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03/29/89 Michael A. Orenic, Judge, v. the Illinois State Labor

March 29, 1989





537 N.E.2d 784, 127 Ill. 2d 453, 130 Ill. Dec. 455 1989.IL.424

Original action for mandamus or prohibition.


JUSTICE STAMOS delivered the opinion of the court. WARD and CALVO, JJ., took no part in the consideration or decision of this case.


This is an original action for a writ of prohibition or mandamus, brought by four chief Judges of Illinois circuit courts (the four chief Judges) against the Illinois State Labor Relations Board (the Board). Three Illinois counties and two labor organizations have intervened as respondents.

The principal question is whether, given their statutory role in funding the circuit courts, counties may be considered joint employers of those courts' non-judicial employees for purposes of collective bargaining under the Illinois Public Labor Relations Act (the Act) (Ill. Rev. Stat. 1987, ch. 48, par. 1601 et seq.). As explained later in this opinion, we answer that question in the negative and issue a writ of prohibition accordingly. I. BACKGROUND

The present action arises out of four cases pending before the Board.

The first case, No. S -- RC -- 88 -- 71, involves the Honorable Michael A. Orenic, as chief Judge of the 12th Judicial Circuit; the County of Will; and District 55, International Association of Machinists and Aerospace Workers, AFL-CIO . In that case, IAM petitioned the Board for an election so that, as the petition was amended, IAM might represent all assistant public defenders (except for confidential employees, supervisors, and others excluded by the Act) said to be employed jointly by the county, the chief Judge, and the public defender in the office of the Will County public defender. The Board hearing officer's recommended opinion found that the county and the chief Judge are the assistant public defenders' joint employers.

The second case, No. S -- RC -- 88 -- 74, involves the Honorable Ralph S. Pearman, as chief Judge of the Fifth Judicial Circuit; the County of Vermilion; and the International Brotherhood of Electrical Workers, Local 399 . In that case, IBEW petitioned the Board for an election so that it might represent (except for guards, supervisors, and others excluded by the Act) all regular full-time and part-time bailiffs said to be employed jointly by the county and the chief Judge at the Vermilion County courthouse facility.

The third case, No. S -- CA -- 88 -- 137, involves the Honorable John W. Rapp, Jr., as chief Judge of the 15th Judicial Circuit; the County of Stephenson; and the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW . In that case, UAW filed an unfair labor practice charge against Chief Judge Rapp for refusing to bargain, in a role as joint employer with Stephenson County, concerning clerk-stenographers and senior stenographers employed in the Stephenson County court services department. The case followed a determination by the Board that the county and the chief Judge are joint employers of those employees. (County of Stephenson, 3 Pub. Employee Rep. (Ill.) par. 2066, No. S -- RC -- 87 -- 45 (ISLRB Oct. 28, 1987).) In County of Stephenson, Stephenson County had taken the position that it was not an employer of the stenographic employees.

The fourth case, No. S -- RC -- 88 -- 63, involves the Honorable Joseph M. McCarthy, as chief Judge of the 16th Judicial Circuit; the County of De Kalb; and the American Federation of State, County and Municipal Employees, Council 31, AFL-CIO . In that case, AFSCME petitioned for an election so that it might represent, with certain exclusions and after certain stipulations had been made, all unrepresented nonprofessional employees of De Kalb County (as employer) and of certain elected county officials, the clerk of the circuit court in De Kalb County, and Chief Judge McCarthy (as respective joint employers). Chief Judge McCarthy's employees at issue are bailiffs and jury commission clerks. The Board hearing officer's recommended opinion found that the county is a joint employer with the circuit court's chief Judge and the court's clerk in De Kalb County, respectively, as to the latter officials' employees.

On June 10, 1988, we allowed the four chief Judges' motion for leave to file their petition for a writ of prohibition or mandamus. (Ill. Const. 1970, art. VI, § 4(a); 107 Ill. 2d R. 381.) We also entered an order, effective until our final resolution of the issues raised in this action, (1) allowing the Board to continue its consideration of the representation cases and to conduct any elections that it saw fit under the Act, but (2) prohibiting the Board from certifying in those cases any bargaining unit that includes a county as joint employer of judicial-branch employees, (3) requiring the Board to stay any final decisions in those cases relating to the identity of the employers of judicial-branch employees, and (4) prohibiting the Board from processing the unfair labor practice charge in the Stephenson County case, and requiring the Board to stay that proceeding.

