NO. 4- 09-07 92 Filed 12/28/10 IN THE APPE LLA

TE CO URT OF ILL INOIS FOURTH DISTRIC T
THE DE PARTMENT OF CENTRAL MANAGEMENT SERVICES /ILLINOIS COMMERCE COMMISSION,

Pe titioner-Appe llant, v. THE IL LINOIS L

ABO R REL

ATIONS BOARD, STATE PANEL ; JACKIE GALLAGHER, MICH AEL HADE, REX PIPE R, MICHAE L CO LI, a nd AL BER T WASHINGTON, t he Membe rs of SaidBoard and Panel in Their Official Ca pac ity Only; JO HN F. BRO SNAN, in Hi s Official Capacity Only a s ILR B Exe cutive Director; Ad minis trative Law Judge ELL EN MAUREEN STRIZAK , in H er Official Capa city O nly; and

the AMERICAN FEDE RATION OF STATE, C OUNTY , AND MUN ICIPAL EMPLOYEE S, COUNCIL 3 1,

Respond ents-Appellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Direc

t Admini strative Review of the Illinois Labor Relations Boa rd, State Panel Nos. S-RC- 10-0 34 S-RC -10- 036

JUSTICE APPLETO N delivered the opini on of t he c ourt : The I ll i n o i s D epartment of Central Managem ent Service s (CMS) seeks review of a dec ision by the Illinois Labor Relations Board , State Panel (Board), certifying the A m e r i c a n F e d e r ation of State, County, and Municipal Employees , Council 31 (u nion), as the

exc lu sive repres entative of one Admi nistrative Law Judge IV (ILRB cas e No. S-RC -10- 034 ) and seven Admini strative Law Ju dge IIIs (ILRB case No. S-RC -10- 036) (t he ALJs), all of whom work at the Illinois Commerc e Commiss ion (Commission). CMS complain s that the Board reac

hed a dec ision solely on the basi s of writt en submissions , withou t giving CMS an opportu nity for an oral hea ring, inc lu ding the exa mination of w itnesse s. We agree with CMS that the deni al of an oral hea ring was clearly erroneousbeca use there is an unresolved issue as t o whe t he r the eight ALJs in question are

mana gerial employees
. It appe ars that, like mana gerial employees , the ALJs make effective

recomme nda tions. Acc ording to the position statement that CMS submitt ed to the Board , the Commiss ion al m o st always acc epts the ALJs' recomme nded orders, withou t modific ation, and these recomme nded orders, adopted by the Commiss ion, are the mean s by which the Commiss ion fu lf ills its statu tory missi on of regulating public ut ilities. As far

as we can see from the record , the Board 's investigation yielde d no basi s for questioning the position st atement in that regard
. In short , the position st at ement des cribe s t he ALJs as

exe rting great influ ence within the Commiss ion, and we do not understand either the union

or the Board as contendi ng otherwise. W e ha v e a firm and defini te conviction that the certification of the union as the bargai ning repres entative of the eight ALJs was prematu re beca use there is still a live question as to whether they a re ma nageri al employee s. We do not purport to resolve that question one way or the other; instead , the Board should do so. Therefore, we reverse the B oard's d eci sion a nd re mandthis ca se for fu rther procee dings
. I. BACKGROUND On Jul y 28, 2009, the union filed two majori ty-interest petitions, in which it requested to be c ertified a s the ex clusive repres entative of the eight ALJs.

On Jul y 29, 2009, Lori Novak, an assi stant of the Board 's Exe cutive Direc tor, John F. Brosna n, wrot e a lett er to Greg Newto n, the acting deputy general counsel for CMS at the time, asking him to file response s to the two majori ty-interest petitions. Newto n sai d that these responses had to "inc lu de any issues [ CMS] intend[ed ] to rais e concerni ng *** whether any

employee s sought by the petitioner should be e xc lu dedfrom the unit." A. CMS's Initial Position Statemen t

- 2 -In its initial re sponse, or position statement, filed on Augu st 14, 2009, CMS

contende d that the ALJs should be exc l u ded from the bargai ning unit beca use they were
mana gers and , as such, were ineligible to partici pate in collective bargai ning. Esse ntially, CMS gave three reas ons why the A LJs should be consi dere d mana gers. First, the ALJs worked in the realm of policy
. They conducted quasi-j udici al hea rings that involved rul emaking, rates, citations, complain ts, certificates, financi al agree ments, and the issuanc e of

securities, and by is su in g recomme nded orders in these matters, the ALJs created the policie s of the Commiss ion. Second , the ALJs' recomme ndations were "ef fective" in that the Commiss ion "rare ly rejec ted" them. Third, the ALJs were mana gerial as a matter of law beca use sec

tion 2-106(a) of the Publ ic U t il it ies Act (220 ILCS 5/2-106(a) (W est 2008)) required the ex ecutive dire ctor of t he Comm issi on to employ them. B. The Ord er To Show Ca use On Augu st 14 , 2009, an ALJ of the Board , Ellen M. S trizak, wrot e in a lett er to the parties that she had reviewed CMS's position statement of Augu st 14, 2009, and that she had fou nd nothing therein that warranted the convenin g of a hea ring. Acc ordingly, she

o r de r ed CM S t o show cause, by no later than September 9, 2009, as to why the union should not be certified as the bargai ning repres entative of the eight employees in question. She cautioned t hat t o support its claim of a statut ory ex clusion, CMS could not "rely[] on vague, generalized testimony or contentions as to an employee's job fu nction" but that, instead , CMS had to "prese nt spec ific exa mpl es o f the alleged mana gerial authority," including "all documentary evide nce and affidavits[] which support[ ed] [CMS' s] position." Furt her, all documentation had to be acc ompani ed by an exp lanation of the fol lowing: (1) what the documentation was, (2) what the documentation purport ed to show, and (3) why
- 3 -the information in eac h d o cum e n t s up p o r

te d C MS 's c

lai m that the petitioned- for employees

were ma nageri al. C. CMS's Supplemental Position Statement

On September 9, 2 0 0 9, i n r e s p o n s e to S triz ak's order to show cause, CMS filed

a supplemental position statement, which had attached to it as exh ibits A throu gh F 1,785 pages of orders issued by the Commiss ion in 13 public-utilit y cas es. Acc ording to CMS, the eight ALJs wrot e these orders as recomme ndations to the Commiss ion, and in all but one

cas e, the Commi ssion a dopted the ord ers without modification.

