Clerk of the Circuit Court of Lake County v. Illinois Labor Relations Board ( 2016 )

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Appellate Court Date: 2016.10.06
11:15:59 -05'00'
Clerk of the Circuit Court v. Illinois Labor Relations Board, State Panel,
2016 IL App (2d) 150849Appellate Court THE CLERK OF THE CIRCUIT COURT OF LAKE COUNTY,
Caption Petitioner, v. THE ILLINOIS LABOR RELATIONS BOARD,
STATE PANEL; JOHN HARTNETT, as Chairman and Member of
the State Panel; JOHN SAMOLIS, KEITH SNYDER, and AL
WASHINGTON, as Members of the State Panel; and THE
AMERICAN FEDERATION OF STATE, COUNTY AND
MUNICIPAL EMPLOYEES, Respondents.
District & No. Second District
Docket No. 2-15-0849
Filed August 15, 2016
Decision Under Petition for review of order of Illinois Labor Relations Board, State
Review Panel, No. S-RC-15-049.
Judgment Confirmed.
Counsel on Jack J. Murphy, A. Lynn Himes, and Anthony Scariano III, all of
Appeal Scariano, Himes & Petrarca, Chtrd., of Chicago, for petitioner.
Melissa J. Auerbach, of Dowd, Bloch, Bennett, Cervone, Auerbach &
Yokich, of Chicago, for respondent American Federation of State,
County and Municipal Employees.
Lisa Madigan, Attorney General, of Chicago (Ann C. Maskaleris and
Sharon A. Purcell, Assistant Attorneys General, of counsel), for other
respondents.
Panel JUSTICE BIRKETT delivered the judgment of the court, with
opinion.
Justices Hutchinson and Burke concurred in the judgment and
opinion.
OPINION
¶1 Petitioner, the Clerk of the Circuit Court of Lake County (Clerk), appeals the final decision
and order of respondent the Illinois Labor Relations Board, State Panel (Board), certifying
respondent the American Federation of State, County and Municipal Employees, Council 31
(Union), as the exclusive representative of a bargaining unit composed of certain of the Clerk’s
employees. On appeal, the Clerk challenges the propriety of the Board’s decision, contending
that it was not properly adopted. The Clerk also argues that the Board misapprehended the
pleading requirements to challenge a majority-interest petition and that the Clerk produced
sufficient evidence of fraud or coercion to warrant an evidentiary hearing. We confirm the
Board’s decision.
¶2 I. BACKGROUND
¶3 The record reveals, pertinently, that on January 20, 2015, the Union submitted a
majority-interest petition pursuant to section 9(a-5) of the Illinois Public Labor Relations Act
(Act) (5 ILCS 315/9(a-5) (West 2014)), seeking to represent a bargaining unit composed of
certain of the Clerk’s employees. On January 21, 2015, the Clerk was notified of the petition
and directed to respond if it so chose. Particularly, the Clerk was notified that, if it believed that
the Union had used fraud or coercion to obtain the signatures necessary to demonstrate
majority support, it was required to present clear and convincing evidence of the fraud or
coercion in its response to the petition.
¶4 On February 6, 2015, the Clerk timely filed its response to the Union’s majority-interest
petition. Relevantly, the Clerk alleged that the Union had used fraudulent information and had
threatened employees in an effort to coerce them into signing dues-deduction cards. The Clerk
included two affidavits in its response.
¶5 Jeanne Polydoris, the chief deputy clerk, submitted one of the affidavits attached to the
Clerk’s response. Polydoris was not eligible to become a member of the proposed bargaining
unit. She averred that four eligible employees of the Clerk complained to her about the Union’s
representatives. Three of the employees requested that their identities be kept confidential
because they feared repercussions from the Union or from their coworkers.
¶6 According to Polydoris, one employee was visited by different Union representatives
between 7 and 8 p.m., twice a week for an unspecified number of weeks. The employee
“believed [the representatives] were watching her house and tracking her schedule.” Polydoris
reported that the employee was a single mother and that she was so frightened by their conduct
that she filed a police report.
¶7 Polydoris averred that a second employee informed her that a Union representative visited
her home. The second employee maintained that the Union representative was condescending
and insulted her intelligence. The second employee reported to Polydoris that the
representative claimed that union membership would result in better pay, better pay increases,
and better vacation benefits. Additionally, the employee stated that the representative claimed
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that future pay raises under a collective bargaining agreement would be sufficient to cover her
union dues. The second employee told Polydoris that the representative used insults and peer
pressure to attempt to coerce her into joining the Union.
¶8 Polydoris noted that a third employee stated that a Union representative “came to her home
and told her that joining the union would be free and there would not be any dues.” The
employee was concerned about how the representative knew her home address.
¶9 Veronica Ventura, an employee of the Clerk, submitted the second affidavit attached to the
Clerk’s response to the Union’s petition. She averred that a coworker approached her about
joining the Union. The next day, Ventura received a text message from the coworker, who was
not scheduled to work that day, stating that the coworker would meet Ventura outside the
office after working hours. Ventura averred that she “found [the coworker’s] text threatening
and it made [Ventura] feel uncomfortable.” After work, the coworker was waiting for Ventura.
Ventura informed the coworker that she would not sign a dues-deduction card.
