Village of Winfield v. ISLRB

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following slip opinion is being made available prior to the Court's final action in this matter,
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Docket No. 80322--Agenda 11--November 1996.
THE VILLAGE OF WINFIELD, Appellant, v. THE ILLINOIS STATE LABOR
RELATIONS BOARD et al., Appellees.
Opinion filed March 20, 1997.

JUSTICE BILANDIC delivered the opinion of the court:
The Village of Winfield (the Village) appeals from a decision
of the appellate court confirming the decision and order of the
Illinois State Labor Relations Board (the Board) certifying the
Metropolitan Alliance of Police, Winfield Chapter No. 138 (the
union), as the duly elected collective-bargaining representative of
certain employees of the Village police department. The Village
contended that the Board did not have jurisdiction to consider the
union's representation petition, pursuant to section 20(b) of the
Illinois Public Labor Relations Act (the Act) (5 ILCS 315/20(b)
(West 1992)), because the Village employs fewer than 35 employees.
The appellate court held that the Village employed 35 or more
employees and was therefore subject to the jurisdiction of the
Board. Nos. 2--95--0042, 2--95--0335 cons. (unpublished order under
Supreme Court Rule 23). We accepted the Village's petition for
leave to appeal. 155 Ill. 2d R. 315. We now reverse the decision of
the appellate court.

FACTS
On December 6, 1993, the union filed a representation petition
with the Board seeking to serve as the exclusive collective-
bargaining agent for all full-time sworn patrol officers at or
below the rank of sergeant and all records clerks employed by the
Village of Winfield. The Village challenged the jurisdiction of the
Board, arguing that it was exempt from the Act because it did not
employ 35 or more employees, as required by section 20(b) of the
Act (5 ILCS 315/20(b) (West 1992)).
The parties stipulated that, if the Village should be found to
employ 35 or more employees, the bargaining unit proposed in the
petition would be appropriate. A hearing was held before an
administrative law judge to determine whether the Village employed
35 employees. The Village conceded that it employed 22 individuals.
The union contended that the Village should also be found to be the
employer of nine employees of the Winfield Public Library and of
six "summer staffers" in the Village public works department. The
Village asserted that it was not the employer of the library
employees and that the summer staffers could not be counted for
section 20(b) purposes because they were "short-term employees," as
defined in section 3(q) of the Act (5 ILCS 315/3(q) (West 1992)).
At the hearing, the Village presented the testimony of Village
Manager Bryon Vana. Vana is responsible for the day-to-day
administration of the Village. Vana testified that the Winfield
Public Library has its own board of trustees, which is elected by
the public. No library trustees are also Village trustees. No
library employees are also Village employees. Vana further
testified that the library prepares its own budget, which is
separate from the Village's budget. The library board provides a
copy of its budget to the Village. The library board also passes a
resolution requesting a specific tax levy, which is then forwarded
to the Village. The Village's tax levy ordinance includes a
separate levy request for the library budget. The library pays its
employees' salaries, which are an item in the library's budget. As
a courtesy, the Village processes payroll checks for the library's
employees. The Village provides no benefits to library employees.
The Village pays the bill for the library employees' health
insurance, but is reimbursed by the library for those payments. The
library has its own employment policies and the Village has no
involvement in the hiring, firing or discipline of library
employees. Vana also testified that the Village does not review or
approve library expenditures. The library pays its own bills.
Exhibits were also presented in connection with the hearing.
The Village submitted answers to questions propounded by the
administrative law judge in which the Village stated that it has
the discretion to disapprove the library's appropriation request,
subject to court review. The Village also stated that it had never
disapproved the library's appropriation request and it had never
supplemented the library's budget with a Village appropriation.
The administrative law judge issued a recommended decision and
order finding that the Village was a joint employer of the nine
library employees and that the summer staffers were not short-term
employees and could be counted for section 20(b) purposes.
