text:
    PATRICK O’ROURKE, Adm’r of the Estate of John E. O’Rourke, Deceased, Plaintiff-Appellant, v. CHARLES OEHLER, JR., et al., Defendants-Appellees.
    Fourth District
    No. 4—88—0717
    Opinion filed August 24, 1989.

      W. Loren Thomson, of Bloomington, for appellant.
    Dunn, Goebel, Ulbrich, Morel & Hundman, of Bloomington (John L. Morel, of counsel), for appellees.
   JUSTICE LUND

delivered the opinion of the court:

This case involves a claim for damages premised on the death of decedent John E. O’Rourke (O’Rourke). O’Rourke was allegedly electrocuted as a result of a ladder which he was using coming into contact with electrical wires while he was performing work preliminary to the painting of outbuildings on a farm owned by defendant llene E. Risser and occupied by defendant Charles Oehler, Jr. At the time O’Rourke was fatally injured, he was employed by the McLean County Service Company with which Risser had contracted for the painting of the outbuildings on her farm. Plaintiff Patrick O’Rourke, the administrator of O’Rourke’s estate, appeals the entry of summary judgment in favor of defendants on all counts of his complaint.

Evidence concerning the circumstances of O’Rourke’s death is contained in depositions of Oehler and Risser.

At his deposition, Oehler testified Risser owns the farm which he leases and that she pays for the maintenance of the house and buildings on the premises. Risser arranged for the painting work which O’Rourke was performing when he was killed.

On the morning O’Rourke began stripping the old paint from the outbuildings, Oehler loaned him a 100-foot-long drop cord which was designed for outdoor use. Oehler stated he told O’Rourke before he started on the job, “[B]e careful. *** You can see them wires up there, this and that ***.” According to Oehler, O’Rourke responded, “I know they are there.”

The wiring in the area in which O’Rourke was allegedly electrocuted was installed almost 50 years ago by an individual whom Oehler’s father hired for the job. About seven or eight years prior to the fatal accident, a portion of the wiring on the premises other than the wires in question was replaced in conjunction with the building of a new home on the property. Also during the time that Oehler leased the property, some overhead insulated wires were installed on the premises in connection with the installation of a vapor light.

When O’Rourke was killed, the wires which allegedly caused his electrocution were “corroded, they were green like copper does.” Oehler stated he discussed the wires with O’Rourke on the Monday that he commenced work on the premises; he did not discuss the wires with O’Rourke on the following Thursday, which was the day O’Rourke was killed. Oehler stated he gave O’Rourke no warnings or instructions with respect to anything other than the wires.

During the three days prior to O’Rourke’s death, Oehler had observed him using a water stripper and getting himself wet in the process. It was raining on the day O’Rourke was killed. At approximately 11 a.m. on that day, Oehler looked out through a window of his house and saw an aluminum ladder, which O’Rourke had been using, leaning against the wires and touching the ground. The ladder was farther away from the barn on which O’Rourke had been working than it should have been, which caused Oehler to suspect something was amiss. He immediately went outside and saw O’Rourke’s body lying on the ground on its back. The left foot was on the ladder, which was hooked to the uppermost of two power lines. When he first discovered O’Rourke’s body, Oehler noticed no arcing or sparking where the ladder touched the wire.

Oehler acknowledged he had no need for light in the buildings to which the wires in question provided electricity and could have gotten along without power in those buildings. Since Oehler started living on the property in 1948, no one from the power company had checked the wiring beyond the meter. Oehler acknowledged he knew that the wires in the vicinity where O’Rourke was killed were uninsulated, but that he did not inform O’Rourke of this fact.

According to Oehler, Risser was not present when O’Rourke was working around the wires. Oehler admitted he saw O’Rourke placing the aluminum ladder against the barn in order to repair and maintain it on the day he was killed.

On cross-examination, Oehler stated that at the point at which the uninsulated wires entered the bam on which O’Rourke was working at the time of his death, the top wire was 17 feet 2 inches from the ground, and the second wire was 10 inches below the top wire. Also on cross-examination, Oehler stated that on O’Rourke’s third day on the job, he said to him, “[B]e careful with all that,” and that he specifically mentioned the wires to O’Rourke at that time. To this O’Rourke responded, “he knew it.” Oehler stated O’Rourke could not have asked him to turn off the power to the outbuildings because O’Rourke needed the power to ran the pressure washer which he was using. In addition to the ladder, some of the other tools which O’Rourke was using, such as his washer, were metal. Oehler estimated that when he discovered O’Rourke’s body, the aluminum ladder was 10 to 12 feet directly west of the bam on which he had been working.

In her deposition, Risser testified she owns the farm on which Oehler resides. Oehler leases the farm from Risser on a 50-50 share crop basis. Risser has always been responsible for the maintenance of the buildings on the farm and the expenses thereof. Risser arranged to have the buildings on the farm stripped and painted during the summer of 1982 by McLean County Service Company. Risser was not present when McLean County Service Company inspected the buildings in order to prepare an estimate for the work and was not present while O’Rourke was working on the farm prior to his death. She did, however, know when the paint-stripping work was being done because Oehler, who is her brother, calls her almost every day.

Prior to O’Rourke’s death, Risser was aware of the existence of the wires which allegedly caused him to be electrocuted. No one had ever suggested that the wires be insulated or raised.

Risser further testified that if she had been informed by Oehler that McLean County Service Company’s work was damaging the farm buildings or machinery, she probably would have gone to the farm and stopped the work. Risser acknowledged that after McLean County Service Company gave its original estimate, she caused the estimate to be reduced by stating she did not want the roofs of the buildings painted. She did not inquire of McLean County Service Company as to how the work was going to be done or what equipment was going to be used. Also, Risser did not own the ladder involved in the accident. Risser stated she had no knowledge as to the color or condition of the wires in the area where O’Rourke was killed.

Risser further testified that during the spring preceding O’Rourke’s death, a Mr. Clawson did some work on the farm which was apparently necessitated by a severe storm. At that time, Clawson asked Oehler if Risser would consider replacing some wires which were bare. Oehler related this inquiry to Risser, and Risser immediately called Clawson and told him to replace the wires because, “anybody tells me to do something, I do it.” Risser stated Clawson gave her no reason as to why the wires needed to be replaced. She did not know which wires Clawson specifically had in mind.

Count I of plaintiff’s complaint, directed tó Oehler, alleges Oehler breached his duty to use due care with regard to O’Rourke in that he:

“a. failed to warn the decedent that said wires were uninsulated;
b. failed to repair and replace said wires, when the insulation thereupon became detached;
c. maintained uninsulated electrical wires when the same could arc and injure Plaintiff’s decedent.
d. failed to cut off power to the wires where he knew the decedent was working in close proximity to them.”

Count II, directed to Risser, alleges she knew or should have known of the dangerous condition of the wires and that O’Rourke would be required to work in close proximity to them. This count alleges Risser breached the duty of care which she owed to O’Rourke in the same manner that count I alleges Oehler breached his duty of care with respect to O’Rourke.

Count III, directed to Risser, is premised on alleged violations of the Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, pars. 60 through 69). It alleges Risser was responsible and in charge of the maintenance, painting, and repair of the buildings on the farm occupied by Oehler. Count III further states:

“Risser was in charge of said [painting] work, reserving to herself the right to supervise said work, which she did through her tenant and agent, Charles Oehler. She reserved to herself the right to stop the work and to change the work, and she made the decision to have the work performed, and she, in fact, did change the work that was to be done.”

Count III additionally states (1) that in the performance of his work on the premises, O’Rourke had to use an aluminum ladder and had to move it from place to place and climb on it; and (2) O’Rourke had to use the exterior sides of the farm buildings on which he was working as support for the ladder, since the ladder could not stand by itself. Plaintiff alleged Risser committed the following specific violations of the Structural Work Act:

“a. [B]are uninsulated electrical wires were maintained and charged with electricity where Plaintiff’s decedent was required to place his ladder on the support of the building;
b. there were no warnings to Plaintiff’s decedent as to the fact that the wires running to the structure or building upon which he was working and upon which he had to place his ladder for support were bare, uninsulated, and charged with electricity;
c. failed to maintain insulation on the electrical wires aforesaid or to replace said electrical wires running to the structure upon which Plaintiff’s decedent supported himself while repairing and maintaining the same;
d. failed to turn off the electricity running through said bare and uninsulated wires when Plaintiff’s decedent was working in proximity thereto, so as not to injure or kill him.”

In an order entered September 6, 1988, the circuit court allowed defendants’ motion for summary judgment. The court held there is no duty on the part of a nonresident landlord or tenant in possession to warn of the dangers posed by electrical wires, as electricity constitutes an open and obvious danger, which is of common knowledge to both adults and minors. With regard to plaintiff’s Structural Work Act claim against Risser, the court stated the ladder which O’Rourke was using at the time of his death was not then being used as a structure, and there was no failure of any structure or device which caused O’Rourke’s death. The court further stated Risser was not “in charge” of the work in which O’Rourke was engaged when he was killed. On the same date, the court struck an affidavit of Dr. Edmund T. Dorner, which plaintiff had filed in opposition to defendants’ motion for summary judgment.