¶ 10 Ventura further averred:
“That evening, around 8:00 pm [sic], [a Union] Representative came to my house to
pressure me into signing the card. I had already told [the coworker] that I was not
interested and this conduct made me feel even more threatened. I escorted the [Union]
Representative out of my home and told him that I was not interested and that I had
already told [the coworker] that. As he was leaving, he said he was going to come back
on Sunday. I found this threatening and I was concerned about how the [Union]
Representative so reported it [sic] to my supervisor, *** upon returning to work the
following workweek.”
¶ 11 Ventura averred that the coworker continued to press Ventura to join the nascent
bargaining unit, both by text message and face-to-face. Ventura once again told the coworker
that she “did not appreciate [the coworker’s] text or the [Union] representative coming to [her]
home.” Ventura maintained that she “felt threatened by [her coworker] and even more
threatened by the [Union] Representative coming to [her] home.”
¶ 12 The matter was then assigned to an administrative law judge (ALJ) for further proceedings.
On March 10, 2015, the ALJ issued an order to show cause on two of the Clerk’s objections.
The ALJ explained:
“In its last objection, the [Clerk] argues that [the Union] obtained support for its
campaign through the use of fraud and coercion. Section 9(a-5) of the Act [(5 ILCS
315/9(a-5) (West 2014))] states that if a ‘party provides to the Board *** clear and
convincing evidence that the dues deduction authorizations, and other evidence upon
which the Board would otherwise rely to ascertain the employees’ choice of
representative, are fraudulent or were obtained through coercion, the Board shall
promptly thereafter conduct an election.’ The [Clerk] states that [the Union] obtained
employees’ personal contact information to contact employees at home. It also states
that [the Union] provided fraudulent information to employees and threatened them
into signing representation cards. In support of its allegations, the [Clerk] provided two
affidavits which describe [the Union’s] conduct in this matter. However, I do not find
that the affidavits are clear and convincing evidence of fraud or coercion as one
affidavit is based on hearsay and the other does not describe objectively coercive
conduct.”
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The ALJ then ordered the Clerk to “[d]emonstrate through specific evidence, case law, and/or
legal argument why the [Clerk’s] affidavits constitute clear and convincing evidence of fraud
or coercion, and/or provide clear and convincing evidence that [the Union] attempted to or
actually did obtain support for its campaign through fraud or coercion.”
¶ 13 The Clerk timely responded to the ALJ’s order to show cause. In its response, the Clerk
attached two additional affidavits, apparently from two of the unidentified employees
referenced in Polydoris’s affidavit.
¶ 14 Jeanette Halle, an employee of the Clerk, averred that, on a Saturday afternoon, a Union
representative came to her home but was not allowed past her building’s security door. The
representative kept Halle in conversation for 20 to 30 minutes. Halle averred that the
representative was condescending and insulted her intelligence. The representative tried to get
Halle to agree with complaints that other employees had purportedly made. The representative
claimed to Halle that “everyone” was unhappy in working for the Clerk. Halle averred that,
every time she made positive comments, “he tried to convince me otherwise.” According to
Halle, the representative “claimed that joining the union would result in better salaries, better
raises and better vacation benefits.” The representative also claimed that, after the Union had
bargained with the Clerk, Halle’s raise would cover the monthly dues to be paid to the Union.
Finally, Halle concluded that the representative “appeared to be attempting to use peer
pressure and insults to induce [her] into joining the union.”
¶ 15 Sandra Lucio, also an employee of the Clerk, averred that two different Union
representatives “kept coming to [her] house twice a week” between 7 and 8 p.m. Lucio would
not open the door for the representatives. She further reported that “[t]hey were parking away
from [her] house and [she] could not see their car, which made [her] even more
uncomfortable.” Lucio, who was a single mother working two jobs and whose child was
frequently home alone in the evenings, became frightened by the representatives’ conduct, so
she filed a police report. Lucio further recounted that, “[a]fter [she] filed the report, [she] was
getting [her] garbage cans from the street when [a Union] representative approached [her].
They [sic] appeared to know [her] schedule and [she] was concerned that they [sic] were
watching [her] house and tracking [her schedule].” Lucio averred that she was upset that the
Union representatives had her personal information and her home address. Lucio also believed
that, if her coworkers became aware that she had reported the representatives’ conduct, her
coworkers would “make [her] life miserable every day at work.”
¶ 16 Notably, neither Halle nor Lucio indicated that she had signed a dues-deduction card,
despite the fraudulent or coercive blandishments of the Union representatives. Likewise,
Ventura similarly did not indicate that she had signed a dues-deduction card, despite her
complaints of being pressured to do so.
¶ 17 On April 28, 2015, the ALJ issued her recommended decision and order. Pertinent to our
decision, the ALJ analyzed the Clerk’s fraud-and-coercion argument:
“The [Clerk] argues that the Union used fraud and coercion to obtain support for its
organizing campaign. The Act states that the Board will certify a union as the exclusive
representative of a unit of employees if the union ‘demonstrates a showing of majority
interest.’ 5 ILCS 315/9(a-5) [(West 2014)]. However, if an employer provides the
Board with ‘clear and convincing evidence that the dues deduction authorizations, and
other evidence upon which the Board would otherwise rely to ascertain the employees’
choice of representative, are fraudulent or were obtained through coercion, the Board
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shall promptly thereafter conduct an election.’ Id. The Board’s rules further specify
that:
‘[a]ll employers served with a majority interest petition shall file a written response
to the petition within 14 days after service of the petition. The response filed shall
set forth the party’s position with respect to the matters asserted in the petition,
including, but not limited to, the appropriateness of the bargaining unit and, to the
extent known, whether any employees sought by petitioner to be included should
be excluded from the unit. The employer must also provide at this time clear and
convincing evidence of any alleged fraud or coercion in obtaining majority
support.’ 80 Ill. Adm. Code § 1210.100(b)(3) [(2004)] (emphasis added [by the
ALJ]).
