Village of Broadview v. Illinois Labor Relations Board

SECOND DIVISION
FILED: June 22, 2010
No. 1-09-1558
THE VILLAGE OF BROADVIEW, ) PETITION FOR REVIEW
) OF ORDER OF THE
Petitioner, ) ILLINOIS LABOR
) RELATIONS BOARD
v. )
)
THE ILLINOIS LABOR RELATIONS ) No. S-RC-06-177
BOARD and THE ILLINOIS COUNCIL )
OF POLICE, )
)
Respondents. )
JUSTICE HOFFMAN delivered the opinion of the court:
The Village of Broadview (Village) appeals from a decision of
the Illinois Labor Relations Board (Labor Board) which, pursuant to
the provisions of the Illinois Public Labor Relations Act (Act) (5
ILCS 315/1 et seq. (West 2006)), certified the Illinois Council of
Police (Union) as the exclusive bargaining representative of the
sergeants employed by the Village in its police department. For
the reasons which follow, we affirm the decision of the Labor
Board.
The Union filed a petition with the Labor Board seeking to
represent a bargaining unit consisting of the police sergeants
employed by the Village. The Village opposed the petition,
asserting that the sergeants are supervisors with the meaning of
section 3(r) of the Act (5 ILCS 315/3(r) (West 2006)) and,
No. 1-09-1558
therefore, excluded from coverage under the Act (see 5 ILCS
315/3(s)(1) (West 2006)). Following a hearing, an administrative
law judge (ALJ) issued a recommended decision and order, in which
she found that the sergeants are not supervisors within the meaning
of the Act and recommended that the petitioned-for bargaining unit
of sergeants be certified by the Labor Board.
The Village filed exceptions to the ALJ's recommended decision
and order. Following its review of the record of the hearing
before the ALJ, the Village's Statement of Exceptions and the
Union's response, the State Panel of the Labor Board issued a
decision ordering its executive director to certify the Union as
the exclusive representative of the sergeants employed by the
Village in its police department. In arriving at its decision, the
Labor Board found, inter alia, that the Village had failed to meet
its burden of proving that the sergeants are supervisors as defined
in section 3(r) of the Act. Thereafter, the Village filed a timely
petition with this court for a direct review of the Labor Board's
decision.
In urging reversal of the Labor Board's decision, the Village
argues that the finding that its police sergeants are not
supervisors within the meaning of the Act is against the manifest
weight of the evidence. However, before addressing the merits of
this appeal, we find need to articulate our standards of review.
Our review of a decision of the Labor Board is governed by the
Administrative Review Law. 5 ILCS 315/11(e) (West 2008); 735 ILCS
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5/3-113 (West 2008). The scope of our review extends to all
questions of law and fact presented by the record. 735 ILCS 5/3-
110 (West 2008). "The applicable standard of review depends upon
whether the question presented in one of fact, one of law, or a
mixed question of fact and law." American Federation of State,
County and Municipal Employees, Council 31 v. Illinois State Labor
Relations Board, 216 Ill. 2d 569, 577, 839 N.E.2d 479 (2005).
Questions of law are reviewed de novo. Branson v. Department of
Revenue, 168 Ill. 2d 247, 254, 659 N.E.2d 961 (1995). The Labor
Board's findings of fact are "held to be prima facie true and
correct" (735 ILCS 5/3-110 (West 2008)) and will be disturbed on
review only if they are against the manifest weight of the
evidence. City of Belvidere v. Illinois State Labor Relations
Board, 181 Ill. 2d 191, 204, 692 N.E.2d 295 (1998). The Labor
Board's resolution of a mixed question of law and fact will be
reversed on appeal only when it is clearly erroneous. American
Federation of State, County and Municipal Employees, 216 Ill. 2d at
577.
