NO. 4-02-0928

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

THE COUNTY OF VERMILION and THE

VERMILLION COUNTY SHERIFF,

	Petitioners,

          v.

THE ILLINOIS LABOR RELATIONS BOARD,

STATE PANEL, and Its Panel Members

MANNY HOFFMAN, MIKE BRESLAN, DEBBIE

LOUNSBERRY, SANDRA TRISTANO, DAVID

BARKHOAUSEN, and THOMAS WALSH; BRIAN

E. REYNOLDS, Executive Director of

Said Board/Panel; Administrative Law

Judge WILLIAM E. WAECHTER of Said

Board/Panel; and THE ILLINOIS

FRATERNAL ORDER OF POLICE LABOR

COUNCIL,

	Respondents.	)

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)	Direct Review of the

Illinois Labor

Relations Board,

State Panel

Case No. SRC02006

_________________________________________________________________

	JUSTICE STEIGMANN delivered the opinion of the court:

	The Vermilion County Ssheriff and Vermilion County

(hereinafter employers) petition for review of the decision of

the Illinois State Labor Relations Board, State Panel (Board),

finding that all full-time corrections sergeants (hereinafter

sergeants) employed by the employers represent an appropriate

unit for collective bargaining, as defined by section 3(s)(1) of

the Illinois Public Labor Relations Act (Act) (5 ILCS 315/3(s)(1)

(West 2000)).  We affirm.

I. BACKGROUND

	In August 2001, respondent, the Illinois Fraternal

Order of Police Labor Council (hereinafter union), filed a

"Representation/Certification Petition" with the Board, alleging

that 30% of the employers' employees in an appropriate unit, as defined in section 3(s)(1)of the Act (5 ILCS 315/3(s)(1) (West

2000)), request an election to determine whether the union should

be certified as the exclusive bargaining agent for the employees

in that unit.  The union alleged that the appropriate unit

included all full-time sergeants and excluded all other employees

of the employer.  

	In October 2001, an administrative law judge (ALJ) of

the Board conducted a hearing on the union's petition.  At the

hearing, the employers did not agree to recognize the unit on the

ground that the sergeants are considered "supervisors," and,

therefore, do not constitute an appropriate bargaining unit under

the Act.  See 5 ILCS 315/3(s)(1) (West 2000) ("a bargaining unit

determined by the Board shall not include both employees and

supervisors, or supervisors only").  Accordingly, the ALJ found,

and the parties agreed, that the only issue was whether the

sergeants are "supervisors" within the meaning of the Act.  The

parties further agreed that should the sergeants be found not to

be supervisors within the meaning of the Act, they constitute an

appropriate bargaining unit.

	Vermilion County Sheriff William Patrick Hartshorn

testified on the employers' behalf that the corrections division

consists of 1 captain, 1 administrative lieutenant, 5 sergeants,

and 30 correctional officers.  The captain and lieutenant both

work the first shift only (from 7 a.m. until 3 p.m.), with the

captain working Monday through Friday and the lieutenant working

a six-day work schedule with three days off on a rotating basis.  One sergeant is assigned to the first shift, two sergeants are

assigned to the second shift (from 3 p.m. to 11 p.m.), and two

sergeants are assigned to the third shift (from 11 p.m. to 7

a.m.).  The sergeant is the only representative of the employers

on the second and third shifts because no other management

personnel are in the correctional facility during those shifts. 

The sergeants are also the only representatives of the employers

on the first shift on weekend days when the lieutenant's days off

rotate to the weekend.

	Hartshorn also testified regarding the sergeant job

description, which is provided to all employees of the correc

tional facility and was admitted into evidence.  Sergeants (1)

determine which correctional officers will work certain posts

during a shift, (2) assign correctional officers to do routine

work (such as processing prisoners for court appearances, releas

ing work-release prisoners, and taking prisoners for medical

care), and (3) ensure that work is done.  Captains and lieuten

ants do not perform the same function.  Correctional officers are

obligated to follow the commands of the sergeant.  If the minimum

number of correctional officers are not present for a shift, the

sergeants have independent authority to call an off-duty correc

tional officer to work and to force a correctional officer to

work overtime until the shift roster is filled.  When new prison

ers arrive, the sergeant assures that enough personnel are

present to receive prisoners and reviews each correctional

officer's paperwork to ensure it is completed correctly.  Ser geants oversee everything that a correctional officer does on a

daily basis; however, they do not complete periodic written

evaluations of those officers.

