author:
JUSTICE STEIGMANN
      PRESIDING JUSTICE GREEN,

text:
    BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, Petitioner, v. THE ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents.
    Fourth District
    No. 4—91—0934
    Opinion filed September 30, 1992.

      GREEN, P.J., dissenting.
    R. Theodore Clark, Jr., Thomas J. Piskorski, and Lisa A. Lopatka, all of Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, for petitioner.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Susan Frederick Rhodes, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Educational Labor Relations Board.
    David J. Mathews, of Carmell, Charone, Widmer, Mathews & Moss, of Chicago, for other respondent.
   JUSTICE STEIGMANN

delivered the opinion of the court:

In March 1990, the International Union of Operating Engineers, Local 339 (Union), filed a petition with the Illinois Educational Labor Relations Board (Board) on behalf of the building service supervisors (BSSs) and building service foremen (foremen) employed in the Housing Division (Residential Services) (hereafter Housing Division) at the Champaign-Urbana campus of the University of Illinois (University). The petition sought to include BSSs and foremen within a bargaining unit of Housing Division employees represented by the Union. In August 1990, a hearing officer for the Board found that the BSSs and foremen were supervisors under section 2(g) of the Illinois Educational Labor Relations Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 1702(g)), and therefore were not eligible for union representation under the Act. (Board of Trustees of the University of Illinois, 6 Pub. Employee Rep. (Ill.) par. 1127, No. 90— RS — 0017—S (Illinois Educational Labor Relations Board, hearing officer’s recommended decision and order, Aug. 29, 1990) (hereinafter 6 Pub. Employee Rep. (Ill.) par. 1127).) In December 1990, the Board reversed that finding of the hearing officer and concluded that the employees in question were not supervisors under the Act. The Board remanded the case for the hearing officer to determine whether the BSSs held a sufficient community of interest with housing maintenance inspectors — who already formed an existing collective-bargaining unit — such that they could constitute a single collective-bargaining unit. (Board of Trustees of the University of Illinois, 7 Pub. Employee Rep. (Ill.) par. 1011, No. 90 — RS—0017—S (Illinois Educational Labor Relations Board, Dec. 17, 1990) (hereinafter 7 Pub. Employee Rep. (Ill.) par. 1011).) In April 1991, the hearing officer found that they did (Board of Trustees of the University of Illinois, 7 Pub. Employee Rep. (Ill.) par. 1047, No. 90— RS — 0017—S (Illinois Educational Labor Relations Board, hearing officer’s recommended decision and order, Apr. 3, 1991)), and in September 1991, the Board adopted that finding and ordered an election to determine union representation (University of Illinois (Board of Trustees), 7 Pub. Employee Rep. (Ill.) par. 1103, No. 90— RS — 0017—S (Illinois Educational Labor Relations Board, Sept. 13, 1991)). As a result of the ballot tally after the election, the union was certified on November 21, 1991, as the exclusive representative. The University appeals.

We reverse and remand for further proceedings.

I. Facts

Attached as an appendix to this opinion is an exhibit diagramming the hierarchy in the Housing Division as of October 1989. That exhibit reveals that an associate director supervises the entire Housing Division, which is then broken into eight departments, of which the Building Services Department (BSD) is not only the largest, but also comprises the majority of the entire Housing Division. A superintendent — who works just below the associate director-runs the BSD. Under the superintendent, seven BSSs supervise the seven zones in the BSD.

All but one of the seven BSSs supervise two foremen; the seventh BSS supervises one foreman. Although the University has considered the idea of hiring subforemen to help the foremen, no sub-foremen have yet been so employed. (The subforeman shown on the exhibit has since been promoted to foreman.) As of October 1989, 172 building service workers worked under the foremen — divided unevenly among the foremen, depending on the needs of each zone — and those workers provided the janitorial and maintenance services for the buildings. Thus, from top to bottom, the BSD hierarchy of the Housing Division was the following as of October 1989: 1 associate director, 1 superintendent, 7 BSSs, 13 foremen, and 172 building service workers.

The March 1990 Union petition sought to add the BSSs, the foremen, and the building service subforemen to a bargaining unit of employees currently represented by the Union. At that time, this bargaining unit was composed of seven housing maintenance inspectors employed by the University at its Champaign-Urbana campus. The seven housing maintenance inspectors work under one of the separate, smaller branches of the Housing Division. That branch is comprised of only one maintenance supervisor immediately under the associate director of housing and the seven maintenance inspectors immediately under the maintenance supervisor. The bargaining unit of housing maintenance workers was established before the Act was enacted in 1983.

Because the University did not consent to a union election in the present case, a Board hearing officer conducted a hearing on the Union’s petition. The hearing focused primarily on whether the duties and responsibilities of BSSs, foremen, and subforemen constituted “supervisory” functions such that those employees were not eligible for union representation. The University stipulated at the hearing that the building service subforemen were not supervisors.

The evidence at the hearing consisted of job descriptions provided by the University and testimony from some of the employees at issue regarding their duties and responsibilities. The job description that the University provides to its applicants for the BSS position described the duties and responsibilities of that position as follows:

“1. Supervise and help to administer an effective and efficient cleaning program for the Housing Division buildings.
2. Supervise 2 or more Building Service Foremen.
3. Oversee and direct the procedures for hiring Building Service Workers in the zone.
4. Participates [sic] in the selection of Foremen in the zone.
5. Implement necessary training from an established training program.
6. Process necessary discipline procedures for review at the next level.
7. Monitor the ordering, distribution, and care of supplies and equipment.
8. Effect an ongoing employee performance evaluation program.
9. Supervise the preparation of the budget for the zone.
10. Perform other related duties.”

This job description also lists the following as requirements for the job:

“1. Knowledge of Building Service materials, methods, and procedures.
2. High school graduation.
3. Supervisory abilities.
4. 3 years of janitorial supervisory experience.”

Willard Cox, a BSS, testified that he supervised maintenance at six University buildings. He supervised an overall staff of 50 building service workers during the school year and 34 during the summer. He spent less than 5% of his time actually doing the work of a building service worker and about 50% of his time out of the office evaluating the performance of building service workers. He spent a good deal of his office time discussing the performance of the workers with the foremen and documenting these evaluations. However, he acknowledged that the foremen hold the primary responsibility for directly supervising and assigning work to the building service workers and that the foremen then report to the BSS.

The University’s description of the duties of and requirements for a foremen read as follows:

“This position will be responsible to help administer a program that will insure that good quality custodial services are given to the [University] Housing Residence Hall area assignments ***.
The foreman will be required to help maintain an office and a supply and equipment room. The office duties will include the complete processing of time cards, filling out reports, writing letters, ordering supplies, issuing supplies, see that equipment is cared for, help make daily assignments, establish work priorities, assist his/her supervisor in making out annual budget, help promote and conduct a safety awareness program, assist in preparing assignment guides, deliver pay checks, inspect assignments for work needed and work completed, and conduct employee training sessions.
KNOWLEDGE REQUIRED FOR THE JOB
1. Knowledge of building services material, methods, and procedures.
2. Supervisory ability.
3. Grade school graduation.
4. Three years janitorial experience.
5. Must be able to speak before a large group and conduct training sessions.
Additional desirable qualifications:
1. High school graduation.
2. Supervisory experience.”

Billy Mitchell, a foreman, testified that he spent 70% of his time “walking around looking at the jobs the employees are doing, checking to see if anything is done or needs to be done.” He explained that this meant he spent about 65% of his time evaluating the work of building service workers and about 5% of his time actually doing that work himself. He spent an additional 5% to 10% of his time discussing the performance of the building service workers with the BSS. The remaining 20% to 25% of his time he spent doing bookkeeping, filling out formal evaluations of probationary and certified (nonprobationary) employees, and creating schedules for the building service workers that direct them on what they should do during their eight-hour shifts. He also helped the BSS prepare annual formal evaluations of the workers under him. He continually and informally evaluated the performance of the building service workers.

