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This case is on appeal from an order of the Illinois State Labor Relations Board (theBoard), issued on June 15, 2000, in which the Board decided that all of the assistantappellate defenders employed by the State of Illinois Office of the State Appellate Defender(OSAD) qualified as managerial employees under the Illinois Public Labor Relations Act(the Act) (5 ILCS 315/1 et seq. (West 2000)), thus exempting them from collectivebargaining through the American Federation of State, County and Municipal Employees,Council 31 (the Union). The Board also dismissed the Union's unfair labor practicescomplaints, which alleged that OSAD had violated the Act by failing to bargain in goodfaith with the Union.

On appeal, the Union argues (1) that OSAD waived the argument that the assistantappellate defenders are managerial employees and (2) that the Board erred in finding thatthe assistant appellate defenders are managerial employees under the Act. We affirm.

In May 1988, the Union petitioned the Board and alleged that it should be named theexclusive bargaining agent for most of the OSAD employees, including the assistantappellate defenders. After a hearing, the hearing officer certified the Union as the exclusiverepresentative of the bargaining unit of assistant appellate defenders. At the 1988 hearing,OSAD did not argue that the assistant appellate defenders were managerial employees orthat they should be excluded from the bargaining unit. The hearing officer ultimatelyconcluded that the assistant appellate defenders and certain other employees of OSADconstituted an appropriate collective bargaining unit. OSAD did not appeal the hearingofficer's decision to the Board.

Following the certification of the bargaining unit, the parties entered into a series ofcollective bargaining agreements, with the final agreement ending on June 30, 1998. Priorto the end of the last collective bargaining agreement, OSAD filed a petition with the Boardand sought to exclude all of the assistant appellate defenders from the bargaining unitcertified in 1988.

At the hearing before the administrative law judge (the ALJ), OSAD argued that ithad properly filed its petition under recent Illinois Supreme Court case law, whicheffectively changed the law concerning the bargaining rights of publicly employed attorneyssuch as the assistant appellate defenders. The Union opposed the petition on the groundsthat OSAD had waived the argument by not raising it prior to the 1988 certification of thebargaining unit and that, if the argument was not waived, the assistant appellate defenderswere not managerial employees excluded from collective bargaining under the Act.

While OSAD's petition was pending before the ALJ, the Union filed unfair laborpractice charges against OSAD. The Union alleged that OSAD had violated the Act byfailing to negotiate in good faith over the terms of the collective bargaining agreement andby implementing a new pay plan for assistant appellate defenders without giving the Unionan opportunity to bargain about that plan.

On July 21, 1999, the ALJ issued a recommended decision and order. In thatdecision, the ALJ noted that a unit clarification petition, such as that filed by OSAD, mayproperly be filed in four types of situations, including when there has been a change instatutory or case law that affects the bargaining rights of employees. The ALJ determinedthat Illinois Supreme Court case law cited by OSAD constituted a change in the law sincethe bargaining unit was formed in 1988. The ALJ concluded that the assistant appellatedefenders are managerial employees as defined by the Act. Accordingly, the ALJrecommended that the Board should find that the assistant appellate defenders are notcovered by the collective bargaining provisions of the Act and that the Board should grantOSAD's petition for unit clarification. Finally, the ALJ found that since the bargaining unitwas being clarified to exclude all of the employees in that unit, OSAD had no duty tobargain with the Union, and the ALJ recommended that the unfair labor practices complaintsbe dismissed.

The Union filed exceptions to the ALJ's recommended decision. On June 15, 2000,the Board issued its decision, following the ALJ's recommendations with certainmodifications. The Board agreed with the ALJ's conclusion that OSAD's petition wasproperly filed on the basis of a change in the law concerning publicly employed attorneyssuch as the assistant appellate defenders, and the Board agreed with the ALJ'srecommendation that the Union's unfair labor practices complaints should be dismissed. TheUnion filed this timely appeal from the Board's decision.