We turn now to the merits of this appeal. Section 3(s)(1) of
the Act provides that a bargaining unit of police officers as
determined by the Labor Board shall not include both supervisors
and nonsupervisors or supervisors only, except in circumstances not
applicable to this case. 5 ILCS 315/3(s)(1) (West 2006). Section
3(r) of the Act provides, in relevant part, as follows:
"'Supervisor' is an employee whose principal work is
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No. 1-09-1558
substantially different from that of his or her
subordinates and who has authority, in the interest of
the employer, to hire, transfer, suspend, lay off,
recall, promote, discharge, direct, reward, or discipline
employees, to adjust their grievances, or to effectively
recommend any of those actions, if the exercise of that
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
that authority, State supervisors notwithstanding. In
addition, in determining supervisory status in police
employment, rank shall not be determinative. The Board
shall consider, as evidence of bargaining unit inclusion
or exclusion, the common law enforcement policies and
relationships between police officer ranks and
certification under applicable civil service law,
ordinances, personnel codes, or Division 2.1 of Article
10 of the Illinois Municipal Code, but these factors
shall not be the sole or predominant factors considered
by the Board in determining police supervisory status."
5 ILCS 315/3(r) (West 2006).
Section 3(r) creates a three-part test for determining whether
police department employees are supervisors. "[P]olice employees
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No. 1-09-1558
qualify as supervisors within the meaning of the Act only if they:
(1) perform principal work substantially different than their
subordinates; (2) have authority in the interest of the employer to
perform one or more of 11 enumerated supervisory functions, or to
effectively recommend such action; and (3) consistently use
independent judgment in performing or recommending the enumerated
actions." City of Freeport v. Illinois State Labor Relations
Board, 135 Ill. 2d 499, 512, 554 N.E.2d 155 (1990). A police
department employee will be deemed a supervisor and excluded from
a bargaining unit only if he meets all three parts of the test.
City of Freeport, 135 Ill. 2d at 512. As the party seeking to
exclude its police sergeants from a bargaining unit, the Village
had the burden of proving, by a preponderance of the evidence, that
the sergeants are supervisors within the meaning of section 3(r) of
the Act. Illinois Department of Central Management Services v.
Illinois Labor Relations Board, 382 Ill. App. 3d 208, 220-21, 888
N.E.2d 562 (2008).
At the time of the hearing before the ALJ, the Village's
police department was staffed by a chief of police (chief), one
lieutenant, five sergeants, 19 patrol officers, and seven civilian
employees. The police department is divided into three divisions:
the field operations division, which consists of a lieutenant,
three sergeants, and 17 patrol officers; the investigation
division, which consists of a sergeant and two patrol officers; and
the administration division, which consists of a sergeant and the
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No. 1-09-1558
seven civilian employees. The lieutenant heads the field
operations division and acts as the watch commander on the day
shift (second shift) from 7 a.m. to 3 p.m.; sergeants act as watch
commanders in the field operations division on the midnight shift
(first shift) from 11 p.m. to 7 a.m. and the afternoon shift (third
shift) from 3 p.m. to 11 p.m. Sergeants head the investigation and
administrative divisions. The heads of each division report to the
chief.
In its decision, the Labor Board found that the Village failed
to prove that the principal work of the sergeants is substantially
different from that of their subordinates. The Village argues that
the finding is against the manifest weight of the evidence. The
Village contends that the sergeants "are authorized, and sometimes
required, to perform duties that patrol officers can not and do
not." In support of its contention in this regard, the Village has
enumerated a number of administrative tasks which the sergeants
perform that subordinate officers do not perform; namely: assigning
beats, giving daily announcements, adjusting schedules, granting
requests for vacation and overtime, giving oral or written
reprimands, recommending awards and promotions for subordinates to
the chief, adjusting first-step grievances, referring serious
grievances up the chain of command, approving I-bonds, giving
direct orders to subordinates, approving written reports,
suspending patrol officers when necessary, making staffing
decisions, approving strip searches, approving written
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No. 1-09-1558
transmissions from one shift to another, determining whether an
arrest will be made in a domestic violence situation, authorizing
the use of a tranquilizer gun on an animal, giving approval for the
removal of a vehicle from a crime scene or traffic stop, and
responsibility for the safety and location of prisoners. As the
Labor Board correctly found, however, the sergeants employed by the
Village lack the authority to suspend a subordinate or to grant a
grievance. The record reflects that sergeants have no authority to
suspend subordinates and that their only function regarding
misconduct, beyond the issuance of an oral reprimand, is to report
what they have observed to their lieutenant. Additionally, no
sergeant has ever granted a grievance nor does the record reflect
that they have the authority to do so. It appears the sergeants do
nothing more than forward grievances up the chain of command.