We first consider plaintiff’s contention the circuit court improperly entered summary judgment as to counts I and II, which are premised on alleged ordinary negligence on the part of defendants. Plaintiff asserts because there were genuine issues as to material facts, the circuit court improperly entered summary judgment in defendants’ favor as to these counts. Plaintiff asserts the contradictions in Oehler’s deposition testimony as to how often he warned decedent concerning the wires establish the existence of factual issues as to whether defendants breached their duty to warn O’Rourke concerning the wires. Plaintiff also asserts if O’Rourke was warned concerning the wires, the warning was not a meaningful warning, considering some of the wires on the premises were insulated and others were not and O’Rourke used a 100-foot insulated power cord with no trouble during the day immediately preceding his death.

The plaintiff further observes that in its summary judgment order, the circuit court addressed only plaintiff’s allegation defendants failed to warn O’Rourke of the uninsulated condition of the wires and did not deal with plaintiff’s remaining allegations of breaches of duty on the part of defendants. Plaintiff argues the allegations as to (1) defendants maintaining uninsulated wires which could arc and cause injury and (2) defendants’ failure to repair and replace wires when the insulation thereon became detached are uncontradicted and are supported by the deposition testimony of Oehler and Risser. Plaintiff further argues his allegation that Oehler failed to cut off the power to the wires when he knew O’Rourke was working in close proximity to them is supported by Oehler’s deposition testimony.

The plaintiff maintains that in cases where a decedent has been electrocuted as a result of coming into contact with power lines maintained by a utility company, courts have held there is a duty to insulate, deenergize, or warn of the presence of the uninsulated wires, even if the injured party had advance notice of their presence, and even if it was not foreseeable persons would be working in the presence of the wires. The plaintiff asserts that in this case, an even higher standard of care should apply than applies in cases where the defendants are utility companies, since it was necessary for O’Rourke to work around the bare, uninsulated wires, and defendants knew O’Rourke was working around them.

Also, the plaintiff states that by concluding O’Rourke should have appreciated the danger of the electrical wires, the circuit court relied on the pure form of contributory negligence. The plaintiff also argues the trial court accepted the view that by comprehending that a dangerous condition might exist, an invitee absolves the one who created the condition from any liability. The plaintiff contends that the principle which should instead be applicable to this case is that landowners are liable for harm caused to invitees if the owners should anticipate harm to them despite the obviousness of a dangerous condition on the premises.

Finally, plaintiff argues that the wires involved in this case were deceptive in appearance, because their corroded condition gave them the appearance of being insulated. Plaintiff asserts this distinguishes the present case from the cases on which the circuit court relied in its summary judgment order.

The defendants argue the cases relied upon by plaintiff are inapposite to the present case, because all of those cases involved utilities which are in the business of distributing electrical energy. Defendants assert there is no basis for plaintiff's contention landowners or tenants have the same high duty of care as electrical utilities with regard to warning of or protecting against the dangers posed by electricity. The defendants assert they did not owe O’Rourke a duty to warn of the presence of uninsulated wires or to insulate the wires which allegedly caused his electrocution, because (1) the electrical wires were in plain view and were not hidden or concealed; (2) the dangers posed by electricity are common knowledge, and O’Rourke should have been equally aware with defendants of all of the dangers of the premises on which he was working at the time of his death; (3) the electrical lines which allegedly caused O’Rourke’s death were approximately 17 feet above the ground; (4) the minimal risk of injury caused by uninsulated electrical wires in a rural area does not justify imposing upon the public the burden of insulating the wires; and (5) there are no facts which indicate distractions of O’Rourke which would have caused him to forget about or to fail to realize the danger of working near the power lines in question.

In his reply argument, plaintiff asserts under the circumstances here present, it was foreseeable to defendants that O’Rourke could stumble, “the wind could catch the ladder,” or some other event could occur which would cause the ladder O’Rourke was using to come into contact with the power lines.

Summary judgment is properly entered where the pleadings, depositions, and admissions on file, together with any affidavits, show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1005(c).) In ruling upon a motion for summary judgment, the evidence must be construed strongly against the movant and liberally in favor of the opponent. Stringer v. Zacheis (1982), 105 Ill. App. 3d 521, 434 N.E.2d 50.

Generally, the owner or occupant of a premises has a duty to properly maintain electrical wiring on the premises which he or she (as opposed to a utility company) owns or controls and to safeguard those on the premises from dangers posed by such wiring. (29 C.J.S. Electricity §57, at 1128 (1965).) In this case, there is evidence the wires which allegedly caused O’Rourke to be electrocuted were uninsulated and corroded, and were at least 16 feet above the ground. From this a jury could reasonably infer the uninsulated wires appeared insulated to a person standing on the ground beneath them. Considering Oehler acknowledged in his deposition he did not specifically mention to O’Rourke that the wires were uninsulated, a question of material fact exists as to whether Oehler breached his duty to safeguard O’Rourke from the danger posed by wires in the area where he was lolled.

With respect to count II, alleging ordinary negligence on the part of Risser, we reach the same result as we do with regard to count I. Ordinarily, a lessor of real estate is not liable for injuries sustained by a third party as a result of a failure to keep the property in repair. However, an exception to this rule exists where the lessor has by covenant with the tenant agreed to keep the premises in repair or where the lessor has regularly performed a certain type of maintenance work on the premises. (Wright v. Mr. Quick, Inc. (1985), 109 Ill. 2d 236, 486 N.E.2d 908; Kuhn v. General Parking Corp. (1981), 98 Ill. App. 3d 570, 424 N.E.2d 941.) In the case at bar, Risser testified she has always been responsible for maintenance of the buildings on the farm occupied by Oehler, and she specifically stated she had given permission during the spring preceding O’Rourke’s death for some “bare” wires to be replaced on the premises. This testimony, taken together with Oehler’s testimony, created a question of material fact as to whether Risser knew or should have known of the condition of the wires which allegedly caused O’Rourke’s death and whether she should have provided a warning as to their condition before O’Rourke began working on the premises.

The cases upon which defendants principally rely in support of their argument summary judgment was properly entered as to counts I and II (Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465; Icenogle v. Myers (1988), 167 Ill. App. 3d 239, 521 N.E.2d 163; Carroll v. Commonwealth Edison Co. (1986), 147 Ill. App. 3d 909, 498 N.E.2d 645; Fisher v. Crippen (1986), 144 Ill. App. 3d 239, 493 N.E.2d 1204) are factually distinguishable. None of those cases involved electrical wires controlled and maintained by the property owner, and the power lines at issue in those cases were not in such a condition that they possibly conveyed an appearance of being insulated when in fact they were uninsulated. For the foregoing reasons, we reverse the circuit court’s summary judgment order as to counts I and II.

We next consider whether the circuit court erred in entering summary judgment as to count III, which is directed to Risser and premised on alleged violations of the Structural Work Act (Act). The relevant provisions of the Act provide: Plaintiff contends that because Risser was responsible for maintenance of the buildings on the premises occupied by Oehler, contracted with McLean County Service Company for the painting of the buildings, and retained the right to stop the work and remove the workers from the premises if the work was not satisfactory, she was “in charge” of the painting work within the meaning of the Act. Also, the plaintiff argues the trial court essentially held there is no liability under the Act when a workman is erecting or putting a scaffold into place prior to its being used. The plaintiff argues this represents too narrow a view of the purposes of the Act and states that it is not permissible for a court to “dissect out” what a workman was doing at the precise moment of injury from the overall picture of what was occurring at the jobsite. Plaintiff argues that in this case the periodic movement of the ladder was an integral part of the work which O’Rourke was performing when he was electrocuted. Also, plaintiff contends the ladder, the buildings being painted, and the wires were all a part of the operation in which O’Rourke was engaged at the time of his death, because the ladder was required for access to the buildings, the ladder could not stand alone, and the wires were attached to the buildings.

“[A]ll scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.” Ill. Rev. Stat. 1985, ch. 48, par. 60.
“Any owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction, repairing, alteration, removal or painting of any building, bridge, viaduct or other structure within the provisions of this act, shall comply with all the terms thereof ***.” (Ill. Rev. Stat. 1985, ch. 48, par. 69.)

Risser asserts the Act is inapplicable to the facts of this case, because the ladder was not being used as a structure at the time of O’Rourke’s death, and there was thus no failure of a structure which caused O’Rourke’s alleged electrocution. Risser also points out that when O’Rourke was killed, he was not passing by or under a structure from which something fell and struck him.

Risser argues alternatively that even if the ladder was a structure within the meaning of the Act, O’Rourke’s electrocution was proximately caused by O’Rourke’s negligence and was not caused by a violation of the Act. Finally, Risser argues that even assuming the Act is applicable to the facts of this case and O’Rourke’s electrocution was proximately caused by a violation of the Act, she was not “in charge” of the work within the meaning of the Act. Risser’s bases for this contention are that she was not present at the time of O’Rourke’s death or at any other time while the work relating to the painting of the outbuildings was being performed, she did not know the details of the manner in which the work was being performed, and she did not own or provide O’Rourke with the ladder which he was using at the time of his death.