Judicial review of decisions of the Board is governed by the Administrative ReviewLaw (735 ILCS 5/3-101 et seq. (West 2000)). City of Freeport v. Illinois State LaborRelations Board, 135 Ill. 2d 499, 507 (1990). Judicial review extends to all questions of lawand fact presented in the record. The Board's findings of fact are held prima facie true andcorrect, but if those findings are against the manifest weight of the evidence or if it is clearthat the Board should have reached an opposite conclusion, the court of review may reversethe Board's findings. City of Freeport, 135 Ill. 2d at 507. Where the issue before thereviewing court is one of law, such as the proper interpretation of a statute, as in the case atbar, the Board's findings are not binding on the court (City of Freeport, 135 Ill. 2d at 507)and our review is de novo (County of Cook v. Licensed Practical Nurses Ass'n, 284 Ill. App.3d 145, 152 (1996)). Nevertheless, courts should accord substantial weight and deferenceto statutory interpretation by the agency charged with the administration and enforcementof those statutes. County of Cook, 284 Ill. App. 3d at 152.

OSAD filed its petition asking the Board to find that the assistant appellate defendersare managerial employees under recent Illinois Supreme Court case law. The Unioncontends that the cases to which OSAD refers do not change the law applicable to assistantappellate defenders and that, since the case law has not changed, OSAD has waived thisargument by failing to argue it in 1988 when the bargaining unit was originally certified.

A unit clarification petition such as that filed herein by OSAD is a procedure createdby Board regulation and case law. There are four situations in which a party mayappropriately file a unit clarification petition: "(1) a newly created job classification entailingjob functions similar to functions already covered in the unit; (2) an existing classification'sduties and responsibilities have undergone recent substantial changes raising an issue as towhether the position continues to be included in or excluded from the unit; (3) employeeswere overlooked by the parties through inadvertence or misunderstanding when the unit wascreated; and (4) there has been a change in statutory or case law affecting the bargainingrights of the employees." City of Evanston v. Illinois State Labor Relations Board, 227 Ill.App. 3d 955, 969-70 (1992).

The Act defines a managerial employee as "an individual who is engagedpredominantly in executive and management functions and is charged with the responsibilityof directing the effectuation of management policies and practices." 5 ILCS 315/3(j) (West2000). The Act further provides that managerial employees are not to be included inbargaining units when they are employed by public employers. 5 ILCS 315/3(n) (West2000).

The Board followed the ALJ's recommended order, with one modification. Specifically relevant to this appeal are the following portions of the Board's order:

"The outcome of this case is controlled by the Illinois Supreme Court'sdecision in Chief Judge of the Sixteenth Judicial Circuit v. Illinois State LaborRelations Board, 178 Ill. 2d 333 *** (1997), which concerned the managerial statusof assistant public defenders employed by Kane County. In Chief Judge of theSixteenth Judicial Circuit, [citation] the Board utilized the traditional, fact-basedmanagerial analysis to find that assistant public defenders were not managerialemployees. ***

***

The supreme court [concluded] *** that the assistant public defenders weremanagerial employees, although it made its determination solely as a matter of law,rather than relying upon the employees' duties and responsibilities. In so holding, thesupreme court relied upon its previous decision in Office of the Cook County State'sAttorney v. Illinois Local Labor Relations Board, 166 Ill. 2d 296 *** (1995), inwhich the court declared that certain assistant State's [A]ttorneys were managerialemployees as a matter of law because their statutory duties demonstrated: 1) a closeidentification between the actions of the employees and of their employer; 2) a unityof the professional interest of the employees and of the employer; and 3) an abilityof the employees to act on behalf of the employer. Chief Judge of the SixteenthJudicial Circuit ***, 178 Ill. 2d 333.

***

Because we can find no principled distinction between the statutory duties ofthe assistant appellate defenders and their counterparts at the trial level, the assistantpublic defenders, we are bound by the supreme court precedent in Chief Judge of theSixteenth Judicial Circuit to find that the assistant appellate defenders are managerialemployees within the meaning of Section 3(j) of the Act. *** [I]n the areas thesupreme court has found significant, the similarities between the statutory duties ofthe assistant appellate defenders and those of the assistant public defenders are clear. The statutory mission of both employers is to provide quality legal representation toindigent individuals, albeit at different stages of criminal proceedings. Both theassistant appellate defenders and the assistant public defenders are responsible forcarrying out that mission by providing the necessary legal representation[] and indeedare authorized by statute to assist their respective employers in carrying out theirstatutory duties. Both the assistant appellate defenders and the assistant publicdefenders possess the authority and responsibility to make all legal and professionaldecisions regarding the handling of their cases, without significant input from theState Appellate Defender or the Public Defender. Like their trial-level counterparts,the assistant appellate defenders, when representing the Employer's clients, exercisesome portion of the sovereign power of the State. Further, the assistant appellatedefenders perform acts that are generally regarded as acts of the State AppellateDefender, just as the assistant public defenders were found to perform acts generallyregarded as those of the Public Defender. Based upon the supreme court'sdetermination that these factors are sufficient to confer managerial status within themeaning of the Act, we are bound to conclude that the assistant appellate defendersare likewise managerial employees as the supreme court has defined that term.