In it s su pplemental position statement, CMS sa id t hat by t he "conservative estimate" of the chi ef ALJ of t he Co m m is sion, the Commiss ion adopted the ALJ's

recomme nda tions 95% of the time. "Substantive modific ations [were] rare[,] and out right

reversals [were] even rarer." Acc ording to CMS, the ALJs had "a dire ct hand in formu lating policy throu gh the prepa ration of orders to the Commiss ion. This relianc e on the ALJs to set up the language of the policie s that the C ommissi on want[ed] t o implemen t as well as to see that past policy [was] fol lowed support[ ed] the Employer's position that these ALJs [met] the mana gerial exc lu sion," C MS argued. D. Certifica tion of t he Union On September 9, 2009, Strizak wrot e the parties that she had reviewed CMS's response to the majori ty-interest petitions and that she had fou nd "no issues of law or fact in these matters." Consequently, she announced that she wou ld recomme nd to the Board 's Exe cutive Director that he c ertify the union.

On September 10, 2009, Brosna n prepa red tall ies of majori ty interest an d certified the union as the exc lu sive repres entative of the eight A LJ s em p l oyed at the

- 4 -Commiss ion, orde ring their i nclusion in the union's ex isting RC- 10 ba rgaini ng unit. This a ppeal fo llo wed. II. ANALYSIS

A. Standa rd of Review On appe al, we ask whether the Board committed clear error by dec idi ng that

an oral hea ring was unneces sary. City of Chic ago v. Illinois La bor Relations B oard, L ocal Panel, 396 Ill. A

pp. 3d 61, 7 2, 918 N .E.2d 110 3, 1113- 14 (2009), appe al den ied , 236 Ill. 2d 502, 930 N.E.2d 40 7 (2010); Illinois Council of Police v. Illinois Labor Relations Board , Local Panel, 387 Ill. App. 3d 641, 6 5 8 , 899 N.E.2d 1199, 1213 (2008). (W e use the term "o ral hea ring" beca use the deni al of an oral hea ring is not nece ssari ly the deni al of a hea ring: a hea ring could be "written" in the sense that parties could be hea rd solely throu gh their prese ntation of writt en arguments and documentary evide nce to t he ag ency. See Lawless v. Central Production Cred it Ass'n, 228 Ill. App. 3d 500, 515, 592 N.E.2d 1210, 1219 (19 92) ; Lewis v. Superior Court , 19 Cal. 4th 1232, 1248-4 9, 970 P.2d 872, 884, 82 Cal. Rptr. 2d 85, 97 (19 99) ; Black's Law Dictionary 737 (8 t h ed
. 2004 ) (defining a "hea ring" in the adm inis trative-law context as "[a]n y s e tt i n g i n wh i c

h a n a ff e c te d p e r s o n p r e s e n ts arguments to an agenc

y dec ision- maker").) U n de r t hi s standa rd of clear error, we will uphold the Board 's dec ision unless our review of the entire record leaves us with " ' " 't he defini te and firm conviction that a mistake ha s bee n commi tt ed.' " ' " Ci ty of Chic ago, 396 Ill. A pp. 3d at 72, 918 N.E.2d at 1114, quot ing I l l inois Council of Police, 387 Ill. App. 3d at 658 , 899 N.E.2d at 1213, quot ing AFM Messenge r Service , I n c. v . D epartment of Employment Security, 198 Ill. 2d 380, 395, 763 N.E.2d 272, 282 (2001), quot ing United States v. United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 7 46, 766, 68 S. Ct. 525, 542 (19 48).
- 5 -B. L engthy Quotations Rea ding the argument of CMS's brief, we e n c o unter page after page of lengthy single-s pac ed block quot ations. Althou gh Illinois Supreme Co u r t Rule 341(a) allows the single-s pacing of quot ations that are two or more l ines long, the rul e w arns that "lengthy quot ations are no t f

av o r ed and should be included only where they will aid the court' s compreh ensi on of the argument." Official Reports Advanc e Shee t No. 15 (Ju ly 16, 20 08), R. 341(a), eff. Jul y 1, 2008. Long quot ations ar e diff icult to read , espe cially if they are single-s pac ed, a nd we re mindCMS to avoid them i n its brie f whenever possible. C. A Fai r He aring 1. The State H as No Constitut ional Ri ght to Due Process CMS argues that "the failure to provide an evide ntiary he ar in g , and the opportu nity for review before the State Panel of the ILRB unf airly deprived the State of its right to a hea ring and /or due proces s." CMS cites Niles Township School District 219 v. Illinois Educational Labor Relations Board , 369 Ill. App. 3d 128, 136, 859 N.E.2d 5 7, 6 4 (2006), in which the First District he l d t ha t b y making a dec ision in a cas e withou t first conducting an evide ntiary hea ring, the Illinois Educational Labor Relations Board violated

a sc hool district's "proce dural[-]due[ -]process rights."

"Proced ural due proces s" mean s "[t] he minim al requiremen ts of notice and

a hea ring guaranteed by the Due Process Clauses of the 5th and 14th Amend ments." Black's Law Dictionary 539 (8 th ed. 2004 ). We dis agree with the First D is t r ict that a school dis trict, a political subdivisi on of the state (People ex r el
. Taylor v. Cama rgo Community Consolidated School District No. 158, 313 Ill. 321, 325, 145 N.E. 154, 155 (19 24)), has a right to "proce dural due proces s," a term generally understood as denoting a constitut ional right
- 6 -to certai n minim al proce du r es ( People v. R.G., 131 Ill. 2d 328, 342, 546 N.E.2d 533, 540

