                                No. 3–07–0494
______________________________________________________________________________
Filed June 26, 2008
                                   IN THE

                               APPELLATE COURT OF ILLINOIS

                                      THIRD DISTRICT

                                           A.D., 2008

THE CITY OF WASHINGTON, ILLINOIS,          ) Petition for Review of an Order
                                           ) of the Illinois Labor Relations Board,
      Petitioner-Appellant,                ) State Panel.
                                           )
      v.                                   ) ILRB Nos. S–UC–06–082
                                           ) & S–UC–06–084
ILLINOIS LABOR RELATIONS BOARD             )
and LABORERS INTERNATIONAL UNION           )
OF NORTH AMERICA, LOCAL 231,               )
                                           )
      Respondents-Appellees.               )
______________________________________________________________________________

      JUSTICE WRIGHT delivered the opinion of the court:
______________________________________________________________________________

       Petitioner City of Washington (City) seeks review of a final order of the State Panel of

respondent Illinois Labor Relations Board (Board), in which the Board determined that division

supervisors of the City’s public services department were included in a bargaining unit

represented by respondent Laborers International Union of North America, Local 231 (Union).

We affirm the Board’s order.

                                        BACKGROUND

       On April 13, 2006, the Board issued a certification of representative, granting in part a

majority interest petition brought by the Union to include nonprofessional employees of the

City’s public services department in a bargaining unit represented exclusively by the Union. In
the representation proceedings, the City disputed certain positions, including part-time and

seasonal employees, and the division supervisors at issue in this review. However, because a tally

of the Union’s evidence of majority interest established that the number of disputed positions

would not affect the determination of majority support for the Union, the Board approved the

petition for a bargaining unit which excluded those positions which were disputed by the City

and included the undisputed positions. Pursuant to rules established for majority interest

petitions in this situation, the Board directed the Union to proceed under the Board’s unit

clarification procedure to attempt to incorporate the disputed positions into the bargaining unit.

       On May 3 and May 5, 2006, the Union filed two unit clarification petitions. In case No.

S–UC–06–082, the Union sought inclusion of the City’s department of public services employees

occupying the following positions: public works inspector; public services supervisor of streets,

cemetery and grounds; public services water and sewer maintenance supervisor; public services

water treatment plant supervisor; and public services sewer treatment plant supervisor. The

petition in case No. S–UC–06–084 sought inclusion of the City’s department of public services

part-time and seasonal employees who had a community of interest with the full-time employees.

       At a hearing held before an administrative law judge (ALJ) on October 19, 2006, the City

initially objected to the Union’s use of the unit clarification procedure. The City’s attorney

contested whether the clarification procedure could be used to expand the collective bargaining

unit beyond those positions included in the April 13, 2006, certification of representative. The

City argued that none of the three bases for unit clarification set forth in section 1210.170(a) of

Title 80 of the Illinois Administration Code (80 Ill. Adm. Code §1210.170(a) amended at 27 Ill.

Reg. 7393 (eff. May 01, 2003)) applied. Counsel for the Union noted that the Board directed the


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Union to file unit clarification petitions when it certified the bargaining unit but excluded the

disputed positions subject to further review.

       The ALJ took the City’s objection under advisement, and the City then presented

testimony of City administrator Robert Morris. Morris testified that he was in charge of the day-

to-day operations of the City and directly accountable to the mayor, the city council and the

City’s elected officials. According to Morris, the following four individuals reported directly to

him: the police chief; the City comptroller; the planning and development director; and City

engineer Kenneth Newman who, in turn, was the “ultimate supervisor” of the City’s department

of public services. Morris explained that the department of public services consisted of four

functional divisions: the streets and cemeteries division, which was responsible for the repair

and maintenance of streets, alleys, sidewalks, storm drainage, traffic control signs and

cemeteries; the water treatment plant, which was responsible for the maintenance and repair of

the water distribution system and water meters; the sewage treatment plant, which was

responsible for the operation, repair, maintenance and replacement of two waste water treatment

plants; and the water and sewer maintenance division, which had responsibility over the

operation, maintenance and repair of the City’s water distribution and waste water collection

systems.

