                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




Board of Education of Peoria School District No. 150 v. Peoria Federation of Support Staff,
           Security/Policemen’s Benevolent & Protective Ass’n Unit No. 114,
                               2012 IL App (4th) 110875




Appellate Court            THE BOARD OF EDUCATION OF PEORIA SCHOOL DISTRICT NO.
Caption                    150, PEORIA COUNTY, ILLINOIS, Plaintiff-Appellant, v. THE
                           PEORIA FEDERATION OF SUPPORT STAFF,
                           SECURITY/POLICEMEN’S BENEVOLENT AND PROTECTIVE
                           ASSOCIATION UNIT NO. 114; THE ILLINOIS EDUCATIONAL
                           LABOR RELATIONS BOARD; and THE ILLINOIS LABOR
                           RELATIONS BOARD, STATE PANEL, Defendants-Appellees.



District & No.             Fourth District
                           Docket No. 4-11-0875


Argued                     June 19, 2012
Filed                      July 25, 2012


Held                       Plaintiff school district’s action alleging that the amendment to the
(Note: This syllabus       Illinois Public Labor Relations Act that reclassified as public employees
constitutes no part of     certain peace officers previously deemed educational employees,
the opinion of the court   including the security officers employed by plaintiff, was unconstitutional
but has been prepared      special legislation that did not apply to plaintiff and that the Illinois
by the Reporter of         Educational Labor Relations Board still had exclusive jurisdiction over
Decisions for the          labor disputes between the district and its security officers was sufficient
convenience of the         to withstand the motion to dismiss filed by the Illinois Educational Labor
reader.)
                           Relations Board and the Illinois Labor Relations Board.
Decision Under             Appeal from the Circuit Court of Sangamon County, No. 11-MR-106; the
Review                     Hon. John Schmidt, Judge, presiding.



Judgment                   Reversed and remanded.


Counsel on                 Stanley B. Eisenhammer (argued), Elizabeth Jensen, and Christopher M.
Appeal                     Hoffmann, all of Hodges, Loizzi, Eisenhammer, Rodick & Kohn LLP, of
                           Arlington Heights, for appellant.

                           Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
                           Solicitor General, and Sharon A. Purcell (argued), Assistant Attorney
                           General, of counsel), for appellees Illinois Educational Labor Relations
                           Board and Illinois Labor Relations Board, State Panel.

                           Shane M. Voyles (argued), of Police Benevolent Labor Committee, of
                           Springfield, for appellees Peoria Federation of Support Staff and
                           Security/Policemen’s Benevolent and Protective Association Unit No.
                           114.


Panel                      JUSTICE COOK delivered the judgment of the court, with opinion.
                           Justices Steigmann and Appleton concurred in the judgment and opinion.


                                            OPINION

¶1          This appeal concerns the validity of Public Act No. 96-1257 (Pub. Act 96-1257, § 5 (eff.
        July 23, 2010) (amending section 3 of the Illinois Public Labor Relations Act (Public Labor
        Relations Act) (5 ILCS 315/3 (West 2010)) and the jurisdictions of the Illinois Labor
        Relations Board and the Illinois Educational Labor Relations Board (Educational Labor
        Relations Board) with respect to police and security officers employed directly by school
        districts. Public Act No. 96-1257 expands the scope of the Public Labor Relations Act and
        the jurisdiction of the Illinois Labor Relations Board by reclassifying as public employees
        certain peace officers previously considered educational–not public–employees. Under the
        Public Labor Relations Act as amended, these peace officers, their employers, and the
        relations between them are now governed by the Public Labor Relations Act, rather than the
        previously applicable Illinois Educational Labor Relations Act (Educational Labor Relations
        Act) (115 ILCS 5/1 to 21 (West 2010)), and overseen by the Illinois Labor Relations Board,
        rather than the Educational Labor Relations Board.