	Hartshorn further testified that sergeants have the

authority to issue oral and written reprimands and have independ

ent authority to send a correctional officer home for violating a

direct order or for being unfit for duty.  Following such action,

the sergeant must submit a written report of the violation to the

lieutenant or captain, who then reviews the report to determine

"whether *** there's something that needs to be changed" and then

forwards the report to the sheriff "for the disciplinary action." 

The sergeant is not required to recommend any form of discipline

but may do so.  A written report from a sergeant is the first

step in the discipline process.  A sergeant has discretion to

handle infractions at "his level" without submitting a written

report up the chain of command to the sheriff.  The only infrac

tions that a sergeant is required to report are the following:

(1) a correctional officer is late for his shift; and (2) a

correctional officer engages in behavior that creates a "threat

to the facility."  The sergeants use their discretion to deter

mine whether behavior creates a "threat to the facility." 

Correctional officers may appeal the sergeants' actions under

their collective-bargaining agreement. 

	Hartshorn also testified that according to the griev

ance procedure in the collective-bargaining agreement, grievances

should be submitted first to the sergeants.  If the grievance can be handled at the shift level, the sergeants have authority to do

so without consulting the lieutenant, captain, or sheriff.  (The

correctional officers' collective-bargaining agreement was

admitted into evidence.)

	Sergeant Stanley E. Rush testified on the union's

behalf that he works the first shift.  At the beginning of his

shift, Rush (1) confers with the previous shift sergeants to

determine if any incidents occurred, (2) determines that all

first-shift correctional officers are present, and (3) assigns

their posts.  Rush does not assign himself a post, although he is

counted when determining minimum staffing levels.  Rush is

usually on the fourth floor of the facility taking phone calls or

handling requests from the lieutenant or captain.  He assigns

tasks to correctional officers, such as escorting attorneys to

meetings with prisoners or taking prisoners to get dressed for

court.  If needed, Rush will also perform these tasks himself.  

	Rush also testified that 75% of his shift is spent

performing correctional officer duties.  He completes cell

checks, delivers money, dresses prisoners, releases work-release

prisoners, helps process incoming prisoners, and escorts attor

neys to meetings with prisoners.  The remainder of his shift is

spent performing tasks only sergeants perform.  If he holds

officers over or calls officers in, in accordance with the

collective-bargaining agreement, the additional work is offered

to senior officers first, and if none accept, the least senior

officer is ordered to stay.  In any emergency, officers can be held over or called in.  Such an emergency would be for a reason

other than falling below minimum staffing levels.  In such a

case, the sergeant would not need permission from the lieutenant

or captain to hold over or call in officers.  Rush had never held

over or called in additional officers for other than minimum

staffing levels without checking with the lieutenant or captain

first, but he believed he has the authority to do so.

	Rush further testified that he only receives requests

for time off if the correctional officer needs to document that

the request was made within the time limitation specified in the

collective-bargaining agreement.  He does not grant or deny time-

off requests.  If Rush determines that the next shift will fall

below minimum staffing levels, he notifies a union representa

tive.  The union representative determines which officer should

be called in (based on seniority) and informs the sergeant.  If

an officer brings to a sergeant a minor dispute between officers,

the sergeant has authority to resolve it.  However, he does not

handle written grievances.  Rush did not recall ever issuing a

written reprimand but was aware of the captain's having issued

written reprimands based on Rush's written report.  

	Rush was not aware that he has authority to issue a

written reprimand.  He occasionally verbally informs the lieuten

ant when he talks to officers about their mistakes.  If someone

commits an act of misconduct on his shift, Rush is supposed to

resolve the issue as best he can.  If he cannot do so immedi

ately, he writes a report to the captain.  He has authority to send someone home if he determines that action is warranted, but

he has never done so, and other sergeants have done so infre

quently.  No rules govern what behavior a sergeant must document

in a written report.

	If a problem arises on Rush's shift, the correctional

officers come to him for resolution.  Rush does not always go to

the captain or lieutenant for advice when a problem arises, and

he has authority to resolve problems related to everyday working

conditions.  If an employee needs additional training on a

particular skill, Rush has the responsibility as a sergeant to

ensure that the officer receive help or training.

	Rush attends command meetings that are also attended by

the captain, lieutenant, other sergeants, and occasionally the

sheriff, where overall shift performance is discussed.  The job

description for sergeants differs from the correctional officers'

job description in that sergeants have the duty to supervise and

manage correctional officers.  Correctional officers cannot send

someone home or call someone back to work.  Further, they are

supposed to report observations of misbehavior to the sergeant. 

