Water Pipe Extension v. City of Chicago

551 N.E.2d 1324, 195 Ill. App. 3d 50, 141 Ill. Dec. 796, 1990 WL 4861, 1990 Ill. App. LEXIS 481
CourtAppellate Court of Illinois
DecidedMarch 30, 1990
Docket1-88-2830
StatusPublished
Cited by11 cases

This text of 551 N.E.2d 1324 (Water Pipe Extension v. City of Chicago) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Water Pipe Extension v. City of Chicago, 551 N.E.2d 1324, 195 Ill. App. 3d 50, 141 Ill. Dec. 796, 1990 WL 4861, 1990 Ill. App. LEXIS 481 (Ill. Ct. App. 1990).

Opinion

JUSTICE EGAN

delivered the opinion of the court:

The petitioners, Water Pipe Extension, Bureau of Engineering, Laborers Local 1092 (Local 1092) and County Municipal Employees’, Supervisors’ and Foremen’s Local 1001 (Local 1001) (collectively, unions), filed an unfair labor practice complaint against the respondent City of Chicago (City) with the respondent Illinois Local Labor Relations Board (Board or ILLRB). The unions asserted that the City had violated sections of the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, pars. 1610(a)(1), (a)(4)) by refusing to give the unions information that the unions alleged was necessary for the administration of the parties’ bargaining agreement.

The hearing officer determined that the City had not committed an unfair labor practice in refusing the unions’ demands because the unions failed to establish their right to routine access to the information. The hearing officer also concluded that the unions had waived any right to the information in a so-called “zipper clause” in the bargaining agreement. The Board adopted the hearing officer’s findings and conclusions and dismissed the complaint.

Before discussing the propriety of the Board’s dismissal, we must first address the City’s motion to dismiss the unions’ petition for review on .the ground that this court lacks jurisdiction because the petition was allegedly filed too late.

On August 25, 1988, the ILLRB entered its order dismissing the petitioners’ complaint. On the same date, copies of the order, which were addressed to the parties’ attorneys, were deposited in the United States mail, postage prepaid for certified mail, return receipt requested. The attorney for the petitioners asserts that he received the order on August 31, 1988.

On September 27, 1988, 33 days after the order was entered and 27-days after the petitioners’ attorney received the order in the mail, the petitioners filed a petition for direct review in this court. Ill. Rev. Stat. 1987, ch. 48, par. 1716(a).

On July 14, 1989, the City filed a motion to dismiss the petition on the ground that the unions failed to file the petition in a timely fashion under Supreme Court Rule 303 (107 Ill. 2d R. 303). The City explained that it had not filed a motion to dismiss earlier because it had relied on an opinion of the Fifth Appellate District, City of Benton Police Department v. Human Rights Comm’n (1986), 147 Ill. App. 3d 7, 497 N.E.2d 876, and an opinion of the Fourth Appellate District, Board of Education of Plainfield Community Consolidated School District No. 202 v. Illinois Educational Labor Relations Board (1986), 143 Ill. App. 3d 898, 493 N.E.2d 1130 (hereinafter Board of Education). Both cases had held that the time for filing petitions for direct review in the appellate court, rather than a complaint for review in the circuit court, was subject to the requirements of the Administrative Review Law, which provides that an appeal to the circuit court of a decision of an administrative agency must be filed within 35 days. (Ill. Rev. Stat. 1987, ch.110, par. 3—103.) However, the First Appellate District rendered an opinion on June 30, 1989, holding that the petition for review was subject to the 30-day time requirement of Supreme Court Rule 303(a) (107 Ill. 2d R. 303(a)). (County of Cook v. Illinois Local Labor Relations Board (1989), 189 Ill. App. 3d 1057, 545 N.E.2d 934.) The court refused to follow Benton Police Department and Board of Education.

The respondents argue that we should follow County of Cook. However, we have concluded that we need not determine whether County of Cook was correctly decided, because we agree with the unions’ alternative argument that they timely filed their petition regardless of whether the Administrative Review Law or the supreme court rule applies. (The City did not respond to this alternative argument.) In resolving the issue, our first task is to determine which statute or rule is applicable to the method of service of the Board’s order.

Section 3—103 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 3—103) provides as follows:

“§3 — 103. Commencement of action. Every action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby. The 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, in a sealed envelope or package, with postage prepaid, addressed to the party affected thereby at his or her last known residence or place of business.”

In County of Cook the court held that the requirement that a complaint be filed within 35 days was in conflict with Supreme Court Rule 303(a) (107 Ill. 2d R. 303(a)), which provides that notice of appeal from a judgment entered in the circuit court must be filed within 30 days after entry of judgment. The court relied, in part, on Supreme Court Rule 335 (107 Ill. 2d R. 335), which governs direct appeals to the appellate court from the order of an administrative agency. But there is nothing in Rule 335 or any other supreme court rule dealing with the method of service of the administrative decision. Consequently, that portion of section 3 — 103 dealing with the method of service is not in conflict with any supreme court rule. Therefore, we accept the applicability of section 3 — 103 insofar as it deals with the method of service.

The next question is whether the act governing the procedure before the agency has provided for the method of service. The Public Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, par. 1611(a)) provides for direct review in the appellate court in accordance with the Administrative Review Law. But the Public Labor Relations Act itself is silent as to the method of service. However, in Gemini Services, Inc. v. Martin (1986), 141 Ill. App. 3d 17, 489 N.E.2d 1145, the court held that an agency, under its general rulemaking power, may promulgate a regulation determining when service of its orders is deemed complete. Therefore, the final question is whether the ILLRB has promulgated a regulation determining when service of its order is deemed complete. The answer is that it has.

The pertinent regulation provides as follows:

“a) In computing any period of time prescribed by the Act or these rules, the day of the act, event, or default after which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included. If the last day falls on a Saturday, Sunday, or legal holiday, the time period shall be automatically extended to the next day that is not a Saturday, Sunday or legal holiday. * * *

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Cite This Page — Counsel Stack

Bluebook (online)
551 N.E.2d 1324, 195 Ill. App. 3d 50, 141 Ill. Dec. 796, 1990 WL 4861, 1990 Ill. App. LEXIS 481, Counsel Stack Legal Research, https://law.counselstack.com/opinion/water-pipe-extension-v-city-of-chicago-illappct-1990.