Am. Fed'n of State, Cnty. & Mun. Emps. (AFSCME), Council 31 v. Ill. Labor Relations Bd.

• Decision Date: 26 May 2017
• Docket Number: 1-16-2034,Nos. 1-16-0960,s. 1-16-0960
• Parties: AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES (AFSCME), COUNCIL 31, Petitioner, v. 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).
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 160960
81 N.E.3d 43

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES (AFSCME), COUNCIL 31, Petitioner,
v.
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).

Nos. 1-16-0960
1-16-2034

Appellate Court of Illinois, First District, SIXTH DIVISION.

Opinion filed: May 26, 2017

Cornfield & Feldman, LLP, of Chicago (Gail E. Mrozowski, of counsel), for petitioner.

Lisa Madigan, Attorney General, of Chicago (David L. Franklin, Solicitor General, and Sharon A. Purcell, Assistant Attorney General, of counsel), for respondents.

OPINION

JUSTICE ROCHFORD delivered the judgment of the court, with 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

81 N.E.3d 45

(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 petition.

¶ 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, 326 Ill.Dec. 848, 900 N.E.2d 1095 (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, 128 Ill.Dec. 577, 534 N.E.2d 1022 (1989). Consistent with this principle, we have held that an administrative agency may allow rehearing, or modify or alter its decisions, only where authorized

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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, 51 Ill.Dec. 485, 420 N.E.2d 1043 (1981) (holding that, in the absence of statutory authority, the director of...