National Labor Relations Board has always excluded from bargaining unit employees who receive advance notice of employer’s position with respect to labor relations matters, but mere access to confidential information has been rejected by NLRB as basis for exclusion
How later courts described this case
- National Labor Relations Board has always excluded from bargaining unit employees who receive advance notice of employer’s position with respect to labor relations matters, but mere access to confidential information has been rejected by NLRB as basis for exclusion
- “a person who performs confidential duties on a sporadic basis is still confidential”
- principals’ planned future role would not control their current status for purposes of determining whether secretaries were confidential employees
Written by the judges who cited it.
The opinion
PRESIDING JUSTICE McCULLOUGH, dissenting:
The appeal is not timely filed. The majority determines that the appeal is timely filed and bases its decision upon section 1100.30(c) of title 80, chapter III, of the Illinois Administrative Code (80 Ill. Admin. Code, ch. III, sec. 1100.30(c) (1984)).
The majority gives credence only to the first sentence of subsection (c) which provides that the time period begins running upon the service of notice or other document upon the party. Three days shall be added to the prescribed period. The words “prescribed period” makes this sentence ambiguous to say the least. What is the “prescribed period”? None of the provisions of section 1100 sets forth any time limits which would be considered to be dealt with by the term “prescribed period.” Subsection (b) of section 1100.30 does talk about when “a time period prescribed under the Act or these rules.” No times are set forth in section 1100 and any references to time periods must be looked for in the Act itself. Neither the second sentence of subsection (c) nor subsections (a), (b), or (d) of section 1100.30 can be ignored; section 1100.20, Filing and Service of Documents, must also be considered. 80 Ill. Admin. Code, ch. Ill, sec. 1100.20 (1984).
The ambiguity inherent in the language becomes even more apparent when one considers the effect of the second sentence of subsection (c). The three-day extension of time because the document is mailed “shall not be added” if “any extension of time” has been previously granted. Is the extension of time cumulative as to every portion of the proceedings before the Board or does it apply to extensions of time granted between the individual steps of the proceedings?
If one considers subsection (d), one sees that the extensions may be granted upon a timely application to the Board or hearing officer, who will grant the extension if compliance is burdensome for the party. The conclusion that the “time period” referenced in the first sentence of subsection (c) is an internal limitations period set forth in the Act is buttressed by the fact that it may be extended, or not extended, at the discretion of the Board. The two subsections are meaningless if considered in the context of the Board’s orders.
When extended to its logical conclusion, the rule would allow the Board to extend the period during which a party must file a petition for review pursuant to the Administrative Review Act (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 101 et seq.) or not add the three days because of mailing at its discretion once a party shows compliance is burdensome. Undue confusion will ultimately result when issues about whether a petition has been filed in a timely fashion arise. The discretionary impact of the rule allows the Board to extend the jurisdictional time period for filing petitions before this court in a haphazard fashion, contrary to the definite and relatively clear statement of applicability present in Gemini Services, Inc. v. Martin (1986), 141 Ill. App. 3d 17 , 489 N.E.2d 1145 .
The majority refers to Gemini which involved the question of whether the complaint was filed within the 35-day requirement of section 3 — 103 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 103). In Gemini, this court stated: “Although the question is a close one, we conclude that the complaint was timely filed.” (Gemini Services, Inc. v. Martin (1986), 141 Ill. App. 3d 17, 17 , 489 N.E.2d 1145, 1146 .) In Gemini, the particular section with respect to service of pleadings provided:
“Section 5300.30 Service of Pleadings
a) Manner of Service. Unless otherwise provided, all motions, orders, notices and other pleadings required to be served under the Act or this Part shall be served either personally or by first-class mail.
b) Proof of Service. Where service is required, proof of service shall be filed with the Commission consisting of the verified statement of the individual making service, specifying the manner and date of such service.
c) Effective Date of Service by Mail. Service by mail shall be deemed complete four days after mailing of the document, properly addressed and posted for delivery to the person to be served.” (56 Ill. Admin. Code, ch. XI, sec. 5300.30 (1985).)
That section and all of its subsections were considered, not picking out one sentence only. The procedural rule of the Human Rights Commission in Gemini provided a method of proving that service was filed by filing proof of service with the Commission. It also shows an effective date of service by mail and as to when the service is deemed complete. That rule uses the word “pleadings” in the caption to the section and this court indicated that although that was the title of the particular rule, the section also classifies an order as a pleading because in section 1.3(a) of title 56, chapter XI, of the Illinois Administrative Code (56 Ill. Admin. Code, ch. XI, sec. 5300.30 (1985)), the rule referred to “motions, orders, notices and other pleadings.” (Emphasis added.) Similar language is not present in the rule which is the subject of this suit unless the words “or other document” mean an order. This court stated in Gemini that “[djespite the uncertainties and ambiguities of section 1.3, we hold it to be applicable to the computation of the 35-day period here.” Gemini Services, Inc. v. Martin (1986), 141 Ill. App. 3d 17, 20 , 489 N.E.2d 1145, 1148 .