The Act is designed to protect those engaged in work activities of a particularly hazardous nature and to lessen the extent of danger therefrom. (Halberstadt v. Harris Trust & Savings Bank (1973), 55 Ill. 2d 121, 127, 302 N.E.2d 64, 67.) The Act is not, however, intended to cover any and all construction activities or all injuries at or near a construction site. (Innis v. Elmhurst Dodge, Inc. (1985), 107 Ill. 2d 151, 155, 481 N.E.2d 709, 711.) The coverage of the Act should not be expanded by strained or unnatural interpretations, especially if other remedies are available to the plaintiff. Smith v. Excello Press, Inc. (1988), 169 Ill. App. 3d 1084, 1097, 523 N.E.2d 1231, 1239.

Among the elements which must be established in order to recover damages under the Act is a defect in a structure or support device which proximately caused the injuries complained of. Also, the defendant must have been in charge of the work. (Fisher, 144 Ill. App. 3d 239, 493 N.E.2d 1204; Smyrniotis v. Brockob Construction Co. (1986), 142 Ill. App. 3d 340, 491 N.E.2d 1246.) The Oehler and Risser affidavits establish there are no issues of material fact concerning these matters.

In this case, as in Smyrniotis, the evidence did not establish a defect in a structure or support device caused the mishap which formed the basis for the plaintiff’s Structural Work Act claims. Rather, the cause of the accident was electrical energy flowing through power lines. Also, Risser did not in any manner supervise the painting of the outbuildings on her farm or any of the steps preparatory to painting the buildings. She was not present at any time while the work was being performed and did not direct that any changes be made in the work as it was being performed. Mere ownership of a premises on which structural work was being performed or retention of the right to reject or stop the work is not a sufficient basis for holding an individual is “in charge” of structural work within the meaning of the Structural Work Act. (See Manisco v. Marseilles Fire Protection District (1985), 132 Ill. App. 3d 390, 477 N.E.2d 534; Melvin v. Thompson (1963), 39 Ill. App. 2d 413, 188 N.E.2d 497.) Risser’s role in the painting of the outbuildings did not exceed these parameters. There being no issues of material fact as to whether O’Rourke’s death was caused by a defect in a support structure or device or as to whether Risser was “in charge” of the work, the circuit court properly entered summary judgment in Risser’s favor as to count III. Kochan v. Commonwealth Edison Co. (1984), 123 Ill. App. 3d 844, 463 N.E.2d 921.

We finally consider whether the circuit court erred in striking the affidavit of Dr. Edmund T. Dorner, which plaintiff filed in opposition to defendants’ motion for summary judgment. This affidavit reads in its entirety:

“I, Dr. Edmund T. Dorner, being first duly sworn on oath, depose and state as follows:
1. I am a Professor of Safety at Illinois State University and have taught industrial safety courses for over twenty years. My related professional achievements are set forth more fully in Exhibit ‘A’ attached hereto.
2. That I have reviewed the police reports, coroner investigation reports, photographs and Inquest transcripts in this matter.
3. After reviewing the aforesaid materials, I have formulated an opinion to a reasonable degree of certainty on whether Plaintiff [sic] appreciated and assessed the risk associated with the overhead power lines and my opinion is that a person of Plaintiff’s [sic] age and experience under the circumstances which were present would not have assessed the risk of the overhead power lines absent a. thorough and meaningful warning as to their ‘deceptive’ appearance and dangerousness.”

The plaintiff argues the circuit court erred in striking this affidavit, because in recent years testimony of human factors experts as to the sufficiency of the warnings on products frequently has been received in product liability cases. Plaintiff argues this affidavit supplements the other questions of material fact which were presented to the court via the pleadings and depositions. Plaintiff contends any deficiencies in this affidavit are relevant only to the weight to be accorded it and not to its admissibility.

The defendants assert the circuit court properly struck Dr. Dorner’s affidavit because (1) the mental state of an individual as it relates to his appreciation or lack thereof of the obvious dangers posed by electrical wires is not a proper subject for expert testimony; (2) if this is a proper subject for expert testimony, expertise in the area of industrial safety does not qualify one to render an opinion as to an individual’s mental state, and only a psychiatrist can testify as an expert concerning this subject; and (3) the affidavit is conclusory and argumentative and does not consist of facts admissible in evidence.

In his reply brief, the plaintiff contends that the circuit court has no right to strike an issue-creating affidavit at the summary judgment stage of the proceedings, because (1) the court is not the trier of fact at that stage of the proceedings and (2) the court’s views of an expert’s qualifications to render an opinion are immaterial at that stage of the proceedings.

We need not consider whether Dr. Dorner’s affidavit was admissible as the opinion of a human factors expert, since it is conclusory in nature. The affidavit does not list the specific matters which caused Dr. Dorner to conclude a person of O’Rourke’s age and experience would not have assessed the risk of the overhead power lines, absent a thorough and meaningful warning as to their appearance and dangerousness. Affidavits submitted in opposition to motions for summary judgment must consist of facts admissible in evidence as opposed to conclusions, and conclusory matters may not be considered in opposition to motions for summary judgment. (107 Ill. 2d R. 191(a); Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 508 N.E.2d 1201.) For these reasons, we hold the circuit court properly struck Dr. Dorner’s affidavit.

The circuit court’s summary judgment order is affirmed to the extent it applies to count III of plaintiff’s complaint. The circuit court order which struck the affidavit of Dr. Edmund T. Dorner is also affirmed. The circuit court’s entry of summary judgment as to counts I and II of plaintiff’s complaint is reversed, and this cause is remanded for further proceedings as to those counts.

Affirmed in part; reversed in part and remanded.

SPITZ and GREEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SPITZ

license: Public Domain

text:
    AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 31, AFL-CIO, Petitioner, v. ILLINOIS STATE LABOR RELATIONS BOARD et al., Respondents.
    Fourth District
    No. 4—88—0751
    Opinion filed August 24, 1989.

      Gilbert Feldman, of Cornfield & Feldman, of Chicago, for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and William D. Frazier, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois State Labor Relations Board.

      Edward B. Miller and James A. Spizzo, both of Pope, Ballard, Shepard & Fowle, Ltd., of Chicago, for respondent County of Menard.
   JUSTICE SPITZ

delivered the opinion of the court:

The principal question in this case is whether an alleged refusal on the part of a public employer to engage in good-faith collective bargaining with a union which is the exclusive bargaining representative of a group of its employees is a defense to a decertification petition filed with respect to that union which, if proved, would render the petition untimely. Additional questions are whether a union’s failure to serve an employer with a statement setting forth its position with respect to a decertification petition resulted in waiver of the union’s right to a hearing on the petition and whether the purported failure of the Illinois State Labor Relations Board (ISLRB) to enforce a prior order requiring an employer to engage in good-faith collective bargaining may be asserted as a defense to a decertification petition.

On August 15, 1986, petitioner American Federation of State, County, and Municipal Employees (AFSCME) was certified by the ISLRB as the exclusive bargaining representative of a group of employees at the Sunny Acres Nursing Home in Petersburg. In an order entered January 14, 1987, the ISLRB found respondent County of Menard (County), which operates the Sunny Acres Nursing Home, guilty of an unfair labor practice in that on or about September 5, 1986, it had illegally refused to bargain with AFSCME. Therefore, the ISLRB ordered the County to bargain with AFSCME as the exclusive representative of the employees in the bargaining unit at the nursing home. Furthermore, the ISLRB held AFSCME’s initial period of certification as exclusive bargaining representative of the employees included in the Sunny Acres bargaining unit was to commence on the date the County began to bargain in good faith with AFSCME. County of Menard, 3 Pub. Employee Rep. (Ill.) par. 2018, case No. S — CA—87—48 (Illinois State Labor Relations Board, Jan. 14,1987).

Thereafter, several months elapsed without any substantial progress in the negotiation of a union contract for the Sunny Acres employees. Eventually, the ISLRB’s assistant administrator and compliance officer contacted AFSCME in order to obtain information regarding the County’s compliance with the January 14, 1987, order. AFSCME’s response to this request, which was dated June 10, 1987, read in part:

“It appears that [counsel for Menard County], is doing only surface bargaining.
The decision of the Illinois State Labor Relations Board was issued in January of 1987. Negotiations did not begin until April. Nine sessions were scheduled in the months of April and May; only two of those sessions actually took place.
There have been numerous reasons why they were can-celled, but the one repeated most often is that the Nursing Home Administrator was uncooperative.
* * *
I am under the opinion that if [counsel for Menard County] does not call me this week, AFSCME has grounds for additional ULP [unfair labor practice] charges against Menard County.”

(“Surface bargaining” is one of a number of dilatory bargaining tactics which the National Labor Relations Board (NLRB) has determined constitute unfair labor practices under the National Labor Relations Act (NLRA) (29 U.S.C. §151 et seq. (1982)), as amended. It is defined as actions by an employer which, while appearing to be good-faith collective bargaining, are in fact actions which amount to simply “going through the ‘motions’ ” of collective bargaining. (See 1 C. Morris, The Developing Labor Law 579-83 (2d ed. 1983); see also B.F. Diamond Construction Co. (1967), 163 N.L.R.B. 161, 173-79, 64 L.R.R.M. 1333 (trial examiner’s decision, discussing “good-faith bargaining” principles).) On June 18, 1987, ISLRB’s assistant administrator and compliance officer responded to this letter as follows:

“Thank you for your prompt response to our inquiry concerning compliance in the above referenced case.
Your June 10, 1987 letter states that following the Board’s January 1987 order, the Employer may have engaged in surface bargaining. If you wish to file additional ULP charges against the County, as your letter indicates, we will investigate those charges accordingly.”