       Kenneth Newman was the City’s next witness. He testified that the public services

department had 19 full-time employees, 5 seasonal employees, and 8 to 10 part-time summer

employees. The four division supervisors who reported directly to him were: Craig Cohen,

supervisor of the streets and cemeteries division; Ken Klekamp, supervisor of the water treatment

plant; Eric Martin, supervisor of the waste water treatment plants; and Rick James, supervisor of


                                                  3
the water and sewer maintenance division. He said Klekamp supervised one employee in the

water treatment plant, but both Klekamp and the other employee were responsible for the

operation, maintenance and repair of the water treatment plant. Both Klekamp and the other

employee also inspected and replaced water meters.

       According to Newman, Janes supervised three employees in the water and sewer

maintenance division. Janes and his crew maintained the City’s water distribution and sewage

collection system. He worked along with his employees on a daily basis, operating a dump truck,

backhoe and other equipment to dig up streets and repair leaks.

       Newman informed the ALJ that he permitted the supervisors of the department’s four

divisions to provide input with respect to hiring decisions, promotions and discharges. He stated

the supervisors also provided day-to-day direction to their employees, made purchases up to $100

without Newman’s approval, interacted with citizens, and prepared annual employee evaluations.

However, the evaluations did not affect the employees’ pay or status.

       Next, Eric Martin testified that he oversees the City’s two waste water treatment plants.

He held a Class 1 waste water treatment license and supervised three employees -- two other

Class 1 licensed operators and one laborer. Martin and the employees he supervised turned in

biweekly time sheets to Newman and received overtime pay for hours worked in excess of 40 per

week. Martin testified the operators knew what had to be done and did not require much direct

supervision. Martin estimated he spent one hour per day completing paperwork and making

telephone calls. He frequently worked alongside his employees and assisted them in making

repairs and maintaining equipment for approximately three or four hours a day. The waste water

treatment plants had to be checked seven days a week. Consequently, Martin and the three other


                                                4
waste water treatment employees rotated equal weekend shifts to check the treatment plants on

weekends.

       Martin testified that he consulted with Newman on major projects, including plans for

expansion of one of the plants. Martin said he had hired two employees in the five-year period

prior to the hearing. With regard to the most recent hire, Martin screened applications and

recommended a candidate to Newman, who agreed with his choice.

       Craig Cohen was the City’s last witness. He testified that he oversees the City’s right-of-

ways, gutters, sidewalks, curbs, cemeteries and storm inlets. He supervised 7 full-time

employees, including 2 foremen and 5 laborers, and he hired approximately 10 summer

employees. He directed the employees’ daily activities and obtained bids for major equipment

and supplies needed by the streets and cemeteries division, which he referred to Newman for

purchase. Like Martin, Cohen helped his employees with tasks at their jobsites and with snow

ploughing. Cohen estimated he spent about half of his workday doing construction-type work

with his employees. Cohen and the other employees turned in biweekly time sheets and were

paid overtime for hours exceeding 40 hours per week.

       Following the City’s evidence, both parties rested. After receiving written arguments of

counsel, the ALJ issued her recommended order and decision. First, the ALJ found that the unit

clarification procedure was appropriate for resolving the status of the contested employees with

regard to the bargaining unit pursuant to section 1210.100(b)(7)(B). The ALJ found the evidence

insufficient to establish that any of the division chiefs spent a preponderance of the workday

exercising supervisory authority. She determined that only Cohen and Martin performed any job

duties different from their subordinates, and concluded only Cohen exercised supervisory


                                                5
authority in hiring. Accordingly, the ALJ determined that the division supervisors were not

supervisory employees within the meaning of the Illinois Public Labor Relations Act (5 ILCS

315/3(r) (West 2006)). The ALJ also decided that the seasonal employees were not short-term

employees as defined by the Act and shared a community of interest with other employees in the

bargaining unit. She found no basis for excluding the cemetery sextant. Accordingly, the ALJ

recommended that all of the challenged employees of the City’s public services department be

included in the existing bargaining unit.