*** Because the differences set forth by the Union do not affect the assistantappellate defenders' statutory authority to act as surrogates for the State AppellateDefender, Chief Judge of the Sixteenth Circuit controls our determination herein. Wemust therefore, on the basis of controlling court precedent, uphold the [ALJ's]conclusion that the assistant appellate defenders are managerial employees within themeaning of Section 3(j) of the Act.

While we must uphold the [ALJ's] managerial determination, we expresslydisavow his statement that 'the clear message from the Illinois Supreme Court is thatthe Board's traditional analysis for judging whether non[]attorneys are managerialemployees does not apply to attorneys.' This sweeping assertion contradicts Officeof the Cook County State's Attorney ***, [citation] and Chief Judge of the SixteenthJudicial Circuit, in which the supreme court explicitly stated that its findings wereto be limited only to the particular types of public employees whose managerial statuswas at issue, namely, assistant State's [A]ttorneys and assistant public defenders. ***The supreme court's holdings in both cases were exceptionally narrow and limitedonly to the particular types of public employee whose managerial status was at issuetherein. The traditional fact-based analysis survives, and we will apply it unless courtprecedent expressly requires a contrary result. Because we find the assistant appellatedefenders' statutory duties essentially indistinguishable from those of the assistantpublic defenders in Chief Judge of the Sixteenth Judicial Circuit, this is such a case,and we are bound to conclude that the employees are managerial as a matter of law,as that analysis has been created and applied by the Illinois courts." (Emphasis inoriginal.)

The Union contends that the Board incorrectly determined that the supreme court'srulings in Office of the Cook County State's Attorney and Chief Judge of the SixteenthJudicial Circuit constitute a change in law that affects the bargaining rights of the assistantappellate defenders. It argues that because these cases did not change the law, OSADwaived any argument that the assistant appellate defenders are managerial employees. Therefore, we must consider whether these cases constitute a change in the law sufficientto allow OSAD to file the unit clarification petition. If not, then the Union is correct thatOSAD has waived the managerial-employee argument.

The first reported court decision to define publicly employed attorneys as managerialemployees is Salaried Employees of North America v. Illinois Local Labor Relations Board,202 Ill. App. 3d 1013 (1990). Prior to 1990 and the publication of Salaried Employees ofNorth America, there are no reported judicial or administrative decisions dealing with thecollective bargaining rights of attorneys employed by large municipalities (SalariedEmployees of North America, 202 Ill. App. 3d at 1021), a position that is very similar to thatof the assistant appellate defenders, who are employed by a large State agency. In the 1997case of Chief Judge of the Sixteenth Judicial Circuit, the supreme court decided that basedupon their statutorily defined duties, the public defenders employed by Kane County weremanagerial employees as a matter of law. Chief Judge of the Sixteenth Judicial Circuit, 178Ill. 2d at 343. In the 1997 Chief Judge of the Sixteenth Judicial Circuit case, the supremecourt followed its 1995 decision in Office of the Cook County State's Attorney, wherein thecourt decided that the statutorily defined duties and responsibilities of the assistant State'sAttorneys in Cook County required a finding, as a matter of law, that those attorneys weremanagerial employees within the meaning of the Act.

Prior to 1995, most of the reported decisions construing the managerial-employeesection of the Act utilized a fact-based analysis focusing upon the managerial duties anddecision-making functions of the employees in question. See Village of Elk Grove Villagev. Illinois State Labor Relations Board, 245 Ill. App. 3d 109, 121-22 (1993); City ofEvanston, 227 Ill. App. 3d at 974-75. In the Salaried Employees of North America case, theIllinois Appellate Court, First District, changed the focus from the traditional, fact-basedanalysis to one in which the "key inquiry" was whether the employees' duties andresponsibilities were of such a character that they should not be asked to divide their loyaltybetween their employer and their collective bargaining unit. Salaried Employees of NorthAmerica, 202 Ill. App. 3d at 1021. When the supreme court decided the Chief Judge of theSixteenth Judicial Circuit case, it further clarified the criteria for deciding if publiclyemployed attorneys may be considered managerial under the Act:

"Although no exact criteria define a managerial employee, this court, in[Office of the] Cook County State's Attorney, 166 Ill. 2d at 304, relied heavily on theexistence of three factors in determining that assistant State's Attorneys aremanagerial employees: (1) the close identification of a State's Attorney with theactions of his or her assistants, (2) the unity of their professional interests, and (3) thepower of the assistants to act on behalf of the State's Attorney. *** The assistantpublic defenders possess significant authority and discretion to discharge the missionof the public defender's office. In effect, they act as surrogates for the publicdefender." Chief Judge of the Sixteenth Judicial Circuit, 178 Ill. 2d at 344.

Thus, at the time of the 1988 certification hearing, a managerial employee wasdefined via a fact-based analysis that emphasized the particular duties of the individualemployees. Since 1997, the supreme court has clarified that if publicly employed attorneyshave statutorily defined duties that, in effect, cause them to be the surrogates for theiremployers, then a three-part legal test should be applied to determine if those employees aremanagerial and excluded from collective bargaining. Thus, the Board was correct inconclusions that there was a change in the law sufficient to allow OSAD to file its unitclarification petition and that OSAD did not waive the argument that the assistant appellatedefenders are managerial employees.

We next turn to the Union's argument that the Board improperly determined that theassistant appellate defenders are managerial employees. Under the test prescribed by thesupreme court in Office of the Cook County State's Attorney and Chief Judge of the SixteenthJudicial Circuit, the first inquiry is whether the State Appellate Defender is closelyidentified with the actions of his assistant appellate defenders. Under the State AppellateDefender Act (725 ILCS 105/1 et seq. (West 2000)), the term " 'State Appellate Defender',when used with reference to representation under this Act, includes Deputy Defender andAssistant Appellate Defender." 725 ILCS 105/2 (West 2000). The State AppellateDefender Act further provides that the State Appellate Defender shall establish an office ineach judicial district, appoint a deputy defender for each of those offices, and employadditional attorneys to serve as assistant appellate defenders. 725 ILCS 105/9 (West 2000). The designated purpose for the position of the State Appellate Defender, the deputydefenders, and the assistant appellate defenders is to represent indigent persons on appealin criminal and delinquent minor proceedings, when appointed to do so by the court. 725ILCS 105/10 (West 2000). Thus, under the State Appellate Defender Act, the assistantappellate defenders work on behalf of the State Appellate Defender, assist him in carryingout the mission of the office, and act as his surrogate when in court representing clients ofthe office. We find that the assistant appellate defenders are closely identified with theiremployer, and as a result, they meet the requirement of the first part of the managerial-employee test for publicly employed attorneys.

The second inquiry is whether the public employer and the publicly employedattorney share a unity of professional interests. We agree with the Board's findings that thestatutory mission of the State Appellate Defender and his assistants is to provide qualitylegal representation to indigent individuals at the appeal level, that the assistant appellatedefenders are responsible for carrying out that mission by providing the necessary legalrepresentation, and that the assistant appellate defenders are authorized by statute to assisttheir employer in carrying out those statutory duties. Based upon these statutorily assignedresponsibilities, the professional interests of the assistant appellate defenders cannot beseparated from and are identical to the professional interests of the State Appellate Defender.

The third inquiry is whether the assistant appellate defenders have the power to acton behalf of their employer, the State Appellate Defender. Again, we agree with the Board's findings that the assistant appellate defenders possess the authority and responsibility tomake all legal and professional decisions regarding their cases, without significant inputfrom the State Appellate Defender. The Union argues that the deputy defenders exertsignificant control over the work product of the assistant appellate defenders and often makesuggestions for changes in the assistants' briefs or oral arguments, that the assistants typicallyfeel compelled to follow the suggestions of the deputy defenders, and that, therefore, theassistant appellate defenders are not autonomous. The Union contends that withoutautonomy of decision-making at every level, the assistant appellate defenders do not meetthe third criteria for qualifying as managerial employees.