AFSCME did not, however, file any unfair labor practice charges with regard to alleged surface bargaining on the part of the County.

On April 14, 1988, an employee at Sunny Acres filed a petition seeking decertification of AFSCME as exclusive bargaining representative of the employees in the bargaining unit at the nursing home. A hearing on the decertification petition was held on May 9, 1988.

In a recommended opinion issued June 8, 1988, the ISLRB’s hearing officer held AFSCME’s failure to file a timely position statement with respect to the decertification petition did not result in waiver of its right to a hearing on the petition, since the County demonstrated no prejudice as a result of its not receiving such a statement. Furthermore, the hearing officer held the County waived its right to object to this omission on the part of AFSCME by not objecting thereto until after the hearing commenced.

On the merits, the hearing officer held the question of whether the County did not bargain in good faith for one year prior to the filing of the decertification petition could not be considered in the proceedings on the petition. The hearing officer stated consideration of this matter would be inconsistent with the policy of providing for an expeditious resolution of representation questions, and the proper procedure would have been for AFSCME to file unfair labor practice charges against the County based on its purported failure to bargain in good faith. Finally, the hearing officer held that, assuming arguendo, it was proper to consider the County’s purported failure to bargain in good faith in the proceedings on the decertification petition, the County did not bargain in good faith with AFSCME as it was required to do by the ISLRB’s January 14, 1987, order. County of Menard, 4 Pub. Employee Rep. (Ill.) par. 2033, case No. S — RD—88— 16 (Illinois State Labor Relations Board, hearing officer, June 8, 1988).

On June 20, 1988, AFSCME excepted to the hearing officer’s recommended opinion on the bases, inter alia, the hearing officer incorrectly ruled (1) the decertification petition was timely filed, and (2) AFSCMÉ’s remedy for the County’s purported failure to bargain in good faith was to file an unfair labor practice charge. In a brief in support of its exceptions, AFSCME further argued the ISLRB deprived AFSCME of its constitutional rights by violating its alleged duty to enforce its January 14, 1987, order requiring the County to bargain with AFSCME and holding AFSCME should have filed unfair labor practice charges in lieu of the ISLRB seeking enforcement of that order.

In an opinion issued July 15, 1988, the ISLRB adopted the hearing officer’s proposed decision in part. (County of Menard, 4 Pub. Employee Rep. (Ill.) par. 2033, case No. S — RD—88—16 (Illinois State Labor Relations Board, July 15, 1988).) The ISLRB indicated agreement with the hearing officer’s determination AFSCME should not be allowed to raise unfair labor practice issues in the context of a representation case. The ISLRB stated such a practice would contravene the distinction between unfair labor practice proceedings, which are adversarial in nature, and representation proceedings, which are nonadversarial. The ISLRB observed the six-month limitation period on the alleged unfair labor practices (see Ill. Rev. Stat. 1987, ch. 48, par. 1611(a)), which AFSCME asserted as a defense to the decertification petition, had expired and stated AFSCME should not be allowed to present charges based on those alleged unfair labor practices through the “back door” as a defense to a decertification petition.

The ISLRB also rejected AFSCME’s argument the County’s purported failure to bargain in good faith presented an issue as to whether the County had complied with the ISLRB’s January 14, 1987, order. The ISLRB’s reasons for the conclusion were: (1) the January 14, 1987, order dealt with an alleged refusal on the part of the County to bargain, not failure to bargain in good faith, and (2) AFSCME was aware that in order to protect its rights, it could file additional unfair labor practice charges.

Because of its finding AFSCME could not raise its unfair labor practice allegations as a defense to the decertification petition, the ISLRB found it unnecessary to consider the hearing officer’s alternative finding the County did not bargain in good faith and specifically declined to adopt that finding. On the basis of its opinion, the ISLRB ordered a representation election in the previously defined bargaining unit at the Sunny Acres Nursing Home, in which employees were to be given the choices of continued representation by AFSCME and “No Representation.”

At an election held September 2, 1987, the majority of the Sunny Acres Nursing Home employees who cast ballots voted for no representation, and AFSCME was decertified as bargaining representative of the members of the bargaining unit at the nursing home.

The County argues there is no need for this court to consider the merits of AFSCME’s arguments on appeal. The County’s basis for this contention is AFSCME waived its right to a hearing on the decertification petition in that it did not provide the County with a statement of its position with respect to the matters set forth in the petition. The County asserts it did not waive its objections to AFSCME’s failure to provide it with a position statement by participating in the hearing on the decertification petition, because once the hearing officer decided to proceed with the hearing over its objections, the County had no choice but to participate in the hearing in order “to protect its position.” At the time of the hearing, the administrative regulation governing position statements with respect to decertification petitions provided:

“All parties served with a representation or decertification petition shall file a response to the petition within 20 days of service. *** The response shall set forth the positions of the parties with respect to the matters asserted in the petition, including, but not limited to, the appropriateness of the bargaining unit and whether any employees sought by petitioner to be included in the unit are supervisory, managerial or confidential. If a party agrees to the appropriateness of the unit proposed in the petition, it shall so indicate. If a party disagrees with the unit proposed in the petition, it shall describe with particularity what it considers to be an appropriate unit, and shall include a description of the job titles and classifications of the employees to be included and of those to be excluded. A party that fails to file a timely response shall be deemed to have waived its right to a hearing, unless such failure is excused by the Board for good cause shown.” (80 Ill. Adm. Code §1210.100(a), at 9712 (1985).)

The County contends under the plain language of this rule, the hearing on the decertification petition was improperly held, and this court should therefore sustain the decertification order here at issue without reference to any matters which AFSCME raised before the ISLRB.

AFSCME notes it did file a position statement with respect to an earlier decertification petition involving the same bargaining unit as is involved in the present case, which petition was subsequently withdrawn. (County of Menard, Illinois State Labor Relations Board, case No. S — RD—88—14.) AFSCME maintains this previously filed position statement set forth the same arguments which AFSCME made in opposition to the second petition. AFSCME further points out the County made no objections with respect to AFSCME’s failure to provide it with a position statement until after the start of the hearing on the second decertification petition. AFSCME argues since the County did not demonstrate any prejudice flowing from its failure to receive a position statement regarding the second decertification petition and advances no reasons for regarding the position statement requirement as jurisdictional, AFSCME should not be deemed to have waived its right to a hearing on the decertification petition here at issue.

There are no indications AFSCME served the County with a position statement with respect to the second decertification petition prior to the start of the hearing on that petition. The fact AFSCME may have provided the County with a position statement with respect to a prior decertification petition did not relieve AFSCME of its obligation to provide the County with such a statement with regard to the present decertification petition, as there is no guarantee a party to a decertification proceeding will not take positions on the issues different from those which it assumed in a previous but related decertification proceeding.

However, section 1210.100(e) of the ISLRB’s regulations provides the ISLRB shall investigate decertification petitions. This duty is not limited to those with respect to which position statements are filed. Moreover, if reasonable cause exists to believe a question concerning representation exists, the ISLRB shall set the matter for hearing before a hearing officer. (80 Ill. Adm. Code § 1210.100(c) (1985) (now see 80 Ill. Adm. Code §1210.100(e) (Supp. Jan. 1, 1988)).) The ISLRB’s rules further provide the ISLRB will review the hearing officer’s recommendation upon request of a party or on its own motion. (80 Ill. Adm. Code §1210.100(h) (1985) (now see 80 Ill. Admin. Code §1210.100(k) (Supp. Jan. 1, 1988)).) Once again, the availability of this procedure is not limited to situations in which a position statement has been filed. Therefore, despite AFSCME’s failure to file a position statement, the ISLRB could at least consider AFSCME’s legal arguments directed to the hearing officer’s decision, and we may do the same on review.

Resolution of the principal issue in this case — whether the ISLRB properly refused to consider AFSCME’s allegations of the County’s refusal to bargain in good faith as a defense to the decertification petition — requires a brief discussion of the legal principles applicable to calculation of the period for which a union may remain the exclusive bargaining representative of a group of employees once it is so designated. Under the NLRA a labor union which is certified as the exclusive bargaining representative of a group of employees must generally be recognized by the employer for a “reasonable” period, ordinarily one year. An employer is obligated to engage in good-faith collective bargaining with the exclusive employee bargaining representative for the one-year period, even if during that period it becomes apparent the representative no longer enjoys the support of the majority of employees in the bargaining unit. The principal reasons for this rule are (1) unions should be given ample time to carry out their mandates to engage in collective bargaining and should not be under pressure to either agree to a contract within a very short time or lose their status as exclusive employee bargaining representative; (2) employers should not enjoy the advantage of knowing if they use dilatory tactics in collective bargaining, their employees may repudiate their collective-bargaining representative in a relatively brief period of time, thereby relieving the employer of its duty to engage in collective bargaining; (3) employees should not be permitted to repudiate their collective-bargaining agent at the last moment, after both sides have worked conscientiously toward a collective-bargaining agreement; and (4) in situations where unions are competing against each other, raiding and strife will be minimized if exclusive bargaining representatives are not subject to the hazard of short-term recall. (See 29 U.S.C. §§ 159(c)(3), (e)(2) (1982); Brooks v. NLRB (1954), 348 U.S. 96, 99 L. Ed. 125, 75 S. Ct. 176.) The one-year certification period is generally deemed to run from the date of a union’s certification as exclusive bargaining representative rather than from the date of the election in which it was selected as exclusive bargaining representative. Celanese Corp. of America (1951), 95 N.L.R.B. 664, 28 L.R.R.M. 1362.

