concurring in part and dissenting in part:
While I agree with the majority’s holding that the ranking officers of the City of Freeport police department are supervisors and must be excluded from the bargaining unit, I disagree with the majority’s conclusion that the lieutenants of the Wheeling fire department are not supervisors as contemplated by the Illinois Public Labor Relations Act (IPLRA) (Ill. Rev. Stat. 1987, ch. 48, par. 1601 et seq.). I therefore respectfully dissent from the portion of the opinion that affirms the Illinois State Labor Relations Board’s order finding the Village of Wheeling guilty of an unfair labor practice.
As the majority recognizes, the exclusion of “supervisors” from the collective-bargaining rights granted to Illinois public employees by the IPLRA was patterned after the National Labor Relations Act (NLRA) (see 29 U.S.C. §151 et seq. (1982)). Generally, the drafters of the IPLRA attempted to follow as closely as possible the language found in the NLRA and later judicial decisions interpreting its provisions. (83d Ill. Gen. Assem., Senate Proceedings, May 27, 1983, at 300-01 (statements of Senator Collins).) For instance, the supervisory functions contained in the two acts are virtually identical; the major difference is that the IPLRA, when listing supervisory functions, eliminates “assign” from the list of supervisory functions contained in the NLRA and changes the term “responsibility to direct” contained in the NLRA to “authority *** to *** direct” in its list. (See Ill. Rev. Stat. 1987, ch. 48, par. 1603(r); 29 U.S.C. §152(11) (1982).) Both acts require that the exercise of supervisory authority involve the use of independent judgment rather than be of a routine or clerical nature. It therefore may be helpful to “examine Federal interpretations of the NLRA where those decisions are consistent with the purpose of our act.” City of Burbank v. Illinois State Labor Relations Board (1989), 128 Ill. 2d 335, 345.
The Federal courts have determined that under the NLRA an employee’s direction to others is supervisory, rather than routine or clerical, when the employee responsible for directing other employees is answerable for the discharge of a duty or obligation. (See, e.g., Maine Yankee Atomic Power Co. v. National Labor Relations Board (1st Cir. 1980), 624 F.2d 347, 361.) Thus, in National Labor Relations Board v. Adam & Eve Cosmetics, Inc. (7th Cir. 1977), 567 F.2d 723, 727-29, an employee was held to possess supervisory status after the court found that the employee had been reprimanded for the performance of others in his department.
I believe that the case before us demonstrates the merits of the test of independent judgment employed by the Federal courts when analyzing whether the employee in question possesses the responsibility to direct others. The majority’s analysis concludes that the lieutenants do not exercise independent judgment because their assignment of tasks relating to the inspection of emergency equipment and maintenance duties is in accordance with the department’s standard operating procedure. Yet by truncating the inquiry at that point, such an analysis overlooks the fundamental importance of the lieutenants’ duties. The lieutenants are left with their independent judgment to determine how to motivate the firefighters to ensure the performance of the tasks assigned, both at the fire station and in emergency situations. Lieutenant Hoos, when explaining the difference between the salary he receives and the salary received by a senior firefighter, explained: “I am the leader of the team and I am ultimately responsible for what the team does and how it performs. *** I have the responsibility to see that the rules and regulations and the SOP’s are adhered to.” Lieutenant Wydra added in his testimony: “I am accountable to the Captain for things that don’t get done.”
The record before us reveals that each lieutenant in the Wheeling fire department serves as shift commander at one of the department’s two stations and has five or six firefighters who report directly to him. The lieutenant is responsible for the condition of the station, equipment and personnel assigned to his shift and is required to enforce the department’s rules and regulations and ensure that the firefighters are adequately trained. To aid them in their responsibilities, the lieutenants have been vested with authority to resolve minor grievances of firefighters, including equipment problems. They may also issue oral reprimands and, if the situation calls for such a drastic measure, issue emergency suspensions. As one Federal court stated when analyzing the reason for not including supervisors in the same bargaining unit as other employees: “The employer cannot discipline, and therefore cannot control, his work force if the people he uses.to mete out the discipline on his behalf have a conflict of interest, being union members asked to discipline fellow union members and protected by section 7 [of the NLRA] if they refuse.” (National Labor Relations Board v. Res-Care, Inc. (7th Cir. 1987), 705 F.2d 1461, 1467.) Such a conflict of interest may affect the supervisor’s independent judgment. This same concern motivated the General Assembly to exclude supervisory personnel from the same bargaining unit as nonsupervisory personnel when drafting the IPLRA. See 83d Ill. Gen. Assem., Senate Proceedings, May 27, 1983, at 303 (statements of Senator Collins).
I would therefore adopt the ultimate-responsibility test used by the Federal courts to determine whether under the IPLRA an employee is exercising independent judgment when directing others. Because the lieutenants here are left to their own devices to ensure the adequate performance of the firefighters under them and because they are ultimately responsible for the firefighters’ performance, I believe that the lieutenants possess the supervisory authority to direct other employees contemplated by the IPLRA. I therefore would include the lieutenants’ authority to direct, as well as their authority to adjust grievances, with the disciplinary and suspension functions recognized by the majority when analyzing whether the lieutenants are excluded from the act’s coverage.