If the employer provides ‘evidence demonstrating a material issue of fact or law
relating to fraud or coercion,’ the board will conduct a hearing. [80 Ill. Adm. Code]
1210.100(b)(5)(B) [(2004)]. However, if the employer fails to provide sufficient
evidence of fraud or coercion, ‘the Board will certify the union as the unit’s exclusive
representative if it is determined to have majority support.’ [80 Ill. Adm. Code]
1210.100(b)(5)(A) [(2004)].
In coercion cases, the Board applies ‘an objective standard to determine whether,
from the standpoint of the employee, the challenged conduct would reasonably have a
coercive effect.’ Vill. of Barrington Hills (Police Dep’t), 26 PERI ¶ 59 (IL LRB-SP
2010) [sic]. For example, in Vill. of Barrington Hills (Police Dep’t) [sic], the Board
agreed with the Executive Director’s decision to apply an objective standard, as well as
with his determination that the challenged conduct would not have reasonably coerced
employees. Id. In support of its argument, the village submitted two affidavits from
village supervisors. Id. The supervisors described their conversations with several
employees regarding the union’s conduct. Id. First, the Board found that the village’s
evidence did not establish that employees had been threatened or that the employees’
fears of being retaliated against were reasonable. Id. More specifically, the village had
not presented ‘evidence of actual retaliation, for example, or even of threatened
retaliation.’ Id. The Board also noted that the affidavits constituted hearsay evidence
and ‘[t]he statutory standard call[ed] for “clear and convincing” evidence of fraud or
coercion.’ Id. As such, the Board agreed ‘that the evidence the [v]illage presented here
falls far short of meeting the “clear and convincing” statutory standard.’ Id.
In this case, the [Clerk] argues that the Union used fraud and coercion during its
organizing drive. With regard to its fraud argument, the [Clerk] first contends that the
Union provided fraudulent information to employees. In one instance, a Union
representative told an employee that she would receive better benefits under Union
representation and that her dues would be covered by her first contract raise. According
to another employee, a representative said she would not have to pay dues. As an initial
matter, I note that the representative’s statement that an employee would not have to
pay dues is hearsay from an unidentified source and not generally considered clear and
convincing evidence. Regardless, I do not find this evidence sufficient to conclude the
Union gave employees fraudulent information. While I may find the Union’s
statements odd, I cannot say they are necessarily false. The Act does not require
bargaining unit members to pay dues, and the [Clerk] has not supplied any other
evidence on the matter. Further, it is permissible under the Act for a union to promote
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itself to prospective members. See PACE Heritage Division, 22 PERI ¶ 59 (IL LRB-SP
2006) [sic]; Midland Nat’l Life Ins. Co., 263 NLRB 127 (1982) [sic]. As such, I find the
[Clerk] has not established that the Union provided fraudulent information to
employees.
The [Clerk] also argues that the Union used pro-Union employees to gain access to
employees’ home addresses. Under the [Clerk’s] policies, employees’ personal contact
information is kept confidential. Since the Union had the employees’ addresses, the
[Clerk] suggests the Union must have obtained the information in violation of the
[Clerk’s] policies. This argument is not supported by the evidence. While it is clear that
the Union had at least some of the employees’ home addresses, it is not a foregone
conclusion that pro-Union employees violated the [Clerk’s] policies to retrieve them.
There are a variety of ways to learn where someone lives, including the internet, the
phonebook, or even word of mouth. Thus, the [Clerk’s] suggestion that the Union must
have used surreptitious means to access employees’ addresses is not supported by the
evidence presented.
The [Clerk’s] primary argument is that the Union intimidated, threatened, and
coerced employees into supporting its organizing drive. However, the evidence does
not establish that the Union’s conduct was objectively coercive. For example, one
employee felt threatened by her pro-Union coworker’s text messages. However, the
coworker did not threaten the employee or suggest that the employee would be
retaliated against for refusing to sign a card. Consequently, I cannot find the messages
objectively coercive.
Additionally, I do not find the Union’s home visits to be coercive. The [Clerk]
argues that ‘the representatives stalked employees by lying in wait outside of
employees’ homes.’ Of the three employees visited by the Union, two employees
stated they felt threatened by the Union’s conduct. One employee said she was so
frightened by the Union’s conduct that she filed a police report. She also believed the
Union was tracking her schedule. The other employee stated she felt threatened when
the representative told her that he would come back to her home in a few days.
However, the evidence does not establish that their fears were reasonable. There is no
evidence that the Union actually threatened these employees or used other intimidation
tactics to force the employees to sign cards. Thus, under the objective standard, I do not
find this conduct would reasonably coerce employees. As to the third employee, she
stated that the Union representative she spoke to was condescending and insulting.
