Board of Educ. of Plainfield Community Consol. School Dist. No. 202, Will and Kendall Counties v. Illinois Educational Labor Relations Bd.

• Decision Date: 21 May 1986
• Docket Number: No. 4-85-0659,4-85-0659
• Citation: 143 Ill.App.3d 898,493 N.E.2d 1130,98 Ill.Dec. 109
• Parties: , 98 Ill.Dec. 109, 32 Ed. Law Rep. 1274 BOARD OF EDUCATION OF PLAINFIELD COMMUNITY CONSOLIDATED SCHOOL DISTRICT NO. 202, WILL AND KENDALL COUNTIES, Illinois, Petitioner, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD and the Plainfield Association of Clerical and Secretarial Staff, IEA/NEA, Respondents.
• Court: United States Appellate Court of Illinois

Page 1130

493 N.E.2d 1130

143 Ill.App.3d 898, 98 Ill.Dec. 109,

32 Ed. Law Rep. 1274

BOARD OF EDUCATION OF PLAINFIELD COMMUNITY CONSOLIDATED SCHOOL DISTRICT NO. 202, WILL AND KENDALL COUNTIES, Illinois, Petitioner, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD and the Plainfield Association of Clerical and Secretarial Staff, IEA/NEA, Respondents.

No. 4-85-0659.

Appellate Court of Illinois Fourth District.

May 21, 1986.

Klein, Thorpe & Jenkins, Ltd., Chicago, Todd Faulkner and Bruce C. Mackey, for petitioner.

Neil F. Hartigan, Atty. Gen., Springfield, and Charles S. Watson, Asst. Atty. Gen., for Labor Relations Bd.

Winston & Strawn, Chicago, Gregory J. Malovance and David B. Love, for Plainfield Ass'n of Clerical.

Justice WEBBER delivered the opinion of the court:

Petitioner, Board of Education of Plainfield Community Consolidated School District No. 202, Will and Kendall Counties, Illinois (District), appeals from an order of the Illinois Educational Labor Relations Board (Board), pursuant to section 16(a) of the Illinois Educational Labor Relations Act (Act) ( Ill.Rev.Stat., 1984 Supp., ch. 48, par. 1716(a)). The Plainfield Association of Clerical and Secretarial Staff, IEA/NEA (Association) is an additional appellee.

The case had its genesis in a representation petition for an election filed with the Board. It sought a bargaining unit consisting of "all regularly employed secretaries employed by Plainfield School District # 202 including part-time, full-time, hourly, salaried and sub-contracted secretaries" and excluding "Plainfield School District # 202 superintendent's secretary only" pursuant to section 7(c) of the Act (Ill.Rev.Stat.1984 Supp., ch. 48, par. 1707(c)). The District objected to the inclusion in the bargaining unit of certain employees, who, the District claimed, were confidential employees within the meaning of section 2(n) of the Act (Ill.Rev.Stat., 1984 Supp., ch. 48, par. 1702(n)). A hearing was convened before a hearing officer of the Board who found that three employees were confidential. She further found that seven employees were not. These were: Norma Simmons, secretary to the assistant superintendent for instruction and personnel; a business accountant; and five employees who were secretaries to the high school, junior high school, and elementary school principals.

On review the Board affirmed the findings of its hearing officer and this appeal ensued. No issue is raised on appeal concerning the three employees who were found to be confidential, and the appellant's brief makes no mention of the business accountant who was found not to be confidential. The controversy centers on the secretaries and the issue is thus framed as to whether the Board's order finding that they were nonconfidential employees is against the manifest weight of the evidence, or contrary to law.

The predicate upon which the issue is based is determined by the interplay of various sections of the Act, the dominant one being whether or not principals of schools are managerial employees. These are defined in section 2(o ) (Ill.Rev.Stat., 1984 Supp., ch. 48, par. 1702(o )). Confidential employees under section 2(n) are those who assist managerial employees. Under section 4 of the Act (Ill.Rev.Stat., 1984 Supp., ch. 48, par. 1704) the employer is not required to bargain with such employees.

Before proceeding to the merits of this appeal, we must first consider the question of the jurisdiction of this court. We raised the question sua sponte and required the parties to state their views at the time of oral argument. An appellate court has the duty to consider its jurisdiction whether or not the issue has been raised by the parties. Rothert v. Rothert (1982), 109 Ill.App.3d 911, 65 Ill.Dec. 387, 441 N.E.2d 179.

The facts giving rise to the issue are not controverted. The Board issued its decision on August 14, 1985, and sent it to the District via registered mail on the following day, August 15. The District received it on August 19 and filed its notice of appeal on September 21.