        The City appealed the ALJ’s recommended order and decision to the Board’s five-

member State Panel. After reviewing the parties’ positions and the report of proceedings before

the ALJ, the State Panel rejected the City’s arguments and accepted the recommended order in

toto. Accordingly, the Board issued a certification of unit clarification which included the

disputed positions in the bargaining unit of the City’s public services department. The City

thereafter filed a petition for review in this court.

                                      ISSUES AND ANALYSIS

                                   1. Unit Clarification Procedure

        The City contends that the Union improperly used the unit clarification procedure to add

the disputed positions to the public service department’s collective bargaining unit. According to

the City, a unit clarification petition may be used only under the circumstances enumerated in the

rule set forth in section 1210.170(a) of title 80 of the Illinois Administrative Code (Code) (80 Ill.

Adm. Code §1210.170(a) amended at 28 Ill. Reg. 7393 (eff. May 01, 2003)). In response, the

Union and the Board contend the unit clarification procedure was proper pursuant to the rule in

subsection 1210.100(b)(7)(B) of the Code (80 Ill. Adm. Code §1210.100(b)(7)(B) amended at 28


                                                   6
Ill. Reg. 4172 (eff. February 19, 2004)).

       The question raised by the City’s challenge to the Union’s use of the unit clarification

procedure is a question of law, which we normally would review de novo. City of Collinsville v.

Illinois State Labor Relations Board, 329 Ill. App. 3d 409, 419 (2002). However, it is well

settled that an administrative agency's interpretation of its own rules is entitled to deference,

because its interpretation stems from the agency's expertise and experience. Niles Township

High School District 219 v. Illinois Educational Labor Relations Board, 369 Ill. App. 3d 128,

138 (2006). Accordingly, this court will not disturb the agency’s construction of its rules unless

the agency’s construction is clearly erroneous, arbitrary, or unreasonable. Water Pipe Extension,

Bureau of Engineering v. Illinois Local Labor Relations Board, 252 Ill. App. 3d 932, 936 (1993).

       The City claims section 1210.170(a), which was most recently amended by the Board in

May 2003, limits the circumstances in which a party may petition for unit clarification. This

section provides:

               “An exclusive representative or an employer may file a unit clarification

       petition to clarify or amend an existing bargaining unit when:

               1) substantial changes occur in the duties and functions of an existing title, raising

       an issue as to the title's unit placement;

               2) an existing job title that is logically encompassed within the existing unit was

       inadvertently excluded by the parties at the time the unit was established; and

               3) a significant change takes place in statutory or case law that affects the

       bargaining rights of employees.” 80 Ill. Adm. Code §1210.170(a) amended at 27 Ill. Reg.



                                                    7
       7393 (eff. May 1, 2003).

       The City correctly notes that the three circumstances enumerated in section 1210.170(a)

did not apply in this case. However, contrary to the City’s argument in this review, section

1210.170(a) does not define the only circumstances when the unit clarification procedure applies.

Instead, as recently acknowledged in State of Illinois v. State of Illinois, 364 Ill. App. 3d 1028,

1034 (2006), the Board’s rule, together with case law, defines the circumstances in which the

unit clarification procedure may be used. In addition to the circumstances set forth in section

1210.170(a), the court observed that the Board’s unit clarification procedure was judicially

approved when a newly created job classification had job functions similar to functions already

covered in the bargaining unit. State of Illinois, 364 Ill. App. 3d at 1032, citing American

Federation of State, County & Municipal Employees v. Illinois State Labor Relations Board,

333 Ill. App. 3d 177, 182 (2002). Accordingly, in addition to the four previously authorized

scenarios in section 1210.170(a) and American Federation of State, County & Municipal

Employees, the court in State of Illinois ruled that the Board was required to use the unit

clarification procedure to review the inclusion of employees who were alleged by the employer to

be statutorily excluded as confidential employees. State of Illinois, 364 Ill. App. 3d at 1034.