Although patronizing and rude behavior[s] are not ideal strategies to use during an
organizing campaign, in the absence of threats or other forms of intimidation, these
tactics are not coercive.
Finally, there is no evidence demonstrating that the employees’ fears of being
retaliated against by their coworkers were justified. Again, there is no evidence that the
coworkers’ [sic] threatened to retaliate against the employees if they did not sign cards.
The employees’ assertions, on their own, are not enough to establish coercion. The
[Clerk] was required to provide evidence that the employees’ fears were reasonable.
In sum, the [Clerk] has failed to establish that the Union used fraud or coercion to
gain support for its organizing campaign. Accordingly, I find that this objection is
without merit and does not raise an issue for hearing.”
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¶ 18 The ALJ held, in a section labeled “Conclusions of Law,” that the Clerk “has not
demonstrated an issue of law or fact exists regarding fraud or coercion.” The ALJ then
recommended that the Board certify the Union as the exclusive representative of the
employees described in the Union’s petition, and the ALJ recommended that, as the Clerk
proposed, the positions of ombudsman and principal court clerk be excluded from the
bargaining unit. The ALJ also noted that the parties were allowed to file exceptions to the
recommended decision and order and outlined the time frame and procedure for doing so.
¶ 19 On May 14, 2015, the Clerk timely filed its exceptions to the ALJ’s recommended decision
and order. The Clerk again raised the arguments it had presented to the ALJ, and it contended
that the evidence about fraud and coercion was sufficient to require a hearing. The Union filed
a timely response to the Clerk’s exceptions.
¶ 20 On July 14, 2015, the Board issued its decision and order. The Board’s order stated:
“On April 28, 2015, [the ALJ] issued a Recommended Decision and Order (RDO)
recommending that the Board certify [the Union] as the exclusive representative of a
unit of certain full- and part-time non-professional employees employed by the [Clerk].
In so holding, she rejected the [Clerk’s] contention that it had raised issues of fact for
hearing on the allegation that the Union had obtained its showing of interest through
fraud or coercion.
The [Clerk] filed timely exceptions to the ALJ’s RDO pursuant to Section
1200.135 of the Illinois Labor Relations Board’s Rules and Regulations. 80 Ill. Adm.
Code Parts 1200 through 1240. The exceptions focus solely on the ALJ’s finding that
the [Clerk] did not present clear and convincing evidence that would raise issues of fact
for hearing on [the Union’s] alleged fraud or coercion in obtaining majority support.
[The Union] filed a response.
The ALJ’s decision will stand as a non-precedential ruling because the Board could
not reach a majority decision on whether to affirm or reverse it. Member Washington
was absent and did not vote. Chairman Hartnett voted to reverse the ALJ’s decision on
the basis that a hearing would shed additional light on the circumstances referenced in
the [Clerk’s] objections and supporting affidavits. Member Snyder voted to reverse the
ALJ’s decision on the basis that the [Clerk] presented sufficient evidence to raise issues
of fact for hearing on [the Union’s] alleged fraud or coercion. Members Coli and
Samolis voted to affirm the ALJ’s decision for the reasons stated in the RDO. In the
absence of a majority vote on the disposition of the RDO, we do not address the
substance of the exceptions and leave the ALJ’s decision to stand as non-precedential.”
¶ 21 The Clerk timely appeals.
¶ 22 II. ANALYSIS
¶ 23 On appeal, the Clerk argues that the Board abdicated its responsibility by entering an order
that did not contain any reviewable findings. Alternatively, the Clerk challenges the 2 to 2 tie
vote by the Board, arguing that the Board erred by convening in the absence of one of its
members and allowing the resultant tie vote. The Clerk also argues that the Board’s decision
was arbitrary and capricious because the Board expressly stated that it did not address the
substance of the Clerk’s exceptions, in derogation of its statutory responsibility, and it “let
stand” the ALJ’s recommended decision and order. Finally, the Clerk argues that,
substantively, the Board and the ALJ placed a higher burden on the Clerk by requiring that it
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initially provide clear and convincing evidence of fraud or coercion, instead of following a
two-step process of first determining whether the evidence submitted demonstrated a material
issue of fact or law and then conducting an evidentiary hearing to determine whether the
evidence was clear and convincing; additionally, the Clerk argues that the ALJ’s determination
that it had not demonstrated a material issue of fraud or coercion was erroneous. We consider
each of the Clerk’s contentions in turn.
¶ 24 A. Standard of Review
¶ 25 As an initial matter, we consider the standard of review applicable to the Board’s decision.
We review the Board’s decision pursuant to the Administrative Review Law. 5 ILCS
315/11(e) (West 2014); 735 ILCS 5/3-101 et seq. (West 2014); American Federation of State,
County & Municipal Employees, Council 31 v. Illinois State Labor Relations Board, State
Panel, 216 Ill. 2d 569, 577 (2005) (Council 31). The Administrative Review Law empowers
judicial review of all questions of fact and law presented by the record before the reviewing
court. 735 ILCS 5/3-110 (West 2014); Council 31, 216 Ill. 2d at 577. The standard of review to
be applied depends on whether the question presented is a question of fact, a question of law,
or a mixed question of fact and law. Council 31, 216 Ill. 2d at 577. The Board’s determination
of a question of fact is held to be prima facie true and correct and will be disturbed only if it is
against the manifest weight of the evidence. Id. A question of law is subject to de novo review
(id.); however, in the administrative review setting, deference to the agency’s experience and
expertise is accorded to the agency’s interpretation of the law or rule at issue (Department of
Central Management Services/Department of Public Health v. Illinois Labor Relations Board,
State Panel, 2012 IL App (4th) 110209, ¶ 16).