                                                -2-
¶2       In March 2011, plaintiff, the Board of Education of Peoria School District No. 150,
     Peoria County, Illinois, filed a two-count complaint for declaratory and injunctive relief
     against defendants, the Peoria Federation of Support Staff, Security/Policemen’s Benevolent
     and Protective Association Unit No. 114 (Unit No. 114); the Educational Labor Relations
     Board; and the Illinois Labor Relations Board, State Panel. In count I, plaintiff challenged
     the constitutionality of Public Act No. 96-1257, claiming it violates the prohibition against
     special legislation (Ill. Const. 1970, art. IV, § 13). In count II, plaintiff alleged that the
     Educational Labor Relations Board, not the Illinois Labor Relations Board, had exclusive
     administrative jurisdiction over unfair labor practice claims between plaintiff and Unit No.
     114 and any relevant bargaining-unit determinations, notwithstanding the amendatory public
     act. In September 2011, the trial court granted the labor boards’ motion to dismiss both
     counts of the complaint. Plaintiff appeals. We agree with plaintiff that dismissal was
     improper and, accordingly, reverse and remand.

¶3                                      I. BACKGROUND
¶4        According to the complaint, plaintiff is the only Illinois school district that maintains its
     own police force–that is, employs officers directly. (In general, other districts obtain police
     protection for their schools by coordinating with local police departments.) Currently,
     plaintiff’s police force consists of 26 officers who have received or have been scheduled to
     receive instruction under the Illinois Police Training Act (50 ILCS 705/1 to 12 (West 2010)).
     Since 1989, officers employed by plaintiff have been represented by iterations of a union
     certified by the Educational Labor Relations Board. These bargaining units have been
     responsible for entering collective-bargaining agreements regarding the conditions of
     officers’ employment with plaintiff. The most recent such agreement expired on June 30,
     2010.
¶5        In December 2010, plaintiff and Unit No. 114 began negotiating a new collective-
     bargaining agreement. Negotiations broke down when plaintiff ceased allowing members of
     Unit No. 114 to attend negotiations during work hours. In a December 2010 letter to plaintiff,
     a union representative stated, “I am prepared to file a charge, duplicate if necessary with the
     [Educational Labor Relations Board] and the [Illinois Labor Relations Board], over the
     District’s retaliation to the unit by threatening to discontinue the status quo for bargaining
     during working hours.”
¶6        A further dispute arose regarding which labor relations act–Public or
     Educational–governed negotiations. This question turned on the applicability of Public Act
     No. 96-1257. The union maintained that, pursuant to Public Act No. 96-1257, negotiations
     fell under the Public Labor Relations Act. Plaintiff maintained the Educational Labor
     Relations Act continued to apply to the bargaining because the public act (1) was
     unenforceable, unconstitutional special legislation and (2) did not apply, by its terms, to
     plaintiff and Unit No. 114. On March 3, 2011, Unit No. 114 applied for certification with the
     Illinois Labor Relations Board as the bargaining representative of “[a]ll full-time and part-
     time guards, agents, security and police employees” employed by plaintiff–the bargaining
     unit previously certified by the Educational Labor Relations Board.


                                                -3-
¶7         On March 15, 2011, plaintiff filed its two-count complaint against Unit No. 114 and the
       labor boards. In count I, plaintiff alleged Public Act No. 96-1257 was unconstitutional.
       Plaintiff sought, in part, a declaration of the statute’s unconstitutionality and an injunction
       against its enforcement. In count II, plaintiff alleged Public Act No. 96-1257 was
       inapplicable. Plaintiff sought, in part, a declaration that the officers it employs are not
       covered by the statutory amendment and that the Educational Labor Relations Board
       continued to have exclusive jurisdiction over labor disputes between plaintiff and Unit No.
       114 and an injunction barring the Illinois Labor Relations Board from asserting jurisdiction
       over the parties.
¶8         In April 2011, the labor boards filed a motion to dismiss under section 2-615 of the Code
       of Civil Procedure (735 ILCS 5/2-615 (West 2010)). They contended that the facts alleged
       in each count of the complaint, if proved, would not state a claim for relief. That same
       month, Unit No. 114 filed a separate section 2-615 motion to dismiss, appending materials
       it alleged refuted plaintiff’s claim that the public act did not apply to the parties. In
       September 2011, the trial court denied Unit No. 114’s motion but granted the boards’,
       dismissing the action with prejudice.
¶9         This appeal followed.

¶ 10                                      II. ANALYSIS
¶ 11       On appeal, plaintiff argues each count of its complaint alleged facts sufficient to state a
       claim for relief. We agree.