Accordingly, the administrative law judge found that the Village
employed a total of 37 employees and was therefore subject to the
jurisdiction of the Board. The Board issued an order adopting the
recommendation of the administrative law judge and directing a
representation election. The Board subsequently entered an order
certifying the union as the duly elected collective-bargaining
representative of the proposed bargaining unit. The Village
appealed directly to the appellate court. 155 Ill. 2d R. 335. The
appellate court confirmed the decision of the Board.

ANALYSIS
The Illinois Public Labor Relations Act (5 ILCS 315/1 et seq.
(West 1992)) provides a comprehensive system of collective
bargaining for certain public employers and their employees.
Section 20(b) of the Act exempts certain employers from its scope.
Section 20(b) provides:
"This Act shall not be applicable to units of local
government employing less than 35 employees, except with
respect to bargaining units in existence on the effective
date of this Act and fire protection districts required
by the Fire Protection District Act to appoint a Board of
Fire Commissioners." 5 ILCS 315/20(b) (West 1992).
There is no dispute that the Village of Winfield is a unit of local
government. Accordingly, if the Village employs fewer than 35
employees, it is exempt from the Labor Relations Act, and the Board
has no jurisdiction to consider the Union's petition.
As noted, the Village concedes that it employs 22 individuals.
The Village argues that it has no additional employees, and that it
is therefore exempt from the Labor Relations Act under section
20(b). The union and the Board (hereinafter referred to jointly as
appellees) contend that the Village is also the joint employer of
nine employees of the Winfield Public Library, and that the six
summer staffers in the Village's public works department should be
counted as Village employees. Thus, the appellees argue, the
Village employs 37 employees and is not exempt under section 20(b).
We note that both of the appellees' contentions must be accepted in
order for the Board to have jurisdiction in this case: if either
the library employees or the summer staffers are not employees of
the Village, the Village is exempt under section 20(b).
This appeal comes to us on review of an order of an
administrative agency. Accordingly, reversal of the Board's
decision is warranted only if it is against the manifest weight of
the evidence. City of Freeport v. Illinois State Labor Relations
Board, 135 Ill. 2d 499, 507 (1990).
We first address whether the Village was properly found to be
a joint employer of the employees of the Winfield Public Library.
The test for the existence of joint employers is whether
" `two or more employers exert significant control over the same
employees--where from the evidence it can be shown that they share
or co-determine those matters governing essential terms and
conditions of employment.' " Orenic v. Illinois State Labor
Relations Board, 127 Ill. 2d 453, 474 (1989), quoting National
Labor Relations Board v. Browning-Ferris Industries of
Pennsylvania, Inc., 691 F.2d 1117, 1124 (3d Cir. 1982). Relevant
factors to consider in making this determination include the
"putative joint employer's role in `hiring and firing; promotions
and demotions; setting wages, work hours, and other terms and
conditions of employment; discipline; and actual day-to-day
supervision and direction of employees on the job.' " Orenic, 127 Ill. 2d at 475, quoting J. Jansonius, Use and Misuse of Employee
Leasing, 36 Lab. L.J. 35, 36 (1985). An important consideration in
determining whether a particular entity is an employer is the
extent to which that entity is necessary to create an effective
bargaining relationship. County of Will v. Illinois State Labor
Relations Board, 220 Ill. App. 3d 62 (1991).
With these principles in mind, we examine the relationship
between the Village and the Winfield Public Library employees to
determine whether the Village is a joint employer of the library
employees. We conclude that the Village is not a joint employer of
the library employees. Rather, the library, through the library
board of trustees, possesses exclusive authority over the terms and
conditions of the library employees' employment.
The Winfield Public Library was established pursuant to the
Illinois Local Library Act (75 ILCS 5/1--.01 et seq. (West 1992))
by the vote of the citizens of the Village. See 75 ILCS 5/2--2
(West 1992). Where the public votes to establish a library in a
village such as the Village of Winfield, the Local Library Act
provides that a seven-member board of library trustees (the library
board) shall be elected at the same time as the library
establishment election. 75 ILCS 5/4--3 (West 1992). The trustees'
terms are to be staggered, and their successors elected in
accordance with the general election law. 75 ILCS 5/4--3.1 (West
1992). Vacancies in the office of trustee are filled by the
remaining trustees until the next regular library election is held.
