dissenting:
I dissent from the majority’s opinion.
The majority determines that the Village of Maryville adequately established the supervisory power of its two sergeants, Sergeant Lange and Sergeant Howe, finding fault with the Board for not relying upon the evidence of the quality of the supervisory powers held by the sergeants as opposed to the quantity. In reversing the focus to the quality of the supervisory powers, the majority seizes upon isolated case language to support this theory. See City of Peru v. Illinois State Labor Relations Board, 167 Ill. App. 3d 284, 521 N.E.2d 108 (1988). The case at issue states that the amount of time the supervisory authority is exercised is not as important as the existence of supervisory authority. City of Peru, 167 Ill. App. 3d at 292, 521 N.E.2d at 114. In an effort to overturn the decision of an administrative agency board, charged with the responsibility to interpret its own regulations, the majority ignores extensive case law on this exact topic, plus a holding of the Illinois Supreme Court. Contrary to the majority’s classification of its decision as a qualitative analysis, the majority opinion substitutes its own definition of the supervisory requirements for the definition utilized by the administrative agency charged with the analysis of its own regulations. While we have the power to review decisions of administrative boards, the majority goes too far. In light of the existing law on this topic, the Board’s decision was not clearly erroneous.
By upholding the decision and analysis of the Illinois State Labor Relations Board, the supreme court confirmed that the mere ability to perform or to effectively recommend on one or more of the supervisory indicia is not enough to support a finding that the sergeant has actual supervisory status. Chief Judge of the Circuit Court v. American Federation of State, County & Municipal Employees, Council 31, 153 Ill. 2d 508, 607 N.E.2d 182 (1992). More important than the ability to supervise is the supervisor’s actual exercise of this authority with the required independent judgment “sufficient to indicate supervisory status.” Chief Judge of the Circuit Court, 153 Ill. 2d at 516, 607 N.E.2d at 186.
The majority seems to believe that written statements of supervisory authority are sufficient to establish that supervisory authority. In an effort to circumvent a village or other hiring entity from simply inserting supervisory powers into an employee’s policies-and-procedures manual to thwart the inclusion of those employees into a collective bargaining unit, the courts have narrowly construed exclusions based upon alleged supervisory authority. See City of Decatur v. American Federation of State, County, & Municipal Employees, Local 268, 122 Ill. 2d 353, 364-65, 522 N.E.2d 1219, 1223-24 (1988); County of Kane v. Carlson, 116 Ill. 2d 186, 196-98, 507 N.E.2d 482, 485 (1987); Board of Education of Plainfield Community Consolidated School District No. 202 v. Illinois Educational Labor Relations Board, 143 Ill. App. 3d 898, 907, 493 N.E.2d 1130, 1136 (1986).
A more thorough analysis of the grounds of supervisory authority relied upon by the Village of Maryville belies the required actual exercise of the “supervisory authority.” As set forth in greater detail in this dissent, the criteria for qualifying as an Illinois Public Labor Relations Act “supervisor” must be met. 5 ILCS 315/3(r) (West 2006). If the Village of Maryville is not able to establish facts supporting its claim that its sergeants qualify as supervisors under the Act, the employees at issue should not be found to be supervisors. See City of Freeport v. Illinois State Labor Relations Board, 135 Ill. 2d 499, 506, 554 N.E.2d 155, 159 (1990).
In this case, specific instances of the exercise of supervisory control were limited. Sergeant Lange testified that he has directed patrol officers to assist other communities under a mutual aid agreement with area municipalities, including Troy, Collinsville, and Glen Carbon. Sergeant Howe has called in extra officers to work without permission from the chief of police when there were storms that caused issues within the village. Sergeant Lange testified that he has held officers over to the next shift without seeking approval from the chief of police. Sergeant Howe sent an e-mail to the officers informing them of a mandatory speed enforcement detail on Route 159. Chief Schardan testified about an incident in which Sergeant Howe counseled a patrol officer for spending two hours during his shift at the home of the officer’s girlfriend. Sergeant Howe explained that this behavior was unacceptable and that the behavior could result in a termination for cause because this was a second offense. Sergeant Howe sent an e-mail to Chief Schardan detailing his conversation with the patrol officer in question.
