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County of Vermilion v. Illinois Labor Relations Board

December 05, 2003

THE COUNTY OF VERMILION AND THE VERMILLION COUNTY SHERIFF, PETITIONERS,
v.
THE ILLINOIS LABOR RELATIONS BOARD, STATE PANEL, AND ITS PANEL MEMBERS MANNY HOFFMAN, MIKE BRESLAN, DEBBIE LOUNSBERRY, SANDRA TRISTANO, DAVID BARKHAUSEN, AND THOMAS WALSH; BRIAN E. REYNOLDS, EXECUTIVE DIRECTOR OF SAID BOARD/PANEL; ADMINISTRATIVE LAW JUDGE WILLIAM E. WAECHTER OF SAID BOARD/PANEL; AND THE ILLINOIS FRATERNAL ORDER OF POLICE LABOR COUNCIL, RESPONDENTS.



Direct Review of the Illinois Labor Relations Board, State Panel Case No. SRC02006

The opinion of the court was delivered by: Justice Steigmann

PUBLISHED

The Vermilion County sheriff and Vermilion County (hereinafter employers) petition for review of the decision of the Illinois State Labor Relations Board, State Panel (Board), finding that all full-time corrections sergeants (hereinafter sergeants) employed by the employers represent an appropriate unit for collective bargaining, as defined by section 3(s)(1) of the Illinois Public Labor Relations Act (Act) (5 ILCS 315/3(s)(1) (West 2000)). We affirm.

I. BACKGROUND

In August 2001, respondent, the Illinois Fraternal Order of Police Labor Council (hereinafter union), filed a "Representation/Certification Petition" with the Board, alleging that 30% of the employers' employees in an appropriate unit, as defined in section 3(s)(1)of the Act (5 ILCS 315/3(s)(1) (West 2000)), request an election to determine whether the union should be certified as the exclusive bargaining agent for the employees in that unit. The union alleged that the appropriate unit included all full-time sergeants and excluded all other employees of the employer.

In October 2001, an administrative law judge (ALJ) of the Board conducted a hearing on the union's petition. At the hearing, the employers did not agree to recognize the unit on the ground that the sergeants are considered "supervisors," and, therefore, do not constitute an appropriate bargaining unit under the Act. See 5 ILCS 315/3(s)(1) (West 2000) ("a bargaining unit determined by the Board shall not include both employees and supervisors, or supervisors only"). Accordingly, the ALJ found, and the parties agreed, that the only issue was whether the sergeants are "supervisors" within the meaning of the Act. The parties further agreed that should the sergeants be found not to be supervisors within the meaning of the Act, they constitute an appropriate bargaining unit.

Vermilion County Sheriff William Patrick Hartshorn testified on the employers' behalf that the corrections division consists of 1 captain, 1 administrative lieutenant, 5 sergeants, and 30 correctional officers. The captain and lieutenant both work the first shift only (from 7 a.m. until 3 p.m.), with the captain working Monday through Friday and the lieutenant working a six-day work schedule with three days off on a rotating basis. One sergeant is assigned to the first shift, two sergeants are assigned to the second shift (from 3 p.m. to 11 p.m.), and two sergeants are assigned to the third shift (from 11 p.m. to 7 a.m.). The sergeant is the only representative of the employers on the second and third shifts because no other management personnel are in the correctional facility during those shifts. The sergeants are also the only representatives of the employers on the first shift on weekend days when the lieutenant's days off rotate to the weekend.

Hartshorn also testified regarding the sergeant job description, which is provided to all employees of the correctional facility and was admitted into evidence. Sergeants (1) determine which correctional officers will work certain posts during a shift, (2) assign correctional officers to do routine work (such as processing prisoners for court appearances, releasing work-release prisoners, and taking prisoners for medical care), and (3) ensure that work is done. Captains and lieuten-ants do not perform the same function. Correctional officers are obligated to follow the commands of the sergeant. If the minimum number of correctional officers are not present for a shift, the sergeants have independent authority to call an off-duty correctional officer to work and to force a correctional officer to work overtime until the shift roster is filled. When new prisoners arrive, the sergeant assures that enough personnel are present to receive prisoners and reviews each correctional officer's paperwork to ensure it is completed correctly. Sergeants oversee everything that a correctional officer does on a daily basis; however, they do not complete periodic written evaluations of those officers.