75 ILCS 5/4--4 (West 1992).
The Local Library Act vests the library board with broad
powers to control and govern the library. See 75 ILCS 5/4--7, 4--
7.1 (West 1992). Among other things, the board is given the
following powers: (1) to make and adopt bylaws, rules and
regulations for the government of the library; (2) to have
exclusive control of the construction of any library buildings; (3)
to have exclusive control over the supervision, care and custody of
library grounds, rooms or buildings; (4) to purchase or lease real
or personal property; (5) to sell or otherwise dispose of any real
or personal property; (6) to enter into contracts and take title to
property acquired by it for library purposes; (7) to sue and be
sued; (8) to invest funds; and (9) to accumulate and set apart
unexpended funds as reserve funds. 75 ILCS 5/4--7 (West 1992). In
particular, with regard to library personnel, the library board is
granted the exclusive authority to appoint and fix the compensation
of a qualified librarian, who in turn shall have the authority to
hire such other employees as may be necessary, to fix their
compensation, and to remove such employees, subject to the approval
of the library board. 75 ILCS 5/4--7(7) (West 1992). The Local
Library Act also gives the library board the "exclusive control of
the expenditure of all moneys collected for the library." 75 ILCS
5/4--7(2) (West 1992).
The testimony of Bryon Vana, the Village manager, further
demonstrates the autonomy enjoyed by the Winfield Public Library.
Vana testified that the library has its own board of trustees,
which is elected by the public. No library trustees are also
Village trustees, and no library employees are also Village
employees. The library pays all of its employees' salaries and
benefits. The Village provides no benefits to library employees.
The library has its own employment policies and the Village is not
involved in the hiring, firing or discipline of library employees.
Vana also testified that the Village does not review or approve
library expenditures.
The provisions of the Local Library Act and the testimony of
Bryon Vana demonstrate that the Village has no involvement
whatsoever in the " `hiring and firing; promotions and demotions;
setting wages, work hours, and other terms and conditions of
employment; discipline; and actual day-to-day supervision and
direction of' " the library employees. Orenic, 127 Ill. 2d at 475,
quoting 36 Lab. L.J. at 36. Rather, the library board, which is
elected by the public and operates wholly independently of the
Village, has exclusive authority in each of these areas. Applying
our test for joint employer status, we conclude that the Village
may not be considered a joint employer of the library employees.
The appellees nonetheless contend that the Village is a joint
employer of the library employees because of the Village's
"significant ability to affect library funding." We disagree. It is
true, as the appellees assert, that the library does not have the
power to levy taxes on its own behalf, but must rely on the Village
to levy a tax to fund the library's budget. The library board,
however, prepares the library's budget, and the Village's duty to
levy a tax to fund that budget is merely ministerial.
Bryon Vana testified that the library board prepares its own
budget and passes a resolution for a specific tax levy, which is
forwarded to the Village for inclusion in the Village's
appropriation. This procedure is consistent with the Local Library
Act. The Act clearly contemplates that the library board will
determine its own budget. The Act specifically provides that the
library board shall have "exclusive control of the expenditure" of
library funds. 75 ILCS 5/3--5, 4--7(2) (West 1992). The Act also
directs the library board to prepare a statement of the library's
financial requirements for the upcoming year and the amount of
money which it will be necessary to levy for library purposes, "for
inclusion in the appropriation of the [Village]." 75 ILCS 5/4--10
(West 1992). The Act then directs the Village to levy a tax for the
library in the amounts determined by the library board. 75 ILCS
5/3--5 (West 1992). Vana's testimony and the Act's provisions
demonstrate that the library board alone determines the library's
budget. The library's budget encompasses those funds which will pay
for the library employees' wages and benefits. The library board
therefore has exclusive control over determining the amount of
funding required for its personnel needs.