(19 89) ; In re J.R., 34 1 I l l
. Ap p . 3d 784, 795, 793 N.E.2d 687, 696 (2003); Black's Law Dictionary 539 (8 th ed. 2004 ))
. The Supreme Court of Illinois has held that "a school dis trict, in its cap aci ty as a political subdivisi on of the state, has no due proces s rights." Hen richv. Libe rtyvill e H igh Sc hool, 186 Ill. 2d 381, 405, 7 12 N.E.2d 298, 310 (199 8)
. A state and the political subdivisi ons of a state have no constitut ional right to due proces s, beca use they are not "persons " within the mean ing of the due-proc ess clause of the fift h amen dmen t (U .S. Const., amen d. V). Sout h Carolina v. Re g an , 465 U.S. 367, 394, 79 L. Ed. 2d372, 391, 104 S. Ct. 1107, 1122 (198 4) (O'Connor, J., concurring); South Ca r o l in a v . Katze nbac

h, 383 U.S. 301, 323-24 , 15 L. Ed. 2d 769, 784, 86 S. Ct. 803, 816 (19 66)
. The same wou ld seem to hold tru e of the du e- p r o ce ss clause of the fou rteenth

amen dmen t (U .S. Const., amen d. XIV). Hen ce, we conclude that the state and the political subdivisi ons of the state--i ncluding CMS and the Commiss ion-- have no consti tu ti o n al r i ght to due process
. 2. The B oard's Complia nce With Its Own Rul es

Even thou gh CMS lacks a constitut ional right to due proces s, it can insi st on the Board 's complianc e with i ts own rul es. Ad minis trative rul es ha ve the force an d effect of law, and an agenc

y must fol low its own rul es. People v. Scates, 393 Ill. App. 3d 566 , 570, 914 N .E.2d 243, 245 (2009); S p ringwood Associates v. Healt h Facilities Planning Board, 269 Ill. App. 3d 944, 948, 64 6 N.E.2d 1374 , 1376 (199 5). In this cas e, CMS contends that by failing to conduct an oral he ar in g , w it h the prese ntation of live witnesses, the Board violated its own rul es and therefore violated the law. To evaluate that contention, we first will tu rn to sec

tion 1210.100 (b) of the Bo ar d's rul es (8 0 Ill. Adm. Code §1210.100 (b) , as
- 7 -amen ded b y 2 8 Ill. Reg. 4172, 4190-94 ( eff. February 19 , 2004 )) , a section t hat describe s

the proced ural steps leadi ng up to an oral hea ring on a majori ty-interest petition as well as the cond itions in which the Board is re quired to hold such ahea ring. Acc ording to sec

tion 1210.100 (b) (3) ( 80 Ill. Adm. Code §1210.100 (b) (3), as

amen ded by 28 Ill. Reg. 4172, 4190 (eff
. February 19, 2004 )) , the first step for the employer is to f ile a " writt en res ponse" to t he ma jority-in terest petition within 14 d ays after service of the petition. Subsection (b) (3) also calls this "respons e" a "position statement." 80 Ill. Adm. Code §1210.100 (b) (3), as amen ded by 28 Ill. Reg. 4172, 4190 (eff
. February 19, 2004 ). As the name implies , all the position statement must do is set fort h the employer's "position wit h respect t o the m at t er s as se rted in the petition," including (if the employer knows) wh et her any of the individuals whom the petitioner seeks to repres ent should be

exc lu ded from the bargai ning unit. 80 Ill. Adm. Code §1210.100 (b) (3), as amen ded by 28 Ill. Reg. 4172, 4190 (eff
. February 19, 2004 ). Only if the employer alleges that the majori ty suppo rt was obtained throu gh fraud or coerc ion must the employer initially provide any evide nce in support of its position, and this evide nce of fraud or coerc ion must be clear and convinc ing. 80 Ill. Adm. Code §1210.100 (b) (3), as amen ded by 28 Ill. Reg. 4172, 4190 (eff
. February 19, 2004 ).

Aft er the employer files its position statement--s upport ed or unsupport ed by evide nce, depe ndin g on whether the employer alleges fraud or coerc ion-- the Board "or its agent," i.e., an ALJ, will investigate the union's majori ty-interest petition. 80 Ill. Adm. Code §1210.100 (b) (6 ), as am ende d by 28 Il l. Reg. 4172, 4191 ( eff. Febru ary 19, 200 4). If the investigation uncovers a potential wea kness or insuff

ici ency in either party's cas e, the ALJ may order the party to provide ev ide nce supporting its position. Section
- 8 -1 2 1 0. 1 00(b) (6 ) provides : "[I]f , for any reas on during the investigation, the Board o r it s agent dis covers that the employer's objections to the m aj o r it y interest petition are insuff ici ent in either law or fact, the Board or its agent may issue an order to show cause requesting that the employer or union provide suff ici ent evide nce to support its defense s." 80 Ill. Adm. Code §1210.100 (b) (6 ), as amen ded by 28 Ill. Reg. 4172, 4191 (eff
. February 19, 2004 ). The wording of that sentenc e is somewhat enigmatic beca use it is unclear why the union should have to provide supporting evid ence if the problem is with the employer's

o bjec tions. Nevertheless, the basi c ide a appe ars to be that if, in the course of his or her investigation, the ALJ encounters what appe ars to be a legal or factual defic ienc y in either party's cas e, the ALJ can require the party to sh ore up the defic ienc y by the submission of "suff ici ent evide nce." One may reas onably infer that the goal behin d this investigative procedu r e is to dis cover ahe ad of time, throu g h documentary submissions , any fatal defic ienc y in either party's cas e instead of dis covering the defic ienc y later on, after wasti ng time and

resources in an adm inis trative "trial." In this respe ct, the proced ure in sec tion 1210.100 (b) is compa rable to a summary-j u dg m en t proced ure, exc ept that the ALJ, rather than the parties, ide ntifies the weakness that need s to be shored up. See 735 ILCS 5/2-1005 (W est 2008); Kimbrough v. Jewel Cos., Inc., 92 Ill. App. 3d 813, 819, 416 N.E.2d 328, 333 (19 81) (t he benefits of the summary- judgment proced ure "inure not only to the litigant s, in the saving of time and exp ense s, but to the community in avoidi ng congestion of trial calend ars andthe ex pense s of unnecess ary trial").

Thus, the ALJ can call on the parties to assi st in the investigation by supplying evide nce to overcome or elimina t e ap p arent problems, factual or legal, that the
- 9 -investigation disc loses. If the problem is with a "defense," "[f] ailure t o provide suf ficien t evide nce" in response to a rul e to show cause can result in a "waiver" (or, to use the correc t term, forf

eiture) of that defense
. 80 Ill. Adm. Code §1210.100 (b) (6 ), as amen ded by 28 Ill. Reg. 4 172, 4191-92 (eff. Febru ary 19, 200 4).

