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The City of Sandwich v. Illinois Labor Relations Board

January 11, 2011

THE CITY OF SANDWICH,
PETITIONER-APPELLANT,
v.
ILLINOIS LABOR RELATIONS BOARD, ILRB STATE PANEL, JACKIE GALLAGHER, ITS CHAIRMAN, MICHAEL COLI, REX PIPER, MICHAEL HADE, AND ALBERT WASHINGTON, ITS MEMBERS, JOHN F. BROSNAN, ITS EXECUTIVE DIRECTOR, AND ILLINOIS FRATERNAL ORDER OF POLICE LABOR COUNCIL, RESPONDENTS-APPELLEES.
THE CITY OF SANDWICH,
PETITIONER-APPELLANT,
v.
ILLINOIS LABOR RELATIONS BOARD, ILRB STATE PANEL, JACKIE GALLAGHER, ITS CHAIRMAN, MICHAEL COLI, REX PIPER, MICHAEL HADE, AND ALBERT WASHINGTON, ITS MEMBERS, JOHN F. BROSNAN, ITS EXECUTIVE DIRECTOR, ILLINOIS FRATERNAL ORDER OF POLICE LABOR COUNCIL, AND DAVID WICKSTER, ITS EXECUTIVE DIRECTOR, RESPONDENTS-APPELLEES.



Petition for Review of a Certification of Representation by the Illinois Labor Relations Board, State Panel. Case No. S-RC-09-061

The opinion of the court was delivered by: Justice McLAREN

Petition for Review of a Certification of Representation by the Illinois Labor Relations Board, State Panel. Case No. S-RC-09-061

JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Zenoff and Burke concurred in the judgment and opinion.

OPINION

Petitioner, the City of Sandwich (the City), petitions for review of the certification of representation and the decision and order of respondent Illinois Labor Relations Board, State Panel (Board), certifying respondent Illinois Fraternal Order of Police Labor Council (FOP) as the exclusive representative for collective bargaining purposes of all full-time sworn police officers of the rank of sergeant and below employed by the City. We reverse the decision and order and vacate the certification of representation.

In October 2008, the FOP filed a petition with the Board, seeking to include City police officers with the rank of sergeant in its bargaining unit of police officers below the rank of sergeant. The City filed a response and a motion to dismiss, arguing that sergeants are supervisors pursuant to section 3(r) of the Illinois Public Labor Relations Act (Act) (5 ILCS 315/3(r) (West 2008)) and that the City did not agree, pursuant to sections 3(s)(1) and (s)(2) of the Act (5 ILCS 315/3(s)(1), (s)(2) (West 2008)), to certify for collective bargaining purposes a unit consisting of both supervisors and nonsupervisors. An administrative law judge denied the City's motion to dismiss and ultimately ordered a hearing. On March 31, 2009, after a hearing, the administrative law judge issued a recommended decision and order, concluding that sergeants are not supervisors within the meaning of the Act and ordering a secret ballot election to be conducted among the City's sergeants. The City filed an exception to the recommended decision and order with the Board, which subsequently found that the City's sergeants are "public employees within the meaning of the Act" and ordered a representation election.

We first must address this court's jurisdiction over this matter. The parties agree that the petition for review in case No. 2-09-0800, which was filed after the Board's decision was entered but before the representation election was held, was untimely. See Chief Judge of the Sixteenth Judicial Circuit v. Illinois Labor Relations Board, 275 Ill. App. 3d 853, 856 (1995) ("An order by the Board certifying a labor organization as the exclusive bargaining representative of employees in the bargaining unit is a final order that is reviewable directly by this court"); City of Wood Dale v. Illinois Labor Relations Board, 166 Ill. App. 3d 881, 887 (1988) (the unit-recognition process is "not complete until certification after an election"). Therefore we lack jurisdiction in appeal No. 2-09-0800, and we dismiss that appeal. However, the City timely filed its petition for review in case No. 2-09-0985 after the Board-ordered election, and we have jurisdiction over that appeal.

The City contends that the Board erred in finding that the City's sergeants are not supervisors pursuant to the Act. On administrative review of an agency decision, our review extends to all questions of fact and law presented in the record. City of Freeport v. Illinois State Labor Relations Board, 135 Ill. 2d 499, 516 (1990). A reviewing court may not rubber-stamp an administrative decision that it deems inconsistent with the statutory mandate or that frustrates the policy underlying the statute. City of Freeport, 135 Ill. 2d at 516.

This court may apply three standards of review when reviewing an agency's decision. On questions of fact, we deem the agency's findings and conclusions to be prima facie true and correct, and we will overturn such findings only if they are against the manifest weight of the evidence. Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 210 (2008). A determination is against the manifest weight of the evidence if the opposite conclusion is clearly evident. Cinkus, 228 Ill. 2d at 210. Questions of law we review de novo, granting no deference to the agency. See Cinkus, 228 Ill. 2d at 210-11. Mixed questions of law and fact (where historical facts are established or undisputed, and the issue is whether those facts satisfy the statutory standard) are examined with a standard of review of clearly erroneous. Cinkus, 228 Ill. 2d at 211. An agency's decision is "clearly erroneous" when the reviewing court is left with a firm and definite conviction that the agency has committed a mistake. Cinkus, 228 Ill. 2d at 211.

Section 3(r) of the Act provides in relevant part: " 'Supervisor' " is an employee whose principal work is substantially different from that of his or her 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, to adjust their grievances, or to effectively recommend any of those actions, if the exercise of that 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 that 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 of Article 10 of the Illinois Municipal Code, but these factors shall not be the sole or predominant factors considered by the Board in determining police supervisory status." 5 ILCS 315/3(r) (West 2008).

A police officer meets the definition of supervisor contained in section 3(r) if he: (1) performs principal work substantially different from that of his subordinates; (2) has the authority in the interest of his employer to perform at least 1 of the 11 enumerated supervisory functions or to effectively recommend such action; and (3) consistently uses independent judgment in performing or recommending the enumerated actions. City of Freeport, 135 Ill. 2d at 505-06; Village of Hazel Crest v. Illinois Labor Relations Board, 385 Ill. App. 3d 109, 114 (2008). The existence of even one indicium of supervisory authority accompanied by independent judgment is sufficient to support a finding of supervisory status. Village of Hazel Crest, 385 Ill. App. 3d at 114.

Here, the parties stipulated, and the Board found, that the sergeants perform principal work substantially different from that of peace officers with the rank of patrol officers. However, the Board found that the sergeants "do not possess the authority to perform any of the statutory indicia with the requisite independent judgment." Thus, the Board found the sergeants to be public employees within the meaning of the Act, and it ordered a representation election.

GENERAL BACKGROUND

At the hearing before the administrative law judge, Chief Richard Olson testified about the policies, procedures, and operations of the Sandwich police department. The department has 17 full-time police officers: the chief, 3 sergeants, and 13 patrol officers. The department also employs civilians as dispatchers, crossing guards, and records clerks. There is no other supervisory rank besides chief and sergeant. All officers other than chief are considered to be in the patrol division. The patrol division has three shifts: 6 a.m. to 4 p.m., 3 p.m. to 1 a.m., and 8 p.m. to 6 a.m. Olson was normally scheduled to work approximately 45 hours a week, during the 6 a.m. to 3 p.m. ...


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