American Federation of State, County and Mun. Employees, Council 31, AFL-CIO v. Illinois Local Labor Relations Bd.

• Decision Date: 22 October 1991
• Docket Number: AFL-CI,R,Nos. 1-89-1392,1-89-1981 and 1-89-2017,P,s. 1-89-1392
• Parties: , 164 Ill.Dec. 258 AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 31,etitioner, v. ILLINOIS LOCAL LABOR RELATIONS BOARD, and County of Cook/Sheriff of Cook County, Respondents. COUNTY OF COOK/SHERIFF OF COOK COUNTY, Petitioners and Cross-Respondents, v. ILLINOIS LOCAL LABOR RELATIONS BOARD, Respondent (American Federation of State, County and Municipal Employees, Council 31,espondent and Cross-Petitioner).
• Court: United States Appellate Court of Illinois

Page 1202

582 N.E.2d 1202

221 Ill.App.3d 814, 164 Ill.Dec. 258

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL

EMPLOYEES, COUNCIL 31, AFL-CIO, Petitioner, v. ILLINOIS LOCAL LABOR RELATIONS BOARD, and County of

Cook/Sheriff of Cook County, Respondents.

COUNTY OF COOK/SHERIFF OF COOK COUNTY, Petitioners and Cross-Respondents, v. ILLINOIS LOCAL LABOR RELATIONS BOARD, Respondent (American

Federation of State, County and Municipal

Employees, Council 31, AFL-CIO,

Respondent and Cross-Petitioner).

Nos. 1-89-1392, 1-89-1981 and 1-89-2017.

Appellate Court of Illinois,

First District, Second Division.

Oct. 22, 1991.

J. Dale Berry, Mark S. Stein, Cornfield and Feldman, Chicago, for petitioner AFSCME.

Cecil A. Partee, State's Atty., Chicago (Thomas H. Riley, Jr., Iris E. Sholder, Joan S. Cherry, of counsel), for respondent County of Cook/Sheriff of Cook County.

Neil F. Hartigan, Atty. Gen., Chicago (Karen Michels Caille, Asst. Atty. Gen., of counsel), for respondent Illinois Local Labor Relations Bd.

Presiding Justice SCARIANO delivered the opinion of the court:

Council 31 of the American Federation of State, County and Municipal Employees (AFSCME), seeks review of the Illinois Local Labor Relations Board's (Board) partial dismissal of its representation petition in which it requested certification as the bargaining agent of a unit consisting of the sergeants, lieutenants and captains employed by the Cook County Department of Corrections (Department) and the Sheriff of Cook County (Joint Employers). AFSCME claims that the Board erred in holding that the lieutenants and captains were "supervisors" under section 3(r) of the Illinois Public Labor Relations Act (Act) (Ill.Rev.Stat.1987, ch. 48, par. 1603(r)), and were thereby wrongfully denied inclusion in a bargaining unit with the sergeants. AFSCME asks that the Board's decision be reversed and that this cause be remanded with directions to the Board to hold an election among all three ranks on the issue of AFSCME's representation; in the alternative it asks that the cause be remanded for the purpose of making a finding as to whether the lieutenants and captains devote a "preponderance of time" to exercising supervisory authority.

The Joint Employers petition for review of the Board's certification of AFSCME as the sergeants' bargaining representative, claiming that the Board erred in holding that the sergeants were not supervisors, and asking that the Board's certification be reversed.

Following a hearing on AFSCME's representation petition, a hearing officer made numerous findings of fact and recommended to the Board that it find that neither the sergeants, lieutenants nor captains were supervisors, and that all three ranks be afforded an opportunity to vote on whether they wished to be represented in a bargaining unit by AFSCME. In reviewing these recommendations, the Board summarized the role and structure of the Department as follows:

"The * * * Department * * * is a very large organization which operates the Cook County Jail. The jail * * * houses in excess of 5200 inmates, mostly criminal defendants held for trial in the Circuit Court of Cook County. The [Department] is organized in several divisions and sections, and employs approximately 1776 correctional officers.

The correctional officers have the initial responsibility for securing the jail complex and guarding the individuals incarcerated there. * * * Above the correctional officers in the [Department's] paramilitary chain of command are the sergeants, then the lieutenants, and then the captains. There are 112 sergeants, 44 lieutenants, and 16 captains. Typically, each higher rank is responsible for a larger area of the institution.

The captains report to divisional Superintendents, who report to a Director of Security, who reports to the [Department's] Executive Director. The Executive Director is appointed by and reports to the Sheriff, an elected County official."

While adopting the hearing officer's findings of fact and his recommendation that the sergeants be found not to be supervisors, the Board rejected his recommended finding that the lieutenants and captains were not supervisors. Accordingly, on April 26, 1989, the Board dismissed AFSCME's representation petition in part, granted it in part and directed that an election be conducted only among the sergeants. The sergeants voted in favor of certification, and the Board, on June 28, 1989, certified AFSCME as their bargaining representative.