Kip Mecum, a superintendent who oversees the work of the BSSs, testified that when the foremen actually do the work of the building service workers, they do so mostly to demonstrate to the workers how the work should be done. He further explained that approximately 80 to 85 of the workers in 1990 were probationary employees. Although the foremen and BSSs prepare formal evaluations of certified (nonprobationary) employees only once a year, they prepare formal evaluations of probationary employees every month. These formal evaluations take approximately 15% of each foreman’s time. Mecum also testified that foremen should spend about 30% of their time evaluating the performance of building service workers, 10% training them, 10% discussing their work performance with the BSSs, 5% resolving informal grievances, and 5% to 10% assigning work.

Additionally, the evidence showed that the BSSs and foremen do not have the unilateral power to fire employees. They can recommend that such action be taken, although none has found it necessary to do so. Both the foremen and the BSSs participate in hiring workers, with the foremen conducting individual interviews with all potential workers. The BSSs also approve vacation time, although they do not set pay levels. Both Cox and Mitchell testified that they seldom needed to discipline their workers, but that they both held the authority and responsibility to do so when necessary.

The hearing officer found that the BSSs and foremen spent a preponderance of their time performing supervisory functions that require independent judgment and that they therefore fell within the definition of “supervisor” in section 2(g) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 1702(g)). (6 Pub. Employee Rep. (Ill.) par. 1127, at IX-455.) The hearing officer therefore recommended that the Board deny the petition. (6 Pub. Employee Rep. (Ill.) par. 1127, at IX-456.) However, the Board reversed this finding and held that, even though the BSSs and foremen spent “65 percent of their time ‘evaluating’ employees, this function is largely one of ‘assigning and directing’ work, and not of ‘supervising’ work.” (7 Pub. Employee Rep. (Ill.) par. 1011, at IX-61.) In so holding, the Board followed its earlier decision in Southern Illinois University Board of Trustees, 4 Pub. Employee Rep. (Ill.) par. 1030, at IX-122, No. 86 — RC—0018— S (Illinois Educational Labor Relations Board, Nov. 17, 1987) (hereinafter 4 Pub. Employee Rep. (Ill.) par. 1030), which held that “assigning” and “directing” did not constitute “supervisory” work. 7 Pub. Employee Rep. (Ill.) par. 1011, at IX-60 through IX-61.

II. The Definition Of “Supervisor” Under The Act

This case raises the issue of whether certain employees in the University’s Housing Division can elect union representation under the Act. Section 3 of the Act grants “educational employees” the right to organize for purposes of collective bargaining. (Ill. Rev. Stat. 1989, ch. 48, par. 1703.) Section 2(b) of the Act defines “[e]ducational employee” as follows:

“[A]ny individual, excluding supervisors, managerial, confidential, [and] short term employees, *** employed full or part time by an educational employer ***.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 48, par. 1702(b).)

In the present case, even though the BSSs and foremen could arguably be managerial employees, the parties have focused solely on whether they are “supervisors.”

Section 2(g) of the Act defines “supervisors” as follows:

“ ‘Supervisor’ means any individual having authority in the interests of the employer to hire, transfer, suspend, lay off, recall, promote, discharge, reward or discipline other employees within the appropriate bargaining unit and adjust their grievances, or to effectively recommend such action if the exercise of such authority is not of a merely routine or clerical nature but requires the use of independent judgment. • The term ‘supervisor’ includes only those individuals who devote a preponderance of their employment time to such exercising authority.” (Ill. Rev. Stat. 1989, ch. 48, par. 1702(g).)

This court has previously broken this definition down into three components: (1) the employee must have the authority to perform some of the functions of supervisors or to effectively recommend such action; (2) those functions must require the use of independent judgment and not be merely clerical or routine in nature; and (3) the employee must spend a preponderance of his or her time exercising these functions. Chicago Principals Association, Local 2 v. Illinois Educational Labor Relations Board (1989), 187 Ill. App. 3d 64, 67, 543 N.E.2d 166,168.

The present case focuses on the first of these components and raises a question of statutory interpretation: Does one who “assigns and directs” the work of others come within the section 2(g) definition of “[supervisor”? We hold that the answer is yes.

In Southern Illinois University, the Board held that the employee at issue did not constitute a supervisor because “[m]ost of [that employee’s] time — usually five to six hours per day — is spent estimating projects and ordering supplies.” However, that employee also spent some of his time on the job “assigning” and “directing” certain lower employees. Addressing these duties, the Board stated that “assigning” and “directing” work does not constitute supervisory work under section 2(g) of the Act because the legislature conspicuously omitted these terms from the definition in section 2(g) of the Act. 4 Pub. Employee Rep. (Ill.) par. 1030, at IX-122.

As it did in Southern Illinois University, the Board points out (in support of its “conspicuous absence” argument) that the definitions of the term “supervisor” in other significant labor laws do contain the terms “assign” and “direct.” Citing the Federal Act, Labor-Management and Employee Relations (5 U.S.C. §§7101 through 7135 (1988)), pertaining to employees of the Federal government; the Labor Management Relations Act, 1947 (also referred to as the National Labor Relations Act) (29 U.S.C. §§141 through 169 (1988)); and the Illinois Public Labor Relations Act (PLRA) (Ill. Rev. Stat. 1989, ch. 48, pars. 1601 through 1627) — all of which the Board asserts contain “assigning and directing” in the definition of “supervisor” — the Board argues that the conspicuous absence of these terms in section 2(g) of the Act indicates that the legislature intended that these functions not be included within the section 2(g) definition of “[s]upervisor.”

However, the definition of “[supervisor” in the sole Illinois statute the Board cites, the PLRA, does not contain the word “assign,” although it does contain the word “direct.” (See Ill. Rev. Stat. 1989, ch. 48, par. 1603(r).) Moreover, the definition of “[supervisor” in the PLRA is far more extensive and looks nothing like the definition in the Act (quoted above), thereby diminishing any argument that a comparison of the two somehow reveals legislative intent.

The definition of “[supervisor” from section 3(r) of the PLRA reads as follows:

“(r) ‘Supervisor’ is an employee whose principal work is substantially different from that of his subordinates and who has authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, direct, reward, or discipline employees, or to adjust their grievances, or to effectively recommend such action, if the exercise of such authority is not of a merely routine or clerical nature, but requires the consistent use of independent judgment. Except with respect to police employment, the term ‘supervisor’ includes only those individuals who devote a preponderance of their employment time to exercising such authority State supervisors notwithstanding. In addition, in determining supervisory status in police employment, rank shall not be determinative. The Board shall consider, as evidence of bargaining unit inclusion or exclusion, the common law enforcement policies and relationships between police officer ranks and certification under applicable civil service law, ordinances, personnel codes or Division 2.1 of Article 10 of the Illinois Municipal Code, as amended from time to time, but these factors shall not be the sole or predominant factors considered by the Board in determining police supervisory status.
Notwithstanding the provisions of the above paragraph, in determining supervisory status in fire fighter employment, no fire fighter shall be excluded as a supervisor who has established representation rights under Section 9 of this Act. Further, in new fire fighter units, employees shall consist of fire fighters of the rank of company officer and below; provided, if a company officer otherwise qualifies as a supervisor pursuant to the above paragraph, he or she shall not be included in the fire fighter unit; provided further, if there is no rank between that of chief and the highest company officer, the employer may designate a position on each shift as a Shift Commander and the persons occupying such positions shall be supervisors. All other ranks above that of company officer shall be supervisors.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 48, par. 1603(r).