This collaborative investigation will culminate in one of three out comes : (1) dis missal of the petition (8 0 Ill. Adm. Code §1210.100 (b) (7)( A), as amen ded by 28 Ill. Reg. 4172, 4192 (e f

f
. F eb r u ary 19, 2004 )) , (2) certification of the petitioner as bargai ning repres entative (8 0 Ill. Adm. C o d e § 1 2 1 0 . 1 0 0 (b )( 7)(B), as amen ded by 28 Ill. Reg. 4172, 4192 (eff
. February 19, 2004 )) , or (3) the sche duling of an oral hea ring ( 8 0 Ill. Adm. Code §1210.100 (b) (7)( C), as amen ded by 28 Ill. Reg. 4172, 4192 (eff
. February 19, 2004 ))
. As in summary-

judgment proced ure, an oral hea ring, or adm inis trative "trial," is nece ssary only if the opposing documents (and any result ing proced ural forf eitur e) f ail to resolve an important question about the petition--or, in t he language of the rul e, only if "the investigation disc

loses t hat t here is reas onable cause t o believe t hat t here are unresolv ed issues relating to the question conce rning repres entation." 80 Ill. Adm. Code §1210.100 (b) (7)( C), as amen ded by 28 Ill. Reg. 4172, 4192 (eff
. February 19, 2004 ). Thus, the Board shall hold an oral hea ring only if it has reas onable grounds for believing that the

cas e prese nts unresolved issues, signific ant questions that have resis ted resolut ion throu gh the writt en submiss ions.

Ha ving des cribe d the proced ure that the Board was to fol low in this cas e, we
now tu rn our attention to the substantive law upon which that proced ure operates. This is the law relating to "manage rial emp loyees." D. Manageri al Statu s

- 10 -CMS main tains that the sought-aft er employees , the eight ALJs employed at

the Commiss ion, are mana gerial employees
. Whether the eight ALJs are mana gerial employees is of determi native importance to this cas e becau se the Illinois Publ ic Labor Relations Act (Act) exc lu des mana gerial employees from the class of em p l o ye es who are entitled to engage i n collective barga ining. See 5 IL CS 315/3(n), 6( a) (W est 2008).

What is a "manag er ia l employee" ? Section 3(j) of the Act provides the fol lowing defini tion: "an individual who is engage d predomi nantly in exe cutive and

mana gement fu nctions and is cha rged with the responsibility of dire cting the effectu ation of manageme nt policies and prac tices." 5 ILCS 315/3(j) (W est 2008). We canbreak this defini tion down into two element s: (1) engage d predomi nantly in exe cutive and

mana gement fu nctions and (2) cha rged with the responsibility of dire cting the effectu ation of manageme nt policies andprac tices. The Act does not d e fi n e " e x e cut ive a n d m a n a g e m ent fu nctions," but the Board has exp lained that these fu nctions amount to running an agenc y or depa rtment, such as by establishi ng policie s and proced ures, prepa ring the budget, or otherwise assuring that the ag en cy or depa rtment operates effectively. Americ an Fede ration of State, County & Municipal Employees , Council 31, 25 Pub. Employee Rep. (Il l.) par. 68, No. S-RC -07 -174 , at 277 (Il linois Labor Board , State Panel, May 12, 2009) (2009 PERI (LRP) LEXIS 61, at *6) (hereina ft er 25 Pub. Employee Rep. (Il l.) par. 68) ; City of Freeport, 2 Pub. Employee Rep. (Il l.) par. 2052, No. S-RC -181, at 381 (Il linois State Labor Relations Bo ar d, November 5, 1986 ) ( 1986 PERI (LRP) LE XIS 591). Unless a stat ut e specially define s a term, we are to give the term its plain and ordina ry mean ing (W ahlman v. C. Bec ker Milling Co., 279 Ill. 612, 622, 117 N.E. 140 , 144 (19 17); Gekas v. Will iams on, 393 Ill. App. 3d 573, 579, 912

- 11 -N.E.2d 347 , 353 (2009)) , and the Board 's defini tion of "e xe cu tive and mana gement

fu nctions" acc ords with the plain and ordina ry mean ing of "ex ecutive" and "mana gement." An "ex ecutive" is someone who "ex erci se s a dmin istrative or mana gerial control" (MerriamWebster's Collegiate Dictionary 437 (11t h ed. 2003 )) , and "mana gement" is "the collective body of those who mana ge or dire ct an enterprise " (Merriam-Webster's Collegiate D ictiona ry 754 (11t h ed. 2003 ))
. In other words, exe cutives or mana gers ru n t he organiz ation. Formul ating policie s and proced ures and prepa ring the budget are among the types of things that exe cutives or mana gers typic ally wou ld have the authority t o do.

Whereas the first part of the statu tory defini tion of a "mana gerial employee" des cribe s the nature of the work to which the individual devotes most of his or her time, i.e., the performance of "ex ecutive or mana gement fu nctions," that is, running the agenc y, the

sec ond part of the defi n it io n emphasiz es t hat a mana gerial employee's aut hority extends beyond the realm of

theorizi ng andinto the realm of prac tice. See 5 ILCS 315/3(j) (W est 2008). A mana gerial employee not only has the authority to make policy but also bears the responsibility of making that policy happe n. Such a person "is cha rged with the responsibility of dire cting the effectu ation of mana gement policie s and prac tices." 5 ILCS 315/3(j) (W est 2008). We have held that an individual dire cts th e ef f ec t uation of

mana gement policie s and prac tices if he or she "oversee s or co o r dinates policy i m plementation throu gh development of mean s and meth o d s o f a c h i e vi n g p o li c

y o b j e c ti ve s , determi nes the exten t to which the objectives will be ach ieved , and is empowered with a substantial amount of dis cretion to determi ne how policie s will be effected." Department of Central Managem ent Service s v. Illinois State Labor Relations Board , 278 Ill. App. 3d 79, 87, 662 N.E.2d 131, 137 ( 1996 ) (CMS appe als grant of AFSCME's repre se n t at ion petit ion

- 12 -for correc tions leisure activities spe cialist IV and certification, contendi ng the employees were supervisors andmana gerial within the mean ing of the Act).