¶ 12                       A. Section 2-615 and the Standard of Review
¶ 13       A section 2-615 motion to dismiss challenges the legal sufficiency of the complaint.
       Simpkins v. CSX Transportation, Inc., 2012 IL 110662, ¶ 13. Dismissal under section 2-615
       is appropriate only if “it is clearly apparent that no set of facts can be proved that would
       entitle the plaintiff to recovery.” Id. In ruling on such a motion, the court construes the
       allegations in the complaint liberally and in the light most favorable to the plaintiff and
       accepts as true all well-pleaded facts and all reasonable inferences that may be drawn from
       those facts. Id. We review the trial court’s order granting the labor boards’ motion to dismiss
       de novo. Id.

¶ 14                     B. Overview of the Public Labor Relations Act
                                   and Public Act No. 96-1257
¶ 15       The Public Labor Relations Act regulates labor relations between public-sector
       employers and employees, “including the designation of employee representatives,
       negotiation of wages, hours and other conditions of employment, and resolution of disputes
       arising under collective bargaining agreements.” 5 ILCS 315/2 (West 2010). The entities
       whose labor relations the act covers are described in sections defining “public employee” and
       “public employer.” 5 ILCS 315/3(n), (o) (West 2010). Before and after amendment, subject
       only to enumerated exceptions, school districts and their employees are specifically excluded

                                                 -4-
       from these definitions. 5 ILCS 315/3(n), (o) (West 2008); 5 ILCS 315/3(n), (o) (West 2010).
       (Instead, school districts and their employees, respectively, are generally considered
       educational employers and educational employees under the Educational Labor Relations
       Act. 115 ILCS 5/2(a), (b) (West 2010).) Under Public Act No. 96-1257, “a school district in
       the employment of peace officers in its own police department in existence on the effective
       date of this amendatory Act of the 96th General Assembly” is now a public employer as an
       exception to the general exemption covering school districts. 5 ILCS 315/3(o) (West 2010).
       Correspondingly, under the amendment, “peace officers employed by a school district in its
       own police department in existence on the effective date of this amendatory Act of the 96th
       General Assembly” are now public employees as an exception to the general exemption of
       school districts’ employees. 5 ILCS 315/3(n) (West 2010).
¶ 16        The relevant effect of Public Act No. 96-1257 on labor relations concerns employees’
       right to strike. Under both the Educational Labor Relations Act and the Public Labor
       Relations Act, employees are generally permitted to strike when collective bargaining breaks
       down, subject to enumerated conditions. 115 ILCS 5/12 (West 2010); 5 ILCS 315/7, 13, 14
       (West 2010). However, the Public Labor Relations Act precludes public employees
       employed as security personnel, peace officers, or firefighters from striking and instead
       provides for interest arbitration between them and their employers. 5 ILCS 315/14, 17 (West
       2010); see also 5 ILCS 315/2 (West 2010) (“It is the public policy of the State of Illinois that
       where the right of employees to strike is prohibited by law, it is necessary to afford an
       alternate, expeditious, equitable and effective procedure for the resolution of labor disputes
       ***.”). This court has explained that the right to interest arbitration reserved for employees
       prohibited from striking resulted from a quid pro quo of “economic weapon[s].” State of
       Illinois Department of Central Management Services v. State of Illinois Labor Relations
       Board, State Panel, 373 Ill. App. 3d 242, 253, 869 N.E.2d 274, 283 (2007) (hereinafter
       CMS). Depriving such security, police, and firefighting employees of the right to strike due
       to the indispensable nature of their services puts them at a bargaining disadvantage with
       respect to their employers; the legislature sought to correct this imbalance in bargaining
       power by affording such employees “access to an economic bargaining weapon that is
       qualitatively similar to the right to strike”–i.e., interest arbitration. Id. at 255, 869 N.E.2d at
       284.