The Illinois Public Labor Relations Act (IPLRA) recognizes the “certification year” rule by providing the ISLRB shall not conduct an election in any bargaining unit or subdivision thereof within which a valid election has been held in the preceding 12-month period. (Ill. Rev. Stat. 1987, ch. 48, par. 1609(e); i.e., a statutory bar, see 1 C. Morris, The Developing Labor Law 352-54 (2d ed. 1983).) In accordance with NLRB precedent on the certification-year bar (see Mar-Jac Poultry Co. (1962), 136 N.L.R.B. 785, 49 L.R.R.M. 1854; see also 1 C. Morris, The Developing Labor Law 354-55 (2d ed. 1983); NLRB v. Best Products Co. (9th Cir. 1985), 765 E2d 903, 119 L.R.R.M. 3265), the ISLRB has held unfair labor practices which deprive a union of its right to good-faith collective bargaining for a significant amount of time may require an extension of the certification year for a period of time equal to the time period for which the union was denied its right to good-faith collective bargaining. See, e.g., County of Vermilion, 3 Pub. Employee Rep. (Ill.) par. 2004, at VIII-25, case No. S — CA—308 (Illinois State Labor Relations Board, Nov. 25,1986).

AFSCME asserts the NLRB has never declined to adjudicate in a representation proceeding contentions a certified employee bargaining representative failed to receive the benefit of a full year of good-faith collective bargaining. AFSCME contends, to the contrary, the NLRB has in at least three representation cases determined whether a newly certified union has received the benefit of a full year of bargaining. AFSCME asserts in this case the ISLRB improperly held this question may only be considered in proceedings based on unfair labor practice charges.

AFSCME notes a recent amendment to the IPLRA made final orders in representation cases appealable. (Ill. Rev. Stat., 1988 Supp., ch. 48, par. 1609(i).) AFSCME argues this amendment obliterated the purported distinction between formal unfair labor practice charge proceedings and less formal representation proceedings.

AFSCME further argues requiring the filing of unfair labor practice charges in order to redress an alleged failure on the part of an employer to engage in good-faith bargaining would frustrate the IP-LRA’s purpose of promoting procedures designed to displace labor strife. AFSCME’s basis for this contention is that unfair labor practice proceedings can go on for several years. In the meantime, AFSCME argues, employee support for a union can dwindle as a result of there having been no improvements in wages or benefits during the period of the union’s representation of the employees, and the employer might therefore benefit as a result of its failure to bargain in good faith. Also, AFSCME points out the ISLRB did not advise it, prior to its decision in this case, of a rule requiring unions to assert all lack of good-faith bargaining allegations through the medium of unfair labor practice charges.

The County argues the ISLRB correctly ruled AFSCME could not assert alleged unfair labor practices as a defense to a decertification petition. According to the County, this holding was proper because representation proceedings should expedite elections and should not be lengthy adversarial proceedings which delay elections. The County states although AFSCME had ample opportunity to file unfair labor practice charges in this case and was advised by the ISLRB it could and should file unfair labor practice charges if it wanted to raise bad-faith bargaining issues, it did not do so. The County also argues the three cases on which AFSCME mainly relies in support of its position as to this issue are not on point, because those cases dealt solely with measurement of the period of good-faith bargaining which had elapsed in view of undisputed facts.

The ISLRB reiterates the arguments of the County pertaining to this issue. Additionally, the ISLRB asserts that at the hearing on the decertification petition, the pertinent inquiry was whether bargaining had commenced, as opposed to whether the bargaining had proceeded in good faith. The ISLRB maintains since the first formal bargaining session was held on April 9, 1987, the decertification petition was timely filed on April 14, 1988. Also, the ISLRB argues the statement in AFSCME’s June 10, 1987, letter to the ISLRB concerning alleged “surface bargaining” did not constitute an unfair labor practice charge. Finally, the ISLRB asserts AFSCME could have “blocked” (postponed) a representation election by filing, unfair labor practice charges against the County and then requesting the charges serve as a “block” to the representation proceeding.

In its reply brief, AFSCME contends the issue in this case is simply whether the County’s purported failure to bargain in good faith is an election or a certification bar, and no unfair labor practice issue is involved.

Under long-established policy, the NLRB does not adjudicate unfair labor practice charges in representation proceedings. (E.g., NLRB v. Lawrence Typographical Union No. 570 (10th Cir. 1967), 376 F.2d 643; Mistletoe Express Service of Texas, Inc. (1984), 268 N.L.R.B. 1245, 115 L.R.R.M. 1153; E.W. Coslett & Sons (1959), 122 N.L.R.B. 961, 964 n.7, 43 L.R.R.M. 1232.) None of the NLRB decisions upon which AFSCME mainly relies support a contrary principle.

The facts which formed the basis for the NLRB’s decision in Chicago Health & Tennis Clubs, Inc. (1980), 251 N.L.R.B. 140, 105 L.R.R.M. 1009, were undisputed. There, the employer offered to bargain subject to conditions which were nonmandatory subjects of bargaining. The NLRB held the union acted within its rights in rejecting the offer to bargain, and as a result of its properly rejecting that offer, the union did not enjoy the benefit of a full year of good-faith collective bargaining prior to the filing of a decertification petition.

In Gebhardt-Vogel Tanning Co. (1965), 154 N.L.R.B 913, 60 L.R.R.M. 1037, the employer did not contest the union’s allegation the union had not enjoyed the benefit of a full year of collective bargaining prior to the filing of a decertification petition. Instead, the employer contended (1) dismissal of the decertification petition on the ground the union had not enjoyed its right to a full year of collective bargaining would violate the employer’s due process rights and statutory rights under the NLRA, and (2) the evidence relied upon for dismissal of the decertification petition was incompetent and immaterial. The NLRB rejected these contentions and held the decertification petition was not timely filed, since the union had not enjoyed the benefit of a full year of collective bargaining.

In Southern Manufacturing Co. (1963), 144 N.L.R.B. 784, 54 L.R.R.M. 1118, the sole question was whether, as a result of various periods of bargaining before and after a temporary plant shutdown, the union enjoyed the benefit of the one year of collective bargaining to which it was entitled. The NLRB held, on the basis of apparently undisputed facts, the union had enjoyed the benefit of one foil year of bargaining prior to the filing of a petition requesting a representation election. In none of the above three cases was it necessary for the NLRB to adjudicate whether conduct on the part of the employer amounted to a failure to engage in good-faith collective bargaining or any other unfair labor practice.

Franks Brothers Co. v. NLRB (1944), 321 U.S. 702, 88 L. Ed. 1020, 64 S. Ct. 817, from which AFSCME quotes extensively in its opening brief, was an unfair labor practice case rather than a representation case. There, the Court upheld a court of appeals decision which granted enforcement of an NLRB order which required an employer to engage in collective bargaining with a union, even though the union had lost its majority status.

Under NLRB procedures, a party which feels it has been the victim of unfair labor practices may prevent the holding of a representation election until unfair labor practice charges which it files are adjudicated. Indeed, unless the charging party requests the NLRB to proceed, the NLRB will decline to direct an election while unfair labor practice charges which affect the unit involved in the representation proceeding are pending (1 C. Morris, The Developing Labor Law 357 (2d ed. 1983)), i.e., the “blocking charge” rule. The blocking charge rule will be applied even where the charging party requests the NLRB to proceed if issues raised by the charge are such that they require resolution in the context of unfair labor practice proceedings — even through settlement and a notice posting period-prior to a representation election. (1 C. Morris, The Developing Labor Law 202-03 (2d ed. Supp. IV (1988)).) Contrary to the contentions of AFSCME, the use of the blocking mechanism is not necessarily limited to alleged unfair labor practices which might tend to render the holding of a fair and free election impossible. Rather, the NLRB has specifically held the pendency of refusal to bargain unfair labor practice charges provides a basis for application of the blocking mechanism to a decertification proceeding. Big Three Industries, Inc. (1973), 201 N.L.R.B. 197, 82 L.R.R.M. 1454.

We conclude the ISLRB did not err in following the NLRB precedent applicable to situations of the type present in this case. The decisions of the ISLRB interpreting the legislation which it is charged with enforcing — the Illinois Public Relations Act — are entitled to deference on review. (Illinois Consolidated Telephone Co. v. Illinois Commerce Comm’n (1983), 95 Ill. 2d 142, 447 N.E.2d 295; Village of Wheeling v. Illinois State Labor Relations Board (1988), 170 Ill. App. 3d 934, 524 N.E.2d 958.) Although orders in representation proceedings are now appealable (Ill. Rev. Stat., 1988 Supp., ch. 48, par. 1609(i)), the ISLRB, in managing its case load, has the discretion to process representation questions separately from unfair labor practice charges. Parties who are the subject of unfair labor practice charges have a specific statutory right to file an answer to the charges. Moreover, an unfair labor practice charge does not lie based on alleged conduct which occurred more than six months prior to service upon the charged party of a copy of the charge. (Ill. Rev. Stat. 1987, ch. 48, par. 1611(a).) When an alleged unfair labor practice is asserted as a defense to a decertification petition, neither of these requirements is applicable. The legislature has specifically authorized the ISLRB to proceed in this manner with respect to alleged unfair labor practices which may have an impact on representation proceedings. (Ill. Rev. Stat. 1987, ch. 48, par. 1609(a)(2).) The ISLRB acted well within its discretion in adopting procedures designed to insure parties to representation proceedings are not found guilty of conduct amounting to unfair labor practices without being afforded the benefit of these statutory requirements.