In other words, mana gerial employees do not merely recomme nd policie s or give advic e that someone highe r up is equally apt to take or leave; rat he r , t he y actually dire ct the governmental enterpris e in a ha nds- on way. "If the employee's role is advis ory and subordinate, t he empl oyee is not a mana gerial employee beca use it is the final responsibility and inde pend ent authority to establish and effectu ate policy that determi nes
mana gement statu s." Department of Central Managem ent Service s, 278 Ill. App. 3d at 87, 662 N.E.2d at 136-37.

Our remark about advis ory employees ' not being mana gerial employees is subject, however, to an important qualification, which the Board overlook s in its brief: an advis ory employee who makes "' effective recomme ndations'" can be mana gerial. Chie f Judge of the Sixteenth Judicial Circ uit v. Illinois State Labor Relations Board , 178 Ill. 2d 333, 339-4 0, 687 N.E.2d 795, 798 (19 9 7) , quot ing National Labor Relations Board v. Yeshiva University, 44 4 U.S. 672, 683 n.17 , 63 L. Ed. 2d 115, 126 n.17, 100 S. Ct. 856 , 863 n.17 (19 80). What are "effective recomme ndations"? In a purely linguistic sense , they are, quite simply, recommend ations t ha t ar e f oll owed. To be "eff

ective" means to "produc[e]

a decide d, dec isive, or des ired effect" (Merriam-Webster's Collegiate Dictionary 397 (11t h ed. 2003 ). Among the synonyms of "effective" are "powerful " and "influent ial." Bartlett' s Roget's Thesa uru s 412.10 (19 96)
. Hen ce, recomme ndations are "effective" if they produce the effect they seek, that is, i f t hey a re imp lemented.

In Yeshiva, the Supreme Co u rt seem ed to understand the term "effective

recomme nda tions" in this ordina ry sense . In that cas e, the facult y members of a university,
- 13 -whom the union had petitioned to repres ent, not only controll ed the aca demi c policy of the

university, b ut th e c e n tr al a d m i n i s tr ati o n fo ll o we d their advic e on personne l matters almost all the time. Yeshiva, 44 4 U.S. at 677, 63 L. Ed. 2d at 122, 100 S. Ct. at 8 5 9 . The union argued that the facult y was "mere ly advis ory," but the Supreme Court t o o k note of the effectiveness, the dec isive influ ence , of the facult y's advic e. "[T] he fact that the adm inis tration holds a rarely exe rcis ed veto power does not dimi nish the facult y's effective power in polic

ymaking a nd i mplementation," the Supreme Court sai d. Yeshiva, 44 4 U.S. at 683 n.17, 6 3 L. Ed. 2d at 126 n.17, 100 S. Ct
. at 863 n.17. The recommend ations of the facult y members "ef

fe ctively control[ led] or implemen t[ ed] employer policy." Yeshiva, 44 4 U.S. at 683, 63 L. Ed . 2d at 126, 100 S. Ct. at 862
. In addition t o having absolut e control

over aca demi c policy (Y eshiva, 44 4 U.S. at 686 , 63 L. Ed. 2d at 128, 100 S. Ct. at 864), the facult y members had effective control over personne l policy, th r o u g h their

recomme nda tions, which the adm inis tration almost always fol lowed (Y eshiva, 44 4 U.S. at 677, 677 n.5, 63 L. Ed. 2d at 122 , 1 22 n.5, 100 S. Ct. at 859 , 859 n.5). Consequently, the S up r e m e C o ur

t agree d with the court of appe als that the facult y members were "'manage r i al employees '" (Y eshiva, 44 4 U.S. at 682 , 63 L. Ed. 2d at 125, 100 S. Ct. at 862 ), a term which

cas e law and , ult imately, the National Labor Re lations Board haddefine d a s "those who ' "formu late and effectu ate man ageme nt policie s by exp ressi ng andmaking ope rative the dec isions of their employer" ' " (Y eshiva, 44 4 U.S. at 682 , 63 L. Ed. 2d at 125-26, 100 S. Ct. at 862 , quot ing National Labor Relations Board v. Bell Aerospa ce Co., Division of Textron, Inc., 416 U.S. 267, 288 , 40 L. Ed. 2d 134, 150, 94 S. Ct
. 1 75 7, 1 76 8 (19 74), quot ing In re PalaceLa undry Dry Clea ning Corp., 7 5 N.L.R.B. 3 20, 323 n .4 (1947)).

Acc ording to our own supreme court, the de f inition of a "mana gerial
- 14 -employee" in se ction 3(j) of t he Ac t (5 ILCS 315/3(j) (West 20 08)) is "very si milar" to the defini tion of a "mana gerial employee" in Yeshiva. Yeshiva, 44 4 U.S. at 683, 63 L. Ed. 2d at 125, 100 S. Ct. at 8 6 2 ; Ch ie f J udge, 178 Ill. 2d at 339, 697 N.E.2d at 797. Furt her, our supreme court ha s mad e it clea r that the conce pt of "'eff ective recomme ndations,'" whi ch the Supreme Court of t he United States held to be a pplica ble to t he ma nageri al ex clusion in Yeshiva, applies with equal force to the mana gerial exc lu sion under the Illinois statu te. Ch ie f J u dg e, 178 Ill. 2d at 339-4 0, 687 N.E.2d at 798. The Board has incorporate d "effective recomm endations" into its interpre tation of t he term "m ana gerial employee."