These definitions contain obvious differences beyond the mere presence of the word “direct” in section 3(r) of the PLRA definition and the absence of that word in section 2(g) (the Act’s definition). Under the Board’s “conspicuous absence” argument, an educational employee apparently cannot be a supervisor if that employee has a job “whose principal work is substantially different from that of his subordinates” (Ill. Rev. Stat. 1989, ch. 48, par. 1603(r)) because that language appears only in section 3(r) of the PLRA definition of “[sjupervisor,” and is “conspicuously absent” from section 2(g) (the Act’s definition of “[sjupervisor”). Further, certain State universities have fire and police departments of their own. Under the Board’s “conspicuous absence” argument, however, the Board cannot consider any of the factors set forth in section 3(r) of the PLRA’s definition of “[sjupervisor” regarding fire and police department employees because none of those factors appears in section 2(g) of the Act’s definition of “[sjupervisor.”

We further note that in section 3(r) of the PLRA’s definition of “[sjupervisor,” the legislature spoke of those employees whose “exercise of *** authority is not of a merely routine or clerical nature, but requires the consistent use of independent judgment.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 48, par. 1603(r).) Yet in section 2(g) of the Act’s definition of “[sjupervisor,” the legislature omitted the word “consistent” in its otherwise identical (except for a comma) reference to employees whose “exercise of *** authority is not of a merely routine or clerical nature but requires the use of independent judgment.” (Ill. Rev. Stat. 1989, ch. 48, par. 1702(g).) We refuse to impart any deep meaning or significance to that omission, concluding instead that the legislature intended these definitions to be essentially the same and, more particularly, did not intend that omission to provide the basis of any distinction between these definitions. Similarly, we find the absence of the word “direct” from section 2(g) of the Act to fall far short of the significance the Board attaches to that absence in its “conspicuous absence” argument.

If the legislature truly intended any significant difference between the definition of “[sjupervisor” in the PLRA and in the Act, then it would not have indicated its preference by merely failing to include certain language in one that appears in the other. The General Assembly knows how to use phrases such as “but shall not include” or “shall be limited to.” Instead, we attribute the difference between the statutes to mere inadvertence. We therefore reject any argument that “assigning” and “directing” under the Act do not constitute supervisory functions merely because the term “direct” appears in the PLRA but does not appear in the Act.

We still must decide whether “assigning and directing” the work of subordinate employees falls within the definition in section 2(g) of the Act. We recognize that the legislature may, and often does, narrow the definition of a commonly used term to a meaning other than its ordinary one. “When a legislature defines the language it uses, its definition is binding upon the court even though the definition does not coincide with the ordinary meaning of the words.” 1A N. Singer, Sutherland on Statutes & Statutory Construction §20.08, at 88 (Sands 4th ed. 1986).

However, even under the narrow definition of “[supervisor” in section 2(g) of the Act, “assigning” and “directing” and “evaluating” constitute supervisory work. Supervisors must assign, direct, and later evaluate work in order to decide whether to hire, transfer, suspend, lay off, recall, promote, discharge, reward, or discipline employees. In Chicago Principals, we recognized that a supervisor need not spend all of his time actually hiring, firing, and disciplining employees in order to meet the statutory definition in section 2(g) of the Act. Chicago Principals, 187 Ill. App. 3d at 69, 543 N.E.2d at 169.

Indeed, even the Board in Southern Illinois University has indicated that certain duties not enumerated in section 2(g) of the Act “may be considered in determining whether an individual is a supervisor.” (4 Pub. Employee Rep. (Ill.) par. 1030, at IX-122.)

“These duties include checking and approving work, enforcing safety rules, maintaining order, effectively recommending that overtime is necessary, excusing [employees] from work, arranging vacation schedules, appointing and overseeing the temporary foremen, discussing work scheduling and personnel problems at meetings *** and meeting with the [employees] to instruct them or to discuss problems that have arisen.” (4 Pub. Employee Rep. (Ill.) par. 1030, at IX-122.)

None of these duties is explicitly included in section 2(g) of the Act, and none bears as strong a relation to the enumerated duties in section 2(g) of the Act as do “assigning” and “directing.”

In essence, we agree with the Board that section 2(g) of the Act has to be read more broadly than its literal terms when deciding whether an employee is a supervisor. Our only disagreement with the Board arises from its excluding the terms “assign” and “direct” from its expansive reading of that section. The Board concluded that those terms had to be excluded from section 2(g) of the Act because of its “conspicuous absence” analysis that we earlier discussed and rejected. Indeed, but for that analysis, we doubt that the Board would have excluded those terms from its interpretation of that section because, in common parlance, “assigning” and “directing” work are typically the hallmarks of a supervisor’s functions.

Judicial review of administrative agency action extends to all questions of law and fact in the record. (City of Freeport v. Illinois State Labor Relations Board (1990), 135 Ill. 2d 499, 507, 554 N.E.2d 155, 159.) A reviewing court may reverse an administrative agency’s finding of fact only if it is against the manifest weight of the evidence. (City of Freeport, 135 Ill. 2d at 507, 554 N.E.2d at 159.) However, “[wjhere the question involved is one of law, such as the proper interpretation of a statute, the Board’s finding is not binding on the [reviewing] court.” (City of Freeport, 135 Ill. 2d at 507, 554 N.E.2d at 159-60.) We are aware that, “[a]s a general rule, courts will accord deference to the interpretation placed on a statute by the agency charged with its administration.” (City of Decatur v. American Federation of State, County, & Municipal Employees, Local 268 (1988), 122 Ill. 2d 353, 361, 522 N.E.2d 1219, 1222.) Underlying that general rule is a judicial acknowledgement of the expertise possessed by administrative agencies regarding the often arcane and highly technical issues with which those agencies routinely deal. However, we believe our decision in this case is in accordance with the “general rule” of City of Decatur. Our disagreement with the Board arises from a statutory construction by the Board that does not involve any arcane or highly technical issues; instead, the issue here is one of fairly routine statutory construction.

In this case, the Board construed section 2(g) of the Act as not including “assigning” and “directing” work. For the reasons stated, we disagree with that decision and reverse the Board’s order. We remand this case to the Board so that it can consider anew whether the BSSs and foremen constitute supervisors under section 2(g) of the Act, as this court has now construed it.

Reversed and remanded with directions.

McCullough, J., concurs.

PRESIDING JUSTICE GREEN,

dissenting:

Neither (1) the existence of the verbs “assign” or “direct” in most labor legislation defining the term “supervisor,” (2) the existence of those verbs in all commonly used definitions of who are supervisors, (3) any possible definition of the duties of supervisors set forth by the Board in Southern Illinois University which is broader than that used by the Board here, nor (4) any combination of those factors, justifies the conclusion of the majority that the failure of the legislature to include those verbs in the definition of “[sjupervi-sor” in section 2(g) of the Act was merely oversight.

Both the Board and this court struggled with the narrow definition of section 2(g) of the Act in Chicago Principals. There, the Board recognized that while performing other functions, the principals were simultaneously evaluating teachers and making independent determinations in that respect. Thus, the principals were performing supervisory functions within the definition of section 2(g) of the Act. We agreed with the legal interpretation of the Board. Neither the Board nor this court attempted to incorporate activities of assignment or direction within the definition of “supervisor.”

“Where the intention of the legislature is clearly expressed, the plain meaning of the statute must be given effect.” (Finley v. Finley (1980), 81 Ill. 2d 317, 326, 410 N.E.2d 12, 16.) The majority correctly points out that a legislative body can, with binding force, narrow the definition of a term such as “supervisor” from its commonly used scope. (1A N. Singer, Sutherland on Statutes & Statutory Construction §20.08, at 88 (Sands 4th ed. 1986).) The Act differs from the PLRA in various respects. For instance, while section 8 of the PLRA expressly provides for proceedings to enforce, stay, or vacate arbitrator awards in the circuit court (Ill. Rev. Stat. 1991, ch. 48, par. 1608), the absence of such a provision in the Act was deemed to deny such proceedings to employers and employees. (Board of Education of Community School District No. 1 v. Compton (1988), 123 Ill. 2d 216, 222, 526 N.E.2d 149, 152.) I cannot agree that comparison of the two Acts indicates a similar interpretation should be given to each.

