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COMMENTS
THOMAS W. KELTY, Chief Counsel, "WHO'S IN?; WHO'S OUT?"
CITY OF FREEPORT V. Since the adoption of the Illinois Public Labor Relations Act (IPLRA), many issues have caused great difficulty to labor and management. One of the most contentious issues that has been litigated before both the Illinois State Labor Relations Board (ISLRB) and Illinois Courts is "Who is a Supervisor?" The determination of supervisory status is also determinative of inclusion of the individual in the bargaining unit. In other words, supervisors (as defined by the Act) are out, non-supervisors are in. These cases decided by the Illinois Supreme Court have provided an authoritative interpretation of the statutory provision by which supervisory status is to be judged. In part, the opinion of the Court adopts a position first stated in a dissent by Board Member Claire Manning.to an ISLRB ruling in 1986. The dispute concerning exclusion of supervisory personnel from the bargaining unit focuses on a single definition in IPLRA. In Chapter 48, Paragraph 1603(r) IPLRA provides that: "Supervisor" is an employee whose principal work is substantially different from that of his 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, 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 . . ." This extensive definition can be reduced to four tests that are more readily applied than the entire definition. The four tests are: 1. Is the principal work of the supervisor different from that of subordinates? As you will see, tests 1 - 3 apply to all situations while item 4 applies only to non-police situations. These consolidated actions focus on the application of the principal work test, the independent judgment test and, in the case of the firefighters, the preponderance of time test. In each of these areas, the Supreme Court has made substantial clarification of the interpretation and application of these tests. In Wheeling, the Wheeling Firefighters Association petitioned the ISLRB for certification as the exclusive representative of a bargaining unit composed of "all June 1990 / Illinois Municipal Review / Page 11 full-time fire department employees." At a hearing by the ISLRB, the Village argued that employees of the department holding the rank of lieutenant were supervisory personnel and as such should be excluded from the bargaining unit. The ISLRR accepted the recommendation of the hearing officer and included the lieutenants of the department in the bargaining unit. Following a representation election, the Village refused to bargain with the union which resulted in a finding by the ISLRB that the Village had engaged in an unfair labor practice. It was from that order of the ISLRB, that the Village appealed to the Appellate Court which affirmed the holding of the ISLRB. In the Freeport action, the American Federation of State, County and Municipal Employees (AFSCME) petitioned the ISLRB for certification as the exclusive bargaining agent of employees of the Freeport Police Department including sergeants and lieutenants of the department. Again, the municipality opposed the inclusion of these individuals in the bargaining unit. After a similar hearing, the factfinder determined that lieutenants and sergeants should be included and this finding was affirmed by the ISLRB. Similar to the actions of Wheeling, Freeport refused to bargain with the unit after its certification and an unfair labor practice was found against Freeport by the ISLRB. Freeport also appealed the finding of an unfair labor practice to the Appellate Court. The Appellate Courts opined in opposite directions. In Wheeling, the Appellate Court affirmed the holding of the ISLRB including the lieutenants of the fire department as a part of the collective bargaining unit. In Freeport, the Appellate Court reversed the holding of the ISLRB and found that the lieutenants and sergeants of the police department should not be included in the bargaining unit. The Supreme Court allowed Leave to Appeal and consolidated the actions. The summary holding of the Court with respect to these two cases was to find the lieutenants and sergeants of the Freeport Police Department to be supervisors, and therefore excluded from the bargaining unit. In Wheeling, the Court held that the firefighter-lieutenants failed the "preponderance of time" test and therefore were properly included as members of the bargaining unit. The opinion of Justice Daniel Ward explaining the ruling of the Court contains a thorough and analytical discussion of the 3 tests at issue in the consolidated cases. The separate opinion of Justice Miller, concurring in part and dissenting in part agrees with the holding with respect to Freeport, however, he takes issue with the majority's interpretation of the preponderance of time standard. PRINCIPAL WORK In both Freeport and Wheeling the ISLRB held that the principal work of the challenged supervisors was facially similar. However, in both actions the Supreme Court reverses this finding of the ISLRB, although on different grounds. In Freeport, the Court holds that the proper application of the