Th e p r o b le m , h o wever, is that the Board has qualified the conce pt of "effective
r ecomme ndations," and really, there should be no qualification, beca use, under Yeshiva, the conce pt mean s what it says . The Board has held that in order for recomme ndations to be effective, it is not enough that they are acc epted almost all the time: the Board has add ed the qualification that they must be ac ce p t ed with litt le or no "ind epend ent review" or "investigation." Metropol itan Alliance of Police, Sergeants Chap ter No. 534, 26 Pub. Employee Re p . ( I l l
. ) par. 7, No. S-RC -09-0 57, at 22 (Il linois Labor Board , State Panel, February 1, 2010) (2010 PERI (LRP) LEXIS 7, at *8); Int er national Union of Operation Engine ers, Local #7, 4 Pub. Employee Rep. (Il l.) par. 2041, No. S-RC -88-56, at 299 (Il linois State Labor Relations Boa rd, O ctober 13, 1988) (19 88 PERI (LRP) LEXIS 574 ). The test, thou gh, is not the prese nce or abse nce of review. Any recomme ndation implies a review of

some sort, if only of the recomme ndation. See City of Peru v. Illinois State Labor Relations Board , 167 Ill. App. 3d 284, 290, 521 N.E.2d 108, 113 ( 1 9 8 8)
. Rather, the test is the effectiveness, power, or influ ence of the recomme ndations
. G ranted, acc eptance of

recomme nda tions after only a curso ry review could suggest a hea vy relianc e on the
- 15 -recomme nda tions; but thorou gh reviews wou ld not nece ssari ly negate a relianc e o n the

recomme nda tions. Theoretically, a superior could always perf o r m an inde pend ent investigation of the facts and yet almost invaria bly defer to the subordinate's judgment as to what to do about those f ac t s. Or, alternatively, a superior could always perform an inde pend ent review of the recomme ndations, both in their facts and in their evaluation of the facts, and althou gh the superior almost always approves the recomme ndations, it is not beca use of the influ ence of the recomme ndations themselves, bu t rather it is because the

recomme nda tions are almost a lways correc

t. All this i s a wa

y of sayi ng that the criterion, properly speaking, is the effectiveness of the recomme ndations. The extent of review could be an indi cation of the effectiveness of the recomme ndations, but review is not the litmu s test. Rather, the litmu s t es t is the influ ence of the recomme ndations, i.e., whether they almost always persuad e the superiors. Yeshiva, 44 4 U.S. at 677, 63 L. Ed. 2d at 122, 100 S. Ct. at 859 -60. E. The Possible Mana gerial Statu s of the Eight ALJs

1. The E ff

ectivene ss of Their Recomme ndations A ft e r th i s i n tr o d uc

ti on to the mana gerial exc lu sion, we now tu rn our atten ti o n to the eight ALJ positions, as they are des cribe d in CMS's documentary submissions to the Board , to determi ne whether the Board committed clear error by finding no "unresolved issue" a s the AL

Js' manageri al status ( 80 Ill. Adm . Code §1210.100 (b) (7)( C), as a mend ed by 28 Ill. Re g . 41 72 , 4192 (eff
. February 19, 2004 )) or by finding that CMS, by an insuff ici ency in its documentary submissions , had forf eited its defense that the ALJs were
mana gerial employees (see 80 Ill. Adm. Code §1210.100 (b) (6 ), as amen ded by 28 Ill. Reg. 4172, 4191-92 (eff
. February 19, 2004 ))
. See City of Chic ago, 39 6 I l l
. App. 3d at 72, 918
- 16 -N.E.2d at 1113-14 ("this court reviews the Boa rd's findin g that a hea ring was not re quired

under the c

learly erroneous stand ard" ). One way of approa chi ng this question is to compa re the job fu nctions of these ALJs to the overall missi on of the Illinois Commerc e Commission. If the responsibilities of a job titl e enc ompass the agen cy's entire missi on, or a major componen t of its missi on, one might reas onably argu e t hat by ful fill ing t hose responsibi lities, an employee helps t o
run the agenc

y. In other words, if the ALJs are, as a prac tical matter, the whole game when it comes to ut ility regulation-- just as the facult y members in Yeshiva were the whole game when it cam e to aca demi c policy- -they arguably are mana gerial employees
. In Yeshiva, 44 4 U.S. at 686 , 63 L. Ed. 2d at 127-28, 100 S. Ct. at 864, the facult y had absolut e authority over
aca demi c matters, such as what courses wou ld be off ered , when they wou ld be sche duled, and to whom they wou ld be taught
. The facult y also determi ned the t ea ch ing methods, gradi ng policie s, and graduation standa rds. Yeshiva, 44 4 U.S. at 686 , 63 L. Ed. 2d at 128,
100 S. Ct. at 864. The subject m at t er o f t he f aculty' s authority, or the subject matter on which the facult y mad e effective recomme ndation s, pretty much des cribe d what the university was all about. The Supreme Court remarked : "When one consi ders the fu nction of a university, it is diff icul t to imagi ne decisions more mana gerial than these." Yeshiva, 44 4 U.S. at 686, 6 3 L. E d. 2d at 128, 100 S. C t. at 86 4.

Likewise , when w e conside r the f u n ction of the Commiss ion, as set fort h in

sec tions 4- 101 and 4- 201 of the Publ ic Ut ilities Act (220 ILCS 5/4-10 1, 4- 201 (W est 2008)), it appears to be the fu nction, broadly stated, of the ALJs- -or at least they appe ar t o ha v e prominen t roles in the fu lf illment of that fu nction. Acc or di n g t o sec tion 4- 101, "[t] he Commerc e Commiss ion shall have general supervision of all publ i c ut i li ti e s " (220 ILCS 5/4-
- 17 -101 (W est 2008)), an d sec tion 4- 201 makes it "the duty of the Commiss ion to se e that the provisions o f t he Constitut ion and statu tes of this State affecting public ut ilities *** are enforced and obeyed " (220 ILCS 5 / 4-201 (W est 2008)). That also is what the ALJs do, effectively
. A

c c o r ding to CMS's position statement, the ALJs partici pate in the enforceme nt of laws applic able to public ut ilities by holding quasi-j udici al hea rings. "The major part of their responsibilities is to hea r petitions brought by public ut ilities as t o rate incre ase s; citations agai nst t hem regard ing, for exa mple, transmiss ion issues; to hea r dis put es between ut ilities such as telephone compa nies ; an d t o he ar consumer complain ts." The ALJs also conduct hea rings on proposed rul es. The end r es u l t o f these hea rings is a
recomme nded order that the ALJ prese nts to the Commiss ion. In its response to the rul e to sh ow c ause, CMS says that the Commiss ion rarely makes any substantive m odification of these recomme nded orders and that "out right reversals are even rarer." Acc ording to "a

conse rvative estimate by the Chie f Admi nistrative Law Judge," the Commiss ion adopts the ALJs' recomm endations 95% of the time. I t ap pears , then, that this proced ure by which the ALJs hold hea ring s an d issue recomme nded orders, which the Commiss ion adopts almo st all the time, is the prima ry mea ns, if not the ex clusive mea ns, by whi ch the C ommissi on fu lf ills its statu tory mand ate of regulating public ut ilities. CMS mad e, at minim um, a plausible claim when it wrot e to the Board : "[T] hese [ALJs] are the employees the Employer prima rily relies upon to effectively carry out the Commiss ion's r egu latory duties." If the members of the Commiss ion make and implemen t policy throu gh the issuanc e of orders, and if their orders

are almost always the ALJs' recomme nded orders (wit h the titl e of the document cha nged and the cha irman 's signatu re adde d at t he e nd), a good a rgument coul d be mad e that the
- 18 -ALJs make effective recomm en da t ions on major policy and the implemen tation of such

policy. Se e Yeshiva, 44 4 U.S. at 683 n.17, 63 L. E d. 2d at 126 n.17, 100 S. Ct. at 863 n.17.