“The legislature has the power to define the terms, within a statute, in any reasonable manner.” (Commonwealth Edison Co. v. Property Tax Appeal Board (1984), 102 Ill. 2d 443, 457, 468 N.E.2d 948, 953.) A reason for its defining the word “[supervisor” here differently in the Act than in PLRA could well have been that under the Act, the majority of employees covered would be professional academics and the concept of providing them with supervision would be different than under PLRA where that was not the case with most of the employees who would require direction.

In any event, as the majority points out, some deference should be given to the Board’s interpretation of the Act, which it was created to enforce. (City of Decatur, 122 Ill. 2d at 361, 522 N.E.2d at 1222.) Understanding who might be considered supervisors or foremen of educational employees is not limited to labor experts in that field. However, the question of the functions to be performed by those considered not to be “employees” for the purpose of entitlement to participate in collective bargaining is a reasonably technical issue. We should ordinarily follow the interpretation of the Board on such a question when it conforms to the plain wording of a statute.

I dissent from the decision to reverse the Board’s order and remand for further consideration of the status of the BSSs and foremen. I would uphold the Board determination that those individuals are not supervisors under section 2(g) of the Act and then proceed to consider the propriety of the Board’s determination that the BSSs and foremen held a sufficient community of interest with housing maintenance inspection that they can constitute a single collective-bargaining unit.


source: Caselaw Access Project

author: PRESIDING JUSTICE GREEN

license: Public Domain

text:
    BOARD OF EDUCATION OF THORNTON TOWNSHIP HIGH SCHOOL DISTRICT No. 205, Petitioner, v. THE ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents.
    Fourth District
    No. 4—92—0500
    Opinion filed September 30, 1992.

      Anthony G. Scariano, David P. Kula, and Robert H. Ellch, all of Scariano, Kula, Ellch & Himes, Chartered, of Chicago Heights, for petitioner.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Jerald S. Post, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Educational Labor Relations Board.
    Stephen G. Katz, of Katz, Friedman, Schur & Eagle, of Chicago, for respondent Union of Support Staff, IEA-NEA.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

This case concerns operation of regulations of respondent Illinois Educational Labor Relations Board (IELRB), which require that a respondent to a complaint charging an unfair labor practice must file an answer within 15 days of being served with the complaint and that failure to do so shall, upon motion of a party “be deemed an admission of all allegations in the complaint” (80 Ill. Adm. Code §1120.30(d)(3), at 387 (1991)). See 80 Ill. Adm. Code §1120.30(d)(2) (1991).

The foregoing regulation further states:

“When a party has failed to file a timely answer, leave to file a late answer may be granted by the Hearing Officer for good cause shown. If good cause is shown, the answer shall be deemed timely. Good cause will include: a written statement by the party of: ultimate facts showing a meritorious defense to the complaint; and either a reasonable excuse explaining the party’s failure to file a timely answer, or that the party was prevented from filing a timely answer by: fraud, act or concealment of the opposing party; accident; excusable mistake; or lack of notice, lack of jurisdiction or other grounds traditionally relied upon for equitable relief from judgments.” (Emphasis added.) 80 Ill. Adm. Code §1120.30(d)(4), at 387 (1991).

The case on administrative review presents a situation where a lawyer for petitioner Board of Education of Thornton Township High School District No. 205 (District), while under great personal pressure, failed to file a timely answer to an unfair labor practice complaint. Although the evidence does not indicate the opposing party suffered any damage because of the delay in answering, we uphold an IELRB decision taking the allegations of unfair labor practice as admitted.

Petitioner brought this proceeding for direct administrative review of the decision of respondent IELRB which determined that the District was deemed to have admitted the allegations of a complaint for unfair labor practices filed against it by failing to timely file an answer to that complaint. The District contends the IELRB erroneously and unreasonably interpreted its foregoing procedural rule in determining the District lacked “good cause” for allowing the late filing of its answer to the complaint. We affirm.

On April 26, 1991, the instant unfair labor practice charge was filed by respondent Union of Support Staff, IEA-NEA (Union), alleging the District had renounced and rescinded a successor collective-bargaining agreement. After usual investigation procedures by IELRB, a complaint issued, and a copy of the complaint and a notice of setting of hearing was served on the District on August 15, 1991. Hearing on the complaint was set for September 30 and October 31, 1991. Upon the District’s motion and agreement of the parties, the hearing was continued until November 13 and 14, 1991. According to an undisputed affidavit of District’s counsel, he first discovered no answer had been filed on October 31, 1991, when preparing for the hearing with District officials. He allegedly checked with the assigned hearing officer, who confirmed that no answer had been filed. According to the affidavit, counsel then prepared and sent in an answer on November 1, 1991, but at the same time counsel for the Union filed a motion for a determination that all allegations of the complaint be taken as admitted.

The hearing officer then entered a rule on the District to show cause why the complaint should not be taken as admitted. In response, the District filed an affidavit setting forth that the lead attorney for the case had been under great pressure because of a heavy load of educational labor relations matters and a very tragic family situation and had forgotten to answer. As answer by the District was due by Friday, August 30, 1991, and was not tendered until November 1,1991, the answer was 63 days late.

On February 29, 1992, the hearing officer issued a recommended decision and order granting the Union’s motion for default, denying the District’s request to file a late answer based on a lack of good cause, and deeming the allegations of the complaint admitted by the District. Thornton Township High School District No. 205, 8 Pub. Employee Rep. (Ill.) par. 1024, No. 91 — CA—0055—C (Illinois Educational Labor Relations Board, hearing officer’s recommended decision and order, Jan. 29, 1992).

The District filed exceptions to the order, and on May 22, 1992, the IELRB adopted the hearing officer’s recommended decision and order noting that the District’s attorney had previously practiced before the Board and concluding the District did not have good cause to file the late answer. As IELRB deemed the foregoing reason sufficient to decide the issue of whether the complaint was to be taken as admitted, it did not decide whether the District had sufficiently set forth a meritorious defense to the charges. Thornton Township High School District No. 205, 8 Pub. Employee Rep. (Ill.) par. 1052, No. 91 — CA—0055—C (Illinois Educational Labor Relations Board, May 26, 1992).

The portion of the aforementioned IELRB regulation permitting filing of a tardy answer upon showing “good cause” (80 Ill. Adm. Code §1120.30(a)(4), at 387 (1991)) is of comparatively recent origin. Prior to its enactment, this court decided Mattoon Community Unit School District No. 2 v. Illinois Educational Labor Relations Board (1990), 193 Ill. App. 3d 875, 550 N.E.2d 610, upholding an IELRB order which took the allegations of an unfair labor practice complaint as admitted because of a tardy answer. There, the school district maintained its answer was delayed because its attorney had obtained some faulty advice from an IELRB hearing officer and had filed a motion to defer the issue to arbitration in lieu of an answer. This court recognized that some circumstances might excuse a timely answer but held the circumstances there fell far short of an excuse. This court emphasized the public policy of speedy resolution of educational labor relations disputes.

The orders of the IELRB and its hearing officer here confirmed the prior IELRB interpretation of the new “good cause” provision of its regulations in City Colleges of Chicago No. 508, 7 Pub. Employee Rep. (Ill.) par. 1018, No. 91 — CA—0005—C (Illinois Educational Labor Relations Board, hearing officer’s recommended decision and order, Dec. 31, 1990) (hereinafter 7 Pub. Employee Rep. (Ill.) par. 1018), adopted in 7 Pub. Employee Rep. (Ill.) par. 1055, No. 91 — CA—0005— C (Illinois Educational Labor Relations Board, Apr. 17, 1991). The respondent there argued that failure to file a timely answer resulted from anticipation that the case would settle as well as “oversight” caused by its counsel’s busy schedule. (7 Pub. Employee Rep. (Ill.) par. 1018, at IX-84.) The respondent there also claimed that a delayed hearing would not prejudice the other party and that the proffered reasons constituted “reasonable excuse” to allow the filing of a late answer.