Although this procedure adopted by the ISLRB may delay those representation proceedings where it is requested an unfair labor practice charge “block” the proceeding, we cannot say the desirability of speedy resolution of representation issues outweighs the ISLRB’s legitimate interest in separately adjudicating representation questions and unfair labor practice issues.

Turning to the specific facts of this case, the conduct which AFSCME asserted as a defense to the decertification petition — refusal to bargain in good faith with the employees’ exclusive representative — is by statute an unfair labor practice. (Ill. Rev. Stat. 1987, ch. 48, par. 1610(b)(4).) Moreover, the County denies it refused to bargain in good faith; thus, the ISLRB would have to adjudicate a question, whether an unfair labor practice occurred in the period following the ISLRB’s January 14, 1987, order, in order to determine whether the County’s alleged conduct is a defense to the decertification petition.

The fact AFSCME was not specifically advised of the need for filing unfair labor practice charges with respect to the County’s alleged failure to bargain in good faith does not require consideration of the alleged lack of good-faith bargaining on the part of the County in the present representation proceeding. As the ISLRB notes, AFSCME would have suffered no prejudice as a result of filing unfair labor practice charges with regard to this matter, but did not do so, even after the present decertification petition was filed. Furthermore, AFSCME was almost certainly aware the ISLRB has often followed NLRB precedent in interpreting the IPLRA. (See, e.g., McHenry County Sheriff, 3 Pub. Employee Rep. (Ill.) par. 2013, case No. S — RC—159 (Illinois State Labor Relations Board, Jan. 7, 1987); Township of Worth, 3 Pub. Employee Rep. (Ill.) par. 2019, case No. S — CA—143 (Illinois State Labor Relations Board, Feb. 26, 1987).) Not being able to obtain an adjudication of whether the County engaged in surface bargaining is entirely a problem of AFSCME’s own making.

Finally, AFSCME argues in failing to enforce its January 14, 1987, order requiring the County to engage in collective bargaining with AFSCME, the ISLRB violated section 11(f) of the IPLRA, which provides:

“Whenever it appears that any person has violated a final order of the Board issued pursuant to this Section, the Board must commence an action in the name of the People of the State of Illinois by petition, alleging the violation, attaching a copy of the order of the Board, and praying for the issuance of an order directing the person, his officers, agents, servants, successors, and assigns to comply with the order of the Board. The Board shall be represented in this action by the Attorney General in accordance with ‘An Act in regard to attorneys general and state’s attorneys’, approved March 26, 1874, as amended. The court may grant or refuse, in whole or in part, the relief sought, provided that the court may stay an order of the Board in accordance with the Administrative Review Law, pending disposition of the proceedings. The court may punish a violation of its order as in civil contempt.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 48, par. 1611(f).)

AFSCME notes by contrast, the relevant section of the National Labor Relations Act provides:

“The Board shall have power to petition any court of appeals of the United States *** wherein the unfair labor practice in question occurred or wherein such person resides or transacts business, for the enforcement of such order and for appropriate temporary relief or restraining order ***.” (Emphasis added.) (29 U.S.C. § 160(e), at 899 (1982).)

AFSCME argues because of this difference in the statutory language concerning the enforcement powers of the ISLRB and NLRB, and the absence of a provision in the IPLRA giving entities other than the ISLRB the right to seek enforcement of ISLRB orders, the ISLRB is obligated to seek enforcement of its orders upon being informed of violations of them. AFSCME contends the procedures utilized by the ISLRB in this case, particularly the holding AFSCME should have filed an unfair labor practice charge with respect to the County’s alleged failure to bargain in good faith, deprived AFSCME of its legal right to enforcement of the January 14, 1987, order and thus amounted to an unconstitutional denial of due process of law. AFSCME further maintains the ISLRB’s order in this case reduces its January 14, 1987, order to a superfluous nullity, for an order entered at the conclusion of an unfair labor practice proceeding, if favorable to AFSCME, would accord it the same right to good-faith bargaining as it was accorded by the January 14,1987, order.

The County argues AFSCME’s allegations that the County breached its duty of good-faith bargaining by engaging in “surface bargaining” could not have been addressed in a compliance proceeding based on the ISLRB’s January 14, 1987, order, since no bargaining had taken place before that order was issued, proceedings which resulted in issuance of that order did not involve allegations of a breach of the County’s duty to engage in good-faith bargaining. The County contends if AFSCME truly believed the ISLRB was obligated to seek enforcement of its January 14, 1987, order, it should have sought a mandamus order requiring the ISLRB to enforce that order. The County maintains since AFSCME did not seek a mandamus order, the issue of the ISLRB’s duty to enforce its January 14, 1987, order was not properly before the ISLRB and is not properly before this court.

The ISLRB reiterates most of the County’s arguments with respect to this issue. Additionally, the ISLRB contends the mere commencement of collective bargaining by the County amounted to compliance with the ISLRB’s January 14,1987, order.

In its reply brief, AFSCME asserts it did not seek a mandamus order against the ISLRB because it had no inkling the ISLRB would not honor its January 14,1987, order.

We agree if AFSCME desired to compel the ISLRB to enforce its January 14, 1987, order, it should have sought a mandamus order after it became apparent the ISLRB was not going to seek enforcement of its January 14, 1987, order with respect to the County’s alleged failure to bargain in good faith. Mandamus may be used to compel action on the part of a governmental body or official when the law imposes a duty on the official or governmental body to act in the manner requested. The purpose of a mandamus order is to compel the performance of a duty which one charged with that duty has failed to perform. (26 Ill. L. & Prac. Mandamus §2, at 6-7 (1956).) Thus, if the ISLRB had an absolute duty under subsection 11(f) of the IPLRA (Ill. Rev. Stat. 1985, ch. 48, par. 1611(f)) to seek enforcement of its January 14, 1987, order upon receiving an allegation the County was not complying with that order, AFSCME’s recourse for a violation of that duty was to seek a mandamus order. Since AFSCME does not appeal from a denial of a request for a mandamus order, we may not consider whether the ISLRB improperly failed to enforce its January 14, 1987, order.

AFSCME’s further argument, that procedures employed by the ISLRB in this case violated its constitutional right to due process of law, is without merit. AFSCME had two readily available avenues for adjudication of its allegation the County improperly engaged in “surface bargaining” — it could have requested a mandamus order requiring the ISLRB to enforce its January 14, 1987, order, or it could have filed unfair labor practice charges, or both. AFSCME did neither. AFSCME can hardly be heard to complain its failure to pursue either of two readily available remedies violated its right to due process of law.

The sole case on which AFSCME relies in support of its due process argument — Logan v. Zimmerman Brush Co. (1982), 455 U.S. 422, 71 L. Ed. 2d 265, 102 S. Ct. 1148 — is factually inapposite to the present case. In Logan, the Illinois Fair Employment Practices Commission did not convene a fact finding conference within 120 days of the filing of a discrimination complaint, as it was at the relevant time required by statute to do. The Supreme Court held the extinguishment of the complainant’s claim as a result of the failure of the Commission to hold a fact finding conference within 120 days of the filing of the complaint deprived the complainant of his claim in a random manner, in violation of his due process right to an opportunity for a meaningful hearing on his claim. In the present case, by contrast, AFSCME had ample opportunities for a meaningful hearing on its allegation the County did not engage in good-faith bargaining, but voluntarily chose to forego those opportunities.

For the foregoing reasons, the decision of the Illinois State Labor Relations Board is affirmed.

Affirmed.

McCULLOUGH, PM., and KNECHT, J., concur.


author: PRESIDING JUSTICE McCULLOUGH JUSTICE LUND,

text:
    TOBY KAHR et al., Plaintiffs-Appellees, v. KARON MARKLAND et al., Defendants-Appellants.
    Fourth District
    No. 4—88—0934
    Opinion filed August 24, 1989.
    LUND, J., specially concurring.
    Sorling, Northrop, Hanna, Cullen & Cochran, Ltd., of Springfield (Stephen R. Kaufmann, of counsel), for appellant Land of Lincoln Goodwill Industries, Inc.

      Zimmerly, Gadau, Selin & Otto, of Champaign, for appellant Karon Markland.
    Toby Kahr and Rita Kahr, both of Chapel Hill, North Carolina, appellees pro se.

   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of

the court:

This appeal concerns a replevin order entered against defendant Karon Markland (Markland), directing the return of sterling silver owned by the plaintiffs and sold to Markland by Land of Lincoln Goodwill Industries, Inc. (Goodwill). Markland and Goodwill contend the trial court erred in characterizing the silver as lost property when the evidence established that Toby Kahr entrusted the silver to Goodwill pursuant to section 2 — 403(3) of the Uniform Commercial Code-Sales (UCC) (Ill. Rev. Stat. 1987, ch. 26, par. 2-403(3)). Markland urges she received good title to the silver from Goodwill and is the true owner of the silver against the plaintiffs. We affirm.