The majority points to the fact that the supervisors “review the patrol officers’ requests for time off work, including vacation and personal leave,” and that if the officers deny any request for leave, that denial is final and cannot be reviewed. 402 Ill. App. 3d at 375-76. Additionally, the majority notes that the sergeants have written authority, “via the policies-and-procedures manual, to issue oral and written reprimands, conduct oral and written performance evaluations, and memorialize counseling sessions with patrol officers, which are placed in the personnel file.” 402 Ill. App. 3d at 376. The majority states that it is self-evident that the potential exercise of these evaluative and reprimand powers could be used in future disciplinary proceedings and promotional considerations.
Again, while the sergeants may maintain a written ability to do these things, that ability alone is insufficient to establish supervisory authority. Case law generated by the board of this very agency could not be clearer. Unless there are actual examples of the exercise of the supervisory authority, the mere written “power” is insufficient. Hawk, 20 Pub. Employee Rep. (Ill.) par. 9, No. S — CA—01—198 (ILRB, State Panel, August 21, 2003). Even oral reprimands, as were referenced by Sergeant Howe, must be documented and must serve as the basis for future disciplinary action — to be a part of a progressive system of discipline. Metropolitan Alliance of Police v. Illinois Labor Relations Board, State Panel, 362 Ill. App. 3d 469, 478-79, 839 N.E.2d 1073, 1081-82 (2005).
In the hearing, the Village of Maryville agreed that the sergeants in this case have no final authority with respect to 3 of the 11 statutory indicia of supervisory authority — the authority to hire, to transfer, and to promote. With respect to one or more of the other eight statutory indicia, the Village of Maryville bore the burden of establishing that the sergeants had the authority to perform or effectively recommend on those categories of supervisory powers and, in fact, consistently exercise that authority with independent judgment. See City of Freeport, 135 Ill. 2d at 512, 554 N.E.2d at 162. In this case, the Village of Maryville proceeded on the basis that the sergeants exercised supervisory authority with respect to 3 of the 11 statutory indicia: discipline, grievance adjustment, and direction.
To constitute discipline as required within the meaning of the Illinois Public Labor Relations Act, the verbal reprimands must impact a subordinate’s job status or the actual terms of employment. Metropolitan Alliance of Police, Chapter No. 4, 19 Pub. Employee Rep. (Ill.) par. 125, No. S — RC—01—063 (ILRB, State Panel, June 30, 2003). Documented oral reprimands will only constitute the supervisory authority to discipline if the supervisor has the discretion to decide whether or not to issue the reprimand and actually documents the reprimand and if the reprimand can serve as the basis for future disciplinary action — actually functioning as a part of the employer’s overall progressive disciplinary system. Metropolitan Alliance of Police, 362 Ill. App. 3d at 478-79, 839 N.E.2d at 1081-82; Village of Hinsdale, 22 Pub. Employee Rep. (Ill.) par. 176, No. S — RC—06—037 (ILRB, State Panel, December 13, 2006).
The only case cited by the Village of Maryville as supportive of its claim that the single oral counseling session could serve to establish that its sergeants have supervisory authority is not addressed in the majority’s opinion. The village cites to Village of Hazel Crest v. Illinois Labor Relations Board, 385 Ill. App. 3d 109, 118, 895 N.E.2d 1082, 1090 (2008), which I find distinguishable. In Village of Hazel Crest, the court found that it was not necessary to prove a set number of documented exercises of the disciplinary supervision in order to meet the test as set forth in City of Freeport. Village of Hazel Crest, 385 Ill. App. 3d at 118, 895 N.E.2d at 1090. However, the Village of Hazel Crest actually did have documented evidence that the “supervisory” employees at issue recommended discipline of a subordinate officer on two occasions and that in one of those cases, following an independent review, the disciplinary recommendation of the supervisor was acted upon. Village of Hazel Crest, 385 Ill. App. 3d at 118, 895 N.E.2d at 1090.
In this case, the evidence only established that an officer had “counseled” another officer about his being at the home of his girlfriend while on duty. An e-mail documenting the counseling session was prepared and sent. Although the evidence tended to indicate that a copy of the written memorialization of the counseling session was included in the officer’s file, there was no evidence that the memo about the counseling session could ever have any bearing on the terms and conditions of that patrol officer’s employment. No evidence was introduced that the counseling session would have any bearing on a disciplinary process within the Village of Maryville police department.
