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Service Employees International Union v. Illinois Labor Relations Board

Court of Appeals of Illinois, First District, Sixth Division

June 14, 2013

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 73, Petitioner,
v.
ILLINOIS LABOR RELATIONS BOARD, LOCAL PANEL, and CITY OF CHICAGO, Respondents.

Appeal from the Illinois Labor Relations Board, Local Panel.

Petition for Review of the Order from the Illinois Labor Relations Board, Local Panel No. L-RC-11-006

For PETITIONER: Susan Matta, General Counsel, Service Employees International Union, Local 73; Tyson Roan, Chicago, Illinois.

For RESPONDENTS: Stephen Patton, Corporation Counsel of the City of Chicago; Benna Ruth Solomon, Deputy Corporation Counsel; Myriam Zreczny Kasper, Chief Assistnant Corporation Counsel; Suzanne M. Loose, Assistant Corporation Counsel.

Presiding Justice Lampkin and Justice Gordon concurred in the judgment and opinion.

OPINION

REYES JUSTICE

¶ 1 Petitioner, Service Employees International Union, Local 73 (Union), brings this action for direct review of a decision by the Illinois Labor Relations Board, Local Panel (Board), denying the representation-certification petition brought by the Union to represent supervising investigators employed by the City of Chicago's (City) Independent Police Review Authority (IPRA). The Board rejected the administrative law judge's (ALJ) recommendation, concluding the supervising investigators were supervisors within the meaning of section 3(r) of the Illinois Public Labor Relations Act (Act) (5 ILCS 315/3(r) (West 2010)). On appeal, the Union contends there are no indicia of supervisory authority in this case, in particular that supervising investigators do not "direct" employees within the meaning of the Act. For the following reasons, we conclude the Board's decision was not clearly erroneous.

¶ 2 BACKGROUND

¶ 3 The record on appeal discloses the following facts. In October 2010, the Union filed a representation-certification petition[1] with the Board, seeking to become the exclusive bargaining representative of a bargaining unit of approximately 11 employees described as "[a]ll full-time and regular part-time Supervising Investigators" employed by IPRA. In November 2010, IPRA requested a hearing on the petition and submitted an offer of proof. IPRA argued in part its supervising investigators were excluded from the proposed bargaining unit based on their supervisory status under the Act. IPRA also noted the potential for fragmentation, as the Union also represents public safety employees who would likely be subject to IPRA investigations. After reviewing the offer of proof, the ALJ decided there was reasonable cause to believe unresolved issues concerning representation required a hearing on the petition.

¶ 4 On January 12, 2011, the ALJ held a hearing on the Union's petition. Ilana Rosenzweig, IPRA's chief administrator, testified for IPRA, while two supervising investigators, Paula Tillman and Nathaniel Freeman, testified on behalf of the Union. Both parties also presented documentary evidence at the hearing.

¶ 5 The Organization of IPRA

¶ 6 Rosenzweig testified that IPRA, formerly known as the Office of Professional Standards, became an independent agency of the City in 2007. IPRA's mission is to receive and investigate allegations of misconduct by members of the Chicago police department (CPD), including claims of excessive force, domestic violence, coercion through threats of violence, and verbal abuse based on bias. IPRA also investigates cases involving police discharge of firearms or tasers, as well as incidents of serious injury, attempted suicide, and death in police custody.

¶ 7 According to Rosenzweig, IPRA has approximately 90 employees, over 70 of whom are already represented in collective bargaining matters by the American Federation of State, County and Municipal Employees, Council 31 (AFSCME). Rosenzweig explained an IPRA organizational chart showing the agency's investigators are divided into 11 teams, each consisting of a supervising investigator, three to five employees in the classifications of investigator I, II or III (representing increasing levels of experience) and intake aide. One supervising investigator oversees the administrative staff. One team, designated as "rapid intake, " handles cases for the first 24-48 hours following a complaint, collecting any time-sensitive evidence.

¶ 8 Rosenzweig also testified that IPRA is staffed from 7 a.m. to 11 p.m., but employees are also on call for the Major Incident Response Team (MIRT), which responds to shootings and other serious incidents occurring overnight. Each supervising investigator is assigned to MIRT in a 12-week rotation. MIRT must respond to all officer-involved shootings, but an immediate response may fall within the discretion of the supervising investigator in other cases.

¶ 9 The Assignment and Process of IPRA Investigations

¶10 Rosenzweig testified supervising investigators do not conduct investigations themselves.

When a team receives a case, the supervising investigator assigns it to an investigator, based on factors including: balancing the workload among team members; the type of investigation involved; the experience of the investigators; and developing skills of the investigators on the team. The supervising investigator then monitors the investigation, responds to questions from the investigator, and makes decisions regarding whether various tasks need to be undertaken. Supervising investigators also set deadlines and priorities regarding the investigations.

¶ 11 For example, according to Rosenzweig, to proceed on an investigation, an investigator generally must obtain an affidavit from someone who personally witnessed the incident. Approximately half of IPRA complaints are closed because the investigator is unable to obtain a witness affidavit. The supervising investigator decides whether the investigator put forth sufficient effort to obtain the affidavit. A supervising investigator's decision to close a file in these cases generally is not reviewed by a superior.

¶ 12 In those cases where the investigator obtains a witness affidavit or similar evidence, the supervising investigator may provide guidance to the investigator regarding potential witnesses and ensure the collection of the appropriate physical evidence, video evidence, police reports, medical records, police communications, GPS data from police vehicles, computer records and photographs. Several supervising investigators developed a case checklist to assist investigators in gathering these types of evidence. A supervising investigator also ensures that relevant physical evidence is inventoried and subjected to forensic testing when necessary.

¶ 13 Rosenzweig testified supervising investigators provide their investigators with feedback and written notes during an investigation, identifying issues an investigator needs to address. Supervising investigators also ensure investigators follow through in obtaining supplemental police reports, forensic test results and any information ordered from the CPD. In addition, Rosenzweig testified supervising investigators work with their investigators to determine whether a police officer must be interviewed or provide a written statement. Supervising investigators also oversee the investigators' drafting of potential charges for rule violations.

¶ 14 According to Rosenzweig, when an investigation is complete, investigators make an initial recommendation of whether the finding should be "sustained, not sustained, unfounded, [or] exonerated." Each case is then reviewed by the supervising investigator. If the investigator approves of a finding other than "sustained, " the investigation is closed at the IPRA and the recommendation is sent to the CPD.

ΒΆ15 Rosenzweig also testified, however, when a supervising investigator approves a finding of "sustained, " the supervising investigator will recommend the amount of discipline to be imposed. The supervising investigator's recommendation in sustained cases is reviewed by a deputy chief at the IPRA, and ultimately by Rosenzweig. Supervising investigators approve a finding of "sustained" in approximately 3% of the cases, but Rosenzweig did not specify ...


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