The heart of the City Colleges decision, followed by IELRB here, was that the “good cause” standard of the new regulation was intended to be the standard by which a circuit court would set aside a judgment rendered more than 30 days but not more than two years earlier under section 2 — 1401 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1401) and its precursor, section 72 of the Civil Practice Act (CPA) (Ill. Rev. Stat. 1981, ch. 110, par. 72).

In support of its interpretation of its regulation incorporating the standard of section 2 — 1401 of the Code and its precursor, IELRB notes that the phrase “reasonable excuse” appearing in its regulation is also contained in the language of cases passing upon the operation of the above Code and CPA provisions.

“To vacate a valid judgment after 30 days from its entry under [section] 72 of the Civil Practice Act defendants must show reasonable excuse for failure to defend within the appropriate time or that they were prevented from so doing by the fraud, act or concealment of the opposing party, accident, excusable mistake or one or more of the grounds traditionally relied upon for equitable relief from judgments. The defendants must also state ultimate facts showing a meritorious defense. This section cannot be used to avoid the consequence of a defendant’s negligence.” (Emphasis added.) (Stoller v. Holdren (1964), 47 Ill. App. 2d 81, 82-83, 197 N.E.2d 492, 493.)

The supreme court also has stated that the requirements of section 2 — 1401 of the Code include a “meritorious defense” and submission of a “reasonable excuse” demonstrating due diligence. Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 221-22, 499 N.E.2d 1381, 1386.

The District argues that the IELRB imposed an overly narrow interpretation of its regulation by applying the standard for interpreting section 2 — 1401 of the Code and that cases interpreting the more lenient provisions of section 2 — 1301(e) of the Code (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1301(e)), pertaining to motions to vacate filed within 30 days of the entry of judgment, “provide a more apt analogue for interpreting section 1120.30(d)(4)” of title 80 of the Illinois Administrative Code. The District points out that under section 2— 1301(e) of the Code, “good cause” is a requirement for vacating a default judgment. See Baltz v. McCormack (1978), 66 Ill. App. 3d 76, 78, 383 N.E.2d 643, 644; Ill. Ann. Stat., ch. 110, par. 2 — 1301(e), Historical and Practice Notes, at 400 (Smith-Hurd 1983).

As section 2 — 1301 of the Code concerns requests to set aside default judgments entered within the previous 30 days, it is, to that extent, more analogous to the situation where, as here, relief is sought by a party at the time the complaint against it is taken as admitted. However, the IELRB is interpreting a regulation which it enacted pursuant to its statutory rule-making power, and we must give some deference to it unless it is arbitrary or unreasonable. (People ex rel. Margolis v. Robb (1992), 225 Ill. App. 3d 843, 847, 587 N.E.2d 630, 633.) We also consider the policy of speedy determination of labor disputes of the nature here. (Mattoon, 193 Ill. App. 3d at 884, 550 N.E.2d at 616.) Clearly, the IELRB is not being arbitrary or unreasonable in its interpretation of its regulation by adopting the section 2 — 1401 standard.

The IELRB admits that the standard of section 2 — 1401 of the Code which it has adopted is stricter than that imposed under similar circumstances by the National Labor Relations Board (NLRB) under the Labor Management Relations Act, 1947 (29 U.S.C. §141 et seq. (1988)), also known as the National Labor Relations Act. We, nevertheless, give deference to the IELRB’s interpretation of its own regulations, particularly in view of the stated need for speed in resolving disputes in educational labor matters.

The major thrust of the District’s argument is that even under section 2 — 1401 standards, it should have been given some relief. Certainly, the lead attorney for the District is entitled to sympathy for the great stress he was under. However, as we will explain, cases decided under section 2 — 1401 of the Code do not hold such misfortune sufficient to grant section 2 — 1401 relief. Multilawyer firms are expected to have a backup system designed to avoid missed filing deadlines. We also recognize that, here, the tardiness of the District’s answer was not shown to have prejudiced the Union. Rather, the case seems to have proceeded as it would if an answer had been timely filed.

Under section 2 — 1301(e) of the Code, lack of prejudice to opposing parties resulting from tardy filings of pleadings has been considered very important in deciding whether a judgment should be opened (Kessling v. United States Cheerleaders Association (1991), 215 Ill. App. 3d 582, 584, 574 N.E.2d 1370, 1371), as has the hardship which the opposing party would suffer by being required to go to trial if a default judgment is set aside. (Anglin v. Dearth (1988), 175 Ill. App. 3d 367, 370, 529 N.E.2d 1176, 1179.) Similarly, the NLRB has considered these factors in regard to whether to allow a late filing. Livingston Powdered Metal, Inc. v. N L R B (3d Cir. 1982), 669 F.2d 133, 109 L.R.R.M. 2457; N L R B v. Zeno Table Co. (9th Cir. 1979), 610 F.2d 567, 102 L.R.R.M. 2540, reh’g denied (9th Cir. 1980), 103 L.R.R.M. 2288.

The IELRB regulation does speak of “good cause” for late filing of an answer to be granted upon the existence of “other grounds traditionally relied upon for equitable relief from judgment.” (80 Ill. Adm. Code §1120.30(d)(4), at 387 (1991).) The District points out that in such cases as Cohen v. Wood Brothers Steel Stamping Co. (1991), 227 Ill. App. 3d 354, 358-59, 592 N.E.2d 59, 61-62, and In re Marriage of Hoppe (1991), 220 Ill. App. 3d 271, 282, 580 N.E.2d 1186, 1193, courts have spoken of a somewhat relaxed standard for section 2 — 1401 relief, based upon equitable standards. However, no case has been called to our attention where the lack of prejudice to opposing parties has been stated to be a factor for granting section 2 — 1401 relief except Zee Jay, Inc. v. Illinois Insurance Guaranty Fund (1990), 194 Ill. App. 3d 1098, 1102, 552 N.E.2d 1027, 1030. The opinion there did not indicate that lack of prejudice was a substantial factor in the court’s affirmance of a grant of section 2 — 1401 relief from a judgment.

We do not find sufficient precedent under section 2 — 1401 of the Code for us to overturn the IELRB decision on the basis that no prejudice resulted from the District’s failure to answer within 15 days. Rather, we must look to the question of whether the District had “good cause” arising from a “reasonable excuse” for the late filing. As we have indicated, that does not exist. Tardiness arising from illness of a party has not required section 2 — 1401 relief. See Canton v. Chorbajian (1980), 88 Ill. App. 3d 1015, 1022, 410 N.E.2d 1166, 1172; Morski & Associates, Inc. v. R & R Resources, Inc. (1990), 198 Ill. App. 3d 359, 363, 555 N.E.2d 1044, 1047.

In Elfman v. Evanston Bus Co. (1962), 36 Ill. App. 2d 469, 184 N.E.2d 787, rev’d on other grounds (1963), 27 Ill. 2d 609, 190 N.E.2d 348, the court found that counsel’s failure to respond to a summons caused by stress from the illness and death of his mother was not a sufficient excuse for a lack of diligence:

“Nor do we consider that the press of other business, or absence from the city, or the mental strain involved in family illness and death, constitute sufficient justification for the lack of diligence shown by this record. If this attorney was unable to attend to the case, it was plainly his duty and the duty of defendant to employ another attorney who could attend to it. When counsel for defendant is a law firm and not an individual practitioner, the failure to arrange for the services of another attorney becomes even less excusable.” Elfman, 36 Ill. App. 2d at 477,184 N.E.2d at 791.