principal work test depends not on a quantitative (amount of time) analysis, but rather on a qualitative (type of work) analysis to determine whether or not the test is satisfied. According to the Court "the ISLRB improperly gave dispositive weight to the amount of time the ranking officers spend exercising their supervisory authority." The Court rejects the arguments of the ISLRB that the number of times that a supervisor exercises his supervisory authority is determinative of whether or not supervisory power exists. Rather, according to the Court, it is the types of authority that the supervisor possesses and in what manner that authority is exercised which is determinative of the supervisor's status. The Court cites the dissent of ISLRB Member Manning in Village of Alsip as a concise summary of the application of the principal work test. "The nature and essence test [is] a qualitative, rather than a quantitative analysis. The existence of Page 12 / Illinois Municipal Review / June 1990 the supervisory authority, and the ability to exercise it to impact a subordinate's employment at any time, changes the nature of the relationship between the [ranking officers] and the patrol officers to an extent which renders the nature of their functions very different despite their facial similarity." The adoption of a quantitative standard by the Court rejects prior decisions of the ISLRB which looked at the number of times its supervisory authority was exercised in order to determine whether or not the supervisors principal work functions were different from those of the subordinates. In Wheeling, the Court relied on its rule articulated in the Freeport portion of the opinion and looked at the areas of responsibility of the firefighter-lieutenants. In finding that the Wheeling lieutenants met the principal work test, the Court looked at the responsibilities that had been delegated to the lieutenants as a part of their function. Finding that the power to discipline and the accountability to superior officers for a variety of matters including equipment maintenance, personnel assignment and maintenance of order, the Court held that the principal work of the supervisors was qualitatively different from that of the subordinates. Hence, the Court found that the Wheeling firefighter-lieutenants satisfied the principal work test. INDEPENDENT JUDGMENT The second area of contention between the ISLRB and the appealing parties was the ISLRB's interpretation of the "independent judgment" test. In Freeport, the ISLRB approved the hearing officer's finding that the ranking officers did not satisfy the independent judgment test because their authority to supervise the patrol officers was so circumscribed by orders from the Chief of Police that no exercise of independent judgment was required. For example, according to the hearing officer, disciplinary measures were imposed so rarely that they did not involve the consistent use of independent judgment. In Wheeling, the ISLRB also found that the exercise of independent judgment by the firefighter-lieutenants did not exist because their activities in directing firefighters at the fire station or at a fire scene was routine and derived from their "superior skill, experience and technical expertise . . ." However, the Court disagrees with the findings of the ISLRR in both instances. According to the Court "it is the authority to use independent judgment in imposing discipline, rather than how often such discipline is imposed, which is important." In the Freeport action the Court stated that "the fact that the ranking officers exercise [disciplinary] authority infrequently is proof more that the patrol officers do not warrant discipline than that their supervisors do not use independent judgment when they impose discipline." In Wheeling, the Court notes that "when exercising their authority to discipline and suspend firefighters, . . . the lieutenants must choose between two or more significant courses of action without broad review or approval by the Chief." The Court is effectively holding that the existence and possession of the power to discipline without a significant review by superior officers is sufficient to create the use of independent judgment as required by the independent judgment test, rejecting the rigid counting analysis employed by the ISLRB. PREPONDERANCE OF WORK The "preponderance of work" standard in the statute applies only to the firefighters in this action. The police officers are specifically exempted from the application of the preponderance of work standard. Therefore, as a result of the finding of the Court with respect to the Freeport supervisors on the principal work and independent judgment tests, the Court held that the sergeants and lieutenants of the department were excluded from the bargaining unit. However, application of the preponderance of work standard to the Wheeling firefighter-lieutenants resulted in their failing of the test and, therefore, being included in the bargaining unit. The anomaly of this decision is illustrated by the June 1990 / Illinois Municipal Review / Page 13 Court's consideration of the preponderance