Administrative rules have the force and effect of law and must be construed under the same standards which govern statutory construction. (DeGrazio v. Civil Service Com. (1964), 31 Ill. 2d 482, 485 , 202 N.E.2d 522, 524 ; see generally Northern Illinois Automobile Wreckers & Rebuilders Association v. Dixon (1979), 75 Ill. 2d 53 , 387 N.E.2d 320 , cert, denied (1979), 444 U.S. 844 , 62 L. Ed. 2d 57 , 100 S. Ct. 87 ; Foley v. Civil Service Com. (1980), 89 Ill. App. 3d 871 , 412 N.E.2d 612 ; Heifner v. Board of Education (1975), 32 Ill. App. 3d 83 , 335 N.E.2d 600 .) An unambiguous administrative rule is not open to construction but should be interpreted as meaning what it clearly expresses. (Chadesh v. Commonwealth Edison Co. (1984), 128 Ill. App. 3d 827, 832 , 471 N.E.2d 628, 632 .) Courts also should not read language or limitations into the rule or exclude conditions contained within it. See generally Lipman v. Board of Review (1984), 123 Ill. App. 3d 176 , 462 N.E.2d 798 .
In construing statutes, the courts give effect to the intent of the legislature and give effect to as much of the statute as possible. (Dornfeld v. Julian (1984), 104 Ill. 2d 261 , 472 N.E.2d 431 .) Statutes should be construed so that no clause is rendered meaningless of superfluous. (In re Estate of Mulvaney (1984), 128 Ill. App. 3d 133 , 470 N.E.2d 11 .) Courts must not be guided by a single sentence or by an isolated provision but should consider each provision in conjunction with every other provision of the statute in light of its purposes. Miller v. Department of Registration & Education (1979), 75 Ill. 2d 76 , 387 N.E.2d 300 ; Gibson v. Barton (1983), 118 Ill. App. 3d 576 , 455 N.E.2d 282 .
Considering these principles, the rule in question appears to apply to the internal limitations period stated within the Illinois Educational Labor Relations Act. The rule is also distinguishable on its face from the rule relied upon in Gemini. The title of the instant rule is “Computations and Extensions of Time.” Sections (a) and (b) by their terms are limited to periods of time prescribed within the Illinois Educational Labor Relations Act. Section (c) picks up the words “time period” from sections (a) and (b) and notes that when a time period starts by service of notice or other document three additional days are added to the “prescribed period,” if the document is sent by mail. However, no additional days are added to the “prescribed period” if an extension of time has already been granted. Section (d) then provides that extensions will be provided by the Board or hearing officer on a specific showing that compliance with the deadline will be unduly burdensome.
If the rule is viewed in its entirety, the time period referred to in section (c) is a period prescribed under the Act or rules, which the Board under its discretionary authority may extend.
If one views only section (c) of the rule and applies it to final orders of the Board, the last sentence of section (c) of the rule would be superfluous. A party would never request an extension of time on the filing of the Board’s orders so would always have three extra days if the order were mailed. Administrative rules, like statutes, should be read in their entirety and as many parts of the rule as possible given effect. If one applies the first sentence of section (c) to orders of the Board, one must disregard sections (a), (b), (d), and the last sentence of section (c).
In contrast, in Gemini, the entire rule could be viewed as a whole and by its express terms apply to orders as well as other documents. It also did not contain any language about “extending the time period.” It stated that service by mail is “deemed complete” after four days.
Secondly, the 35-day time limit set forth in section 3 — 103 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 103) is not a time period prescribed by the Illinois Educational Labor Relations Act (Ill. Rev. Stat., 1984 Supp., ch. 48, par. 1701 et seq.) Although the Board may promulgate rules on when service of its orders is deemed complete (Gemini Services, Inc. v. Martin (1986), 141 Ill. App. 3d 17 , 489 N.E.2d 1145 ), the language of the rule in Gemini and the language of the rule relied upon here are distinguishable. The rule here does not state that it applies to the orders of the Board, and the three-day rule appears to apply to internal limitations periods which may be extended at the discretion of the Board. The balance of the rules pertaining to the Illinois Educational Labor Relations Board do not contain any statement as to when service by mail of the Board’s order is deemed complete. As section 3 — 103 of the Code of Civil Procedure provides, “[t]he method of service of the decision shall be as provided in the Act governing the procedure before the administrative agency, but if no method is provided, a decision shall be deemed to have been served either when personally delivered or when deposited in the United States mail ***.” (Ill. Rev. Stat. 1983, ch. 110, par. 3— 103.) Section 1100.30 of title 80, chapter III, of the Illinois Administrative Code is not a procedure which has been set forth by the Board as a method of service. Therefore, the provisions of section 3 — 103 of the Code of Civil Procedure would apply. Ill. Rev. Stat. 1983, ch. 110, par. 3-103.
The 1970 Constitution of the State of Illinois, article VI, section 9, provides in part that “Circuit Courts shall have such power to review administrative action as provided by law.” (Ill. Const. 1970, art. VI, sec. 9.) As the supreme court stated in Fredman Brothers Furniture Co. v. Department of Revenue (1985), 109 Ill. 2d 202 , 486 N.E.2d 893 :
“This court has held that when a court is in the exercise of special statutory jurisdiction, that jurisdiction is limited to the language of the act conferring it and the court has no powers from any other source.” 109 Ill. 2d 202, 210 , 486 N.E.2d 893, 895-96 .
It is clear in the instant case that the statutes referred to by the majority do not provide a specified time for serving orders of the Board and the 35-day rule requirement of the Administrative Review Act applies.
The complaint was not timely filed and the matter should be dismissed.