Appellate courts reach opposite conclusions on sergeants’ exclusion from police unions

Two Illinois appellate courts recently came to opposite conclusions as to whether police sergeants were entitled to unionize under the Illinois Labor Relations Act. The rulings serve as an important reminder that whether employees are excluded as supervisors under the Act depends on their particular job duties, not rank.

The Act provides that a bargaining unit of police officers shall not include supervisors, except in limited circumstances. 5 ILCS 315/3(s)(1). Supervisors are excluded from bargaining units to avoid the conflict of interest that can arise when supervisors must apply an employer’s policies to subordinates and also are covered by the same union as their subordinates. City of Freeport v. Illinois State Labor Relations Board, 135 Ill.2d 499, 512 (Ill. 1990).

To qualify as supervisors, the employee must “(1) perform principal work substantially different than their subordinates; (2) have authority in the interest of the employer to perform one or more of the 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, 135 Ill.2d 512 (Ill. 1990).

In Village of Broadview v. Illinois Labor Relations Board, 2010 WL 2521017 (1st Dist. 2010), the union filed a petition seeking to represent a bargaining unit consisting of police sergeants. The village opposed the petition, asserting the sergeants were supervisors and, thus, excluded from coverage under the Act.

The Board concluded that the sergeants were not supervisors under the Act. In making its decision, the Board noted that sergeants did not perform any of the enumerated supervisory functions listed under the Act, which requires supervisors to have authority to either, “hire, transfer, suspend, lay off, recall, promote, discharge, direct, reward, or discipline employees, to adjust their grievances, or effectively recommend any of those actions.” 5 ILCS 315/3(r).

The appellate court upheld the Board’s decision, noting that the sergeants had no authority to perform any of the supervisory functions under the Act. Specifically, the court noted that the sergeants had no authority to discipline subordinates, but rather were only responsible for reporting misconduct to the lieutenant. In addition, the court noted that, although it was theoretically possible for sergeants to issue emergency suspensions, it had never been done.

In Village of Maryville v. Illinois Labor Relation Board, 2010 WL 2672925 (5th Dist. 2010), the union sought to include sergeants in the existing union for police officers. The village opposed the inclusion, asserting that the sergeants were supervisors under the Act.

The Board concluded that the sergeants were properly included in the bargaining unit. In making its decision, the Board noted that the Village failed to provide evidence of specific instances where sergeants disciplined, directed, or adjusted grievances of the subordinate patrol officers in a manner that showed an impact on the terms and conditions of employment.

The appellate court reversed, finding the Board erroneously assigned dispositive weight to the number of times the sergeants have exercised their supervisory authority. In making its decision, the court noted that potential for conflict arises from the existence of supervisors’ authority to influence and control personnel decisions, not the amount of time such authority is exercised. The court also noted that the sergeants had the authority to deny leave, issue written reprimands, and conduct performance evaluations.

An administrative law judge also recently held that sergeants were supervisors under the Act in City of Washington and Policemen’s Benevolent Labor Committee (ILRB A.L.J. Opinion and Order, August 25, 2010). In making her determination, the ALJ found that the sergeants had the authority to make recommendations regarding promotions, which served as the basis of the police chief’s decisions.

The ALJ also found that the sergeants exercised independent judgment in disciplining employees, since they had the sole discretion to issue corrective orders, oral reprimands, written reprimands, and recommend suspension. Additionally, the ALJ held that sergeants had authority to direct employees – by approving use of leave and overtime – and reward employees – by allowing them to leave work early.