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05/06/88 the City of Freeport, v. State Labor

May 6, 1988

THE CITY OF FREEPORT, PETITIONER

v.

ILLINOIS STATE LABOR RELATIONS BOARD ET AL., RESPONDENTS



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

523 N.E.2d 214, 169 Ill. App. 3d 151, 119 Ill. Dec. 746 1988.IL.700

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

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

The City of Freeport appeals from an order of the Illinois State Labor Relations Board (Board) determining that Freeport had engaged in an unfair labor practice for refusing to bargain with the American Federation of State, County and Municipal Employees , which had been certified by the Board as the exclusive bargaining representative of certain employees of the Freeport police department. The Illinois Association of Chiefs of Police, Inc., and Illinois Municipal League have filed a brief amici curiae opposing the decision of the Board, and AFSCME filed a separate brief in support of it.

At issue in this appeal is a decision of the Board which found that the lieutenants and sergeants of the Freeport police department were not supervisors, as defined in the Illinois Public Labor Relations Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 1603(r)), and they were thus included within an employee bargaining unit composed of all sworn officers of the department except the chief and assistant chief of police.

On January 8, 1986, AFSCME filed a representation petition with the Board pursuant to section 9 of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 1609) in which it sought certification as the exclusive representative for a bargaining unit composed of the sworn officers of the police department except the chief and assistant chief of police, and including therein all lieutenants, sergeants, corporals and patrolmen. The matter was referred by the Board to a hearing officer who rejected Freeport's arguments that three lieutenants who served as full-time shift commanders, one lieutenant who commanded the detective bureau and three sergeants who served as part-time shift commanders were supervisors and should not be included within the bargaining unit. The hearing officer found that an appropriate employee unit for purposes of collective bargaining consisted of all sworn peace officers below the rank of assistant chief, including the lieutenants, sergeants, corporals and patrolmen. The Board accepted the recommendation of the hearing officer, adopted it as the Board's decision, and directed that an election be held by these ranks of employees to determine whether they wished to be represented by AFSCME or have no representation. The election was conducted, after which the Board certified AFSCME as the exclusive representative of the employees it had designated as a bargaining unit. Freeport declined to bargain with AFSCME in order to seek a court review of the Board's unit determination; it was found to have thus engaged in an unfair labor practice and ordered to desist, and this appeal followed.

Judicial review of a final order of the Board is taken directly to the appellate court (Ill. Rev. Stat. 1985, ch. 48, par. 1611(a)) and will be considered in accordance with the provisions of the Administrative Review Law (Ill. Rev. Stat. 1985, ch. 110, par. 3-101 et seq.). The findings and Conclusions of an administrative agency on questions of fact will be considered to be prima facie true and correct, except where they are against the manifest weight of the evidence and it is clearly evident the agency should have reached the opposite Conclusion. (City of Peru v. Illinois State Labor Relations Board (1988), 167 Ill. App. 3d 284, 286; City of Wood Dale v. Illinois State Labor Relations Board (1988), 165 Ill. App. 3d 640, 643; Rockford Township Highway Department v. Illinois State Labor Relations Board (1987), 153 Ill. App. 3d 863, 872, 506 N.E.2d 390.) Courts will accord deference to an interpretation of a statute by the agency charged with its administration, but it is not binding and will be rejected when erroneous. City of Decatur v. American Federation of State, County, & Municipal Employees, Local 268 (1988), 122 Ill. 2d 353.

In our analysis of the evidence presented to the Board we have considered the recent case of City of Peru v. Illinois State Labor Relations Board, in which the court concluded, on very similar facts, that the Board erred in finding that the lieutenants and sergeants of the Peru police department were not supervisory employees and included them in a bargaining unit with their subordinates. See also Village of Oak Park v. Illinois State Labor Relations Board (1988), 168 Ill. App. 3d 7 (refusal to bargain with the representative of a bargaining unit composed of the lieutenants and sergeants of the Oak Park police department was an unfair labor practice).

As relevant to this appeal, section 3(n) of the Illinois Public Labor Relations Act provides:

"'Public employee' or 'employee', for the purposes of this Act, means any individual employed by a public employer, . . . but excluding all . . . supervisors except as provided in this Act." Ill. Rev. Stat. 1985, ch. 48, par. 1603(n).

Section 3(r) of the Act defines who is a supervisor, as pertinent to this case, as follows:

"'Supervisor' is an employee whose principal work is substantially different from that of his subordinates and who has authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, direct, reward, or discipline employees, or to adjust their grievances, or to effectively recommend such action, if the exercise of such authority is not of a merely routine or clerical nature, but requires the consistent use of independent judgment. Except with respect to police employment, the term 'supervisor' includes only those individuals who devote a preponderance of their employment time to exercising such authority State supervisors notwithstanding. In addition, in determining supervisory status in police employment, rank shall not be determinative. The Board shall consider, as evidence of bargaining unit inclusion or exclusion, the common law enforcement policies and relationships between police officer ranks and certification under applicable civil service law, ordinances, personnel codes or Division 2.1 ...


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