¶ 17                          C. Count I: Special-Legislation Claim
¶ 18       In count I of its complaint, plaintiff alleges Public Act No. 96-1257 violates the
       constitutional prohibition against special legislation. That prohibition states, “The General
       Assembly shall pass no special or local law when a general law is or can be made applicable.
       Whether a general law is or can be made applicable shall be a matter for judicial
       determination.” Ill. Const. 1970, art. IV, § 13. The special-legislation clause prohibits the
       legislature from “conferring a special benefit or privilege upon one person or group and
       excluding others that are similarly situated.” Crusius v. Illinois Gaming Board, 216 Ill. 2d
       315, 325, 837 N.E.2d 88, 94 (2005). In other words, “[w]hile the legislature has broad
       discretion to make statutory classifications, the special legislation clause prevents it from
       making classifications that arbitrarily discriminate in favor of a select group.” Id. Two

                                                  -5-
       elements comprise a special-legislation challenge: (1) “the statutory classification at issue
       discriminates in favor of a select group,” and (2) “the classification is arbitrary.” Id.
¶ 19       In determining whether a statutory classification is arbitrary, the same standards of
       scrutiny apply to equal-protection and special-legislation challenges. Id. Where, as here, no
       fundamental right or suspect class is affected by the statute in question, we apply “the
       deferential rational basis test.” Id. Under that test, a statute is constitutional so long as the
       distinction it draws between groups is “rationally related to a legitimate state interest.” Id.
       That is, the statute must be upheld if the court “can reasonably conceive of any set of facts
       that justifies distinguishing the class the statute benefits from the class outside its scope.” Id.,
       837 N.E.2d at 94-95.
¶ 20       Plaintiff’s complaint makes out a claim that Public Act No. 96-1257 is special legislation.
       That is, the complaint alleges facts which, if proved, would show that the public act
       discriminates in favor of a select group and that the distinction it draws is arbitrary.
¶ 21       Assuming it applies to these parties, the relevant distinctions made by Public Act No. 96-
       1257, we find, are (1) between peace officers employed by plaintiff, the only district
       currently employing police officers directly, and any peace officers who may be employed
       directly by other school districts in the future; and (2) between plaintiff and any school
       district that, in the future, may employ peace officers directly.
¶ 22       Citing CMS, the labor boards initially argue plaintiff failed to allege the public act
       discriminates in favor of a select group because the interest arbitration provided for peace
       officers who are public employees under the amendment to the Public Labor Relations Act
       is equivalent to and no more favorable than the right to strike enjoyed by educational
       employees. That is, according to the labor boards, assuming Public Act No. 96-1257 applies
       to these parties, the police officers plaintiff employs are no better off, relative to plaintiff, as
       public employees under the amendment, who are permitted to pursue interest arbitration,
       than as educational employees, who are permitted to strike. The boards argue, “[Plaintiff]
       may prefer to proceed under one alternative rather than the other, but its preference does not
       state a claim for special legislation.”
¶ 23       We disagree with this assertion. Plaintiff is in a unique position to evaluate the effect of
       the Public Labor Relations Act’s interest-arbitration scheme for police and security
       employees on plaintiff’s influence on labor negotiations with Unit No. 114. Thus, especially
       considering the court’s duty when ruling on a motion to dismiss to construe the pleadings in
       the light most favorable to the plaintiff, we are inclined to give plaintiff the benefit of the
       doubt when it asserts that Public Act No. 96-1257, if it applies to these parties, favors Unit
       No. 114 and disfavors plaintiff by substituting interest arbitration for the employees’ right
       to strike.
¶ 24       Further, contrary to the labor boards’ implication, this court did not, in CMS, evaluate the
       desirability of interest arbitration versus striking from either the employee’s or the
       employer’s perspective, let alone conclude the alternative proceedings were a wash for all
       parties. Rather, this court merely explained that interest arbitration was intended to be a
       qualitatively similar substitute for striking. The parties have cited no cases stating or holding
       the right to strike benefits an employee as much as the right to engage in interest arbitration,