If an employee is sick, correctional officers are required to

report that information to the sergeant, who then determines

whether to seek hospitalization.  Rush described his principal

duties as follows:  "Making sure things are done at the proper

time in the proper way as regards my personnel, and if they're

not available, then I'd do it."  

	In March 2002, the ALJ filed his recommended decision and order, in which he (1) determined that the correctional

sergeants are "supervisors" within the meaning of the Act, and

(2) recommended that the petition be dismissed.  

	In April 2002, the union timely filed exceptions to the

ALJ's recommended decision and order.  The union argued that "the

focus is whether the [s]ergeants consistently exercise independ

ent judgment with regard to disciplining, suspending, adjusting

grievances, and directing the corrections officers.  The [u]nion

limits its exception to these areas."  The employers did not file

a response.  

	In August 2002, the Board issued its written order,

concluding that the sergeants are not "supervisors" within the

meaning of the Act and directing an election in the petitioned-

for unit.  Specifically, the Board found, in pertinent part, the

following:  (1) the sergeants have authority, in the employer's

interest, to perform 1 of the 11 statutorily enumerated supervi

sory functions--namely, the authority to suspend corrections

officers; and (2) "the sergeants do not exercise [that] supervi

sory authority with consistent judgment a preponderance of their

work time."  In October 2002, the Board issued a "Certificate of

Representative," naming the union as the exclusive representative

of a unit consisting of all sergeants employed by the employers.

	In November 2002, the employers filed in this court a

petition for review of the Board's decision.

II. ANALYSIS

	The employers argue that the Board erred by determining that the sergeants are not supervisors under section 3(r) of the

Act (5 ILCS 315/3(r) (West 2000)).  We disagree.  

	A. Standard of Review

	The Board, as the agency charged with administering and

enforcing the Act, is empowered to determine whether an individ

ual is a "supervisor" under the Act.  City of Freeport v. Illi nois State Labor Relations Board, 135 Ill. 2d 499, 507, 554 N.E.2d 155, 159 (1990).  This court's review of the Board's

decision is governed by section 3-110 of the Administrative

Review Law (Law) (735 ILCS 5/3-110 (West 2000)) and extends to

all questions of law and fact presented in the record.  While

this court must view the Board's findings of fact as prima facie true and correct, we will reverse those findings if they are

against the manifest weight of the evidence and it is clearly

evident the Board should have reached the opposite conclusion. 

Freeport, 135 Ill. 2d at 507, 554 N.E.2d at 159.  Questions of law, such as the proper interpretation of a statute, are reviewed

de novo.  See Freeport, 135 Ill. 2d at 507, 554 N.E.2d at 159-60.

	B. The Board's Determination tThat the Sergeants Are Supervisors

	The Act provides a comprehensive system of collective

bargaining for those public employees and employers who fall

within its scope.  Freeport, 135 Ill. 2d at 505, 554 N.E.2d at 158.  The Act specifies that a bargaining unit determined by the

Board may not include both supervisors and nonsupervisors.  5

ILCS 315/3(s)(1) (West 2000).  Our supreme court has explained

the underlying rationale for this rule as follows:

		"Supervisors are excluded from bargain

ing units under the Act to avoid the conflict

of interest which arises when supervisors,

who must apply the employer's policies to

subordinates, are subject to control by the

same union representing those subordinates." 

Freeport, 135 Ill. 2d at 517, 554 N.E.2d at 164.

	"Supervisor" is defined in section 3(r) of the Act (5

ILCS 315/3(r) (West 2000)) as follows:

		"[A]n 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, trans

fer, suspend, lay off, recall, promote, dis

charge, direct, reward, or discipline employ

ees, to adjust their grievances, or to effec

tively recommend any of those actions, if the

exercise of that such authority is not of a merely

routine or clerical nature, but requires the

consistent use of independent judgment. 

Except with respect to police employment, the

term 'supervisor' includes only those indi

viduals who devote a preponderance of their

employment time to exercising thatsuch author

ity."

