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04/07/88 the City of Burbank, v. State Labor

April 7, 1988

THE CITY OF BURBANK, PETITIONER-APPELLANT

v.

ILLINOIS STATE LABOR RELATIONS BOARD ET AL., RESPONDENTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

523 N.E.2d 68, 168 Ill. App. 3d 885, 119 Ill. Dec. 600 1988.IL.494

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

APPELLATE Judges:

JUSTICE JOHNSON delivered the opinion of the court. LINN and McMORROW, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON

The instant appeal is a direct review of three orders of the Illinois State Labor Relations Board. On August 5, 1985, respondent, American Federation of State, County and Municipal Employees, AFL-CIO (hereinafter AFSCME), filed an unfair labor practice charge with the Illinois State Labor Relations Board (hereinafter the Board), also a respondent here, in case No. S -- CA -- 89. AFSCME alleged that petitioner, City of Burbank (hereinafter the City), had engaged in unfair labor practices when it reorganized its Public Works Department (hereinafter the Department), eliminated two foreman positions in the Department, terminated the employment of one of the foremen, Robert Randle, and assigned the other foreman, Norbert Maza, to the newly created position of deputy director.

Subsequently, the City filed two petitions for unit clarification with the Board, which were consolidated during the administrative proceedings. The petition in case No. S -- UC -- 15 sought to exclude the Department secretary from the bargaining unit. The petition in case No. S -- UC -- 19 sought to exclude the newly created position of deputy director from the bargaining unit.

All three cases were processed administratively in accordance with the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1985, ch. 48, par. 1601 et seq.) (hereinafter the Act) and the rules of the Board. In case No. S-CA-89 the Board found that the City had engaged in various unfair labor practices in violation of section 10 of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 1610). Further, the Board ordered the City to offer reinstatement and retroactive wages with interest to Randle, to rescind the promotion of Maza, and to take various other affirmative actions. In a separate opinion the Board dismissed the City's unit clarification petitions. In case No. S-UC-15 the Board found that the Department secretary was not a confidential employee and that there was no reason to exclude her from the bargaining unit. In case No. S-UC-19 it determined that because the position of deputy director had been found unlawfully created, the issue of its inclusion into, or exclusion from, the existing unit was moot.

On August 25, 1986, the City filed a petition with this court for direct administrative review of both the Board's decision and order in the unfair labor practice case and the Board's opinion dismissing the unit clarification petitions. The City raises as to each of the three cases enumerated above the single issue of whether the Board's factual findings and legal Conclusions are supported by the manifest weight of the evidence. Additionally, the Board and AFSCME raise as an issue for review whether this court has subject matter jurisdiction over cases which involve unit clarification petitions, specifically case Nos. S -- UC -- 15 and S -- UC -- 19. Accordingly, before addressing the facts and merits of this appeal, we shall first direct our attention to the issue of subject matter jurisdiction.

The respondents contend that judicial review of unit clarification proceedings is not provided for by the Act (Ill. Rev. Stat. 1985, ch. 48, par. 1601 et seq.). They point out that the Act empowers the board with authority to regulate labor relations and collective bargaining matters between employers, public employees, and labor organizations. The Board performs these regulatory functions in two different and distinct types of cases: representation cases and unfair labor practice cases. Section 9 of the Act governs representation cases, of which unit clarification proceedings are a part. Sections 10 and 11 of the Act govern unfair labor practice cases, with section 10 enumerating the various unfair labor practices and section 11 specifying the procedures to be followed in determining whether an unfair labor practice has been committed. The Board claims that the placement of the provision authorizing judicial review within section 11 of the Act is indicative of the legislature's intent to limit judicial review to unfair labor practice cases.

Respondents continue by arguing that to restrict judicial review to unfair labor practice cases would be consistent with the construction of the National Labor Relations Act (hereinafter NLRA) (29 U.S.C. § 151 et seq. (1982)), after which the Illinois Act was patterned. Interpreting the NLRA, Federal courts have held that bargaining unit determinations are not final orders and that, in order to obtain judicial review, the employer must refuse to bargain and then raise the issue in subsequent unfair labor practice proceedings. At that time, the entire proceeding, including the appropriateness of the unit determination, is open to judicial review. See Magnesium Casting Co. v. NLRB (1971), 401 U.S. 137, 27 L. Ed. 2d 735, 91 S. Ct. 599; Friendly Ice Cream Corp. v. NLRB (1st Cir. 1983), 705 F.2d 570; Pacific Southwest Airlines v. NLRB (9th Cir. 1978), 587 F.2d 1032.

Respondents cite City of Rockford v. Illinois State Labor Relations Board (2d Dist. March 31, 1987), consolidated Nos. 2 -- 86 -- 711 & 2 -- 87 -- 0085, as authority for the proposition that Illinois courts have interpreted the construction of the Act to parallel that of the NLRA on the issue of whether the Act authorizes judicial review of representation cases. However, the Rockford opinion on which respondents rely was withdrawn on August 7, 1987, and the official opinion, filed on the same date, is cited as City of Rockford v. Illinois State Labor Relations Board (1987), 158 Ill. App. 3d 166. In that opinion the court does not specifically address the issue of whether this court has subject matter jurisdiction to review representation cases.

In Rockford, the Board determined that the city of Rockford and the Rockford Public Library were joint employers of the library's employees and directed that an election be held. The city of Rockford and the library appealed the Board's joint-employer determination. Subsequent to the docketing of that appeal, however, an election was held, AFSCME won the election and was certified as the exclusive bargaining representative of the library's employees. The library refused to bargain until the joint-employer issue was resolved and AFSCME filed an unfair labor practice charge based on this refusal. Thus, the Rockford court was not presented with the specific issue of whether this court has subject matter jurisdiction of cases which are solely representation cases. In fact, the Rockford court stated that, "[inasmuch] as part of the consolidated petitions seeks administrative review of a final order issued by the Board pursuant to section 11(e) of the Illinois Labor Relations Act dealing with unfair labor practices (Ill. Rev. Stat. 1985, ch. 48, par. 1611(e)), the joint-employer issue is open to judicial review." (Emphasis in original.) Rockford, 158 Ill. App. 3d at 169.

This specific issue was addressed for the first time in Illinois in Laborer's International Union of North America, Local 1280 v. Illinois State Labor Relations Board (1987), 154 Ill. App. 3d 1045. The Board and the city of Robinson argued there, as do respondents in the instant case, that representation proceedings were not judicially reviewable pursuant to section 11(e) of the Act. For this proposition they relied on judicial interpretation of the model Federal statute, the NLRA. After comparative analysis, the court found several dissimilarities between the Act and the NLRA which were pertinent to this issue. The court reasoned that, "[the] fact that the State legislature specifically declined to adopt a certain section [or modified other sections] of the model Federal statute evidences an intent to achieve a result different from that announced by the decisions of the Federal courts [construing the NLRA]." (Laborer's International Union, 154 Ill. App. 3d at 1050.) Analyzing those modifications and omissions the court found this court has jurisdiction over all "final orders" entered by the Board pursuant to the Act. Thus, the only issue to be resolved here in determining jurisdiction is whether the decision of the Board in the two unit clarification cases represents final orders.

The Administrative Review Law (Ill. Rev. Stat. 1983, ch. 110, par. 3-101 et seq.) governs judicial review of final decisions of any administrative agency where the act creating such agency, by express reference, adopts the provisions of the Administrative Review Law. (Ill. Rev. Stat. 1983, ch. 110, par. 3-102.) ...


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