                                                  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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No. 1-09-1558

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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No. 1-09-1558

"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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No. 1-09-1558

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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No. 1-09-1558

     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


                                          15
No. 1-09-1558

(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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