Other than the “counseling” incident, there was no evidence of any verbal or written reprimands ever having been issued by a sergeant. While there was no doubt that the sergeants possess in writing the ability to relieve an officer from duty and recommend suspensions, there was no evidence that either sergeant had done so. The sergeants of the Village of Maryville also maintain in writing the authority to recommend a suspension for a violation that would warrant punishment more serious than a reprimand. But again, there was no evidence that in fact either sergeant had ever done so.
Because the law requires specific examples of the exercise of supervisory authority to satisfy the rule that the supervisor actually possess authority to impose discipline or to effectively recommend discipline, I agree with the Illinois Labor Relations Board that this one instance is clearly insufficient to establish supervisory authority under the meaning of the Act.
The majority references the sergeants’ ability to review the officer’s requests for time off and for vacation as the primary exercise of supervisory power. The authority to direct a subordinate involves the function of overseeing operations or authority that indicates responsibility for the performance of a subordinate’s work. Village of Glen Carbon, 8 Pub. Employee Rep. (Ill.) par. 2026, No. S — UC—91—102 (ISLRB, June 19, 1992); City of Lincoln, 4 Pub. Employee Rep. (Ill.) par. 2041, No. S — RC—88—56 (ISLRB, October 13, 1988). Examples of these functions include monitoring work actions, approving requests for leave or overtime, giving instructions on the manner and method of job performance, scheduling work hours, assigning work duties, and completing performance evaluations. Village of Glen Carbon, 8 Pub. Employee Rep. (Ill.) par. 2026, No. S — UC—91—102 (ISLRB, June 19, 1992); County of Lake, 16 Pub. Employee Rep. (Ill.) par. 2036, No. S — UC—99—017 (ISLRB, July 7, 2000); Northwest Mosquito Abatement District, 13 Pub. Employee Rep. (Ill.) par. 2042, No. S — RC— 97 — 59 (ISLRB, August 26, 1997); Peoria Housing Authority, 10 Pub. Employee Rep. (Ill.) par. 2020, No. S — RC—93—48 (ISLRB, April 29, 1994). The Illinois Labor Relations Board has previously held that these functions, as well as any other function of direction, are not considered to be supervisory direction unless there is evidence that the purported supervisor possesses significant discretion to affect the subordinate employee’s employment in areas that fall within the scope of union representation — discipline, transfer, promotion, or hiring. County of Lake, 16 Pub. Employee Rep. (Ill.) par. 2036, No. S — UC— 99 — 017 (ISLRB, July 7, 2000); City of Bloomington, 13 Pub. Employee Rep. (Ill.) par. 2041, No. S — UC—97—30 (ISLRB, August 25, 1997); City of Sparta, 9 Pub. Employee Rep. (Ill.) par. 2029, No. S — RC—92— 100 (ISLRB, June 21, 1993). Specifically, the ability to review requests for time off and vacation has been deemed a routine, clerical function — a function not mandating the use of independent judgment. City of Carbondale, 3 Pub. Employee Rep. (Ill.) par. 2044, No. S — RC—264 (ISLRB, June 2, 1987).
The majority also points to the sergeants’ written authority to conduct performance evaluations. However, that ability does not in fact impact the terms and conditions of the patrol officers’ employment. Performance evaluations that do not have any bearing upon an officer’s pay or upon his employment status fail to amount to evidence of supervisory direction. Village of Elk Grove Village, 8 Pub. Employee Rep. (Ill.) par. 2015, No. S — RC—92—17 (ISLRB, March 10, 1992), aff’d, Village of Elk Grove Village v. Illinois State Labor Relations Board, 245 Ill. App. 3d 109, 613 N.E.2d 311 (1993). Evidence at the hearing established that the sergeants’ performance reviews in the past have not influenced the wage and employment conditions of the patrol officers. The officers were not on a structured merit pay system, and thus the evaluations had no impact upon the pay received. Evidence established that the evaluations remained in the officers’ files, but there was no evidence that any evaluation was actually reviewed and utilized in a determination by the Village of Maryville fire and police board when it came time for officer promotion.
For the foregoing reasons, I would find that the judgment of the State Panel of the Illinois Labor Relations Board was not clearly erroneous and that its order should be affirmed. For the reasons stated, I respectfully dissent.