Evidence of record established that, in the field operations
division, the sergeants assigned to the first and third shifts
spend about 80% of their time performing the same patrol duties as
their subordinates. On the second shift, the sergeant spends about
90% of his time engaged in patrol duties. The sergeant assigned to
the investigations division testified that approximately 80% of his
work day is spent performing duties similar to those of his
subordinates.
After consideration of the administrative duties which the
sergeants perform, the Labor Board concluded that the duties of the
sergeants and their subordinates are not substantially different
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"because the principal work of both was devoted to patrol, in the
manner of patrol officers." In arriving at its conclusion in this
regard, the Labor Board seems to have given dispositive weight to
the amount of time that the sergeants spend performing patrol
duties similar to that of the patrol officers. However, the
appropriate test for determining whether the principal work
performed by alleged supervisors is different than their
subordinates is qualitative, rather than quantitative. City of
Freeport, 135 Ill. 2d at 518. The existence of supervisory
authority, and the ability to impact a subordinate's employment,
change the nature of the functions of the alleged supervisor and
the subordinate, despite the facial similarity of their duties.
City of Freeport, 135 Ill. 2d at 518. Neither the Labor Board nor
the ALJ analyzed the question of whether, in performing
administrative tasks which patrol officers do not perform, the
sergeants' obligations to the Village create a potential conflict
of interest with their participation in union activities. For this
reason, we believe that the Labor Board applied an incorrect test
in determining whether the Village's sergeants perform principal
work which is substantially different than that of their
subordinates. See City of Freeport, 135 Ill. 2d at 516-18.
Our analysis continues, however, as the Labor Board also
concluded that the sergeants do not perform any of the 11
supervisory functions enumerated in section 3(r) of the Act, nor do
they consistently use independent judgment in performing or
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No. 1-09-1558
recommending any of the enumerated actions. These are questions of
fact, and, as a consequence, the Labor Board's determinations will
not be disturbed on review unless they are against the manifest
weight of he evidence. City of Belvidere, 181 Ill. 2d at 204.
The second prong of the Act's supervisory definition specifies
that an employee must have authority, in the interest of the
employer, to perform one or more of 11 enumerated supervisory
functions, or to effectively recommend such action. The Labor
Board found that the Village failed to prove that the sergeants
have the authority to perform any of the enumerated functions. In
urging reversal, Village asserts that the record establishes that
the sergeants have the authority to: determine whether a patrol
officer should be given an emergency suspension, adjust grievances,
recommend awards and commendations, direct and discipline
subordinates, and refer disciplinary issues up the chain of
command. The Village makes no argument concerning the sergeants
ability to hire, transfer, lay off, recall, promote, or discharge
a subordinate, and the record reflects that the sergeants have no
authority to perform any of these functions.
On the ability of a sergeant to suspend or discipline a
subordinate, the ALJ noted in her recommended decision that the
rules and regulations of the Village's police department provide
that, although final disciplinary authority and responsibility
rests with the chief, other supervisory personnel may issue oral
and written reprimands and emergency suspensions. Notwithstanding
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No. 1-09-1558
the rules and regulations, the chief testified that only he or the
lieutenant can impose discipline on subordinate officers.
Sergeants may orally counsel subordinates who engage in
inappropriate behavior, but such counseling sessions are neither
memorialized nor recorded in the patrol officer's personnel file.
Two sergeants testified that they have never reprimanded a
subordinate. The evidence of record reflects that, when a
subordinate engages in improper conduct, a sergeant writes a report
to the lieutenant or to the chief outlining the facts of the
incident, but no recommendation for discipline is made. The chief
and the lieutenant independently investigate the incident, without
input from the sergeant. Although it is theoretically possible for
a sergeant to suspend a subordinate on an emergency basis, it has
never been done. Further, if such a suspension were to occur, it
would be with pay, and the matter would be investigated the
following day by the chief or the lieutenant. The chief and the
Village's Fire and Police Commission would make the final decision
on any discipline.
The Labor Board concluded that the sergeants lack the
authority to suspend or discipline a subordinate and that they
merely report misconduct to the lieutenant, who independently
investigates the matter. The Labor Board also found that the
sergeants' reports to the lieutenant in such instances do not
constitute a recommendation for discipline. Based upon the
evidence of record, we cannot say that its conclusion in this
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No. 1-09-1558
regard is against the manifest weight of the evidence, as an
opposite conclusion is not clearly apparent. Abrahamson v.