¶ 26 A mixed question of fact and law occurs where the historical facts are admitted or
established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory
standard or, in other words, whether the rule of law as applied to the established facts is or is
not violated. Council 31, 216 Ill. 2d at 577. The Board’s decision on a mixed question of fact
and law will be disturbed only where it is clearly erroneous. Id. A decision is clearly erroneous
when the reviewing court is left with the definite and firm conviction that a mistake has been
committed. Id. at 577-78. With these standards in mind, we turn to the Clerk’s contentions on
appeal.
¶ 27 B. Irregularities in the Board’s Decision
¶ 28 The Clerk contends that the Board’s decision should not be honored because one of the
members was absent. The Clerk argues that the Board did not provide a sufficient reason for
that member’s failure to vote and that, unlike in a case involving the recusal of a member, the
member’s failure to vote can be cured by simply requiring the member to vote. This, according
to the Clerk, would result in a substantive outcome and is easily accomplished. While we
understand the Clerk’s contention, we disagree because it is based on an incorrect assumption.
¶ 29 Underlying the Clerk’s contention is an unstated but implied assumption that, because one
of the Board’s members was absent, it improperly convened. Section 5(c) of the Act provides
that three members constitute a quorum of the Board and that a vacancy does not impair the
right of the remaining members to exercise all of the Board’s powers. 5 ILCS 315/5(c) (West
2014). Here, four members participated in the decision, arriving at a tie vote. According to the
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Act, the Board properly discharged its responsibilities because the four participating members
constituted a quorum and were able to exercise all of the Board’s powers.
¶ 30 We note that, where members have recused themselves from a case, Illinois courts have not
hesitated to recognize the validity of the panel’s decision, so long as a quorum was maintained.
See, e.g., Support Council of District 39 v. Illinois Educational Labor Relations Board, 366 Ill.
App. 3d 830, 833 (2006) (where one member of a five-member panel recused herself, a tie vote
ensued, resulting in the adoption of the recommended decision, but the decision was not given
precedential effect); Chicago School Reform Board of Trustees v. Illinois Educational Labor
Relations Board, 315 Ill. App. 3d 522, 527 (2000) (same); Board of Education of Community
Consolidated High School District No. 230 v. Illinois Educational Labor Relations Board, 165
Ill. App. 3d 41, 53-54 (1987) (District No. 230) (recusal of one member from three-member
panel did not impair the remaining members from exercising the powers of the Board even if
the two members could not agree upon an outcome). Because a quorum was maintained, we
cannot accept the Clerk’s argument on this point.
¶ 31 We note that the Clerk seizes upon commentary from District No. 230 as support for its
position that a tie is illegitimate. In District No. 230, the court noted the potential for difficulty
where a three-member panel, set up “without regard for the possibility of conflict, disability, or
absenteeism of any one member,” would likely result in two-member decisions in which the
remaining members took opposing views. District No. 230, 165 Ill. App. 3d at 54. The court
lamented the lack of a statutory mechanism to empanel a tiebreaking special member, but it
recognized that, under the law, the tie vote was required to stand. Id. The Clerk suggests that
the court’s commentary ought to be the basis for invalidating the result here and remanding this
cause to the Board with the direction that the absent member vote whether to accept or reject
the ALJ’s recommended decision and order. However, as noted in District No. 230, there
appears to be no mechanism in either the Act or the Board’s rules to remand for an absent
member’s vote or to appoint a special member in cases where there was a quorum with an even
number of members remaining. See id. Instead, we are compelled to accept the result of the
quorum exercising the Board’s authority. See id. Accordingly, we see nothing improper about
the Board’s tie vote, and we reject the Clerk’s suggestion that we invalidate it because there is
no basis in the law or the Board’s rules that authorizes us to do so.
¶ 32 Next, the Clerk argues that the Board’s decision cannot stand because the Board included
no findings or conclusions suitable for this court to review. While we might agree that the
Board’s decision was infelicitously stated, we believe that the clear upshot of its decision was
to adopt the ALJ’s recommended decision and order as a nonprecedential disposition. See
Support Council, 366 Ill. App. 3d at 833 (where the remaining members cannot reach a
majority decision, the result is the adoption of the hearing officer’s recommended decision and
order as a nonprecedential disposition). Accordingly, because the Board adopted the ALJ’s
recommended decision and order, we have sufficient and specific factual findings and legal
conclusions to review.
¶ 33 The Clerk also argues that the Board’s decision was arbitrary and capricious because the
Board stated that it was not addressing the substance of the Clerk’s exceptions. Again, this
argument is based on the flawed premise that there are not sufficient findings and conclusions
for us to review. Again, while its decision perhaps was inartfully stated, the Board clearly
adopted the ALJ’s recommended decision and order. The ALJ’s recommended decision and
order addressed the substance of the exceptions, because the exceptions were largely the same
as the objections in the response to the Union’s petition. Ultimately, the Clerk is arguing that
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the inartful form of the Board’s decision should trump its substance, the adoption of the ALJ’s
recommended decision and order. In our view, the ALJ’s recommended decision and order
adequately addressed the exceptions and provides a sufficient basis for us to review the Clerk’s
contentions on appeal. Accordingly, we cannot say that the Board’s decision was arbitrary and
capricious for not addressing the substance of the Clerk’s exceptions. For the foregoing
reasons, then, we reject the Clerk’s contentions regarding the purported formal irregularities of
the Board’s decision.