	1. The Four-Pronged Test

	Citing Freeport, the Board in this case stated that, when determining whether the sergeants are supervisors within the

meaning of section 3(r) of the Act, it would consider whether

they (1) performed principal work substantially different from

that of their subordinates,; (2) had authority in the interest of

the employers to (a) "perform one or more of the 11 enumerated

supervisory indicia" in section 3(r), or (b) effectively recom

mend such action;, (3) consistently used independent judgment in

the performance of those functions;, and (4) spent a preponderance

of their employment time engaged in supervisory activities.  5

ILCS 315/3(r) (West 2000).  However, the supreme court in

Freeport made clear that in certain circumstances, the fourth prong of this analysis--the preponderance prong--does not apply: 

	     "The Act specifically states that, in

police employment, supervisory employees are

not required to meet the fourth part of the

Act's supervisory definition.  [Citation.]

Thus, police employees may qualify as super

visors even if they do not devote a prepon

derance of their employment time exercising

their supervisory authority."  Freeport, 135 Ill. 2d at 512, 554 N.E.2d at 162.  

	In reversing the Board's determination that sergeants

with the City of Freeport police department were not supervisors within the meaning of section 3(r) of the Act, the court further

stated as follows: 

	     "The Board improperly gave dispositive

weight to the amount of time the ranking

officers spend exercising their supervisory

authority.  The Board essentially requires

that the ranking officers be principally

involved in exercising supervisory functions

before it will find that their work is sub

stantially different from that of their sub

ordinates.  [Citations.]  The Act expressly

states, however, that the fourth prong of the

supervisory test need not be satisfied with

respect to police employment.  [Citation.]

Thus, a police employee may be deemed a su

pervisor under the Act even if he does not

devote a preponderance of his work time to

exercising supervisory authority."  Freeport, 135 Ill. 2d at 5175, 554 N.E.2d at 1641.

	Thus, an important initial inquiry in this case seems

to be whether the employment of the sergeants at the Vermilion

County jail constitutes "police employment," as that term is used

in section 3(r) of the Act.  5 ILCS 315/3(r) (West 2000). 

Interestingly, we note that section 3(p) of the Act defines

"security employee," in part, as one "who is responsible for the

supervision and control of inmates at correctional facilities."  5 ILCS 315/3(p) (West 2000).  That definition surely encompasses

the sergeants at issue in this case.  Further, section 3(k)

defines "peace officer," in part, as one who has been appointed

to a police force, department, "or agency and sworn or commis

sioned to perform police duties."  5 ILCS 315/3(k) (West 2000). 

Section 3(k) also contains a list of persons who are not included

within the definition of "peace officer"; that list does not

include security employees.  

	Most significantly, the term "police employment," as

used in section 3(r) of the Act, is not defined therein, and we

have found no case construing the breadth of that term.  The

supreme court in Freeport referred to "police employment" but did so in the context of evaluating employees in a police department. 

Specifically, regarding the sergeants at issue here, we have

found no case that states--or even indicates--whether "police

employment" might be broad enough to include these "security

employees." 

	Clearly, if the sergeants in the present case were

engaged in "police employment," then both the Board and this

court would have to view the facts of this record through a

different prism.  The supreme court in Freeport explained why as follows:  

	"If the ranking officers are not supervisors,

the Freeport police department operates en

tirely without supervision a large part of

the time.  In such circumstances, it is not unreasonable to conclude that even the rela tively small amount of supervisory power exercised by the ranking officers makes them representatives of their employer."  (Empha sis added.)  Freeport, 135 Ill. 2d at 522, 554 N.E.2d at 166.

	Given the nature of the sergeants' duties and the other

similarities between this case and Freeport (at least from the point of view of the employers), it is possible that the sergeants' employment may

possible would fit within the meaning of "police employment" under section 3(r),

thus reducing the Board's inquiry from four prongs to three as it

determines whether the sergeants are supervisors.  5 ILCS

315/3(r) (West 2000).  However, for two reasons, we decline to

resolve this issue.

	First, in deference to the Board's expertise as well as

its fact-finding ability, we would prefer that the Board address this

issue in the first instance.  For example, it is conceivable that

due to size or other

factors, sergeants at one jail might be viewed as being involved

in "police employment" within the meaning of section 3(r) of the

Act, whereas sergeants at another jail would not.  5 ILCS

315/3(r) (West 2000).  The Board should have the opportunity to

initially draw such distinctions.

