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01/29/88 the County of Kane, v. the Illinois State Labor

January 29, 1988

THE COUNTY OF KANE, APPELLANT

v.

THE ILLINOIS STATE LABOR RELATIONS BOARD ET AL., APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

518 N.E.2d 1339, 165 Ill. App. 3d 614, 116 Ill. Dec. 359 1988.IL.108

Petition for review of order of Illinois State Labor Relations Board.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. INGLIS and NASH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

The County of Kane (County) appeals from the decision and order of the Illinois State Labor Relations Board (State Board) that was issued in an unfair labor practice proceeding pursuant to section 11(e) of the Illinois Public Labor Relations Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 1611(e)). The County was found to have violated sections 10(a)(1) and 10(a)(4) of the Act for refusing to bargain with the exclusive collective bargaining representative, the American Federation of State, County and Municipal Employees , of an appropriate unit of employees of the sheriff of Kane County (Sheriff).

This appeal raises two issues involving the decision of the State Board to deny the County's request to inquire into the procedures and criteria utilized by the State Board to determine the 30% "showing of interest" requirement for representation in section 9(a) of the Act and the decision of the State Board that the County and the Sheriff are joint employers of the petitioning employees.

On February 13, 1985, AFSCME filed a petition seeking to represent all nonpeace officer personnel employed by the Kane County sheriff's department, excluding all supervisors, managerial, and confidential employees as defined by the Act. The petition named the County and the Sheriff as joint employers of the petitioned-for employees. The County and the Sheriff filed a motion to dismiss denying, inter alia, that they were joint employers and that 30% of the employees in an appropriate unit requested a secret election to determine that AFSCME was the exclusive bargaining agent. Hearing officer Judith Mostovoy denied the motion and, following a hearing primarily related to the joint-employer question, issued a recommended opinion and direction of election. In her recommended opinion and direction of election, Mostovoy found that section 1210.80 of the State Board's Rules and Regulations (80 Ill. Adm. Code 1210.80(g) (1985)) provides that the adequacy of AFSCME's showing of interest is inappropriate for litigation by the employer before the State Board and concluded that the Sheriff and the County are joint employers of the petitioned-for employees.

The Sheriff and the County filed their exceptions to the recommended opinion. After reviewing the record, the State Board adopted the hearing officer's recommendation as the decision of the State Board. The County filed an interlocutory appeal in this court seeking review of the representation issues. This appeal was dismissed, there being no final order appealed from. County of Kane v. Illinois State Labor Relations Board (1987), 153 Ill. App. 3d 1161 (unpublished Rule 23 order).

While the appeal was pending, on April 10, 1986, a representation election was held, and, on April 16, 1986, AFSCME was certified by the State Board as the exclusive representative of all the petitioned-for employees of the Kane County sheriff's department. In response to AFSCME's demand to begin negotiations for a collective bargaining agreement, the County indicated that it wanted to postpone collective bargaining until this court ruled in the pending appeal. While the Sheriff expressed his willingness to bargain, the County persisted in its refusal to meet and negotiate with AFSCME.

On July 17, 1986, AFSCME filed an unfair labor practice charge, and a hearing was held before hearing officer William A. Waechter, during which the County admitted that it had failed to bargain and continued in its refusal to do so for the purpose of preserving its right to appeal and to seek judicial review of the issues of that hearing. Hearing Officer Waechter issued a recommended opinion and order wherein he found that the County had failed to bargain, but that the Sheriff had bargained pursuant to his responsibilities under the Act. The State Board adopted the hearing officer's recommendation as its decision and ordered the County, inter alia, to bargain collectively with AFSCME. It is from this decision that the County appeals.

We examine, initially, the County's contention that the denial, at the representation hearing, of its oral motion to inquire into the procedures and criteria utilized in the State Board's determination of the adequacy of the "'jurisdictionally required'" 30% showing of interest relative to the proposed unit employees violated its administrative due process rights. The record shows that the County requested that a State Board employee appear so that the County could inquire into what criteria were used in evaluating whether there was an adequate showing of interest. The County also represented that it had the right to inquire into the validity of the signatures of those signing authorization cards which were used in determining the showing of interest.

Both AFSCME and the State Board note that section 1210.80 of the State Board's Rules and Regulations, governing the showing of interest, provides that the State Board maintain the confidentiality of the showing of interest and determine the adequacy of that showing administratively and that the showing not be subject to collateral attack. (80 Ill. Adm. Code 1210.80 (1985).) Because the Act's showing of interest requirement is patterned after that of the National Labor Relations Act , they argue that, just as the Federal courts and the National Labor Relations Board have found the NLRB's showing of interest determinations nonreviewable, this court should find the State Board's determination non-reviewable as well. The State Board also urges that additional inquiry into its procedures would pose serious threats to the confidentiality of the showing of interest.

Furthermore, the State Board joins AFSCME's contention that the 30% showing of interest is not a jurisdictional requirement, but only provides the State Board with a statutory basis for declining petitions, where it would be unlikely for a union-petitioner to prevail at a representation election, in order for the State Board to avoid frivolous cases. The State Board argues further that, because the County has not identified a protectable property right in the State Board's preliminary determination of whether to investigate a petition for representation and because, ...


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