¶ 34 C. Burden to Produce Evidence Demonstrating Fraud or Coercion
¶ 35 The Clerk contends that the Board and the ALJ misapprehended and misapplied its own
rules when it considered the Clerk’s objections alleging that the Union employed fraud and
coercion in its attempt to organize the bargaining unit. According to the Clerk, the Board’s
rules set forth a two-step process in which the party alleging fraud or coercion must first
produce sufficient evidence to demonstrate a material issue of fact or law relating to the
allegations of fraud or coercion, and then, if that party passes the production hurdle, a hearing
will be held to determine whether the evidence of fraud or coercion is clear and convincing. 80
Ill. Adm. Code 1210.100(b)(5) (2004).
¶ 36 The Clerk argues that the Board and the ALJ both compressed this procedure into a single
step. First, the Board’s notification to the Clerk that the Union had filed a majority-interest
petition indicated that, if the Clerk believed that the Union had used fraud or coercion in
obtaining its showing of majority support, the Clerk was required to provide clear and
convincing evidence of that fraud or coercion with its response to the petition. Second, in her
order to show cause, the ALJ directed the Clerk to “[d]emonstrate through specific evidence,
case law, and/or legal argument why the [Clerk’s] affidavits constitute clear and convincing
evidence of fraud or coercion, and/or provide clear and convincing evidence that [the Union]
attempted to or actually did obtain support for its campaign through fraud or coercion.” Third,
in her recommended decision and order, the ALJ stated that, “[i]n sum, the [Clerk] has failed to
establish that the Union used fraud or coercion to gain support for its organizing campaign.”
The Clerk contends that all three of these examples show that the Board and the ALJ employed
a single-step process, requiring production of clear and convincing evidence, rather than the
two-step process set forth in the Board’s rules, requiring a demonstration that a material issue
of fact or law exists followed by a hearing to establish whether the Clerk produced clear and
convincing evidence of fraud or coercion. The Clerk closes by urging us to remand the cause
for a hearing to establish whether the Union used fraud or coercion in its organizing campaign.
¶ 37 In our view, then, the Clerk argues that the Board did not follow its own rules in
considering the Clerk’s objections to the Union’s petition and its exceptions to the ALJ’s
recommended decision and order. We note that the Clerk does not cite any authority beyond
the Illinois Administrative Code in making its argument. We do not imply that the lack of other
authority means that the Clerk has forfeited its argument; rather, we note that the lack of other
authority means that the Clerk’s argument, based on the text of the rule, appears either to be
uncorroborated by decisions of the courts or the Board or to present an issue of first
impression.1
1
We also note that, in opposing the Clerk’s argument, the Union fails to cite any authority directly
contradicting the Clerk’s argument.
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¶ 38 The Clerk’s argument presents two separate strands of inquiry for us to resolve. First, we
must review the Act and the Board’s rules to determine the applicable legal principles. This
presents a question of statutory interpretation, which we review de novo (albeit with some
deference to the Board’s experience and expertise in interpreting the Act and its rules). Council
31, 216 Ill. 2d at 577; Department of Central Management Services, 2012 IL App (4th)
110209, ¶ 16. Second, we must determine whether the Board followed its own rules. This
question presents a mixed question of fact and law and is reviewed for clear error. Council 31,
216 Ill. 2d at 577 (a mixed question of fact and law occurs where the historical facts are
admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy
the statutory standard or, in other words, whether the rule of law as applied to the established
facts is or is not violated). With these principles in mind, we turn to the relevant language of the
Act.
¶ 39 Section 9(a-5) of the Act provides:
“If either party provides to the Board, before the designation of a representative, clear
and convincing evidence that the dues deduction authorizations, and other evidence
upon which the Board would otherwise rely to ascertain the employees’ choice of
representative, are fraudulent or were obtained through coercion, the Board shall
promptly thereafter conduct an election.” 5 ILCS 315/9(a-5) (West 2014).
The Act therefore requires proof of fraud or coercion to be by clear and convincing evidence.
The Act does not, however, specify the procedures to be used in proving a claim of fraud or
coercion.
¶ 40 In order to effectuate the purposes of the Act, the Board promulgated rules to be observed
when a union seeking to organize a group of employees submits a majority-interest petition.
The Board’s rules provide, pertinently:
“All employers served with a majority interest petition shall file a written response to
the petition within 14 days after service of the petition. The response filed shall set
forth the party’s position with respect to the matters asserted in the petition, including,
but not limited to, the appropriateness of the bargaining unit and, to the extent known,
whether any employees sought by petitioner to be included should be excluded from
the unit. The employer must also provide at this time clear and convincing evidence of
any alleged fraud or coercion in obtaining majority support.” 80 Ill. Adm. Code
1210.100(b)(3) (2004).