If an ostensibly a d

vi s o r y e m p lo ye e e x e r ci s e s m a n a g eria l authority throu gh his

or her recomme ndations on major policy issues, which the superiors almost always acc ept,
we will look beyond the formal struct ure of the employee's partici pation in the enterprise , i.e., the making of recomme ndations, and ta ke acc ount of the power that the employee actually wields. Functionally, if there is not much difference between the employee's

recomme nda tion and a mana gerial order, we will treat them as the same for purposes of the

mana gerial exc

lu sion. Se e Chi ef Judge, 178 Ill . 2d at 339-40 , 687 N.E.2d at 798. 2. Formul ating, or Direc ting the Effectu ation of, Policy The union contends that althou g h the eight ALJs are "involved in carry ing out " policy, they neither formu late policy nor dire ct the effectu ation of policy. Again, to be

a mana gerial employee, an individual must do two things. First, the individu al m u st be "enga ged predomi nantly in exe cutive and mana gement fu nctions." 5 ILCS 315/3(j) (W est 2008). These fu nctions "relate to running a depa rtment and in cl u de such activities as formu lating depa rtment policy, prepa ring the budget, and assuring efficient and effective operations of the depa rtment." Village of Elk Grov e Village v. Illinois State Labor Relations Board , 245 Ill. App. 3d 109, 121-22, 613 N.E.2d 311, 320 (19 93). Second , the employee must dire ct the effectu ation of mana gement policie s and prac tices. 5 ILCS 315/3(j) (W est 2008); Elk G rove Village, 245 Ill. App. 3d at 122, 6 13 N.E.2d at 320.

As for the first element, it is not absolut ely esse ntial that a mana gerial employee formu late policy. Formul ating policy is merely o n e ex am p le of running an agenc y. If formu lating policy were the sine qua non of the mana gerial exc lu sion, one could
- 19 -envisi on a situation in which the highe st-ranking off ici al of an agenc

y, the dire ctor, wou ld not be a mana gerial employee. Theoretically, a dire cto r co u l d consi der the exi sting regulations and proced ures of an a gency to be perfectly ade quate, and the dire ctor might

see no need to create any new policie s. Yet it wou ld be absurd to deny that such a dire ctor is a mana geria

l e mployee, beca use, as the highe st-ranking employee, this dire ctor has the responsibility of ru nning the d epartment.

Running the depa rtment might or might n o t en t ai l the creation of new policie s, but it will always ent ai l "di recting the effectu ation" of exi sting policie s. 5 ILCS 315/3(j) (W est 2008). By their recomme nded orders, which the Commiss i o n alm o s t always

acc epts withou t modific ation, the ALJs appe ar to be dire cting the effectu ation of the State's policie s regarding publ ic ut ilities. For exa mple, exhibit A of CMS's response to the order to show cause is an order of the Commiss ion, w hic h w e are t o understand was dra ft ed by

o n e of the ALJs in question, and this order, adopted by the Commiss ion on January 2 4, 2006, ap pears to direc

t the effectu ation of policie s set f orth in sec

tion 1-102 of the Public Ut ilities Act (220 ILCS 5/1-102(a)(iv) (W est 2006)) and sec tion 16-112(a) of the Elect r ic Service Customer Choic e and Rate Relief Law of 1997 (19 9 7 La w ) ( 220 ILCS 5/16-112( a) (W est 2006)), among other Illinois statu tes. In re Commonwealth Edi son Co., No. 05-0 159 (January 24, 2006) (u npublished Illinois Commerc e Commiss ion order). I n ex hibit A, writt en by an ALJ, the Commiss ion approves a "co m p et it iv e auction proces s," thereby dire cting the effectu ation of the policy in sec tion 1-102 that "tar if

f r at es f o r the sale of various public ut ility servic es *** accurately reflect the cost of deliveri ng those servic es" (220 ILCS 5/1-102(a)(iv) (W est 2006)) as well as the policy in sec t ion 16-112(a) of determi ning the market value of electric power and energy. Pursua n t t o the 1997 Law,

- 20 -Commonwealth Edi son had dives ted itsel f o f it s power-gene rating facilities, choosi ng to

obtain all of its power supply f rom the wholesale market. Consequently, Commonwealth Edi son's cost of deliveri ng electrici ty to its customers wou ld henc eforth be the market price that Commonwealth Edi son paid for the electrici ty. The goal was to de v is e an auction proces s, as well as a proced ure for reviewing the auction, that wou ld effectu ate the statu tory policie s of protecting consumers while giving Commonwealth Edi son just and reas onable compen sation for the electric servic e it provided
. The "competitive au ction procurement mech anis m" des cribe d in the Commiss ion's order, exh ibit A (which, presumably, is the ALJ's recomme nded order verbatim), is calculated to dire ct the effectu ation of those policie s. F. The Q uestion of M ana gerial Statu s as a Matter of Law

Simult aneously with this opinion, we are i ssuing an opinion i n Depa rtment of Central Managem ent Service s/Human Rights Comm'n v. Illinois Labor Relations Board , State Panel, No
. 4- 09-07 21 (December 28, 2010),

___ _ Il l. App. 3d

___

_, ____ N.E.2d

___ _ (CMS/HRC), in which we conclude that ALJs of the Illinois Human Rights Commiss ion are mana gerial employees as a matter of law (CMS/HRC, slip op. at 11,

