APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
507 N.E.2d 1200, 154 Ill. App. 3d 1045, 107 Ill. Dec. 831 1987.IL.462
Petition for review of order of Illinois State Labor Relations Board.
JUSTICE KASSERMAN delivered the opinion of the court. KARNS, P.J., and JONES, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KASSERMAN
The instant appeal is a direct review of an order of the Illinois State Labor Relations Board. On April 5, 1985, the Illinois State Labor Relations Board (Board) issued a final written decision dismissing the representation petition of Laborer's International Union of North America, Local 1280 (union), finding that the Board was without jurisdiction in the matter. On May 8, 1985, the union filed its timely petition for review of that decision. The city of Robinson, Illinois (city), and the Board have moved to dismiss the union's petition for lack of subject matter jurisdiction. Pursuant to our order of June 28, 1985, the issues raised by those motions were ordered to be taken with the case. Accordingly, before addressing the facts and merits of this appeal, we shall direct our attention first to the issue of subject matter jurisdiction.
Both the Board and the city contend that this court should not and cannot reach the merits of the union's appeal because this court lacks jurisdiction of the subject matter of the case for the reason that the instant action does not involve an unfair-labor-practice charge and is therefore not reviewable pursuant to section 11(e) of the Illinois Public Labor Relations Act (Act or State Act) (Ill. Rev. Stat., 1984 Supp., ch. 48, par. 1601 et seq.). The city and the Board (respondents) contend that pursuant to the Act, only matters involving an unfair-labor-practice charge are reviewable and that representation/certification proceedings are not.
This is a matter of first impression in Illinois. In addressing this matter, we turn first to section 11 of the Act, which provides in pertinent part as follows:
"Sec. 11. Unfair Labor Practice Procedures.
Unfair labor practices may be dealt with by the Board in the following manner:
(e) A charging party or any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may apply for and obtain judicial review of an order of the Board entered under this Act, in accordance with the provisions of the Administrative Review Law, as now or hereafter amended, except that such judicial review shall be afforded directly in the appellate court for the district in which the aggrieved party resides or transacts business. The Board in proceedings under this Section may obtain an order of the court for the enforcement of its order.
(f) Whenever it appears that any person has violated a final order of the Board issued pursuant to this Section, the Board must commence an action in the name of the People of the State of Illinois by petition, alleging the violation, attaching a copy of the order of the Board, and praying for the issuance of an order directing the person, his officers, agents, servants, successors, and assigns to comply with the order of the Board. The Board shall be represented in this action by the Attorney General in accordance with 'An Act in regard to attorneys general and state's attorneys', approved March 26, 1874, as amended. The court may grant or refuse, in whole or in part, the relief sought, provided that the court may stay an order of the Board in accordance with the Administrative Review Law, pending Disposition of the proceedings. The court may punish a violation of its order as in civil contempt.
(g) The proceedings provided in paragraph (f) of this Section shall be commenced in the circuit court in the county where the unfair labor practice which is the subject of the Board's order was committed, or where a person required to cease and desist by such order resides or transacts business." (Ill. Rev. Stat., 1984 Supp., ch. 48, pars. 1611(e), (f), (g).)
The city and the Board assert that the only mention of a review of Board orders is found in section 11(e) of the Act, which the city and the Board contend deals exclusively with the procedure to be used in unfair-labor-practice disputes. The city and Board urge that the placement of this clause is not fortuitous, but rather is based upon the clear intent of the legislature to follow the National Labor Relations Act (29 U.S.C. secs. 151 through 168 (1982)) precedent.