                                                   -6-
       which is the crux of the labor boards’ position. It remains possible that, in application, by
       allowing them to pursue interest arbitration, the legislature overcorrected the perceived
       imbalance between police and security employees and their employers created by denying
       these employees the right to strike, even if arbitration is a theoretically equivalent “economic
       weapon.”
¶ 25       Plaintiff also raises a legitimate concern that the statutory distinctions identified above
       are arbitrary–that is, that they are not rationally related to a legitimate state interest. Here, the
       labor boards assert that Public Act No. 96-1257 advanced the state’s interest in treating all
       police officers similarly with respect to the right to strike, regardless of whether they are
       employed by a school district or a conventional police department. While legitimate, the
       interest asserted by the labor boards cannot rationally account for the identified distinctions.
¶ 26       By its terms, only peace officers “employed by a school district in its own police
       department in existence on the effective date” of Public Act No. 96-1257 are defined as
       public employees under the amended Public Labor Relations Act. 5 ILCS 315/3(n) (West
       2010). By specifically referring to officers “employed by a school district in its own police
       department,” the public act distinguishes between officers who are employed by local police
       departments but work in and for the schools–who were already treated as public employees
       and covered by the Public Labor Relations Act–from officers directly employed by school
       districts–who were previously considered educational employees under the Educational
       Labor Relations Act. This reasonably addresses the legislature’s legitimate interest in
       ensuring that police officers employed directly by school districts, who provide services
       necessary to the public safety, like all other officers, are barred from striking.
¶ 27       However, the distinction between officers employed by schools and those employed by
       other entities is not the troubling distinction. The relevant differences are in (1) the statute’s
       treatment of officers currently employed by school districts and those who may be employed
       by other school districts in the future and (2) its corresponding treatment of the school
       districts employing such officers. We note Unit No. 114’s claim that, notwithstanding its
       plain language, Public Act No. 96-1257 applies prospectively. To the contrary, assuming the
       amendment applies to plaintiff and Unit No. 114, because the class of officers affected by
       the amendment closed on July 23, 2010 (the public act’s effective date), any officers directly
       employed by school districts other than plaintiff in the future will remain under the purview
       of the Educational Labor Relations Act, not the Public Labor Relations Act. Officers covered
       by the Educational Labor Relations Act, like plaintiff’s police force before the amendment,
       will be allowed to strike but will be precluded from pursuing interest arbitration. If the
       legitimate interest justifying the classification in the amendment is to ensure that police
       officers, no matter who employs them, are not allowed to strike, then the distinction between
       police employees of school districts currently employing police officers and those of school
       districts that may employ police in the future is irrational. No legitimate state interest
       identified by the parties–and none we can conceive of–accounts for the closing of the
       affected class by reference to the statute’s effective date. The date-based distinction may have
       been rational if, for instance, some earlier legislation foreclosed any school district not
       already in employment of its own police officers from directly employing them in the future,
       but we have found no such prohibition.

                                                   -7-
¶ 28        The legislature defined the class affected by Public Act No. 96-1257 by reference to
       school districts directly employing police officers on a date when the legislature believed
       only plaintiff and its officers would be affected. See 96th Ill. Gen. Assem., Senate
       Proceedings, Mar. 18, 2010, at 74 (Senator Koehler remarking, “The only place this affects
       in the State is Peoria public schools. What it does *** is it takes away the right to strike by
       the police group and it puts any contract disputes into interest arbitration.”); 96th Ill. Gen.
       Assem., House Proceedings, Apr. 29, 2010, at 49 (Representative Smith indicating, “This
       is not specific to Peoria. It would apply to any school district that employs its own police
       officers, and we’re told that Peoria’s the only one that does that.”). The prohibition against
       special legislation does not per se prohibit legislation regulating a generally defined class that
       happens to have only one member. Elementary School District 159 v. Schiller, 221 Ill. 2d
       130, 154, 849 N.E.2d 349, 364 (2006) (“Nothing in that provision bars the legislature from
       enacting a law specifically addressing the conditions of an entity that is uniquely situated.”).
       However, in this case, assuming the public act applies to these parties, the legislature
       arbitrarily set the classification in Public Act No. 96-1257 so that only plaintiff can be
       affected even if it loses, by possibly unforeseen circumstances, its distinction as the only
       school district in the state that maintains its own police force.
¶ 29        Our conclusion that plaintiff adequately alleged that the distinctions drawn by the statute
       at issue are arbitrary is unaffected by the labor boards’ assertion that no other school district
       is likely to begin directly employing police officers in the foreseeable future. Plaintiff’s right
       not to be disadvantaged by special legislation is at issue now in ongoing bargaining and labor
       disputes. We will not wait to see whether another school district actually establishes its own
       police force in the future; plaintiff’s constitutional challenge does not depend on this
       contingency.