Illinois Department of Professional Regulation, 153 Ill. 2d 76, 88,
606 N.E.2d 1111 (1992).
The Village also asserts that the sergeants have the power to
adjust first-step grievances. However, there is no evidence of
record that a sergeant has ever adjusted any grievance at the first
step. The chief testified that, when a subordinate files a
grievance, the sergeant forwards the grievance to the lieutenant.
One of the sergeants that testified before the ALJ stated that
sergeants might attempt to resolve "informal" issues, but any
grievance concerning the terms or conditions of the patrol
officers' collective bargaining agreement are sent to the
lieutenant. He testified that, other than forwarding a grievance
to the lieutenant, the sergeants play no other role in adjusting a
grievance. Two other sergeants testified that sergeants are not
authorized to adjust grievances.
The Labor Board found that the sergeants lack the authority to
adjust a grievance or to make effective recommendations with regard
to their adjustment. We find that the evidence of record amply
supports the Labor Board's finding in this regard.
Next, the Village contends that the sergeants can effectively
recommend patrol officers for awards and commendations and that the
chief relies upon the sergeants recommendations in such
circumstances. The chief acknowledged that the police department
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rules seemingly grant sergeants the ability to award divisional
commendations. However, he testified that, department rules
notwithstanding, only he or the lieutenant can issue an award. The
only awards which are conferred upon members of the police
department are honorable mentions and commendations. These awards
are non-monetary and, according to the testimony of the chief, do
not affect the terms and conditions of the recipient's employment,
nor do they directly influence recommendations for promotion.
As the ALJ correctly noted in her recommended decision, the
Labor Board has determined that non-monetary commendations that do
not affect other terms and conditions of the recipient's employment
do not constitute awards within the meaning of section 3(r) of the
Act. Illinois Fraternal Order of Police Labor Council v. McHenry,
15 Pub. Employee Rep. (Ill.) par. 2014, at 77 (ISLRB February 26,
1999). Although the interpretation of statute is a question of law
which we review de novo (Taddeo v. Board of Trustees of the
Illinois Municipal Retirement Fund, 216 Ill. 2d 590, 595, 837
N.E.2d 876 (2005)), we will not substitute our construction of a
statutory provision when, as in this case, the agency charged with
the administration of the statute has adopted a reasonable
interpretation (Church v. State of Illinois, 164 Ill. 2d 153, 162,
646 N.E.2d 572 (1995)). Adopting the Labor Board's interpretation
of section 3(r), we find that the conclusion that the sergeants do
not exercise the supervisory authority to reward patrol officers is
not against the manifest weight of the evidence.
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We are left then with the question of whether the Labor
Board's finding that the sergeants do not possess the supervisory
authority to direct subordinates is against the manifest weight of
the evidence. The Labor Board has interpreted section 3(r) of the
Act to mean that the responsibility for directing subordinates'
work rises to the level of supervisory authority when the alleged
supervisor exercises significant discretionary authority which
affects the terms and conditions of the subordinate's employment.
Illinois Fraternal Order of Police Labor Council v. McHenry, 15
Pub. Employee Rep. (Ill.) par. 2014, at 77 (ISLRB February 26,
1999); Chief Judge of the Circuit Court of Cook County v. American
Federation of State, County and Municipal Employees, 9 Pub.
Employee Rep. (Ill.) par. 2033, at 178 (ISLRB April 9, 1993). In
this case, the Labor Board found that "there is absolutely no
record evidence that the sergeants possess significant
discretionary authority to affect their subordinates' terms and
conditions of employment."
The Village argues that, when sergeants act as watch
commanders, they direct subordinates in the performance of a
variety of tasks. The sergeants grant permission for: strip
searches, the movement of vehicles, domestic violence arrests,
responses to requests by neighboring police departments for
assistance, and the tranquilizing of animals. The record
establishes that the sergeants make work assignments, review
reports, approve leave and overtime requests, evaluate their
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No. 1-09-1558
subordinates, and make staffing decisions. They ensure that their
subordinates both perform their duties correctly and adhere to the
rules, regulations, policies and procedures of the police
department.