However, as the majority explains, crucial to the determination of whether the lieutenants of the Wheeling fire department are supervisors under the IPLRA is the interpretation of a requirement which does not appear in the NLRA: that only those individuals devoting a preponderance of their employment time to exercising the enumerated supervisory functions may be considered supervisory personnel. (See Ill. Rev. Stat. 1987, ch. 48, par. 1603(r).) The majority, without discussion, adopts the Board’s interpretation of this provision and mandates that “the employee must spend more time on supervisory functions than on any one nonsupervisory function” in order to qualify as a supervisor under the IPLRA. 135 Ill. 2d at 532.
I find too restrictive the majority’s interpretation of the questioned provision. It has long been recognized that a particular statutory construction should be avoided if it presents untoward results. (See People v. Easley (1988), 119 Ill. 2d 535, 539-40.) Under the formula adopted by the majority, the only time for which an employee receives supervisory credit is the actual time the employee spends hiring, transferring, suspending, laying off, recalling, promoting, discharging, directing, rewarding, and disciplining employees. It is difficult to imagine a company officer who would qualify as a supervisor under the formula adopted by the majority. Yet the IPLRA requires that “if a company officer otherwise qualifies as a supervisor ***, he or she shall not be included in the fire fighter unit.” Ill. Rev. Stat. 1987, ch. 48, par. 1603(r).
Not only does the majority’s formula effectively preclude a reasonable possibility of a supervisory exclusion as contemplated by the legislature for a company officer, the formula may require different treatment of two company officers vested with the same authority. For instance, a company officer vested with the same authority as the lieutenants here but assigned to a particularly unruly team could theoretically spend a preponderance of time directing and disciplining team members. The majority’s formula would require the exclusion of the hypothetical company officer from the bargaining unit while allowing the lieutenants at the Wheeling fire department to come within the coverage of the act. I cannot believe that the legislature intended such a result, and therefore would adopt a broader interpretation of the term “exercising such authority” contained within the provision than does the majority.
In my estimation, an employee exercises supervisory authority under section 3(r) of the IPLRA whenever the employee is in a situation which may call upon that employee’s authority to hire, transfer, suspend, lay off, recall, promote, discharge, direct, reward, and discipline other employees. An employee then would be excluded from coverage under the act whenever a preponderance of his or her employment time is devoted to a position vested with that authority and the employee is placed in situations that require the exercise of independent judgment on when and how to use it. This interpretation of section 3(r) better facilitates the legislature’s intent to exclude a certain class of company officers from the act’s coverage.
This interpretation of the questioned provision would also take into account the General Assembly’s apparent intent to limit the scope of the supervisory exclusion under the IPLRA as compared to its counterpart in the NLRA. As the majority explains, the IPLRA adds to the definition of supervisor contained in the NLRA the requirements that the principal work of supervisors must be substantially different from their subordinates’ and that they must spend a preponderance of their employment time exercising the enumerated supervisory authority. (See City of Burbank, 128 Ill. 2d at 345 (where IPLRA departs from NLRA’s statutory scheme, it can be inferred that the legislature intended a different result).) Under the NLRA, an employee is excluded from the act’s coverage even if the employee does not spend a preponderance of his or her employment time in a position vested with supervisory authority. Thus, in National Labor Relations Board v. St. Mary’s Home, Inc. (4th Cir. 1982), 690 F.2d 1062, a licensed practical nurse who served in a supervisory capacity two out of every five shifts was found to be a supervisor under the NLRA. Under my interpretation of the provision requiring that supervisors spend a preponderance of their employment time exercising supervisory authority, such a result would not be possible under the IPLRA.
Further examination of the IPLRA supports a broad interpretation of when a company officer is exercising supervisory authority. The act provides that “if there is no rank between that of chief and the highest company officer, the employer may designate a position on each shift as a Shift Commander and the persons occupying such positions shall be supervisors.” (Ill. Rev. Stat. 1987, ch. 48, par. 1603(r).) The Wheeling fire department is administered by the chief and a captain, both of whom work a five-day, eight-hour workweek, with the next level of command being the lieutenants, who serve as shift commanders as well as company officers. Nevertheless, the fact that the lieutenants before us are the highest ranking officials at the station houses for the vast majority of the time may not, standing alone, evidence that they exercise supervisory authority under the IPLRA during a preponderance of their employment time. (But see American Diversified Foods, Inc. v. National Labor Relations Board (7th Cir. 1981), 640 F.2d 893, 896 (fact that questioned employee is highest ranking employee present at worksite may lead to finding of supervisory status under NLRA).) However, when this fact is combined with the other indicia of supervisory authority already discussed, I believe that the IPLRA requires that the lieutenants here be excluded from the act’s coverage.