¶ 30                         D. Count II: Applicability of the Public Act
¶ 31        In count II of the complaint, plaintiff alleged the Illinois Labor Relations Board lacked
       administrative jurisdiction over plaintiff and Unit No. 114 under Public Act No. 96-1257
       because, according to plaintiff, plaintiff did not employ “peace officers” and did not maintain
       “its own police department” as those terms were used in the Public Labor Relations Act’s
       amended definitions of public employee and public employer. This states a claim for which
       the trial court is authorized to grant relief, including the declaratory and injunctive relief
       plaintiff requests.
¶ 32        In general, plaintiffs must exhaust available administrative remedies before they seek
       equitable relief from administrative action. Office of the Lake County State’s Attorney v.
       Illinois Human Rights Comm’n, 200 Ill. App. 3d 151, 155, 558 N.E.2d 668, 671 (1990). In
       this case, as the labor boards contend and the trial court found, plaintiff failed to await the
       Illinois Labor Relations Board’s final administrative determination whether to certify Unit
       No. 114 as the exclusive bargaining representative of the security and police officers
       employed by plaintiff.
¶ 33        Nevertheless, an exception to the exhaustion requirement exists for challenges to an
       administrative agency’s jurisdiction. Id. at 156, 558 N.E.2d at 671; see also County of Kane


                                                  -8-
       v. Carlson, 116 Ill. 2d 186, 199, 507 N.E.2d 482, 486 (1987) (“The rule [of exhaustion of
       remedies] does not apply when a party challenges the constitutionality of a statute on its face
       [citations] or contests the authority or jurisdiction of the administrative agency [citations]
       ***.”). For example, in one of two consolidated appeals in County of Kane, the chief judge
       of a judicial circuit challenged the Illinois Labor Relations Board’s jurisdiction over charges
       of unfair labor practices filed against him by a union of probation officers. County of Kane,
       116 Ill. 2d at 199, 507 N.E.2d at 486. Along with constitutional challenges to the authority
       of the statute based on the separation of powers, the chief judge argued he was not a public
       employer and, thus, “not within the scope of the [Public Labor Relations] Act.” Id. at 201,
       507 N.E.2d at 487. Because he challenged the labor board’s jurisdiction, and because “the
       questions presented [were] entirely legal and [did] not require fact finding by the
       administrative agency or an application of its particular expertise,” the supreme court held
       the judge was not required to exhaust administrative remedies before seeking declaratory and
       injunctive relief in the trial court. Id. at 199-200, 507 N.E.2d at 486.
¶ 34       Similarly, in Lake County, 200 Ill. App. 3d at 153-54, 558 N.E.2d at 669, in a complaint
       before the trial court seeking declaratory and injunctive relief, a State’s Attorney challenged
       the jurisdiction of the Department of Human Rights over an assistant State’s Attorney’s
       charge before that agency of race- and sex-based discrimination. Among other things, the
       State’s Attorney alleged the assistant State’s Attorney was not an “employee” and the State’s
       Attorney was not an “employer” or a “person” as used in the Illinois Human Rights Act (Ill.
       Rev. Stat. 1987, ch. 68, ¶¶ 2-101(A), (B), 1-103(L)). Lake County, 200 Ill. App. 3d at 153-
       54, 558 N.E.2d at 669. The trial court dismissed for lack of jurisdiction because the State’s
       Attorney failed to exhaust administrative remedies. Id. at 153, 558 N.E.2d at 670.
¶ 35       The appellate court, however, found the trial court had jurisdiction over the State’s
       Attorney’s complaint because it attacked the administrative jurisdiction of the Department
       of Human Rights and therefore was exempt from exhaustion requirements. Id. at 156-57, 558
       N.E.2d at 672. As in County of Kane, the appellate court found the State’s Attorney’s
       jurisdictional challenge raised “entirely legal” questions. (Internal quotation marks omitted.)
       Id. The appellate court held, “The State’s Attorney need not first subject himself to an
       exercise of jurisdiction of the [Human Rights] Commission, which is not authorized by
       law[,] simply to obtain a decision from which he could” pursue administrative relief and,
       ultimately, appeal. Id. at 157, 558 N.E.2d at 672; see also id. (“ ‘[W]here the remedy of
       administrative and judicial review would come only after a hearing which the [administrative
       agency] has no jurisdiction to hold, it can be said that, as a matter of law, [the plaintiff] has
       no other adequate remedy than the writ of prohibition [(a court ruling enjoining the agency
       from exercising jurisdiction)].’ ” (quoting People ex rel. Olin Corp. v. Department of Labor,
       95 Ill. App. 3d 1108, 1112, 420 N.E.2d 1043, 1047 (1981))).
¶ 36       Here, plaintiff alleges it is not a public employer and the members of Unit No. 114 are
       not public employees because (1) its employees are not “peace officers” and (2) plaintiff does
       not maintain “its own police department.” These allegations are sufficiently analogous to the
       plaintiffs’ jurisdictional challenges in County of Kane and Lake County that we hold plaintiff
       was not required to exhaust administrative remedies. The Public Labor Relations Act
       provides employers with no means to challenge the Illinois Labor Relations Board’s