We take up first the question of whether we have jurisdiction to hear AFSCME's petition for review of the Board's April 26, 1989, partial dismissal of its representation petition. Section 9(i) of the Act (Ill.Rev.Stat.1987, ch. 48, par. 1609(i)) states that "An order of the Board dismissing a representation petition * * * is a final order. Any person aggrieved by any such order * * * may apply for and obtain judicial review in accordance with the provisions of the Administrative Review Law [Ill.Rev.Stat.1987, ch. 110, par. 3-101 et seq.] * * * directly in the Appellate Court * * *." The issue, then, is whether the Board's partial dismissal of AFSCME's representation petition was "dismiss[al of] a representation petition * * *." We hold that it was not.

Prior to the effective date of section 9(i) of the Act, the Board's dismissal of a representation petition was judicially reviewable pursuant to section 11(e) of the Act (Ill.Rev.Stat.1985, ch. 48, par. 1611(e)) "in accordance with the provisions of the Administrative Review Law" (Ill.Rev.Stat.1985, ch. 110, par. 3-101 et seq.)), as a "final order * * * denying in whole or in part the relief sought"; and a "final order[,]" for the purposes of the Act, was defined to be the same as an "[a]dministrative decision" under section 3-101 of the Administrative Review Law, because it "affect[ed] the legal rights, duties or privileges of parties and * * * terminate[d] the proceedings before the administrative agency." Laborer's International Union v. Ill. State Labor Relations Board (1987), 154 Ill.App.3d 1045, 1052-54, 107 Ill.Dec. 831, 507 N.E.2d 1200.

A partial dismissal, however, does not "terminate[ ] the proceedings before the administrative agency." (Section 3-101 of the Administrative Review Law.) Section 9(i), while listing several other types of orders as final and which are therefore judicially reviewable under the Administrative Review Law, is not inconsistent with the definition given by the Laborer's International Union court. Moreover, neither the United States Supreme Court nor most state courts that have construed similar statutory schemes have considered as final those orders which merely determine the composition of a unit in a representation/certification proceeding and direct that an election be held, regardless of whether the challenge comes from the administrative agency or the prospective representative. We therefore hold that we have no jurisdiction over AFSCME's petition from the Board's April 26, 1989 order. See Boire v. Greyhound Corp. (1964), 376 U.S. 473, 476-77, 84 S.Ct. 894, 896-97, 11 L.Ed.2d 849, 851-53, Five County Joint Juvenile Detention Center v. State Employment Relations Board (1991), 57 Ohio St.3d 4, 565 N.E.2d 546; Ind. Ed. Emp. Bd. v. Benton Comm. Sch. (1977), 266 Ind. 491, 505, 365 N.E.2d 752, 759; Harrison v. Labor Relations Commission (1973), 363 Mass. 548, 551, 296 N.E.2d 196, 198; Division of State Lands Employes Association v. Division of State Lands (Or.Ct.App.1985), 72 Or.App. 559, 561-64, 696 P.2d 578, 578-80; Renton Educ. Ass'n. v. PERC (Wash.Ct.App.1979), 24 Wash.App. 476, 479, 603 P.2d 1271, 1272-73; Lincoln Cty. Mem. Hosp. v. Mo. State Bd. of Med. (Mo.Ct.App.1977), 549 S.W.2d 665, 669; Panama City v. Florida Public Employees Rel. Com'n. (Fl.Dist.Ct.App.1976), 333 So.2d 470, 471; but see Civ. Serv. Employees v. Helsby (1969), 31 A.D.2d 325, 329-30, 297 N.Y.S.2d 813, 817-18, aff'd (1969), 24 N.Y.2d 993, 302 N.Y.S.2d 822, 250 N.E.2d 230.

We next consider the Joint Employers' argument that AFSCME was not "aggrieved" by, and thus has no standing to challenge, the Board's June 28, 1989 certification of it as the representative of the sergeants, and its insistence that we have no jurisdiction over AFSCME's "cross-petition" from that order, filed in response to the Joint Employers' petition for review of the certification. We hold that AFSCME clearly has standing to petition from the Board's order of June 28, 1989, since it granted AFSCME only part of what it had petitioned for and was the "final order" from which it was entitled to seek judicial review under section 9(i) of the Act. However, because the issues raised in the "cross-petition" are the same as those raised in AFSCME's petition from the certification, we need not determine whether we have jurisdiction over the "cross-petition."

Turning now to the merits of the case, we note that section 3(s)(1) of the Act (Ill.Rev.Stat.1987, ch. 48, par. 1603(s)(1)) states that, "a bargaining unit determined by the Board shall not include both employees and supervisors, or supervisors only, except [under circumstances not here relevant]." Section 3(r) of the Act states:

" 'Supervisor' is an employee whose principal work is substantially different from that of his subordinates and who has authority, in the interest of his employer, to hire, transfer, suspend, lay off, recall, promote, discharge, direct, reward, or discipline employees, or to adjust their grievances, or to effectively recommend such action, if the exercise of such 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 such authority * * *."

In reviewing the various contentions made by the parties in the case at bar, we are mindful that:

"Judicial review of the...