Even under the NLRB standard of “good cause,” inadvertence due to work load or illness is insufficient. See Urban Laboratories, Inc. (1980), 249 N.L.R.B. 867, 104 L.R.R.M. 1233 (nonlawyer respondent was preoccupied with other matters); Jones (1983), 267 N.L.R.B. 906, 114 L.R.R.M. 1151 (inadvertence and neglect of its attorney); Ancorp National Services, Inc. (1973), 202 N.L.R.B. 513, 82 L.R.R.M. 1734 (respondent’s officer in charge of labor relations was seriously ill); United States Telefactors Corp. (1989), 293 N.L.R.B. 567, 131 L.R.R.M. 1239 (settlement was expected, respondent’s attorneys had an unusually heavy work load and one of its attorneys was ill); Father & Sons Lumber & Building Supplies, Inc. (1989), 297 N.L.R.B. 437, 133 L.R.R.M. 1192 (respondent was busy with other matters and there was a breakdown in staff communications).

Finally, we note that when passing upon requests for relief under section 2 — 1401 of the Code and section 72 of the CPA courts have been held to have some discretion. (Halle v. Robertson (1991), 219 Ill. App. 3d 564, 568, 579 N.E.2d 1243, 1246; Capitani v. Miller (1979), 68 Ill. App. 3d 702, 705, 386 N.E.2d 96, 99.) Logically, the IELRB was similarly possessed of some discretion in ruling here. Particularly in view of the expressed policy of speedy resolution of educational labor relations disputes (Mattoon, 193 Ill. App. 3d at 884, 550 N.E.2d at 616), we find no abuse of discretion occurred. Accordingly, we affirm.

Affirmed.

KNECHT and LUND, JJ., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THERON JACKSON, Defendant-Appellant.
    Fourth District
    No. 4—91—0926
    Opinion filed October 8, 1992.

      Daniel D. Yuhas and Susan E. Alesia, both of State Appellate Defender’s Office, of Springfield, for appellant.
    John B. Leonard, State’s Attorney, of Mt. Sterling (Norbert J. Goetten, Robert J. Biderman, and Beth McGann, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

After a bench trial in Brown County on March 15, 1991, defendant, Theron Jackson, and his codefendant, Carnell Willis, were convicted of mob action. (Ill. Rev. Stat. 1989, ch. 38, par. 25 — 1(a)(2).) Defendant was sentenced to 18 months’ imprisonment. He appeals his conviction, arguing: (1) defense counsel was ineffective because he did not comply with the requirements of section 3 — 8—10 of the Unified Code of Corrections (Unified Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 8—10), entitled “Intrastate Detainers,” thereby defeating dismissal of the charge against him based on denial of his right to a speedy trial; and (2) the State committed reversible error by cross-examining defendant about a previous drug problem and a drug-related conviction. Defendant also contends the trial judge’s sentence was not sufficiently specific because it did not designate the sentence to which the imposed sentence was made consecutive. We affirm defendant’s conviction and remand only for clarification of which judgment and sentence the imposed sentence was made consecutive.

I. Facts

A. Defense Counsel’s Pretrial Actions

The offense of which defendant was convicted arose from an attack on Gregory Pope, another inmate in the Western Illinois Correctional facility. Defendant was charged by information on March 15, 1991. On April 14, 1991, defense counsel was appointed to represent defendant. On April 15, defense counsel filed a motion for a speedy trial pursuant to section 103 — 5 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5).

On September 12, 1991, defense counsel filed a motion to dismiss because more than 160 days had elapsed since the State charged defendant. The court denied the motion, ruling that when the defendant is in a Department of Corrections (DOC) facility, the procedures listed in the intrastate detainers provision must be followed in order to preserve a speedy-trial issue.

B. Trial Testimony

Pope testified he met defendant, codefendant Willis, and the inmate who struck him, Terrance Davis, a few days before the incident. Pope was being extorted by inmate Lee Johnson. Defendant, Willis, and Davis approached Pope and told him they could protect him from Johnson. Pope stated defendant, Willis, and Davis gave him a commissary list on three occasions and ordered him to obtain the items listed. They warned if he did not obtain the items he would get hurt.

On the day the incident occurred, defendant, Willis, and Davis followed Pope into his cell after dinner. Pope had notified prison officials of Johnson’s extortion attempt and the officials agreed to move him to another cell. When defendant, Willis, and Davis noticed Pope’s things were packed, they called him a “stool pigeon” and said “stooling” was not tolerated in prison. According to Pope, Willis told Davis to “bring the G down” and Davis hit Pope twice in the face.

Randy Spertzel, an inmate and Pope’s friend, testified he saw three men in Pope’s cell the night of the attack. The men told Spertzel to leave them alone. Later that night, Willis came to Spertzel’s cell and told Spertzel if he said anything they would put “a hit” out on him.

After Davis struck Pope, the men gave him an aspirin and discouraged him from going to the infirmary. They ultimately allowed him to seek medical treatment, but told him he would be hurt if he did not report that he fell and hurt his face. He required surgical placement of metal plates and screws in his head for the injuries he sustained.

Prison official Marty Winston interviewed Pope in the prison health unit shortly after the incident. Pope told Winston the cell numbers of the men involved. Pope also identified defendant, Willis, and Davis from a six-photograph array.

Davis, who pleaded guilty to aggravated battery for striking Pope, testified that when he entered Pope’s cell, defendant and Willis were present. Davis asked Pope what he told the prison officials about Johnson. When Pope admitted he told the officials about Johnson’s extortion, Davis hit Pope in the face. Davis testified neither defendant nor Willis told him to strike Pope. Defendant’s and Willis’ testimony supported Davis’ testimony. Defendant testified he did not know Davis was going to strike Pope.

During cross-examination, the State asked defendant if he had a drug problem. Defendant stated he currently had no problem because he had been rehabilitated a year or so earlier. The State inquired about when defendant was incarcerated for the sentence he was presently serving. Defendant responded he had been incarcerated since 1986 for violating his parole. The State inquired whether the offense for which defendant had been incarcerated was a drug offense. Defendant stated he was originally sentenced for drugs.

II. Analysis

A. Ineffective Counsel

Defendant’s trial began 210 days after defense counsel filed his speedy-trial demand. Defendant argues defense counsel was ineffective in his efforts to ensure defendant received a speedy trial because counsel filed the motion demanding speedy trial pursuant to section 103 — 5 of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5), rather than the provision applicable to inmates during incarceration, a proper demand under which requires the defendant be tried within 160 days (Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 8—10).

Resolution of defendant’s speedy-trial issue requires consideration of the speedy-trial provision of the Code in conjunction with the. intrastate detainers provision. Section 103 — 5(a) of the Code states, in relevant part, every person in custody in the State for an alleged offense shall be tried within 120 days from the date he was taken into custody. (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5(a).) Section 103 — 5(b) of the Code provides that persons on bail or recognizance shall be tried “within 160 days from the date defendant demands trial.” (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5(b).) Unless the delay is caused by defendant, failure to try him within the statutory time is cause for the discharge of the accused. Ill. Rev. Stat. 1989, ch. 38, par. 103-5(d).

Section 3 — 8—10 of the Unified Code makes section 103— 5(b) of the Code applicable to defendants “committed to any institution or facility or program of [DOC]” who have untried complaints or indictments pending against them. (Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 8—10.) Defendant was in DOC custody when this mob action charge was filed against him. Defense counsel was required to make the speedy-trial demand under section 3 — 8—10 of the Unified Code and include a statement of the place of present commitment, the term, and length of remaining term, charges pending against him, and county where the charges were lodged, addressed to the State’s Attorney of the county where he is charged, with a copy to the clerk of that court and the proper DOC officer of the facility to which defendant is committed. The State’s Attorney would then have been required to ensure defendant was brought to trial within 160 days. (Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 8—10.) However, because defense counsel requested a speedy trial for defendant pursuant to section 103 — 5, i.e., the wrong statutory provision, the 160-day period never began to run.