This appeal concerns only the order entered for plaintiffs against Markland on count VI of their amended complaint against Goodwill and Markland filed on April 1, 1984, and amended on January 14, 1985. In count VI, plaintiffs alleged they were owners of 28 pieces of sterling silver of the “Joan of Arc” silver pattern manufactured by International Silver Company. The pieces were engraved with the letter “K.” On April 5, 1983, plaintiffs brought sacks of used clothing for donation to Goodwill in Champaign. Unknown to the plaintiffs, the sterling silver was included in the sacks given to Goodwill, along with a wallet containing plaintiffs’ credit cards. At the time the sacks were donated, plaintiffs informed Goodwill that plaintiffs’ donation was used clothing. Later, on the same day, Goodwill sold the sterling silver to Markland for $15. Plaintiffs alleged the sale of silver to Markland was without their consent and, therefore, Goodwill transferred void title to the silver to Markland. Plaintiffs further alleged the value of the silver was $3,791 and sought an order of replevin for the silver and damages for the wrongful detention of the silver by Markland.

On June 29, 1988, Markland filed a third motion for summary judgment on count VI, two previous motions having been denied. In support of her motion, Markland submitted the depositions of Toby Kahr, Judy Taylor, a Goodwill employee, and her own deposition. Prior to ruling on this motion, the cause was called for a bench trial on counts I through VI of the complaint on July 18, 1988. At that time, all parties agreed to a summary bench trial, at which testimony would be received and considered along with the depositions on file in support of the summary judgment motion.

At trial, Rita Kahr testified regarding how the silver was mistakenly included with the donation for Goodwill. She stated that the silver was put in bags to be put in her attic along with jewelry and credit cards when she and Toby went on vacation. After returning from vacation, the bags of valuables were put on the dining room table with sacks of clothes for Goodwill. When Toby took the bags of clothes to Goodwill, he mistakenly picked up the bags containing the silver. Approximately two hours after Toby returned from Goodwill, Rita asked where the silver was and then Rita and Toby realized it was taken to Goodwill. That same day, Toby called Goodwill and was told the pieces had been sold. Rita stated the silver was a wedding present 27 years previous from her father. Rita stated that no one told the Goodwill employees not to sell the silver but her husband did tell Goodwill the donation was clothing only. Toby’s testimony in court and in his deposition substantiated Rita’s statements. He also stated he knew the donation would be resold; however, he did not know the silver was in the bags with the clothing.

Judy Taylor, the Goodwill employee who received the plaintiffs’ donations in April 1983, testified that she priced the silver after it was discovered and knew it was a bit nicer than other silver received by Goodwill. Taylor stated she discovered the wallet among the clothing after Toby left the store and called someone at the plaintiffs’ home about the wallet. She did not mention the silver in the phone conversation because she had not yet discovered the silver. Taylor did not recall Toby stating the donation was clothing but remembered he did not want a receipt for the donation. According to Taylor, Toby became irate when he called concerning the items. Taylor stated she had no conversation with Markland regarding the silver. Taylor testified it was not uncommon for Goodwill to receive nice things in donations but she did not recognize the silver to be sterling.

Taylor testified in her deposition that Markland shopped at Goodwill almost everyday and on April 5 bought the silver within five minutes after it was received. Deborah Neese, director of operations for Goodwill, testified that Taylor had authority to price donations immediately and display them for resale.

Markland testified in her deposition that she worked for Goodwill for a short time in 1972 through 1973 as a sales clerk receiving donations. When she purchased the silver, Markland stated she knew it was not stainless steel but was uncertain whether the silver was sterling or silver plate. Markland stated she purchased the silver because of the monogram “K” on each piece and realized when she arrived at home that the silver was sterling. Markland stated she received a telephone call from Taylor and Neese asking her to return the silver but she refused.

The delivery of the bags to Goodwill, the call concerning the billfold, the sale of the silver, and Toby’s call to Goodwill concerning the silver all occurred April 5, 1983.

The trial court found that the silver was lost property and relied principally on Michael v. First Chicago Corp. (1985), 139 Ill. App. 3d 374, 487 N.E.2d 403, to support its conclusion that title to the hidden silver did not pass by sale to Markland. The trial court also noted that the discovery of the wallet put Goodwill on notice that the plaintiffs possibly did not intend to give the silver to Goodwill. Under section 2 — 403 of the UCC, the trial court concluded that Goodwill was a “purchaser” by gift of the clothing but not of the silver, given that a purchase under the UCC involves a voluntary transaction (Ill. Rev. Stat. 1987, ch. 26, par. 1 — 201(32)) and the transaction was not voluntary as to the silver because it was unknown it was in the bags. Since Goodwill had no title or void title to the silver, Markland received no title to the silver and plaintiffs are the owners entitled to possession of the silver.

Markland urges this cause is governed entirely by section 2 — 403 of the UCC. (Ill. Rev. Stat. 1987, ch. 26, par. 2 — 403.) Markland urges the plaintiffs “entrusted” the silver to Goodwill, whether intentionally or otherwise, and under sections 2 — 403(2) and (3), she acquired title to the silver from the plaintiffs. Therefore, Markland maintains the trial court’s emphasis on lost property is erroneous.

Goodwill urges the trial court’s reliance on Michael and Paset v. Old Orchard Bank & Trust Co. (1978), 62 Ill. App. 3d 534, 378 N.E.2d 1264, is misplaced. Goodwill also maintains that public policy requires this court to reverse the trial court and find Goodwill had good title to transfer to Markland. Goodwill states that an affirmance by this court in this case would place an unreasonable burden on Goodwill and seriously hamper its ability to provide a valuable community service. Goodwill also insists it was not “put on notice,” after the discovery of the plaintiff’s wallet, that plaintiffs did not intend to donate the silver.

Sections 2 — 403(2) and (3) of the UCC provide:

“(2) Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in ordinary course of business.
(3) ‘Entrusting’ includes any delivery and any acquiescence in retention of possession regardless of any condition expressed between the parties to the delivery or acquiescence and regardless of whether the procurement of the entrusting or the possessor’s disposition of the goods have been such as to be larcenous under the criminal law.” (Ill. Rev. Stat. 1987, ch. 26, pars. 2 — 403(2), (3).)

The UCC defines “delivery” as follows:

“ ‘Delivery’ with respect to instruments, documents of title, chattel paper or certificated securities means voluntary transfer of possession.” (Ill. Rev. Stat. 1987, ch. 26, par. 1— 201(14).)

The above definition does not extend to goods. However, the comments on subsection (3) of section 2 — 403, as adopted in Illinois, state:

“This subsection, in defining the term ‘entrusting’ as used in subsection (2), combines and extends the policy set forth in [Uniform Sales Act] § 25 and [Uniform Trust Recipients Act] § 9. It includes any voluntary transfer of possession by or with the consent of the entruster.” (Emphasis added.) Ill. Ann. Stat., ch. 26, par. 2 — 403(3), Illinois Code Comment, at 331 (Smith-Hurd 1963).

An entrustment requires four essential elements: (1) an actual entrustment of the goods by the delivery of possession of those goods to a merchant; (2) the party receiving the goods must be a merchant who deals in goods of that kind; (3) the merchant must sell the entrusted goods; and (4) the sale must be to a buyer in the ordinary course of business. (Dan Pilson Auto Center, Inc. v. DeMarco (1987), 156 Ill. App. 3d 617, 621, 509 N.E.2d 159, 162.) The record establishes there was no delivery or voluntary transfer of the sterling silver because plaintiffs were unaware of its place in the bags of clothes. Markland does not dispute this fact but dismisses it as immaterial.

Before the entrustment provisions of the UCC can be applied, a delivery is required. Plaintiff’s act of unknowingly leaving the sterling silver with Goodwill is not equivalent to a voluntary transfer. The term “voluntary” is defined as: “proceeding from the will or from one’s own choice or consent” and “done by design or intention.” (Webster’s Third New International Dictionary 2564 (1981).) We conclude the entrustment provisions of the UCC do not apply to this case.

We agree with the trial court that the silver was lost property. Property is lost when it is unintentionally separated from the dominion of its owner. (Paset, 62 Ill. App. 3d at 537, 378 N.E.2d at 1268; Michael, 139 Ill. App. 3d at 382, 487 N.E.2d at 409.) The general rule is that the finder is entitled to possession of lost property against everyone except the true owner. (Paset, 62 Ill. App. 3d at 537, 378 N.E.2d at 1268.) We find this case is similar to Michael. There, file cabinets were sold “as is” by First Chicago to a secondhand office supply dealer. Several drawers in the cabinets were locked. The dealer gave the cabinets to an individual at a parking lot sale. Some of the file cabinets were still locked. The buyer from the dealer gave one locked cabinet without any keys to the plaintiff, Michael. Six weeks later, the cabinet fell over, the drawers opened, and Michael found over 1,600 negotiable certificates of deposit payable to “bearer” worth over $6 million. Testimony at trial revealed First Chicago was unaware the certificates were in the file cabinet it sold to the dealer. The plaintiff argued the certificates were abandoned property and, therefore, he was entitled to possession. The trial court entered judgment for First Chicago, reasoning that the plaintiff had not proved the certificates were abandoned. The appellate court affirmed and noted that the evidence clearly established that First Chicago intended only to sell used furniture to the dealer. Moreover, the evidence failed to establish that First Chicago intended to permanently give up all rights to the certificates. Thus, possession belonged to First Chicago.