Regarding allegations of fraud or coercion, the rules provide:
“(A) A party or individual alleging that the petitioner’s evidence of majority
support was obtained fraudulently or through coercion must provide evidence of that
fraud or coercion to the Board or its agent. If a party has not provided evidence
demonstrating a material issue of fact or law relating to fraud or coercion, the Board
will certify the union as the unit’s exclusive representative if it is determined to have
majority support.
(B) If the Board finds a party has provided evidence demonstrating a material issue
of fact or law relating to fraud or coercion, it will conduct a hearing to determine
whether there is clear and convincing evidence of fraud or coercion. *** If the Board
finds clear and convincing evidence of fraud or coercion, the Board will conduct an
election in the petitioned[-]for unit to determine majority support for the petitioner. If
the Board finds clear and convincing evidence of fraud or coercion to be lacking, it will
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determine majority support for the petitioner based upon the evidence filed with the
petition.” 80 Ill. Adm. Code 1210.100(b)(5) (2004).
¶ 41 The Board’s rules delineate its responsibilities in investigating a majority-interest petition:
“Upon receipt of the petition, the Board or its agent shall investigate the petition. If, for
any reason during the investigation, the Board or its agent discovers that the petition
may be inappropriate, the Board or its agent may issue an order to show cause
requesting that the petitioner provide sufficient evidence to overcome the
inappropriateness. Failure to provide sufficient evidence of the petition’s
appropriateness can result in the dismissal of the petition. Moreover, in conjunction
with subsection (b)(3), if, for any reason during the investigation, the Board or its agent
discovers that the employer’s objections to the majority interest petition are insufficient
in either law or fact, the Board or its agent may issue an order to show cause requesting
that the employer or union provide sufficient evidence to support its defenses. Failure
to provide sufficient evidence can result in the waiver of defenses.” 80 Ill. Adm. Code
1210.100(b)(6) (2004).
¶ 42 Finally, the Board’s investigation of the majority-interest petition will result in one of three
outcomes: (1) dismissing the petition (80 Ill. Adm. Code 1210.100(b)(7)(A) (2004)); (2)
certifying the petitioning union as bargaining representative (80 Ill. Adm. Code
1210.100(b)(7)(B) (2004)); or (3) scheduling an oral hearing (80 Ill. Adm. Code
1210.100(b)(7)(C) (2004)). Similar to the procedure used to resolve a motion for summary
judgment, an oral hearing will occur only if the parties’ opposing documents fail to resolve an
important question about the petition or, in other words, only if “ ‘the investigation discloses
that there is reasonable cause to believe that there are unresolved issues relating to the question
concerning representation.’ ” Department of Central Management Services/Illinois Commerce
Comm’n v. Illinois Labor Relations Board, State Panel, 406 Ill. App. 3d 766, 773 (2010)
(quoting 80 Ill. Adm. Code 1210.100(b)(7)(C) (2004)). In short, the Board will hold an oral
hearing “only if it has reasonable grounds for believing that the case presents unresolved
issues, significant questions that have resisted resolution through the written submissions.” Id.¶ 43 In its argument on appeal, the Clerk entirely ignores subsection (b)(3) and focuses
exclusively on subsection (b)(5). The Clerk reads subsection (b)(5) as setting forth a two-step
process in which the first step is the production of sufficient evidence to demonstrate a material
issue of fact or law relating to fraud or coercion, and the second step is an oral hearing to
determine whether there is clear and convincing evidence of fraud or coercion. See 80 Ill.
Adm. Code 1210.100(b)(5) (2004). Perhaps unsurprisingly, but certainly disappointingly, the
Union, in its counter to the Clerk’s argument, entirely ignores subsection (b)(5) and focuses
exclusively on subsection (b)(3). According to the Union, the employer is required to provide
clear and convincing evidence of alleged fraud or coercion with its response to a union’s
majority-interest petition. See 80 Ill. Adm. Code 1210.100(b)(3) (2004). From the parties’
arguments, the question thus becomes: how are subsections (b)(3) and (b)(5) to be reconciled?
¶ 44 We begin with the Act. The Act defines the quantum of proof necessary to prove an
allegation of fraud or coercion, but it does not provide a procedure for the parties and the Board
to follow. See 5 ILCS 315/9(a-5) (West 2014) (a party must provide “to the Board, before the
designation of a representative, clear and convincing evidence that the dues deduction
authorizations, and other evidence upon which the Board would otherwise rely to ascertain the
employees’ choice of representative, are fraudulent or were obtained through coercion”).
When a party succeeds in demonstrating, by clear and convincing evidence, that the
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petitioner’s evidence of majority support was procured by fraud or coercion, the Board is to
promptly conduct an election. Id. Thus, the Act specifies that a party must provide clear and
convincing evidence of fraud or coercion, and it implies that, procedurally, this clear and
convincing evidence is to be presented before the designation of a representative.
¶ 45 Illinois Commerce Comm’n, 406 Ill. App. 3d at 771-73, provides a useful overview of the
general process for resolving a majority-interest petition. Subsection (b)(3) requires an
employer to file a “written response,” which lays out the employer’s position on issues raised
by the petition, and the employer must, in its written response, provide clear and convincing
evidence supporting any allegations that the majority support was obtained through fraud or
coercion. Id. at 771-72. The Board or its agent (i.e., an ALJ) will then investigate the petition.