Section 16 of the Act (Ill.Rev.Stat., 1984 Supp., ch. 48, par. 1716) provides in pertinent part that appeals from a final order of the Board may be taken "in accordance with the provisions of the Administrative Review Law, as now or hereafter amended." Section 3-103 of the Code of Civil Procedure states:

"Commencement of action. Every action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby. The method of service of the decision shall be as provided in the Act governing the procedure before the administrative agency, but if no method is provided, a decision shall be deemed to have been served either when personally delivered or when deposited in the United States mail, in a sealed envelope or package, with postage prepaid, addressed to the party affected thereby * * *." (Emphasis added.) Ill.Rev.Stat.1983, ch. 110, par. 3-103.

There is no specific provision in the Act regarding the service of the final order of the Board. Section 5(g) of the Act provides in pertinent part:

"(g) To accomplish the objectives and to carry out the duties prescribed by this Act, the Board may subpoena witnesses, subpoena the production of books, papers, records and documents which may be needed as evidence on any matter under inquiry and may administer oaths and affirmations.

* * *

* * *

Any subpoena, notice of hearing, or other process or notice of the Board issued under the provisions of this Act may be served personally, by registered mail or by leaving a copy at the principal office of the respondent required to be served. A return, made and verified by the individual making such service and setting forth the manner of such service is proof of service. A post office receipt, when registered mail is used, is proof of service." (Ill.Rev.Stat., 1984 Supp., ch. 48, par. 1705(g).)

This provision at a minimum contemplates that registered mail will be utilized in discharging the functions of the Board. What is more significant to our decision is the power of the Board to promulgate rules. This power is found in section 5(h) of the Act (Ill.Rev.Stat., 1984 Supp., ch. 48, par. 1705(h)), and the Board has done so. (80 Ill.Admin.Code, ch. III, sec. 1100 et seq. (1984).) Section 1100.30 entitled "Computation and Extensions of Time" provides:

"a) In computing any period of time prescribed by the Act or these rules, the day of the act, event, or default after which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included. If the last day falls on a Saturday, Sunday, or legal holiday, the time period shall be automatically extended to the next day that is not a Saturday, Sunday or legal holiday.

b) When a time period prescribed under the Act or these rules is less than seven days, intervening Saturdays, Sundays, or legal holidays shall not be included.

c) Whenever a time period begins running upon the service of notice or other document upon a party, and service is effected by mail, three days shall be added to the prescribed period. However, three days shall not be added if any extension of time has been granted.

d) Extensions of time will be granted only upon timely application to the Board or the presiding hearing officer, and only upon a specific showing that compliance with the deadline would be unduly burdensome for the party seeking the extension." (Emphasis added.)

It is fundamental that administrative rules and regulations have the force of law and are construed under the same standards which govern the construction of statutes. Northern Illinois Automobile Wreckers & Rebuilders Association v. Dixon (1979), 75 Ill.2d 53, 25 Ill.Dec. 664, 387 N.E.2d 320, cert. denied (1979), 444 U.S. 844, 100 S.Ct. 87, 62 L.Ed.2d 57.

In our opinion, by reading together the statutes and rules set forth above, the District's notice of appeal was timely. It was sent by registered mail on August 15; under the rules three days is to be added to this date bringing the matter to August 18; in 1985 that date fell on a Sunday and therefore one day is further added under the rules; this brings the crucial counting day to August 19; the notice of appeal was filed September 21, or 33 days later, well within the 35-day limit set by section 3-103 of the Code of Civil Procedure.

The dissent argues cogently that since "service" is not specifically spelled out in the Act the 35-day limitation found in the Code of Civil Procedure must govern and the counting must begin upon the date of mailing, August 15. September 21 is obviously more than 35 days beyond that date. The dissent further argues that picking out a single sentence in the rules does violence to orderly procedure and in any event section 1100.30 of the rules relates only to internal procedures before the Board.

The preceding section of the rules (80 Ill.Admin.Code, ch. III, sec. 1100.20 (1984)) deals with procedures before and within the Board. Subparagraph (a) of that section begins: "All documents relating to any proceeding before the Board shall be filed in either the Board's Springfield or Chicago office." Subparagraph (c) of the same section provides for methods of service of "[p]etitions, intervening claims, unfair labor practice charges and subpoenas." Nothing appears to limit section 1100.30 relating to computations of time to internal procedures. It is general in nature, just as section 1.11 of "An Act to revise the law in relation to the construction of statutes" (Ill.Rev.Stat.1983, ch. 1, par. 1012) relates to all statutes of the State.

Since time computations under the rules are general in nature, it follows that they apply to both external and internal proceedings of the Board. The provisions for denial of the three-day extension...