       The Board’s adoption of section 1210.100(b)(7)(B), effective February 19, 2004, provides

further support for the argument that section 1210.170(a) is nonexclusive and circumstances

requiring use of unit clarification procedures may be expanded. This more recently adopted rule

provides in pertinent part as follows:

       “Where there are unit or exclusion issues, but the number of the contested positions is not

       sufficient to affect the determination of majority support, then the Executive Director will

                                                  8
       *** prepare a tally of the finding of majority support and issue a certification and the tally

       concerning the employees not in dispute. The disputed employees’ inclusion in the unit

       will be subject to the Board’s unit clarification procedures.” (Emphasis added.) 80 Ill.

       Adm. Code §1210.100(b)(7)(B), amended at 28 Ill. Reg 4172 (eff. February 19, 2004).

Section 1210.100(b)(7)(B) recognizes that, just as the unit clarification process is appropriate to

remove statutorily excluded employees from a bargaining unit (see State of Illinois, 364 Ill. App.

3d at 1034), the process is equally appropriate for including employees whose status was

disputed during majority interest representation proceedings.

       In our opinion, it is now clear from both relevant case precedent and the Board’s rules

that unit clarification is the preferred and most efficient method to resolve bargaining unit

inclusion and exclusion disputes. The Board’s reliance on the authority of section

1210.100(b)(7)(B) to resolve the parties’ dispute in this case was not manifestly erroneous.

Accordingly, we hold the Board properly overruled the City’s objection to the Union’s use of the

unit clarification procedure.

                                     2. Statutory Supervisors

       Next, the City argues that the four public services division chiefs who were titled

“supervisors” should have been excluded from the public service department’s collective

bargaining unit. The City asserts the division chiefs were “supervisors” as defined by the Illinois

Public Labor Relations Act (Act) (5 ILCS 315/3(r) (West 2006)). This issue presents a mixed

question of law and fact, which we review for clear error. Metropolitan Alliance of Police v.

Illinois Labor Relations Board, State Panel, 362 Ill. App. 3d 469, 474 (2005). Under the clearly

erroneous standard of review, the Board’s determination should be affirmed unless, based on our

                                                 9
review of the entire record, this court is left with the definite and firm conviction that a mistake

has occurred. Oleszczuk v. Department of Employment Security, 336 Ill. App. 3d 46, 50 (2002).

       In order to avoid the conflict of interests that would arise if supervisors were subject to

the same personnel policies as their subordinates, the Act excludes supervisors from the same

bargaining units as nonsupervisory personnel. As noted by our supreme court, “[t]he potential

for a 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.” (Emphasis in original.) City of Freeport v. Illinois

State Labor Relations Board, 135 Ill. 2d 499, 518 (1990). An employer seeking to exclude

employees from a bargaining unit because they are statutory supervisors bears the burden of

proving that fact. See County of Cook (Provident Hospital) v. Illinois Labor Relations Board,

369 Ill. App. 3d 112, 123 (2006).

        The Act defines "supervisor" as

                “an employee whose principal work is 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.” (Emphasis added.) 5 ILCS 315/3(r) (West

       2006).

                                                  10
To fall within this definition, the employee must meet all parts of the statutory test. Metropolitan

Alliance of Police, 362 Ill. App. 3d at 476.

       In determining whether an employee's principal work is substantially different from that

of his subordinates, the Board must determine whether the employee's work is “obviously and

visibly different” from that of his subordinates. City of Freeport, 135 Ill. 2d at 514. If the work is

obviously different, the first part of the statutory test is met and the inquiry proceeds to the

second part, which analyzes the employee’s supervisory authority. However, if the supervising

employee's work is similar to that of his subordinates, then the Board determines whether “the

nature and essence” of the work is substantially different. City of Freeport, 135 Ill. 2d at 514.