Although the deputy defenders exert some level of supervisory control over the workproduct that comes out of their offices, the assistant appellate defenders possess the authorityand responsibility to make all legal and professional decisions regarding the handling oftheir cases, without significant input from the State Appellate Defender. Supervisory controlis a function of the deputy defenders, and each deputy defender may or may not exert controlover any particular assistant appellate defender in each specific case. The difference is thatthe assistant appellate defenders, in all decisions that they make on behalf of the StateAppellate Defender's clients, act with the authority of the State Appellate Defender, in hisstead as his surrogate exercising the same sovereign power as if they were the StateAppellate Defender. Therefore, the Board correctly found that the statutory duties assignedto the State Appellate Defender and carried out by the assistant appellate defenders meet thethird criteria of the test for managerial-employee status.

We agree with the Board's finding that this case is controlled by the supreme court'sdecision in Chief Judge of the Sixteenth Judicial Circuit because the statutorily assignedduties of the assistant public defenders which were analyzed in that case are virtuallyindistinguishable from the statutorily assigned duties of the assistant appellate defenders. Even though both the Office of the Cook County State's Attorney and the Chief Judge of theSixteenth Judicial Circuit cases expressly limited their holdings to the particular factsdescribed therein, the facts of those cases are so similar on all material points that they areindistinguishable for the purpose of our analysis. As a result, we affirm the Board's rulingthat the assistant appellate defenders are managerial employees as defined in the Act and,thus, are not covered by the collective bargaining requirements of the Act.

The Union finally argues that the Board erred in concluding that its unfair laborpractices complaints should be dismissed. However, the only basis the Union gives for thisargument is that the Board erred in finding that the assistant appellate defenders aremanagerial employees and that, therefore, the Board had no basis for dismissing the unfairlabor practices complaints. Because we agree with the Board that the assistant appellatedefenders are managerial employees, we also agree that the unfair labor practices complaintsshould be dismissed.

For all of the reasons stated, we affirm the Board's ruling that OSAD did not waivethe argument that the assistant appellate defenders are managerial employees, we affirm theBoard's finding that the assistant appellate defenders are managerial employees within themeaning of the Act, and we affirm the Board's dismissal of the Union's unfair labor practicescomplaints.

Affirmed.

RARICK, J., concurs.

JUSTICE GOLDENHERSH, specially concurring:

I reluctantly concur with the result reached by the majority in this cause. I agree thatthe outcome in this case is dictated by Office of the Cook County State's Attorney v. IllinoisLocal Labor Relations Board, 166 Ill. 2d 296 (1995), and Chief Judge of the SixteenthJudicial Circuit v. Illinois State Labor Relations Board, 178 Ill. 2d 333 (1997).

I am specially concurring, however, to note the coming to pass of Chief JusticeHarrison's warning in his dissent in Office of the Cook County State's Attorney v. IllinoisLocal Labor Relations Board:

"Assistant State's Attorneys are not managerial employees as a matter of law. Although they carry out the general duties of the office of State's Attorney, that is notdispositive of their legal status. Contrary to the majority's view, an employee cannotbe deemed 'managerial' because he has the authority to act for his employer and toexercise independent judgment in doing so. To some degree, all professionalemployees exercise independent judgment in performing their responsibilities. Themajority's approach would therefore have the effect of removing not only attorneys,but all professional employees, from the reach of the Illinois Public Labor RelationsAct (5 ILCS 315/1 et seq. (West 1992)), contrary to the clear intention of thelegislature.

What matters under the law are the type of decisions professional employeesmake and the areas over which they have authority. If their decisionmaking consistsof discharging normal professional duties in projects to which they have beenassigned, professional employees cannot be excluded from coverage under theIllinois Public Labor Relations Act (5 ILCS 315/1 et seq. (West 1992)) even if unionmembership may involve divided loyalty with the employer. (See National LaborRelations Board v. Yeshiva University (1980), 444 U.S. 672, 690, 63 L. Ed. 2d 115,130, 100 S. Ct. 856, 866.) Accordingly, when an attorney for the State decideswhether to offer a plea bargain or take a case to trial, when he gives his professionalopinion to county officers on questions of law, or when he does any of the myriadother things that make lawyers lawyers, that does not elevate him to the status ofmanager. Something more is necessary." (Emphasis added.) Office of the CookCounty State's Attorney, 166 Ill. 2d at 307-08 (Harrison, J., dissenting, joined byFreeman, J.).

Considering the subsequent decision of Chief Judge of the Sixteenth Judicial Circuit and thedecision in the instant case, the above warning is becoming reality.