rly err ed by concluding on this hear ing evidenc e the Ex ecutives wer e not managers

. We made our statement in Departme nt of Central Managem ent Servic es/Ill in o is Co m m e rc e Comm’n in the
context of envisioning a scena rio in wh i ch t h e h i g hest-ra nked officia l of an ag ency , the direc tor, could deter

mine exis ting regulations and proce dures wer e adequate and thus see no need to cre ate any new policies. Departme nt of Central Managem ent Services / Il l i nois Commerce Comm’n
, 406 I ll. App. 3d at 780, 943 N.E.2d at 1148. Howeve r, we rea soned “it would be absurd to deny that such a direc tor i s a manag eria l employ ee, beca use, as the highe st-ranking employee, this direc tor has the responsibility of running the depar tment.” Id. We noted “[r]unni ng the depar tment” will “alwa

y s entail ‘direc ting the eff ect u at i o n ’ of exis ting policies.” Id. ¶ 130 Whil e some of the Ex ecutives at issue are the top employ ee at their fac iliti es, they do not “run” those fac iliti es like the direc tor we envisioned in Departme nt of Central Managem ent Servic es/Illinois Commerce Comm’n
, who, by virtue of his status as the top-ranke d officia l in an entire ag ency , would nece ssarily have the authority to perf orm the other “mana g ement functions” that “amount to running an ag ency or depar tment” such as “esta

blishing policies and procedure s, prepa

ring the budget, or otherwise a ssuring that the age ncy or department
operates eff

ectively .” Departme nt of Central Managem ent Servic es/Il l inois Commerce Comm’n , 406 I ll. App. 3d at 774, 943 N.E.2d at 1143. ¶ 131 B y c o ntr a st, here the Secre tary prese nted no evidenc e the Ex ecutives serve any thing other than a subordinate or advisory function. See Departme nt of Central Managem ent Servic es/The Departme nt of Healthcare & Family Servic es , 388 I ll. App. 3d at 331, 902 N.E.2d at 1130. The Secre tary ’s documentar y evidenc e demons trates the Ex ecutives completing such tasks as documenting subordinates’ policy violations, rem i n d ing subordinates about brea

k and computer usag e policies
, and completing perf ormanc e evaluations of their subordinates. To s h o w the Ex ecutives wer e manag ers, howeve r, the Secre tary need ed to provide evidence of t hem doi ng more than mere ly perf orming “duties essential to the employ er’ s ability to acc omplish its mission.” (Interna l quotation marks omitted.) See Departme nt of Central Managem ent Servic es/The Departme nt ofHealthcare &Family Serv ices , 388 I ll. App. 3d at 331, 902 N.E.2d at 1131. ¶ 132 L ikewise, the Sec reta ry has failed to establish the Ex ecutives direct the eff ectuation of the Secre tary of State’s policies. In Departme nt of Central Managem ent S er vices/Illinois Commerce Comm’n
, 406 I ll. App. 3d at 775, 943 N.E.2d at 1144, we explained an individual “dire cts the eff

ectuation of manag ement p o l i ci es and prac tices if he or she ‘over sees or coordinates policy implementation throug h developmen t of means and methods of achie ving policy objectives, deter

mines the extent to which the objectives will be achie ved, and is
empower ed with a substantial amount of discretion to deter mine how p o l i cies will be eff ecte d.’ Departme nt of Central Managem ent S ervices v. Illinois State Labor Relations Board
, 278 I ll. App. 3d 79, 87, 662 N.E.2d 131, 137 (1996) ***.” Her e, L azzerini testified the Ex ecutives do not formulate policies for the Secre tary of State, nor do they have the

-21-authority to decide not to enfor ce a policy unless a safe ty emer g ency exis ts. Thus, the

Secre tary failed to establish the Ex ecutives direc t the eff ectua tion of the Secre tary of State’s policies. ¶ 133 Ba sed on the evidence presented, the Boa rd could rea sonably conclude the Ex ecutives

wer e not manag ers unde r the tra ditional test. ¶ 134 In its brief, the Secre tary also ref ere nces an “implied manag eria l exclusion,” c ontending under the L abor Act, petitioned-for employ ees are deeme d manag ers when they are alig ned with manag ement such that allowing them to join a barg aining unit would cre ate a division of loy alty betwee n their employ ee and the Union. I llinois courts have expressed conce rn over placing employ ees in a barg aining unit re qu iring the employ ees to divide their loy alty betwee n the uni t and their e mploy er. See Salaried Employee s of Nort h America (

SENA) v. Illinois Local L a b or Relations Board
, 202 I ll. App. 3d 1013, 1021, 560 N.E.2d 926, 932 (1990) (“[T]he key inquiry is whe t h er t h e duties and responsibilities of the employ ees in question are such that the employ ees should not be place d in a p osition requiring them to divide their loy alty

betwee n the employ er a

nd the bar g ainingunit.”). ¶ 135 Howeve r, this conce rn over a potential conflict of interest is not a test in and of itself for deter mining whether an employ ee is “mana g eria l.” Rather, the traditional two-prong ed test is designed to addre ss this conce rn by deter mining whether cer

tificatio n would result in a conflict of interest. See Village of Elk Grove Village v. Illinois State Labor Relations Board
, 2 4 5 I l l

. App. 3d 109, 123-24, 613 N.E.2d 311, 320-21 (1993) (re jecting the employ er ’s

asser tion the court should reve rse the Boa rd’s decision, even afte r finding the petitioned-for employ ees w ere not supervisors or mana g ers, ba sed on a c onflict of intere st).

¶ 136 I I I . CONCLUSI ON ¶ 137 For the rea sons stated, we aff irm t h e Bo ar d ’s d ec i s i o n cer tifying the Union as the Ex ecutives’ exclusive barg ainingrepr esentative.

¶ 138 Affir

med.

-22-