                                                 -9-
       jurisdiction during the process for certifying a union as the exclusive bargaining
       representative of its members–the action Unit No. 114 sought here. Rather, plaintiff would
       have been required to await an adverse determination before pursuing judicial review in the
       appellate court as provided in section 9(i) of the Public Labor Relations Act (5 ILCS 315/9(i)
       (West 2010)), where it could retroactively challenge the agency’s jurisdiction. That result is
       at odds with the well-reasoned holding of Lake County.
¶ 37        The labor boards assert ruling on plaintiff’s jurisdictional challenge would require the
       trial court to reach the merits of Unit No. 114’s petition for certification as a bargaining unit
       by the Illinois Labor Relations Board. They cite Nestle USA, Inc. v. Dunlap, 365 Ill. App. 3d
       727, 734, 852 N.E.2d 282, 288 (2006), where this court stated, “Jurisdiction should not be
       determined by a ruling on the merits.” In that case, the plaintiff sought a declaratory
       judgment that the Illinois Workers’ Compensation Commission had exceeded its statutory
       powers when an arbitrator working on the agency’s behalf reinstated a claim beyond, the
       plaintiff argued, the time allotted for doing so. Id. at 733, 852 N.E.2d at 287. This court
       found the plaintiff was attempting to “skip *** review [by the administrative agency] and
       seek judicial review by alleging that the arbitrator’s decision was not authorized by statute.
       Trial courts would be forced [in such circumstances] to first determine if arbitrators’
       decisions were wrong in order to determine if they had jurisdiction.” Id. at 734-35, 852
       N.E.2d at 288. This court held the plaintiff was required to exhaust administrative remedies.
       Id. at 735, 852 N.E.2d at 288.
¶ 38        This case is distinguishable from Nestle because plaintiff has not asked the trial court to
       address the merits of Unit No. 114’s application for certification. When a majority of a group
       of public employees seeks certification as the exclusive bargaining representative of that
       group, the Illinois Labor Relations Board “shall decide in each case, in order to assure public
       employees the fullest freedom in exercising the rights guaranteed by this Act, a unit
       appropriate for the purpose of collective bargaining.” 5 ILCS 315/9(b) (West 2010). The
       merits of such a determination, as we used that term in Nestle, include among other things
       whether the petitioned unit is “appropriate” and whether the petitioners complied with
       mandated voting procedures. The questions of whether the unit’s members are public
       employees and their employer a public employer are jurisdictional prerequisites apart from
       the merits of the case. These are questions appropriately addressed by a trial court prior to
       a plaintiff’s submission to an administrative agency’s unauthorized exercise of its
       jurisdiction.
¶ 39        The allegations of plaintiff’s complaint are sufficient to withstand the labor boards’
       motion to dismiss. The trial court erred by granting the motion. Accordingly, we reverse and
       remand.

¶ 40                                   III. CONCLUSION
¶ 41      For the foregoing reasons, we reverse the trial court’s judgment and remand for further
       proceedings consistent with this opinion.

¶ 42       Reversed and remanded.

                                                 -10-