___ _ Ill. App. 3d at

___

_,
___ _ N.E.2d at

___

_). In that opinion, we compa re the ALJs of the Human Rights Commiss ion to t he as sistant State's Att orneys in Cook County State's Att orney v. Illinois Local Labor Relations Board , 166 Ill. 2d 296 , 652 N.E.2d 301 (19 95) , and the assi stant public defend ers in Chie f Judge. CMS/HRC, slip op. at 11,

___ _ Ill. App. 3d at

___ _,
___ _ N.E.2d at

___

_. The supreme court held, in Cook County State's Att orney, 166 Ill. 2d at 303, 652 N.E.2d at 304 , t ha t as si st ant State's Att orneys were mana gerial employees as a matter of law beca use they were "surrogates" of State's Att orneys. Likewise ,

- 21 -in Chie f Judge, 178 Ill. 2d at 344 , 687 N.E.2d at 800, the supreme court held that assi stant

public defend ers were mana gerial employees as a matter of law b ec ause they were "surrogates" of public defend ers. In CMS/HRC, slip op. at 11,

___ _ Ill. App. 3d at

___

_,

___ _ N.E.2d at

___

_, we conclude that "the ALJs' actions are closely ide ntified with those of the [Human Rights] Commiss ion" in t he w ay that the actions of assi stant State's Att orneys and assi stant public defend ers are closely ide ntified with those of their superiors, of which they a re surrogates.

Natu rally, then, the question might b e asked, Why do we not draw an
analogou s conclusion in the prese nt cas e: why do we not conclude that the ALJs in this cas e
are s o closely identified with the members of the Illinois Commerc e Commi ssion a s to be their su rrogate s an d therefore mana gerial employees as a matt er of law? The reason is a difference in adm inis trative proced ures from one agenc y to the ot he r , sp eci fically the proced ures relating to "exc eptions."

" E x c e ptions" are a party's writt en arguments agai nst the recomme nded order that an ALJ issues after an evide ntiary hea ring or adm inis trative trial. It appe ars that under the statu tory law and adm inis trative rul es, t he lack of exc eptions does not have the same legal conse quence before the Co m m erce Commiss ion as before the Human Rights Commiss ion. In CMS/HRC, slip op. at 10-11,

___ _ Ill. App. 3 d at

___

_,
___ _ N.E.2d at

___ _, w e n o t e that under section 8 A-10 3(A) of the Illinois Human Rights Act (775 ILCS 5/8A-103(a) (W est 2008)), if no exc eptions are filed to the ALJ's recomme nded order, the

recomme nded order automatically become s the final order of the Human Rights Commiss ion as if the members of the Human Rights Co m m is sion themselves issued the order. The lack of exc eptions deprives the Hu m an Rights Commiss ion of any power to

- 22 -gains ay the recomm ende d d eci sion of its ALJ. Se ction 8A-103(A) says : "If n o exc eptions

are filed, the recomm en de d order shall become the order of the [Human Rights] Commiss ion without fu rther review." 7 75 ILCS 5/8A-103(A) (W est 2008).

We are unaware, however, of any compa rable proced ural provision in the Publ ic Ut ilities Act (220 ILCS 5/1- 1 01 throu gh 22-503 (W est 2008)) or implemen ting regulations. Althou gh the proced ure before th e Co mmerc e Commiss ion appe ars to be somewhat compa rable to that before the Human Rights Commiss ion in that the ALJ issues

a recomme nded order (220 ILCS 5/10-111 (W est 2008)), to which t he p ar t ies may file

exc eptions (8 3 Ill. Adm. Code §§200.820(a)(1) , 200.830 , as amen ded by 20 Ill. Reg. 10607, 10627-28, ef

f. A u g u st 15, 1996 ), we are unaware of any statu te or rul e t hat au tomatically makes the ALJ's recomme nded order the final order of the Commerc e Commiss ion in the abse nce of exc eptions. Instead , afte r r eceiving the ALJ's recomme nded order, the Commerc e Commiss ion is supposed to make its own decision, even if it rec eives no
exc eptions. "Follo wing rece ipt of the proposed order o f t he He aring Exa miner and any b r ie f s of the parties, and fol lowing oral argument, if any, the Commiss ion shall make it s dec ision and shall serve a copy of its order upon all parties in the manne r provided by Section 10-112 of the Publ ic Ut ilities Act [( 220 ILCS 5/10-112 (W est 2008))] ." 83 Ill. Adm. Code §200.860 (Conway Greene CD-RO M June 2000 ). The term "briefs," in this context, includes "briefs on exc eptions" (8 3 Ill. Adm. Code § 2 00.830 , as amen ded by 20 Ill. Reg. 10607, 10627-28, eff. Augu st 15, 1996 ), and t he phras e "any briefs" contemplates the theoretical possibi lity that there might be no briefs and no exc eptions-- in which event, the Commerc e Commi ssion will issue i ts own deci sion a nyway.

He n ce, unlik e an ALJ of the Human Rights Commiss ion, an ALJ of the
- 23 -Commerc e Commi ssion d oes not becomea surrogate, i.e ., a substitu te or alter ego, of the

commis sion members whenever there is an abse n ce of exc eptions. Exc eptions or no
exc eptions, the members of the Commerc e Commiss ion retain the power and duty to issue their own order, their own dec ision, after rece ipt of the ALJ's recomme nded order. Under

no circumstances is an ALJ of the Commerc e Commiss ion clothed with the ul timate power of the commis sion members ; therefore, the ALJ is not a mana gerial e mployee as a matter of law within the m ea n in g of Chie f Judge and Cook County State's Att orney. Cf. Cook County State's Att orney, 166 Ill. 2d at 303, 652 N.E.2d at 304 , quot ing People v. Nahas, 9 Ill. App. 3d 570, 575, 292 N.E.2d 466, 470 (19 73) (" 'An Assis tant St at e' s A t torney is generally clot hedwith all t he powers andprivileges of t he State's Attorney ***' "). III. CONCL USION For the foregoing reas ons, we reverse the Board 's decision in cas e Nos. S-RC

10-0 34 and S-RC- 10-0 36 and reman d t hose case s f or fu rther adm inis trative procee dings on the question of whether the eight ALJs in question aremana gerial employees.

Reverse d a nd re mand ed. STEIGMANN andMcCULLO UG H, JJ., concur.

- 24 -