Intervening in this action are Cook, Vermilion, and Will Counties, AFSCME, and IAM, all as respondents. Ill. Rev. Stat. 1987, ch. 110, par. 2-408.

The four chief Judges have advised the court in briefs that AFSCME, IAM, and IBEW lost the representation elections conducted during 1988 in the 16th, 12th, and 5th Judicial Circuits respectively and that therefore Chief Judges McCarthy, Orenic, and Pearman "have nothing immediately at stake in this litigation" but that they remain interested in its result, particularly since at the time of filing briefs Chief Judges Orenic and Pearman were each currently considered a joint employer with Will County and Vermilion County respectively as to certain judicial-branch employees. In addition, though the parties have not suggested it of record, the court takes judicial notice (see Madden v. City of Chicago (1918), 283 Ill. 165, 171) that Chief Judges Orenic and McCarthy have resigned their positions as chief Judges. II. ISSUES

In their petition, the four chief Judges contend that, for several reasons, the Board lacks jurisdiction over the counties said to be joint employers of court employees in the four pending actions. The four chief Judges contend that:

(1) the State is the sole employer of State judicial-branch employees;

(2) the counties' funding role in relation to the court system cannot make them employers of judicial-branch employees, because, according to the four chief Judges, the statutes* requiring counties to fund the courts violate provisions of the Illinois Constitution creating a unified State court system (Ill. Const. 1970, art. VI, § 1) and mandating State budgets and appropriations for State government expenses (Ill. Const. 1970, art. VIII, §§ 2(a), (b)); and

(3) if counties are deemed employers of judicial-branch employees, their role is merely ministerial and they lack authority to participate in collective bargaining between chief Judges and labor organizations as to those employees.

Accordingly, the four chief Judges pray (1) for a writ of prohibition that would prohibit the Board from certifying any bargaining unit in which a county has been listed as a joint employer of judicial-branch employees, or (2) for a writ of mandamus that would command the Board to take no such further action.

In their brief, the four chief Judges expand on the foregoing contentions by arguing that the cited constitutional provisions "eliminat[e] the counties as co-employers" of State court employees (seemingly whether or not the funding statutes themselves are unconstitutional) and that, even if the funding statutes are constitutional and the counties' funding role is not wholly ministerial, the counties' collective-bargaining role as joint employers is "limited to negotiation over the strictly financial terms of employment." In particular, and somewhat elliptically, the four chief Judges expand on or modify their jurisdictional contention by urging that the requested writ is justified because, since the Board itself believes it has no jurisdiction to decide constitutional issues that they raise, the Board should be prevented from issuing orders that are formulated without regard to constitutionality.

The four chief Judges also suggest that our decision in County of Kane v. Carlson (1987), 116 Ill. 2d 186, held that counties are not joint employers of State judicial-branch employees.

The four chief Judges detail their reasons for asserting that counties, through assumption of a collective-bargaining role as to court employees and through refusals to yield on financial matters during bargaining, actually or potentially are sources of interference in the courts' critical decisions on funding and other administrative issues. The four chief Judges say that, in order to fulfill their duty to engage in good-faith collective bargaining, judicial negotiators have had to accept counties' bargaining positions even when they disagreed with them and that the counties therefore have impeded judicial administration.

As an example of interference with judicial administration, the four chief Judges cite statements made by Du Page County in an amicus curiae brief filed in County of Cook, 4 Pub. Employee Rep. (Ill.) pars. 2025, 3011, Nos. S -- RC -- 87 -- 113, L -- RC -- 87 -- 26 (ISLRB & ILLRB Apr. 27, 1988), which supported collective-bargaining classification of Cook County as a joint employer of adult probation officers. In that brief, Du Page County described itself as employer of judicial-branch employees and asserted that the chief Judge and the county board "both possess independent authority over separate, significant terms and conditions of employment" as to those employees because the county board "has control of the budgeting process" and of "the number of positions, salaries and fringe benefits of elected officials' [including the chief Judge's] employees." Du Page County there argued that "if collective bargaining agreements are reached with respect to wages without the participation of the County, wage increases that were not planned for could negatively impact on the assessment of taxes and the use of revenues derived from taxes."