The State contends defense counsel was not ineffective because the mob action charge against defendant would not have been dismissed even if the appropriate speedy-trial demand had been made, i.e., one brought under the intrastate detainers provision (Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 8—10). If a proper demand had been made in compliance with the latter provision, the State would simply have tried defendant within the requisite 160 days.

To establish counsel was ineffective, defendant must show counsel’s representation fell below an objective standard of reasonableness and it is reasonably probable that but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington (1984), 466 U.S. 668, 687-88, 694, 80 L. Ed. 2d 674, 693, 698, 104 S. Ct. 2052, 2064, 2068; People v. Horton (1991), 143 Ill. 2d 11, 23, 570 N.E.2d 320, 325; People v. Jackson (1987), 162 Ill. App. 3d 476, 482, 515 N.E.2d 390, 394.

The State directs us to this court’s ruling in People v. Keys (1990), 195 Ill. App. 3d 370, 375-76, 552 N.E.2d 285, 289, in arguing defense counsel’s action did not fall below an objective standard of reasonableness because defendant did not instruct his attorney to demand a speedy trial and because the decision on whether to demand a speedy trial is a strategic matter left for defense counsel.

Our ruling in Keys is inapplicable to the present scenario. There, defendant requested that the matter be resolved as soon as possible, but made no specific request for a speedy-trial demand, and defense counsel had then explained his reasons for not filing a speedy-trial demand to defendant. (Keys, 195 Ill. App. 3d at 371-72, 552 N.E.2d at 286-87.) Although whether to demand a speedy trial may be a strategic decision, in this case defense counsel intended to demand this on behalf of defendant. Defense counsel demanded a speedy trial, but did so incorrectly.

Defense counsel contends when he filed the motion he did not know defendant was incarcerated in the State penitentiary. The record available to defense counsel indicated defendant was incarcerated in a DOC facility. The notice he received that he had been appointed to represent defendant indicated a copy was also sent to defendant and to DOC. The State’s Attorney’s April 4, 1991, writ of habeas corpus summoning defendant to testify was sent to the warden at Pontiac Correctional Center. The order of continuance noted a copy went to defendant and to DOC. Defense counsel filed the speedy-trial motion April 15, 1991. The record already included these indications defendant was in DOC custody.

Defendant correctly notes that by the preliminary hearing held on April 29, 1991, defense counsel knew defendant was an inmate. Testimony at the hearing included an account of what allegedly occurred between the inmates when Pope was injured. Defense counsel had a duty to represent defendant competently. Competence requires the legal skill, knowledge, thoroughness and preparation reasonably necessary for the representation. (134 Ill. 2d R. 1.1(a).) The intrastate detainers provision became law effective November 14, 1973. See Pub. Act 78-939, §1, eff. Nov. 14, 1973 (1973 Ill. Laws 3023, 3032).

In People v. Davis (1981), 92 Ill. App. 3d 869, 874, 416 N.E.2d 85, 88, the court stated:

“The statutory speedy trial scheme provides that a person in custody must be tried within 120 days (section 103 — 5(a)); persons on bail or recognizance (section 103 — 5(b)) and persons who have been committed to the Department of Corrections for other offenses (section 3 — 8—10) must be tried within 160 days of their demand for trial. Those persons imprisoned in another State against whom a detainer has been lodged must be brought to trial within 180 days after making demand for trial. (Section 1003 — 8—9, art. III(a).) We note too that a prisoner’s right to a speedy trial under the Federal Speedy Trial Act (18 U.S.C.A. §3161(j) (Supp. 1980)) also requires a demand for trial. United States v. Bryant (4th Cir. 1979), 612 F.2d 806, 811.
As defendant failed to comply with the terms of the intrastate detainer statute to which she was subject the trial court erred in granting her motion for discharge.”

There, the defendant was committed to DOC on a Cook County judgment, and the trial court granted a motion for discharge and dismissed pending Du Page County charges pursuant to section 103 — 5(a) of the Code, although no speedy-trial demand under section 3 — 8—10 of the Unified Code had been made. The Second District Appellate Court reversed that judgment. See generally 5 L. Pieczynski, Illinois Practice §10.3, at 274 (statutory right to a speedy trial); §10.24, at 285-86 (intrastate detainer act) (1989).

Defense counsel should have known section 3 — 8—10 of the Unified Code governed defendant’s right to a speedy trial. His actions in this case with respect to the speedy-trial motion fell below a reasonably competent standard.

To conclude defense counsel’s conduct rose to the level of incompetency requiring reversal of the conviction, however, also requires a finding it is reasonably probable the outcome of the proceeding against defendant would have been different had defense counsel acted competently. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; Horton, 143 Ill. 2d at 23, 570 N.E.2d at 325; Jackson, 162 Ill. App. 3d at 482, 515 N.E.2d at 394.

The State contends even if counsel was ineffective the error was harmless because the evidence presented against defendant was overwhelming.

Defendant was incarcerated for 210 days between the date defense counsel filed the speedy-trial motion and the date of trial. Defendant should have been tried within 160 days. (Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 8—10.) The record does not indicate any reason for the delay. Although the State may have had no duty to bring defendant to trial where it relied on a State law that required defendant to make a demand for trial (Jackson, 162 Ill. App. 3d at 480, 515 N.E.2d at 393), neither should it evade a defendant’s right to a speedy trial. (Cf. People v. Fosdick (1967), 36 Illl. 2d 524, 528, 224 N.E.2d 242, 245 (use of voluntary dismissal without notice to defendant).) The record indicates it did so in this case.

The State’s brief contains the following concession:

“[The] State’s Attorney *** was clearly apprised that the speedy trial was controlled by the Intrastate Detainer Act and that this 160-day period could not begin to run unless the formal requirements of section 3 — 8—10 were fulfilled. Had [defense counsel] refiled under the controlling statutory provision and preserved defendant’s speedy trial request, it is much more than probable that [the State] would have brought the case to trial within the 160-day period.”

The State made a similar argument during the hearing on the motion to dismiss the charges against defendant. The State’s Attorney stipulated there was no mechanical reason, no “court-clogging” reason, that prevented the case from being brought to trial within the requisite 160 days. It was not tried within this time period because the “requisite conditions to commence the running of the 160-day period were not satisfied.” The prosecutor here is not contending the press of duties prevented proper preparation of the case or that witnesses were unavailable. He does not suggest other cases with proper speedy-trial demands preempted this defendant’s case from being brought to trial. He does not assert he was understaffed or over-burdened. We commend the prosecutor on his candor, but not his practice. The State simply relied on defense counsel’s error in failing to set defendant’s trial within 160 days.

The prosecutor is an administrator of justice and an advocate who must exercise sound discretion in the performance of his or her functions. (ABA Standards, Criminal Justice §3 — 1.1 (2d ed. Supp. 1986).) We question the exercise of that discretion in this case. A prosecutor should not intentionally use procedural devices to support delay when there is no legitimate basis. (ABA Standards, Criminal Justice §3 — 2.9(a) (2d ed. Supp. 1986).) The State’s Attorney knew defendant was incarcerated in DOC. The State’s brief indicates defendant’s trial was not delayed because of case backlog. Rather, the State’s Attorney did not try defendant within the 160 days of the purported speedy-trial demand because he knew defense counsel erroneously cited section 103 — 5 of the Code, rather than section 3 — 8—10 of the Unified Code, and did not fulfill the terms of the latter section in requesting a speedy trial. This was an inappropriate reliance on the procedural requirements of section 3 — 8— 10 of the Code, particularly when the information that would have been contained in a proper demand was already known to the prosecutor.