The “nature and essence” analysis is qualitative; i.e., statutory “supervisor” status is shown if the

employee has both supervisory authority, and the ability to exercise it to impact a subordinate's

employment at any time. City of Freeport, 135 Ill. 2d at 518.

       Here, the ALJ found Ken Klekamp’s duties as the City’s water treatment division

supervisor were essentially the same as those of the one employee under him, and there was no

evidence that the “nature and essence” of Klekamp’s work was supervisory. Likewise, the ALJ

found the City’s evidence failed to show that Rick Janes’s duties as the supervisor of the water

and sewer maintenance crew were visibly or qualitatively different from those of his

subordinates. The Board adopted these findings, and the record on review supports them.

Neither Klekamp nor Janes testified at the hearing, and the testimony of the City administrator

and City engineer did not indicate that these employees performed work that was different from

work performed by the men they supervised. Accordingly, we cannot say the Board’s conclusion

that Klekamp and Janes were not statutory supervisors is clearly erroneous.

                                                  11
       The ALJ did find that division chiefs Cohen and Martin, unlike Klekamp and Janes,

performed duties that were obviously and visibly different from their subordinates. The testimony

of Cohen and Martin showed that these employees, unlike their subordinates, spent part of the

workday assigning duties, purchasing equipment, completing paperwork and making telephone

calls. Therefore, because Cohen and Martin met the first part of the statutory definition of

“supervisor,” the next inquiry concerns whether the evidence showed that Cohen and Martin

perform any of the duties enumerated in the statutory definition, and whether they do so with

“independent judgment.” In this regard, the ALJ found that Martin did not exercise independent

judgment in performing any of the enumerated duties, and Cohen did.

       An employee exercises “independent judgment” when he makes a choice between two or

more significant courses of action without substantial review by superiors. For purposes of this

part of the statutory test, a single indicium of supervisory authority accompanied by independent

judgment is sufficient to show supervisory status. Metropolitan Alliance of Police, 362 Ill. App.

3d at 477-78.

       The evidence in this case showed that both Martin and Cohen were involved in hiring

employees. However, the evidence of Martin’s hiring experience indicated that Ken Newman

conducted an independent review before the employee was hired. Therefore, it cannot be said

that Martin exercised independent judgment in hiring. The City’s evidence failed to demonstrate

that other arguably supervisory activities assumed by Martin and Cohen were performed based

on their independent judgment, impacted their subordinates’ employment or were accomplished

based on their effective recommendations. Accordingly, we do not find that the Board

erroneously determined that Martin was not a statutory supervisor.

                                                12
       The evidence indicated Cohen hired summer help and seasonal employees as a supervisor

without Newman’s oversight. Therefore, we reach the question of whether the evidence showed

that he spends a preponderance of his time exercising supervisory authority. Cohen testified he

spent about half of his workday performing the same duties as his subordinates. Contrary to the

City’s argument on review, there was no evidence that Cohen or any of the other division

supervisors spent more than half of their workdays exercising supervisory authority. Accordingly,

we find the Board correctly concluded that none of the City’s department of public services

division supervisors were “supervisors” as defined by the Act.

                                  3. Scope of the Board’s Order

       In its third issue, the City argues the Board’s decision is overbroad. The City contends

the order could be read to extend its inclusion of “all seasonal employees of the City”and “all

part-time employees of the City” to summer employees and employees in departments other than

the public services department, some of whom are represented by other unions.