Hartshorn further testified that sergeants have the authority to issue oral and written reprimands and have independent authority to send a correctional officer home for violating a direct order or for being unfit for duty. Following such action, the sergeant must submit a written report of the violation to the lieutenant or captain, who then reviews the report to determine "whether *** there's something that needs to be changed" and then forwards the report to the sheriff "for the disciplinary action." The sergeant is not required to recommend any form of discipline but may do so. A written report from a sergeant is the first step in the discipline process. A sergeant has discretion to handle infractions at "his level" without submitting a written report up the chain of command to the sheriff. The only infractions that a sergeant is required to report are the following: (1) a correctional officer is late for his shift; and (2) a correctional officer engages in behavior that creates a "threat to the facility." The sergeants use their discretion to determine whether behavior creates a "threat to the facility." Correctional officers may appeal the sergeants' actions under their collective-bargaining agreement.

Hartshorn also testified that according to the grievance procedure in the collective-bargaining agreement, grievances should be submitted first to the sergeants. If the grievance can be handled at the shift level, the sergeants have authority to do so without consulting the lieutenant, captain, or sheriff. (The correctional officers' collective-bargaining agreement was admitted into evidence.)

Sergeant Stanley E. Rush testified on the union's behalf that he works the first shift. At the beginning of his shift, Rush (1) confers with the previous shift sergeants to determine if any incidents occurred, (2) determines that all first-shift correctional officers are present, and (3) assigns their posts. Rush does not assign himself a post, although he is counted when determining minimum staffing levels. Rush is usually on the fourth floor of the facility taking phone calls or handling requests from the lieutenant or captain. He assigns tasks to correctional officers, such as escorting attorneys to meetings with prisoners or taking prisoners to get dressed for court. If needed, Rush will also perform these tasks himself.

Rush also testified that 75% of his shift is spent performing correctional officer duties. He completes cell checks, delivers money, dresses prisoners, releases work-release prisoners, helps process incoming prisoners, and escorts attorneys to meetings with prisoners. The remainder of his shift is spent performing tasks only sergeants perform. If he holds officers over or calls officers in, in accordance with the collective-bargaining agreement, the additional work is offered to senior officers first, and if none accept, the least senior officer is ordered to stay. In any emergency, officers can be held over or called in. Such an emergency would be for a reason other than falling below minimum staffing levels. In such a case, the sergeant would not need permission from the lieutenant or captain to hold over or call in officers. Rush had never held over or called in additional officers for other than minimum staffing levels without checking with the lieutenant or captain first, but he believed he has the authority to do so.

Rush further testified that he only receives requests for time off if the correctional officer needs to document that the request was made within the time limitation specified in the collective-bargaining agreement. He does not grant or deny time- off requests. If Rush determines that the next shift will fall below minimum staffing levels, he notifies a union representative. The union representative determines which officer should be called in (based on seniority) and informs the sergeant. If an officer brings to a sergeant a minor dispute between officers, the sergeant has authority to resolve it. However, he does not handle written grievances. Rush did not recall ever issuing a written reprimand but was aware of the captain's having issued written reprimands based on Rush's written report.

Rush was not aware that he has authority to issue a written reprimand. He occasionally verbally informs the lieutenant when he talks to officers about their mistakes. If someone commits an act of misconduct on his shift, Rush is supposed to resolve the issue as best he can. If he cannot do so immediately, he writes a report to the captain. He has authority to send someone home if he determines that action is warranted, but he has never done so, and other sergeants have done so infrequently. No rules govern what behavior a sergeant must document in a written report.

If a problem arises on Rush's shift, the correctional officers come to him for resolution. Rush does not always go to the captain or lieutenant for advice when a problem arises, and he has authority to resolve problems related to everyday working conditions. If an employee needs additional training on a particular skill, Rush has the responsibility as a sergeant to ensure that the officer receive help or training.

Rush attends command meetings that are also attended by the captain, lieutenant, other sergeants, and occasionally the sheriff, where overall shift performance is discussed. The job description for sergeants differs from the correctional officers' job description in that sergeants have the duty to supervise and manage correctional officers. Correctional officers cannot send someone home or call someone back to work. Further, they are supposed to report observations of misbehavior to the sergeant. If an employee is sick, correctional officers are required to report that information to the sergeant, who then determines whether to seek hospitalization. Rush described ...


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