Court of Appeals of Illinois, First District, Sixth Division
AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES (AFSCME), COUNCIL 31, Petitioner,
THE ILLINOIS LABOR RELATIONS BOARD, LOCAL PANEL, THE SHERIFF OF COOK COUNTY, and THE COUNTY OF COOK, Respondents, Metropolitan Alliance of Police, Chapter 438, Intervenor.
for Review of an Order of the Illinois Labor Relations Board,
Local Panel No. L-UC-15-003
JUSTICE ROCHFORD delivered the judgment of the court, with
opinion. Presiding Justice Hoffman and Justice Delort
concurred in the judgment and opinion.
1 The American Federation of State, County, and Municipal
Employees (AFSCME) represented Cook County department of
corrections sergeants in a bargaining unit. On September 24,
2014, AFSCME filed a unit clarification petition seeking to
include in the bargaining unit eight employees of Cook County
and the Sheriff of Cook County (Sheriff) who had been
assigned to the electronic monitoring unit (EM) at the Cook
County jail. On November 6, 2014, the executive director of
the Illinois Labor Relations Board (Board) issued a unit
clarification certification order including EM sergeants in
the bargaining unit represented by AFSCME.
2 Under the Board's rules, the parties had 10 days to
appeal the executive director's order to the Board. 80
Ill. Adm. Code 1200.135(a)(1), adopted at 27 Ill. Reg. 7365
(eff. May 1, 2003). After the 10 days had passed and no
appeal had been filed, the Metropolitan Alliance of Police
(MAP) informed the Board, via email, that it had already
represented the EM sergeants in a bargaining unit. The
executive director then revoked AFSCME's certification,
without any prior notice to AFSCME, and reopened proceedings
on AFSCME's unit clarification petition. AFSCME appealed
the revocation order to the Board, arguing that the executive
director did not have the authority to revoke the
certification after the time for an appeal had passed and,
even assuming that such authority did exist, the executive
director did not afford AFSCME due process prior to issuing
the revocation order. MAP was granted leave to intervene.
3 The Board determined that two overriding issues needed to
be addressed: (1) whether the executive director had the
authority to revoke its earlier certification of AFSCME as
the collective bargaining representative for the EM sergeants
and reopen proceedings on AFSCME's unit clarification
petition and, if so, (2) whether the unit clarification
petition filed by AFSCME should be dismissed for failure to
comply with Board rules establishing the criteria for filing
such a petition.
4 The Board bifurcated the issues. In appellate court case
No. 1-16-0960, the Board entered an order on March 9, 2016,
affirming the executive director's revocation order,
finding that the executive director had the authority to
revoke its earlier certification of AFSCME and reopen
proceedings on AFSCME's unit clarification petition. In
appellate court case No. 1-16-2034, following a hearing, the
Board entered an order on June 29, 2016, dismissing the unit
clarification petition filed by AFSCME because it was
untimely and it failed to satisfy any of the criteria
established by the Board's rules for the filing of such a
5 AFSCME directly appealed both orders to the appellate court
pursuant to section 11(e) of the Illinois Public Labor
Relations Act (Act) (5 ILCS 315/11(e) (West 2012)), and the
appeals were consolidated. For the reasons that follow, we
reverse the order entered in appellate court case No.
1-16-0960 and vacate the order entered in appellate court
case No. 1-16-2034. ¶ 6 I. AFSCME's Appeal in
Appellate Court Case No. 1-16-0960
7 AFSCME directly appeals to the appellate court from the
March 9, 2016, order of the Board affirming the executive
director's order revoking its earlier certification of
AFSCME and reopening proceedings on AFSCME's unit
clarification petition. On appeal, AFSCME argues that the
revocation order exceeded the executive director's
statutory authority. Our review is de novo.
County of Du Page v. Illinois Labor Relations Board,
231 Ill.2d 593, 603 (2008).
8 An administrative agency, such as the Board, exercises
purely statutory powers, meaning it only has those powers
specifically conferred on it by statute. Board of
Education of Mundelein Elementary School District No. 75 v.
Illinois Educational Labor Relations Board, 179
Ill.App.3d 696, 702 (1989). Consistent with this principle,
we have held that an administrative agency may allow
rehearing, or modify or alter its decisions, only where
authorized to do so by statute. Id. (holding that
the Illinois Educational Labor Relations Board had no
authority to reconsider a previous order and to issue a
revised order requiring the school district to engage in
mandatory bargaining, in the absence of any statutory
authority to reconsider its orders); People ex rel. Olin
Corp. v. Department of Labor, 95 Ill.App.3d 1108 (1981)
(holding that, in the absence of statutory authority, the
director of the Illinois Department of Labor could not, on
his own initiative, withdraw his own order entered three
months earlier and direct that a hearing be held on an issue
not appealed by the parties to the order).
9 In the present case, the Act (5 ILCS 315/1 et seq.
(West 2012)) is the relevant statute conferring powers on the
Board. The Act presents a comprehensive scheme governing
labor relations in the public sector, pursuant to which a
labor organization may petition the Board to become the
exclusive representative of a unit of public employees for
the purpose of collective bargaining. Department of
Central Management Services v. American Federation of State,
County & Municipal Employees (AFSCME), 298
Ill.App.3d 640, 643-44 (1998); 5 ILCS 315/9 (West 2012). The
Board is the agency charged with responsibility for
administering and enforcing the Act (City of Freeport v.
Illinois State Labor Relations Board, 135 Ill.2d 499,
507 (1990)), and may employ an executive director to help
perform its functions. 5 ILCS 315/5(g) (West 2012).
10 To carry out its policy and purposes, the Act and the
Board rules contain numerous provisions governing the
representation process. See 5 ILCS 315/9 (West 2012); 80 Ill.
Adm. Code 1210. In pertinent part, the Act provides for the
Board to process unit clarification petitions, in which
public employers or unions seek to add or remove positions
from existing collective bargaining units. 5 ILCS 315/9(a-6)
(West 2012). Section 1210.170 of the Board's rules
addresses unit clarification procedures. 80 Ill. Adm. Code
1210.170, amended at 27 Ill. Reg. 7393 (eff. May 1, 2003).
11 The Board's rules provide that where, as here, the
executive director enters an order clarifying a bargaining
unit pursuant to a unit clarification petition, the parties
may appeal the order to the Board within 10 days. 80 Ill.
Adm. Code 1200.135(a)(1), adopted at 27 Ill. Reg. 7365 (eff.
May 1, 2003). The Act provides that, once the Board enters a
final order on the unit clarification petition, judicial
review may be obtained in accordance with the Administrative
Review Law. See 5 ILCS 315/11(e) (West 2012); City of
Evanston v. Illinois State Labor Relations Board, 227
Ill.App.3d 955, 965-68 (1992).
12 In the present case, the executive director entered an
order certifying AFSCME as the bargaining representative for
the EM sergeants pursuant to a unit clarification petition,
and no appeal was taken to the Board. After the time for an
appeal had passed, the executive director revoked
AFSCME's certification, based on an e-mail request from
MAP that claimed the order was entered in error and without
giving prior notice of the revocation to AFSCME. However,
there is no express provision anywhere in the Act or anywhere
in the Board's rules allowing the executive director, in
the same case in which it certified a ...