The city and the Board contend that section 11 of the State Act is analogous to section 10 of the NLRA (29 U.S.C. sec. 160 (1980)). Except for certain unusual cases, the NLRA has been consistently interpreted to allow review of representation/certification proceedings only by way of a party's resistance to an unfair-labor-practice charge. (See AFL v. NLRB (1940), 308 U.S. 401, 84 L.E. 347, 60 S. Ct. 300; Boire v. Greyhound Corp. (1964), 376 U.S. 473, 11 L. Ed. 2d 849, 84 S. Ct. 894.) In AFL v. NLRB, the Supreme Court noted that the National Labor Relations Board was given two principal functions to perform by the NLRA: (1) the certification of bargaining representatives for an appropriate unit of employees (29 U.S.C. sec. 159 (1982)) and (2) the prevention of unfair labor practices (29 U.S.C. sec. 160 (1982)). (AFL v. NLRB (1940), 308 U.S. 401, 405, 84 L. Ed. 347, 350, 60 S. Ct. 300, 302.) The Supreme Court noted that the section of the NLRA which dealt with certification made no provision for review of such certifications, except in the single case where there was a petition for enforcement or review of an order restraining an unfair labor practice. (308 U.S. 401, 406, 84 L. Ed. 347, 350-51, 60 S. Ct. 300, 302.) The court noted that all the other provisions for review were to be found in section 10 of the NLRA (29 U.S.C. sec. 160 (1982)) which deals, exclusively, with unfair labor practices. The court then focused on section 10(f) of the NLRA, which deals with the review of unfair-labor-practice orders. The court noted that subsection (f) spoke only of a "final order of the Board" and that it was silent as to representation/certification proceedings. The court also noted that the statute established venue in the circuit court of appeal "wherein the unfair labor practice in question was alleged to have been engaged in or wherein such person resides or transacts business." (AFL v. NLRB (1940), 308 U.S. 401, 407-08, 84 L. Ed. 347, 351-52, 60 S. Ct. 300, 303.) The court then found that it was:
"evident that the entire structure of the Act emphasizes, for purposes of review, the distinction between an 'order' of the Board restraining an unfair labor practice and a certification in representation proceedings. . . . [Certification] authorized by section 9, is nowhere spoken of as an order, and no procedure is prescribed for its review apart from an order prohibiting an unfair labor practice. . . . The statute on its face thus indicates a purpose to limit the review afforded by section 10 to orders of the Board prohibiting unfair labor practices, a purpose and a construction which its legislative history confirms." (308 U.S. 401, 409, 84 L. Ed. 347, 352, 60 S. Ct. 300,304.)
The court recognized that this procedure of indirect review of certification procedures by way of unfair-labor-practice proceedings could cause some peculiar hardships, but also noted that this was an issue to be addressed by Congress and not the courts. 308 U.S. 401, 411-12, 84 L. Ed 347, 353-54, 60 S. Ct. 300, 305.
The city and Board, respondents, contend that the reasoning of the Supreme Court in AFL v. NLRB is applicable to the instant action. Respondents contend that the Illinois State Labor Relations Board is also a "dual-purpose" Board in that section 9 of the State Act, which deals with the process of certification in representation proceedings, is complete unto itself and contains no provision for review, while sections 10 and 11 of the Act, on the other hand, deal with what are unfair labor practices and the procedures for dealing with them and provide for review in subsection (e) of section 11. Respondents contend that the language and the very structure of the Act make it clear that the State legislature intended to limit review of Board orders to cases involving unfair-labor-practice charges and that "final orders" for the purpose of judicial review must be limited to proceedings actually brought pursuant to and properly within section 11 of the Act. Respondents conclude that inasmuch as the instant action is in no way related to an unfair-labor-practice proceeding, this court lacks subject matter jurisdiction to consider the matter.
We note initially that the Federal courts' interpretations of a Federal statute are not binding upon the Illinois courts or legislature although when the State legislature passes a State statute based upon a Federal statute, the statute can presumably be interpreted in conformity with the decisions of the Federal courts rendered prior to the adoption of the statute. Further, it may be presumed that the legislature adopted the language it did with knowledge of the construction previously enunciated in the Federal courts. (See Commonwealth Life & Accident Insurance Co. v. Board of Review of Department of Labor (1953), 414 Ill. 475, 481-82, 111 N.E.2d 345, 348; see also 34 Ill. L. & Prac. Statutes sec. 135, at 128 (1958).) However, the converse of these principles of statutory construction is also true. Since it may be presumed that the legislature had knowledge of the Federal courts' construction of the Federal statute, the intent of the State legislature can be derived not only from the language actually adopted, but also from the language which was changed or not adopted. The fact that the State legislature specifically declined to adopt a certain section of the model Federal statute evidences an intent to achieve a result different from that announced by the decisions of the Federal courts.
Our review of the specific sections of the State Act and the NLRA which are pertinent to the issues herein discloses key dissimilarities. The first dissimilarity between the two acts is found in the respective provisions concerning appeals of orders of the respective boards. Section 11(e) of the State Act provides in pertinent part:
"A charging party or any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may apply for and obtain judicial review of an order of the Board entered under this Act, in accordance with the provisions of the Administrative Review Law, as now or hereafter amended, except that such judicial review shall be afforded directly in the appellate court for the district in which the aggrieved party resides or transacts business." (Emphasis added.) (Ill. Rev. Stat., 1984 Supp., ch. 48, par. 1611(e).)
The analogous provision in the NLRA is section 10(f), which provides in pertinent part:
"Any person aggrieved by a final order of the board granting or denying in whole or in part the relief sought may obtain a review of such order in any United States court of appeals in the circuit wherein the unfair labor practice in question was alleged to have been engaged in or wherein such ...