The four chief Judges contend that, even if the statutes requiring counties to fund circuit courts are constitutional, counties should have no authority to participate or interfere in collective bargaining between chief Judges and labor organizations and that counties should be subject to chief Judges' determinations as to number, salary, hours, and working conditions of court employees. Otherwise, they say, the State's unified judicial system (see Ampersand, Inc. v. Finley (1975), 61 Ill. 2d 537, 542) will experience a "devastating impact" because of counties' local political considerations, the influence of employment terms applicable to the counties' own employees, and the counties' possible indifference to requirements for equal standards of judicial administration statewide.

The four chief Judges cite Painter v. Board of Trustees (1987), 161 Ill. App. 3d 26, 29-30, for the proposition that "a local governmental entity can be called upon to enact the necessary taxes to fund another local government activity, even though it has no control over the amount to be included in that levy." They argue that, a fortiori, a local governmental entity such as a county can be so called upon with regard to a State government activity such as operation of the circuit court.

To the same effect, they also cite Polich v. Chicago School Finance Authority (1980), 79 Ill. 2d 188, and Chicago School Finance Authority v. City Council (1984), 104 Ill. 2d 437, dealing with city council duties to fund the Chicago schools, as well as decisions from other States upholding courts' authority to provide for funding according to their own needs even in the face of local authorities' opposition (Commonwealth ex rel. Carroll v. Tate (1971), 442 Pa. 45, 274 A.2d 193; In re Court Reorganization Plan (1978), 161 N.J. Super. 483, 391 A.2d 1255, aff'd (1979), 78 N.J. 498, 396 A.2d 1144; Mowrer v. Rusk (1980), 95 N.M. 48, 618 P.2d 886; Zylstra v. Piva (1975), 85 Wash. 2d 743, 539 P.2d 823). In support of their primary argument that the Illinois system of county funding for court operations is unconstitutional, the four chief Judges also cite County of Allegheny v. Commonwealth (1987), 517 Pa. 65, 534 A.2d 760.

In response to the four chief Judges' contentions, the Board asserts that it must determine questions of representation and unfair labor practices on the basis of specific and controlling Illinois law. The Board says that it has consistently held an employer to be each entity "whose presence is necessary to create an effective bargaining relationship." (See County of Tazewell, 1 Pub. Employee Rep. (Ill.) par. 2022, No. S -- RC -- 2 (ISLRB Sept. 27, 1985); Du Page County Board, 1 Pub. Employee Rep. (Ill.) par. 2003, Nos. S -- RC -- 9, S -- RC -- 17 (ISLRB Apr. 26, 1985).) In Du Page County Board, the Illinois State Labor Relations Board observed:

"'ho is the employer' is a question of who has the authority to hire, promote, evaluate, discipline, discharge and set work rules for the employees in question, as well as the authority to obtain funding and to set fringe benefits. [Citation.]" (Emphasis added.) (Du Page County Board, 1 Pub. Employee Rep. (Ill.) par. 2003, at VIII -- 13.)

Accord County of Kane v. Illinois State Labor Relations Board (1988), 165 Ill. App. 3d 614, 621-23; City of Rockford v. Illinois State Labor Relations Board (1987), 158 Ill. App. 3d 166, 171-73.

Because it considers itself unauthorized to act beyond the scope of powers granted it by the General Assembly (see Schalz v. McHenry County Sheriff's Department Merit Comm'n (1986), 113 Ill. 2d 198, 202; Homefinders, Inc. v. City of Evanston (1976), 65 Ill. 2d 115, 129-30; Town of Decatur, 2 Pub. Employee Rep. (Ill.) par. 2024, No. S -- RC -- 144, at VIII -- 178 (ISLRB May 29, 1986)), the Board has stated in a previous case that its prerogative is not "to ...

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