As in Michael, plaintiffs here intended to donate only clothes to Goodwill and testified that Goodwill was advised the donation was clothes. The Goodwill employee who received the donation testified she did not recall being advised of the contents of the donation. Plaintiffs’ testimony and prompt action remains unrebutted. We note a treatise on the UCC supports our conclusion:

“The Code does not alter the basic pre-Code concept that a possessor cannot pass title. Thus, in the absence of circumstances bringing the case within the scope of UCC §2 — 403, it follows that where the owner loses or is robbed of his property and the finder or thief, or anyone who has a temporary right to use it, attempts to sell or pledge it without consent, the owner may follow and reclaim it no matter in whose possession it may be found. That is to say, if the possession of the seller or pledgor is that of a bailee or a trespasser, the loss must fall on him whose act made the loss possible so as not to benefit the pledgee or vendee, for the latter stands in no better position than a person who innocently buys, leases, or acquires property that has been stolen.” 3 R. Anderson, Uniform Commercial Code, §2 — 403:26, at 584 (3d ed. 1983).

For the foregoing reasons, the order of the trial court is affirmed.

Affirmed.

GREEN, J., concurs.

JUSTICE LUND,

specially concurring:

This case appears to present an issue of first impression. I consider the issue to be narrow and limited to whether a charitable retailer can convey good title to an item mistakenly delivered to the charity by a charitable donor. It is my opinion that the facts presented in this case are different than in Michael v. First Chicago Corp. (1985), 139 Ill. App. 3d 374, 487 N.E.2d 403, because in this case, the silver was the sale item, while in Michael, the file cabinets, not the certificates, were the sale items.

Section 2 — 403 of the Uniform Commercial Code — Sales (UCC) was intended to “state a unified and simplified policy on good faith purchase of goods.” (Ill. Ann. Stat., ch. 26, par. 2 — 403, Uniform Commercial Code Comment, at 332 (Smith-Hurd 1963).) The comment following section 2 — 403 of the UCC, referring to subsection (2), states:

“This subsection extends protection to bona fide purchasers of goods who qualify as ‘buyers in the ordinary course of business’ from a ‘merchant who deals in goods of that kind.’ ” Ill. Ann. Stat., ch. 26, par. 2 — 403, Illinois Code Comment, at 331 (Smith-Hurd 1963).

A strong argument can be made that the description of “entrusting” under section 2 — 403(3) of the UCC would include the act of mistaken delivery. However, such an argument is not so compelling as to overcome the equitable interests of those having made the mistake. The absence of case law on this subject indicates the lack of substantial problems for the charitable retailers.

For the reasons stated, I concur in Presiding Justice McCullough’s opinion and find plaintiffs’ mistake did not equal an entrustment or a sale to Goodwill.


author: JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PHILLIP TODD FINKLEA, Defendant-Appellant.
    Fourth District
    No. 4—89—0025
    Opinion filed August 17, 1989.
    Daniel D. Yuhas and Jane Raley, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and LeRoy Walter Lemke, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Following a jury trial, the defendant was convicted of attempt (burglary) (Ill. Rev. Stat. 1987, ch. 38, par. 8 — 4) and sentenced to two years’ imprisonment. The only issue defendant raises on appeal is that his pretrial motion for a continuance was improperly denied by the trial court.

We affirm.

On August 29, 1988, an information was filed charging the defendant with the offense of attempt (burglary). On that date he was released on his own recognizance, a public defender was appointed pursuant to his request, and the cause was allotted for a preliminary hearing on September 9, 1988. On that later date, probable cause was found to believe that defendant committed the offense charged. The defendant was arraigned, and the case set for pretrial hearing on October 10, 1988, and for trial on October 17, 1988. A pretrial discovery order was entered on September 9, 1988, and the State filed its answer in open court.

On September 25, 1988, the defendant was arrested in Moultrie County on an unrelated charge and held in the Moultrie County jail. When the Macon County case was called for pretrial hearing on October 10, 1988, the defendant did not appear. His defense counsel, the same assistant public defender who represented him at the preliminary hearing, advised the court that he had had no contact with the defendant since the preliminary hearing.

On October 13, 1988, defense counsel was informed by the prosecutor that the defendant was incarcerated in Moultrie County. On October 14, 1988, at a pretrial hearing, defense counsel requested a continuance on the grounds that he had not conferred with his client. The motion was denied. Later that day, defense counsel went to the Moultrie County jail and spoke with the defendant over a phone for about 15 minutes.

On October 17, 1988, the case was called for trial and defense counsel again moved for a continuance on the ground that he was not prepared to go to trial. The motion was again denied. The case proceeded to trial, with two witnesses testifying for the State and the defendant testifying on his own behalf. The jury convicted the defendant of attempt (burglary).

In People v. Killings (1986), 150 Ill. App. 3d 900, 501 N.E.2d 1363, this court considered the propriety of the denial by the trial court of the defendant’s motion for a continuance and stated the following:

“[T]he decision to grant or deny a motion for continuance, by law, lies in the sound discretion of the trial court. (People v. Friedman (1980), 79 Ill. 2d 341, 347, 403 N.E.2d 229, citing Ill. Rev. Stat. 1973, ch. 38, par. 114 — 4(e).) The statute specifically enumerates circumstances which mandate the granting of a continuance and additionally requirefs] that diligence be shown on the part of the movant. (People v. Lott (1977), 66 Ill. 2d 290, 296, 362 N.E.2d 312, 314.) The granting of a continuance necessarily depends upon the facts and circumstances surrounding each request. People v. Clayborne (1977), 47 Ill. App. 3d 202, 361 N.E.2d 1141.

Upon review, a conviction will only be reversed when it appears that the refusal of additional time in some manner embarrassed the accused, impeded the preparation of his defense, or prejudiced his right[s], (People v. Clayborne (1977), 47 Ill. App. 3d 202, 361 N.E.2d 1141.) The burden is on the defendant to show prejudicial error by the trial court.

Where a continuance is requested to permit preparation of the case, all surrounding facts and circumstances must be evaluated. If the trial transcript indicates that the trial counsel competently represented the defendant by filing pretrial motions to suppress, cross-examining prosecution witnesses, interposing objections throughout the trial, and offering a closing argument, there is no abuse of discretion in denying a continuance. (People v. Hayes (1972), 52 Ill. 2d 170, 175, 287 N.E.2d 465, 467.)” Killings, 150 Ill. App. 3d at 905-06, 501 N.E.2d at 1367.

Defendant cites two reasons in support of his argument that the trial court did not exercise sound discretion in refusing to grant a continuance: (1) no other continuances had been requested, and (2) denial of the continuance embarrassed defendant in preparing his case.

The absence of any previous motions for a continuance is merely one of the “surrounding facts and circumstances” to be evaluated by the trial court as it considers the defendant’s request. It is a factor to be given whatever weight the court deems appropriate in the context of all other factors in the case. The defendant’s argument seems to suggest that simply because he had made no previous motion for a continuance, his request for a continuance should have been granted. We cannot accept that contention.

In reviewing the exercise of the court’s discretion in denying a motion for a continuance, the motion should be considered in the context in which it was presented to the trial court. Defense counsel’s affidavit in support of his motion to continue, filed October 17, 1988, essentially stated the following: (1) defense counsel had had no contact with his client since the preliminary hearing on September 8, 1988; (2) defense counsel did not know where his client was until October 13, 1988, when he was advised by the prosecutor that the defendant was in Moultrie County; (3) defense counsel had consulted with the defendant, who gave defense counsel certain information regarding statements purportedly made by the defendant; and (4) defense counsel filed a motion to suppress based upon this information. The affidavit was also filed in support of the defendant’s motion to file a late motion to suppress the purported statements of the defendant. The latter motion was granted, and the motion to suppress was heard and denied.

Nowhere in the affidavit supporting the motion to continue or in the motion to continue itself does defense counsel suggest in what manner his preparation of the defendant’s case might be embarrassed by a denial of the motion. At the hearing on the motion for a continuance, defense counsel merely made some vague references to investigating the possible use of an intoxication defense.

On December 7, 1988, a hearing was conducted on the defendant’s post-trial motion. At that hearing, defense counsel argued that his pretrial motion for a continuance should have been granted. He reviewed the matters which had been originally presented to the court in support of that motion, but again failed to specify in any way how the court’s denial embarrassed the accused or impeded the preparation of his defense.

The trial transcript demonstrates that the case on trial was rather simple and straightforward and that defense counsel competently represented the defendant by filing a pretrial motion to suppress, cross-examining the prosecution witnesses, interposing objections throughout the trial, and offering a closing argument. The uncomplicated nature of his case is a factor we emphasize because of its significance in our concluding that the trial court did not abuse its discretion.

For all the above reasons, we affirm the trial court.

Affirmed.

KNECHT and SPITZ, JJ., concur.