	Second, the record reveals that the employers never

argued before the Board that the sergeants' employment consti

tuted "police employment," as that term is used in section 3(r)

of the Act.  5 ILCS 315/3(r) (West 2000).  Thus, the employers' position in this case is similar to the position of the employers

in American Federation of State, County, &and Municipal Employees, Council 31, AFL-CIO v. Illinois Local Labor Relations Board et. al, 221 Ill. App. 3d 814, 582 N.E.2d 1202 (1991), where the First District appellate court reviewed

a determination by the then-Illinois Local Labor Relations Board

(hereinafter Local Board) (the precursor of the present Board)

that sergeants employed by the Cook County Department of Correc

tions and the Sheriff of Cook County were not supervisors within

the meaning of section 3(r) of the Act (then Ill. Rev. Stat.

1987, ch. 48, par. 1603(r)).  The joint employers in that case

argued to the appellate court that the Local Board was mistaken

because, in part, it incorrectly held that the sergeants needed

to devote a preponderance of their employment time to exercising

supervisory authority.  Local Board, 221 Ill. App. 3d at 821, 582 N.E.2d at 1206.  In support of their argument, the joint employ

ers appear to have asserted that the sergeants were supervisors

because they were engaged in police employment.  However, the

appellate court rejected that argument because the joint employ

ers failed to raise it before the Local Board or in their briefs

to the appellate court.  Local Board, 221 Ill. App. 3d at 821, 582 N.E.2d at 1206.  Similarly, in this case, the employers did

not raise the issue of "police employment" either before the

Board or before this court. 

	2. Application of Applicable Statutory Factors

	In light of the above discussion, we now consider the

Board's application of the four-part test under the standard of review previously stated. 

	As the Board correctly Board noted, in order for the sergeants to be

deemed supervisors under the Act, the evidence needed to satisfy

each prong under section 3(r).  See Northwest Mosquito Abatement District v. Illinois State Labor Relations Board, 303 Ill. App. 3d 735, 748, 708 N.E.2d 548, 557 (1999) (in which the First

District court nonoted that (1) "[c]ourts apply a four-part test to

determine whether an employee is a supervisor" under section 3(r)

of the Act, and (2) "[a]n employee must satisfy all four parts of

this test to be a supervisor under the Act"); 5 ILCS 315/3(r)

(West 1996).  Thus, we need not examine each prong of the four-

pronged test if we conclude that the Board correctly determined

that the evidence in the present case failed to meet one of the

four prongs.  We have so concluded.  

	a. Preponderance of Time Engaged in Supervisory Activities

	The employers argue that the Board's determination that

the supervisors do not spend a preponderance of their time

performing supervisory functions was against the manifest weight

of the evidence.  We disagree. 

	In Freeport, the supreme court explained that in order to satisfy the "preponderance test," it must be shown that "the

most significant allotment of the employee's time" is spent

exercising supervisory functions.  "In other words, the employee

must spend more time on supervisory functions than on any one

nonsupervisory function."  Freeport, 135 Ill. 2d at 532, 554 N.E.2d at 171.  In Department of Central Management Services v. Illinonis State Labor Relations Board, 278 Ill. App. 3d 79, 86, 662 N.E.2d 131, 136 (1996), this court rejected a "strictly

mathematical 'majority of time'" test and held that "[w]hether a

person is a 'supervisor' should be defined by the significance of

what that person does for the employer, regardless of the time

spent on particular types of functions."   

	In this case, the Board found that the sergeants have

authority to perform one supervisory function--namely, to suspend

subordinates under certain conditions.  The Board also found that

under either the Freeport test or the test enunciated by this court in Central Management Services, 

	"the sergeants clearly do not satisfy [the

preponderance prong].  The record shows that,

in the past year, two employees have been

suspended.  The sergeants therefore do not

spend more time on this supervisory function

tha[n] on their nonsupervisory activities,

nor do they spend a majority of their time

engaged in this function.  Their authority to

suspend is simply not superior in importance

to their nonsupervisory functions."

	Reviewing the Board's determination under the appropri

ate standard of review, we conclude that its determination was

not contrary to the manifest weight of the evidence nor is it

clearly evident that the Board should have reached the opposite

conclusion.

	In so concluding, we note that the employers do not appear to challenge the Board's determination directly, asserting 

instead that because the sergeants are often the only on-duty

employees in a supervising capacity at the Vermilion County jail,

they must necessarily be spending a preponderance of their time

engaged in supervision.  We disagree that such a conclusion

follows where, as here, deciding whether a person is a "supervi

sor" must be made in accordance with the particular legislative

formula set forth in section 3(r) of the Act.  5 ILCS 315/3(r)

(West 2000). 

III. CONCLUSION

	For the reasons stated, we affirm the Board's order.

	Affirmed.

		KNECHT, P.J., and COOK, JJ., concur.