       Respondents contend the parties were all cognizant of the fact that only those positions

that were within the City’s public services department were at issue. Moreover, the hearing

officer’s recommended order and decision, which the Board adopted, specified the part-time and

seasonal employees at issue were those “employed by the City of Washington in its Department

of Public Services Division.” (Emphasis added.) In addition, the Board’s “Certification of Unit

Clarification” issued on June 25, 2007, specifically limits the positions included in the unit to the

cemetery sexton and public works inspector, who are not at issue in this review, the four division

supervisors who are at issue, and “all non-professional public service employees, all seasonal

employees, all part-time employees of the City of Washington Street, Sewer and Water

                                                 13
Departments.”

       The City presents the overbreadth argument without citation to case law or other

authority and could be deemed waived . See 188 Ill. 2d R. 341(h)(7). Moreover, we agree with

respondents that the argument is hyper-technical and without merit. The parties were well aware

of the specific employees whose positions were in dispute at the unit clarification proceeding for

this collective bargaining unit. The Board’s order requires no further clarification by this court.

Accordingly, we decline the City’s invitation to modify the Board’s order.

                                4. Majority Interest Determination

       Last, the City seeks a remand to the Board for a redetermination of majority interest on

the ground that the Board exceeded its authority in adopting its regulations. Citing County of

Du Page v. Illinois Labor Relations Board, State Panel, 375 Ill. App. 3d 765, 779 (2007), appeal

allowed, 226 Ill. 2d 582 (table), the City argues the Board’s regulations for determining majority

interest improperly allow the decision to be made on the basis authorization cards without further

evidence. As noted by the court in County of Du Page, the Act requires that evidence supporting

a majority interest petition include dues deduction authorization and other evidence (5 ILCS

315/9(a-5) (West 2006)), whereas the Board’s regulations permit certification of representative

on the basis of either dues deduction authorization cards or other evidence (80 Ill. Adm. Code

§1210.80(d)(2)(A), amended at 28 Ill. Reg. 4172 (eff. February 19, 2004)). The City “presumes”

the Board relied on the same regulations the appellate court found invalid in County of Du Page

when it ruled on the Union’s majority interest petition in this case. In the alternative, the City

suggests that, because of turnover of personnel during the pendency of the litigation in this case

and the small number of employees involved, a remand should be granted to redetermine whether

                                                 14
the Union maintains a majority status within the City’s public services department.

        Respondents argue that here, unlike County of Du Page, the City has waived its challenge

to the validity of the Board’s regulations regarding the evidence needed to sustain the Union’s

majority interest petition by failing to raise it at the representation proceedings, or at the unit

clarification proceedings or before the Board’s State Panel. Respondents contend the argument

is also untimely, because certification of the bargaining unit’s representative is subject to judicial

review and such review which must be sought within 35 days of the Board’s decision. 5 ILCS

315/9(i) (West 2006); 735 ILCS 5/3–103 (West 2006); Board of Education of City of Chicago v.

Illinois Educational Labor Relations Board, 289 Ill. App. 3d 1019, 1021 (1997).

        It is well settled that a party aggrieved by an agency action must pursue all available

administrative remedies before seeking judicial review. Any argument or objection which was

not raised during the pendency of the administrative proceeding is deemed waived and cannot be

asserted for the first time on judicial review of the agency’s decision. Board of Education of the

City of Chicago, 289 Ill. App. 3d at 1021.

        In this case, the record on review indicates the City actively participated in the

representation proceedings and disputed the inclusion of several of its public services department

employees in the bargaining unit. Any objection to the Union’s evidence in support of its

majority interest petition should have been presented at the representation hearing. However, the

City has not provided this court with a transcript of the representation proceedings. The record

before us and the parties’ arguments on review indicate that the City did not levy a timely

objection to the evidence supporting the Union’s majority interest petition and chose not to seek

judicial review from the Board’s certification of representative. The City’s brief does not provide

                                                  15
a persuasive basis for granting an exception to the waiver principle, and counsel did not address

the Union’s waiver argument during oral arguments. Accordingly, we conclude the City has

forfeited the argument challenging the Union’s evidence in support of its majority petitions,

which the City attempts to bootstrap to this review of the unit clarification decision.

                                          CONCLUSION

       The decision of the State Panel of the Illinois Labor Relations Board is affirmed.

       Affirmed.

       LYTTON and O’BRIEN, JJ., concur.




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