of time standard with respect to the Wheeling firefighters. Earlier in the opinion, the Court soundly rejects, in at least three instances, the application of a counting or quantitative standard for determination of the use of independent judgment and principal work. However, in determining the preponderance of time spent by firefighter-lieutenants the Court employs a quantitative analysis. According to the Court "the evidence demonstrates that the lieutenants rarely exercise their authority to suspend or discipline firefighters. It is therefore clear that the lieutenants do not spend more time exercising this authority than they devote to any other function." With that finding, the Court holds that the firefighter-lieutenants should be included in the bargaining unit because not more than half of their time is spent in the disciplinary functions discussed earlier in the opinion. This holding with respect to the preponderance of time seems to contradict the earlier statements of the Court which suggest that counting for the purposes of the independent judgment and principal work tests is not to be employed. This inconsistency in reasoning is focused on by Justice Miller in his dissent. He begins by criticising the majority's holding with respect to the use of independent judgment by the Wheeling fire lieutenants. Justice Miller suggests that the courts should adopt the "ultimate responsibility test" that is employed by federal courts and by the National Labor Relations Act. This test considers where the "ultimate responsibility" for the performance of certain functions lies. For example, in the Wheeling case. Justice Miller, applying the ultimate responsibility test, would find that the firefighter-lieutenants exercised independent judgment "because the lieutenants here are left to their own devices to insure the adequate performance of the firefighters under them and because they are ultimately responsible for the firefighters performance, . . ." Justice Miller then turns to the preponderance of work test. It is the opinion of Justice Miller that an employee is exercising supervisory authority "whenever the employee is in a situation which may call upon that employee's authority to hire, transfer, suspend, lay off, recall, promote, discharge, direct, reward, and discipline other employees." Utilizing this standard. Justice Miller argues, would more adequately reflect the intent of the General Assembly in adopting the preponderance of work standard. Arguably, the preponderance of work standard would be interpreted to require that more than fifty percent of the time that a supervisory employee was in a situation where the authority could be exercised, would result in a finding that the employee was a supervisor. If less than fifty percent, the employee would then be excluded from supervisory status. As Justice Miller points out, the interpretation adopted by the Court with respect to preponderance of work could lead to differing results for two employees of the same fire department. If one lieutenant had a team of firefighters which were more prone to infractions of department rules, it could be that the officer would be required to spend much more time in the disciplining of the team. If the amount of time spent reached in excess of fifty percent, the supervisor would then meet the preponderance of work standard and be includable as a supervisor. However, the firefighter-lieutenant who did not have a discipline problem might spend less than fifty percent of time on disciplinary matters and therefore fail the preponderance of work standard. With the exception of this confusion with respect to the preponderance of time, the opinion provides a substantial amount of guidance to municipal officials in structuring positions of ranking officers in a manner that permits their exclusion from a bargaining unit and inclusion with supervisory personnel of a police or fire department. The importance of this distinction is discussed by the Court as a part of its consideration of the principal work test in the Freeport action. "Supervisors are excluded from bargaining units . . . to avoid the conflict of interest which arises when supervisors, who must apply the employer's policies to subordinates, are subject to control by the same union representing those subordinates. (Citations omitted.) In determining the status of supervisory employees . . ., the Board must identify the point at which an employee's supervisory obligation to the employer conflicts with his participation in union activity with the employees he supervises . . . The potential for the conflict of interest lies in the supervisor's authority to influence or control personnel decisions in areas most likely to affect the employment of subordinates and, thus, most likely to fall within the scope of union representation." The Court clearly has seized squarely upon the proper rationale for the exclusion of supervisors from a bargaining unit. And this decision corrects prior interpretations of ISLRB to reflect that rationale. • Page 14 / Illinois Municipal Review / June 1990 |
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