The fact that the Village must levy a tax to fund the
library's budget does not diminish the library board's control over
the library budget. The pertinent sections of the Local Library Act
provide that the Village's role in levying the tax to fund that
budget is simply a ministerial duty imposed by statute. Section 3--
4 of the Local Library Act provides, in pertinent part:
"When the electors of [a] *** village *** have voted
to establish and maintain a public library as provided in
Section 2--2, the corporate authorities of such ***
village *** shall levy an annual tax for the
establishment and maintenance of such library, not
exceeding .15% of the value as equalized or assessed by
the Department of Revenue." (Emphasis added.) 75 ILCS
5/3--4 (West 1992).
In addition, section 3--5 provides, in relevant part:
"The library taxes provided for in this Act shall be
levied by the corporate authorities in the amounts
determined by the [library] board and collected in like
manner with other general taxes of the *** village ***
and the proceeds shall be deposited in a special fund,
which shall be known as the library fund. *** [T]he
proceeds of any such tax shall be paid over by the
officer charged with the collection thereof to the board
of trustees of the library. Expenditures from the library
fund shall be under the direction of the board of library
trustees." (Emphasis added.) 75 ILCS 5/3--5 (West 1992).
This court has held that the use of the word "shall" in a
statute generally indicates a mandatory obligation. People v.
Thomas, 171 Ill. 2d 207, 222 (1996). Thus, under sections 3--4 and
3--5 of the Local Library Act, the Village is under a mandatory
duty to levy a tax for the establishment and maintenance of the
library in the amount determined by the library board. See Painter
v. Board of Trustees, 161 Ill. App. 3d 26, 32 (1987) (noting that
the Local Library Act clearly indicates that a village is under a
duty to pass the appropriation and tax levy exactly as requested by
the library board); cf. Chicago School Finance Authority v. City
Council, 104 Ill. 2d 437, 443-44 (1984) (under the School Finance
Authority Act, the Chicago city council is under a duty to pass a
tax levy ordinance as demanded by the Chicago School Finance
Authority). Pursuant to section 4--10 of the Local Library Act, the
library must send a copy of its budget and the necessary tax levy
to the Village. 75 ILCS 5/4--10 (West 1992). The Act, however, does
not grant the Village the power to reject the library's budget or
tax levy request. Thus, the Village's role in levying a tax to fund
the library's budget is simply a ministerial duty imposed by
statute. This ministerial task is not sufficient to render the
Village a joint employer of the library employees.
Parenthetically, we note that the record contains a statement
by the Village that it possesses the discretion to disapprove the
library's appropriation request. The Village's statement is
accompanied by a citation to the appellate court's decision in
People ex rel. Effertz v. Brzezinski, 91 Ill. App. 2d 202 (1968).
Brzezinski interpreted the 1965 version of the Local Library Act
and held that, under that Act, the corporate authority, and not the
library board, had the final approval over the amount of taxes to
be levied for the library. The version of section 3--4 interpreted
in Brzezinski, however, stated that the corporate authorities "may"
levy an annual tax for the establishment and maintenance of the
library. See Brzezinski, 91 Ill. App. 2d at 203-04, citing Ill.
Rev. Stat. 1965, ch. 81, par. 3--4. In 1967, the legislature
amended section 3--4 to read, as it does presently, that the
corporate authorities "shall" levy an annual tax for the
establishment and maintenance of the library. Ill. Rev. Stat. 1967,
ch. 81, par. 3--4. Moreover, after the Brzezinski decision was
handed down in 1968, the legislature in 1969 amended section 3--5
to add the express language that the corporate authorities shall
levy a tax for the library "in the amounts determined by the
[library] board." (Emphasis added.) Ill. Rev. Stat. 1969, ch. 81,
pars. 3--4, 3--5. Thus, under the version of sections 3--4 and 3--5
applicable here, the Village's duty to levy a tax to fund the
library's budget is ministerial rather than discretionary.
The Board concedes in its brief before this court that the
library budget does not need Village approval under the Local
Library Act. The appellees nonetheless assert that the Village has
the ability to affect the library's funding pursuant to two other
provisions of the Local Library Act. The appellees cite to a
portion of section 3--4 which states that, in addition to the
Village's mandatory duty to levy a tax for the establishment and
maintenance of the library, the Village:
"may also levy an additional tax of .02% of the
value of all the taxable property in the *** village ***
for the purchase of sites and buildings, for the
construction and equipment of buildings, for the rental
of buildings required for library purposes, and for
maintenance, repairs and alterations of library buildings
and equipment." 75 ILCS 5/3--4 (West 1992).