However, the record does not support the conclusion that if defense counsel had filed the appropriate speedy-trial demand the State would not have brought defendant to trial within 160 days. We cannot presume the State would not have tried defendant within the required time. We simply do not know what would have happened had defense counsel filed a proper intrastate detainers motion. Based on the evidence, defendant cannot meet the second prong of Strickland, i.e., a reasonable probability that but for his counsel’s error in preparing his speedy-trial demand, the result of the proceeding would have been different. Despite this inadequacy in legal representation by defense counsel, and conduct by the State’s Attorney which was imprudent for one in that position, we are not bound to reverse defendant’s conviction on this issue.

Defense counsel should competently prepare their cases. Criminal defendants have a right to adequate representation to ensure their statutory, as well as constitutional, rights are protected. Prosecutors should proceed with trials in a timely manner. If counsel in this case properly carried out their duties defendant would have been timely prosecuted and would have had no timeliness complaint to raise on appeal. In addition, the lawyers in this case provide reason for defendants and the public to be suspect when dealing with members of the legal profession. More attention to their duties would advance justice and promote faith in the process. Neither goal is achieved by the examples set in this case.

B. Improper Cross-Examination

Defendant argues the State committed reversible error when it improperly cross-examined him on whether he had a drug problem without supporting that point with proof. He also argues reversible error occurred when the State confronted him with a previous drug conviction because this type of impeachment must be accomplished by producing the record or an authenticated copy of the conviction.

The State contends it was not cross-examining defendant under the method afforded by the rule allowing impeachment by introduction of conviction records. Rather than seeking to prove the fact of the drug conviction, the State maintains it was attempting to elicit evidence that defendant was a drug user. The State argues defendant’s admission that he was originally sentenced for a drug offense established he was a drug user without the prosecutor furnishing a record or authenticated copy of the conviction, and written proof was not necessary. It also argues defendant has waived review of this issue by failing to object at trial or to raise the issue in a post-trial motion.

Defendant argues that when asked whether he had a drug problem, he answered he had been rehabilitated; he contends his admission of a drug conviction did not rebut the claim of rehabilitation. He also argues £he State did not use his drug conviction to prove he had used drugs, but that the prosecutor instead argued in closing that defendant had tried to “conceal” this problem and his conviction, i.e., to show defendant lied to the court.

1. Waiver

To preserve an argument for appeal, both an objection at trial and a written post-trial motion raising the issue are required. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130; People v. McCarthy (1991), 213 Ill. App. 3d 873, 884, 572 N.E.2d 1219, 1226.) Here defendant made no objection to this cross-examination at trial, nor did he raise the issue in a post-trial motion. Defendant by reply brief suggests since defense counsel raised an objection during the State’s earlier cross-examination of codefendant Willis, which objection was overruled, that objection sufficiently preserved these matters in his case. This premise is incorrect and we find this issue has been waived. Moreover, we note the objection made during cross-examination of codefendant Willis was about his impeachment with prior arrests rather than with felony convictions or crimes of dishonesty. That specific objection waived all others and no objection was made to Willis’ cross-examination on whether he had a drug problem or drug-related convictions.

2. Consideration on the Merits

Defendant argues these matters destroyed his credibility and affected the outcome of his trial. (See 134 111. 2d R. 615(a).) He directs us to the trial judge’s comment before pronouncing judgment that the case presented a question of credibility. The case necessarily presented a credibility issue. Defendant’s witnesses were himself, codefendant Willis, and Davis, who had pleaded guilty to the aggravated battery of Pope; the testimony of defendant and Willis could reasonably be viewed as self-serving, and Davis had nothing to lose by testifying on behalf of defendant and codefendant Willis, since he had already been sentenced. By contrast, the victim and the other witnesses who identified defendant and codefendant Willis, and whose testimony intimated that defendant and codefend-ant Willis had ordered the attack on Pope, had nothing to gain by their testimony and had no motive or reason to lie.

Evidence which suggests a defendant committed crimes other than the one charged is generally inadmissible unless relevant to some issue in the case. (People v. Herrett (1990), 137 Ill. 2d 195, 207, 561 N.E.2d 1, 6; People v. Lindgren (1980), 79 Ill. 2d 129, 137, 402 N.E.2d 238, 242.) The rule has been stated that it is improper to cross-examine a defendant as to his conviction of a crime. (See, e.g., People v. Flynn (1956), 8 Ill. 2d 116, 120, 133 N.E.2d 257, 259; People v. Adams (1982), 106 Ill. App. 3d 467, 472, 435 N.E.2d 1203, 1207.) The proper method for impeaching a defendant’s credibility is by means of the record of conviction or an authenticated copy thereof. (See People v. Madison (1974), 56 Ill. 2d 476, 488, 309 N.E.2d 11, 18.) An exception to the rule permits cross-examining a defendant about convictions when he has testified about his prior convictions on direct examination. People v. Johnson (1990), 206 Ill. App. 3d 318, 322, 564 N.E.2d 232, 235.

Cross-examination of a defendant about a prior conviction has been held improper where direct examination has not covered the subject. (Adams, 106 Ill. App. 3d at 472, 435 N.E.2d at 1207.) Nevertheless, reversible error does not result unless the error has deprived defendant of substantial justice or influenced the determination of his guilt. (Madison, 56 Ill. 2d at 488-89, 309 N.E.2d at 18; Adams, 106 Ill. App. 3d at 472, 435 N.E.2d at 1207.) We note, however, that Adams, cited by defendant, and other cases cited on this point arose in the context of jury trials. As stated in Madison, this rule is founded upon the possibility a defendant might be prejudiced during a jury trial if he is forced to testify concerning prior convictions. (Madison, 56 Ill. 2d at 488, 309 N.E.2d at 18.) This case was a bench trial, with the circuit judge sitting as trier of fact.

As to the cross-examination on whether defendant had a drug problem, or the suggestion of drug use, it is under limited circumstances that drug use may be relevant to impeach a witness’ ability to observe, or narcotics addiction to undermine a witness’ credibility (see People v. Smith (1968), 41 Ill. 2d 158, 161, 242 N.E.2d 198, 200). (See generally 6 L. Pieczynski, Illinois Practice §22.64, at 48 (1989); R. Hunter, Trial Handbook for Illinois Lawyers, Criminal §40.16, at 547-49 (6th ed. 1989).) We fail to see how any of these or other circumstances made this evidence relevant to this case.

Nevertheless, in a bench trial, there is a presumption the court considered only competent and proper evidence in reaching its decision. (People v. Nuccio (1969), 43 Ill. 2d 375, 394, 253 N.E.2d 353, 363.) This presumption is negated when the trial court admits improper evidence over defendant’s objection and the record shows it was improperly considered, as in the case cited by defendant, People v. Alford (1982), 111 Ill. App. 3d 741, 744, 444 N.E.2d 576, 579. Unlike Alford, here there was no objection and nothing in the record suggests the trial court gave this evidence any consideration whatsoever. There was sufficient proper evidence to sustain the conviction and the evidence was not so closely balanced as to require a new trial.

C. Insufficient Explanation For Sentence

Defendant argues the trial court erred by not identifying the sentence to which his mob action sentence was made consecutive. After sentencing defendant to 18 months’ imprisonment, the trial judge stated, “[t]he sentence[s], of course, *** are consecutive sentences to what they are now serving with the [DOC] with the State of Illinois.”

The State concedes the trial judge erred by not specifically identifying which sentence(s) the mob action sentence would follow. We agree the trial judge’s error requires the case be remanded for further clarification. A sentence must be specific so it does not require additional construction. People v. Freeman (1981), 95 Ill. App. 3d 297, 301, 420 N.E.2d 163, 166; People v. Logan (1974), 23 Ill. App. 3d 41, 42, 318 N.E.2d 94, 95-96.

Defendant’s case must be remanded for the limited purpose of allowing the trial judge to state with particularity the sentence(s) to which the sentence in this case is to be consecutive.

Affirmed in part, and remanded in part.

GREEN, P.J., and COOK, J., concur.