The ALJ found that most of a sergeant's duties are routine or
clerical. She noted that: assignments, including vehicle
assignments, are made based upon seniority; sergeants review
reports for grammatical errors; the chief and the lieutenant
establish the shifts and work schedules for patrol officers; the
sergeants do make some staffing decisions, but minimum requirements
must be met; only the two sergeants assigned to the investigation
administrative divisions approve days off within their respective
divisions; patrol officers pick vacations within divisions based
upon seniority; and evaluation of subordinates is done by the
sergeants as a group, not individually. The ALJ also concluded
that other of the sergeants' decisions are merely based upon their
superior knowledge and ability as police officers. The Labor Board
found that the ALJ correctly decided the matters in dispute.
The police department's general orders provide that "[d]ays
off will be selected at the discretion of the commander in charge
of that division." In the case of the investigation and
administrative divisions, the commanders are sergeants. The chief
testified that, although the sergeant commanding the investigation
division does not select the days off for the men under his
command, he could, in his discretion, reject a request for a day
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No. 1-09-1558
off. The chief also testified that the sergeant commanding the
administrative division could, in his discretion, rearrange the
days off for the individuals under his command "if it was in the
best interest of the police department."
The evidence of record reflects that the chief and the
lieutenant work on the day shift. In their absence, sergeants are
the highest ranking officers on duty on the afternoon and midnight
shifts in the patrol division, and they serve as watch commanders.
Shift assignments and the scheduling of days off within the patrol
division are made by the lieutenant on a seniority basis.
The Labor Board has rather consistently held that the ability
to approve or deny a request for time off is a form of supervisory
authority to direct within the meaning of section 3(r) of the Act
(see Illinois Fraternal Order of Police Labor Council v. McHenry,
15 Pub. Employee Rep. (Ill.) par. 2014, at 77 (ISLRB February 26,
1999); City of Bloomington v. Laborers' International Union of
North America, 13 Pub. Employee Rep. (Ill.) par. 2041, at 241
(ISLRB August 25, 1997); Village of Glen Carbon v. United
Steelworkers of America, 8 Pub. Employee Rep. (Ill.) par. 2026, at
174 (ISLRB June 19, 1992); County of Knox v. Policemen's Benevolent
Labor Committee, 7 Pub. Employee Rep. (Ill.) par. 2002, at 9 (ISLRB
November 30, 1990)), unless the exercise of that authority merely
involves decisions which are routine or ministerial in nature (see
County of Kane v. American Federation of State, County and
Municipal Employees, 7 Pub. Employee Rep. (Ill.) par. 2043, at 220
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(ISLRB September 9, 1991).
In this case, the ALJ found that the sergeants' approval of
leave, overtime and work breaks for subordinates is constrained by
considerations of seniority and are routine and clerical in nature.
She also found that, in making staffing decisions, sergeants must
satisfy certain pre-determined staffing requirements.
Although it can be strongly argued that the sergeants
exercise supervisory authority in their direction of subordinates,
especially in the investigation and administrative divisions, the
ALJ found that the Village failed to prove that in doing so the
sergeants exercised independent judgement. In the absence of
significant discretionary authority to affect the terms and
conditions of their subordinates' employment, the authority which
the sergeants possess is not the supervisory authority to direct
employees within the meaning of section 3(r) of the Act. See
Illinois Department of Central Management Services, 382 Ill. App.
3d at 227.
Given the police department's pre-determined staffing
requirements and the consideration of seniority in decisions
relating to subordinates' scheduling, leave, days off, overtime,
and work breaks, we cannot say that the ALJ's conclusion that the
Village failed to prove that the sergeants exercise independent
judgment in the direction of their subordinates is against the
manifest weight of the evidence. And, as noted earlier, the Labor
Board concluded that the ALJ correctly decided the issues in
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No. 1-09-1558
dispute.
Based upon the foregoing analysis, we conclude that the Labor
Board's determination that the Village failed to prove that the
sergeants perform any of the 11 enumerated supervisory functions
set forth in section 3(r) of the Act with the requisite independent
judgment is not against the manifest wight of the evidence. Having
failed to establish that the sergeants meet all three parts of the
test set forth in section 3(r) of the Act, the Village failed to
sustain its burden of proving that the sergeants should be excluded
from collective bargaining as statutory supervisors. For this
reason, we affirm the judgment of the Labor Board.
Affirmed.
THEIS and KARNEZIS, JJ., concur.
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