The appellees also cite section 3--9, which states, in pertinent
part:
"For the purpose of providing money to establish and
replenish a local library working cash fund authorized by
Section 4--13, corporate authorities shall have the power
to levy, upon all the taxable property of a *** village
*** a tax not to exceed .05% of the value, as equalized
or assessed by the Department of Revenue for the year in
which the levy is made." 75 ILCS 5/3--9 (West 1992).
The working cash fund referred to by this provision is defined in
section 4--13, which provides that a library board may create and
maintain a fund for the sole purpose of enabling the library board
to have in its funds, at all times, sufficient money to meet
demands for ordinary and necessary and committed expenditures. 75
ILCS 5/4--13 (West 1992).
The appellees argue that the Village has discretion over
whether to levy the additional taxes provided for in these
sections. They assert that the Village therefore has control over
the amount of funding the library will receive. On this basis, the
appellees argue, the Village should be found to be a joint employer
of the library employees. The appellees' reliance on these
provisions is misplaced. The taxes provided for in these two
sections are expressly designated for the specific purposes
described therein, and do not provide the library with the funding
it requires to meet its general budgetary or personnel needs.
Accordingly, neither of these provisions are relevant to the
critical issue in this case, i.e., whether the Village possesses
sufficient control over the library's personnel that it may be
considered to be their joint employer.
The appellees also rely on the appellate court's decision in
City of Rockford v. Illinois State Labor Relations Board, 158 Ill.
App. 3d 166 (1987). That case is clearly distinguishable. In City
of Rockford, the appellate court held that the City of Rockford was
a joint employer of employees of the Rockford library. Although the
library in that case was established under the Local Library Act,
different provisions of the Act applied because the library was
established in a city rather than a village, as here. In contrast
to a village library, a city library is governed by a nine-member
board of trustees, all of whom are appointed by the mayor with the
advice and consent of the city council. 75 ILCS 5/4--1 (West 1992).
The mayor also is granted the power to remove any trustee of a city
library. 75 ILCS 5/4--1.1 (West 1992). The court in City of
Rockford found these considerations to be significant in reaching
its holding that the city possessed sufficient control over the
library to be considered a joint employer of the library employees.
The court observed that the library's board of trustees, which had
the final approval over who was hired and discharged and total
discretion over an employee's hours, wages and working conditions,
was appointed by, and could be removed by, the mayor and the city
council. City of Rockford, 158 Ill. App. 3d at 173. Further, there
was evidence in that case that the city's personnel office
advertised for, screened and conducted the initial interview of
applicants for nonprofessional library positions. Also, the record
demonstrated that the city had, in the past, aided the library when
it was in financial straits, paying the balance on a mortgage
obtained by the library. City of Rockford, 158 Ill. App. 3d at 170-
71. We thus do not find the decision in City of Rockford to be
persuasive authority in this case.
Accordingly, we hold that the Village is not a joint employer
of the employees of the Winfield Public Library. The Board's
finding to the contrary is against the manifest weight of the
evidence. The Village is therefore exempt from the Illinois Public
Labor Relations Act because it employs fewer than 35 employees and
the Board has no jurisdiction to consider the union's petition.
Given this holding, we need not consider the additional argument
raised by the Village, that the library is a "unit of local
government" such that its employees may not be aggregated with
those of the Village. We also do not reach the issue of whether the
six summer staffers should be counted as Village employees for
section 20(b) purposes.

CONCLUSION
For the foregoing reasons, we reverse the decision of the
appellate court which confirmed the decision and order of the
Illinois State Labor Relations Board. Pursuant to section 20(b) of
the Illinois Public Labor Relations Act, the Board lacks
jurisdiction to consider the union's representation petition, and
the Board's order must therefore be set aside.

Appellate court judgment reversed;
Board order set aside.