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10/27/89 Forest Preserve District v. the Illinois Local Labor

October 27, 1989

FOREST PRESERVE DISTRICT OF COOK COUNTY, PETITIONER-APPELLANT

v.

THE ILLINOIS LOCAL LABOR RELATIONS BOARD ET AL., RESPONDENTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SIXTH DIVISION

546 N.E.2d 675, 190 Ill. App. 3d 283, 137 Ill. Dec. 730 1989.IL.1703

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

APPELLATE Judges:

JUSTICE QUINLAN delivered the opinion of the court. EGAN, P.J., and LaPORTA, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN

Petitioner, the Forest Preserve District of Cook County (District), appealed to this court the final decision of respondent, the Illinois Local Labor Relations Board (Board), entered in favor of respondent, the Fraternal Order of Police, Illinois Labor Council . The Board had ordered the District to cease and desist from displacing incumbent District police officers who failed to achieve a score of at least 70% on the civil service examination for District police officers until it had bargained in good faith with the FOP over the examination. The Board also ordered the District to reinstate with back pay all incumbent police officers who had been dismissed for failing to achieve a 70% or higher score.

The District, an independent unit of local government created by State law, maintains its own police force in order to patrol District property, enforce laws and ordinances, and assist those using the Cook County forest preserves. Cook County, the county in which the District is located, is governed by civil service laws. Accordingly, the District is also governed by the same civil service laws, including the civil service laws pertaining to the selection of employees. See Ill. Rev. Stat. 1987, ch. 96 1/2, par. 6420.

Pursuant to the Cook County civil service laws, all applicants for civil service jobs must take a civil service examination. (Ill. Rev. Stat. 1987, ch. 34, par. 1110.) Based on the results of the examination, the Civil Service Commission (Commission) prepares a register of those who have attained at least the minimum test score fixed by the rules of the Commission. Applicants who have passed the exam, the "eligibles," are then ranked according to their respective scores. (Ill. Rev. Stat. 1987, ch. 34, par. 1112.) When a position is available, the Commission certifies the highest ranking candidate to the head of the institution, office or department in which the position is classified. Ill. Rev. Stat. 1987, ch. 34, par. 1114.

The Commission also has its own rules and regulations providing that those entered on the civil service register must obtain an average of at least 70% out of 100% on the civil service exams. (Cook County Civil Service Rule IV.) Further, if there is a vacant position and the list of eligible applicants on the register has been exhausted, the Commission rules provide that the Commission may make a temporary appointment. (Cook County Civil Service Rule VI.) A temporary appointment is defined in the Commission rules as "[t]he employment of a person in a position from day to day when an appointment by certification or reinstatement cannot be made and which shall be terminated when an eligible can be certified or reinstated to the position." Cook County Civil Service Rule I.

At the time of the administrative hearings in this case, the District employed 70 full-time police officers, 40 of whom were temporary appointments and had served as temporaries for a period ranging from 2 to 12 years. On April 23, 1986, the Commission announced that it would conduct Examination 3818, a three-part examination, for candidates for District police officer positions (the last District police officer examination had been administered in 1979). The first part of the exam was administered in July 1986 and consisted of a written exam and psychological testing. The second part was administered in September 1986 and was a physical examination, which included drug screening. The third and last part of the examination was an oral exam. Approximately 2,000 applicants took the examination, including all of the District's temporary police officers. Out of the 2,000 applicants, 258 were found eligible. However, 17 of the temporary police officers were found ineligible because they did not receive a score of at least 70% on the exam. The other 23 temporary officers ranked from 6 to 252 out of the 258 eligible applicants. Based on the results of Examination 3818, the District told the 17 temporary officers who had failed to achieve 70% on the exam to find other employment. The District also informed the 23 eligible temporary officers that they would be given a position on the District police force when their position or rank on the register was reached.

Around this same time, on May 12, 1986, respondent FOP was certified by the Board as the exclusive representative of the District police officers, including the 40 temporary officers. On December 12, 1986, the FOP filed an unfair labor practice charge with the Board, alleging that the District unilaterally implemented drug screening and psychological tests as part of the civil service examination, tests which had never been part of the examination before, without first bargaining in good faith with the FOP. The Board investigated this charge and issued a complaint on February 25, 1987. Three hearings were held on this complaint (June 8, September 28, and October 27, 1987). Six weeks after the October 27 hearing, the FOP filed a motion to amend the complaint to challenge Examination 3818 in its entirety. This motion was allowed over the District's objections.

The FOP charged that the District had violated section 7 of the Illinois Public Labor Relations Act (Labor Act), which requires a public employer to bargain over any matter concerning wages, hours or other conditions of employment not provided for in any other law (Ill. Rev. Stat. 1987, ch. 48, par. 1607), when it implemented Examination 3818 and required the temporary officers to pass the exam without first bargaining over the exam with the FOP. The District responded that the complaint should be dismissed because the FOP's complaint was not timely filed and the FOP had waived its right to bargain because it had never requested bargaining. The District also contended that it had no duty to bargain over Examination 3818.

On January 29, 1988, the hearing officer issued his recommended decision and order. The hearing officer's findings of fact were as follows: the FOP was a labor organization within the meaning of section 3(i) of the Labor Act (Ill. Rev. Stat. 1987, ch. 48, par. 1603(i)); the District was a public employer within the meaning of section 3(o) of the Labor Act and was under the Board's jurisdiction pursuant to sections 5(b) and 20(b) of the Labor Act (Ill. Rev. Stat. 1987, ch. 48, pars. 1603(o), 1605(b), 1620(b)); the District police officers were public employees within the meaning of section 3(n) of the Labor Act (Ill. Rev. Stat. 1987, ch. 48, par. 1603(n)); the status of a District police officer as certified or temporary was the same in all respects, except that certified officers were entitled to notice and a hearing by the Commission before they could be dismissed from the force or suspended for more than 29 days; the sheet announcing Examination 3818 did not mention that the temporary police officers would be required to take and pass Examination 3818 in order to keep their jobs; results from Examination 3818 were posted on January 9, 1987; and there was no evidence as to how, when or if the temporary officers were told that they were required to take and pass Examination 3818 in order to retain their jobs, nor was there evidence that the District ever offered to bargain over the exam.

In his Conclusions of law, the hearing officer held that the FOP's charge was timely filed and the FOP had not waived its right to bargain over the examination. The hearing officer then held, however, that the District had not violated section 7 of the Labor Act, concluding that application of the Commission prerequisites for eligibility to the temporary officers did not involve the terms and conditions of employment of the temporary officers. The ...


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