Id. at 772. If the investigation uncovers a potential weakness or insufficiency in either party’s
case, the Board or the ALJ may, through an order to show cause, require the party to provide
evidence supporting its position. Id. In other words, “if, in the course of his or her
investigation, the ALJ encounters what appears to be a legal or factual deficiency in either
party’s case, the ALJ can require the party to shore up the deficiency by the submission of
‘sufficient evidence.’ ” Id. (quoting 80 Ill. Adm. Code 1210.100(b)(6) (2004)).
¶ 46 The goal of these rules is to provide a means to discover, ahead of time and through the
parties’ documentary submissions, any fatal deficiency in either party’s case instead of
discovering the deficiency during the administrative hearing and thereby wasting both time
and resources. Id. Section 1210.100(b) (80 Ill. Adm. Code 1210.100(b) (2004)) thus sets out a
procedure that is roughly comparable to the summary-judgment procedure from the Code of
Civil Procedure, except that it is the ALJ, rather than the parties, who identifies any
deficiencies. Illinois Commerce Comm’n, 406 Ill. App. 3d at 772-73. In this fashion, the ALJ
may require the parties to participate in the investigation by supplying evidence to overcome or
eliminate apparent problems, either factual or legal, that are uncovered in the investigation. Id.
at 773. This collaborative investigation will result in one of three outcomes: the dismissal of
the petition, the certification of the union as the bargaining representative, or the scheduling of
an oral hearing. Id. The hearing occurs only if the written and evidentiary submissions have
failed to resolve a significant issue. Id.
¶ 47 The Board’s rules, then, implement the Act. The purpose of section 9(a-5) of the Act is to
provide a streamlined “card check” procedure for union recognition. County of Du Page v.
Illinois Labor Relations Board, 231 Ill. 2d 593, 615 (2008). As part of this streamlined
procedure, the Board’s rules contemplate the resolution of the employer’s objections solely
through written submissions. See 80 Ill. Adm. Code 1210.100(b)(3) (2004) (requiring the
employer to submit with its written response “clear and convincing evidence of any alleged
fraud or coercion in obtaining majority support”). Only if unresolved issues persist after the
submission of the parties’ written arguments and documentary evidence will an oral hearing be
conducted. See 80 Ill. Adm. Code 1210.100(b)(7)(C) (2004) (if the collaborative investigation
by the ALJ and the parties “discloses that there is reasonable cause to believe that there are
unresolved issues,” an oral hearing will be held). Thus, the Board’s rules lean toward resolving
a majority-interest petition by considering the parties’ written submissions, with an oral
hearing necessary only if those submissions cannot by themselves resolve the issues raised by
the parties and the ALJ’s collaborative investigation.
¶ 48 With these principles firmly in mind, we address the Clerk’s argument that the Board and
the ALJ misapprehended these rules in requiring the Clerk to submit clear and convincing
evidence of the Union’s alleged fraud or coercion in its organizing campaign, both with the
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Clerk’s original objections to the petition (i.e., the written response required under subsection
(b)(3)) and with the Clerk’s response to the ALJ’s order to show cause. This argument fails in
light of our interpretation of the Act and the Board’s rules. The Board’s rules clearly required
the original response to the petition (or, as denominated by the Clerk in this case, the objections
to the petition) to include clear and convincing evidence of the alleged fraud or coercion in the
Union’s organizing campaign. 80 Ill. Adm. Code 1210.100(b)(3) (2004). Thus, the Board’s
initial notification properly informed the Clerk that it was required to include clear and
convincing evidence with its response to the petition. Likewise, the ALJ’s order to show cause
also properly informed the Clerk that it was also required to include clear and convincing
evidence in its supplemental submission to rectify the weaknesses the ALJ identified in the
Clerk’s response. Accordingly, we reject the Clerk’s argument that the Board and the ALJ
erroneously placed on the Clerk a higher burden than that required by the Act or the Board’s
rules.
¶ 49 D. Sufficiency of Evidence Demonstrating Fraud or Coercion
¶ 50 The Clerk next argues that it submitted sufficient evidence to demonstrate the existence of
material issues of fraud and coercion, which should have required an oral hearing to resolve the
issues raised. First addressing fraud, the Clerk argues that the Union promised employees
better salaries, better raises, and better vacation benefits. The Clerk also criticizes the ALJ’s
reasoning that the claim that the Union was not going to charge dues was not “necessarily
false” because the Act did “not require bargaining unit members to pay dues, and the Clerk
ha[d] not supplied any other evidence on the matter.” The Clerk argues that it had only to
supply some evidence demonstrating a material issue of fraud. The Clerk contends that in
Halle’s affidavit it demonstrated a material issue “by showing that the employee was promised
that there would be no dues.”
¶ 51 We note that the Clerk has not accurately stated the evidence presented in the affidavit.
Halle averred that the Union representative “claimed that the raise [she] would get would cover
the dues of $40.00 per month.” Thus, the Union representative did not promise that there
would be no dues charged to employees joining the Union.
¶ 52 The Clerk also refers to Polydoris’s hearsay averment that an anonymous employee
reported that an unnamed representative told her that “joining the union would be free and
there would not be any dues.” From this, the Clerk argues that the ALJ used the wrong standard
when she stated that hearsay from an unidentified source is “not generally considered clear and
convincing evidence.” As we saw above, however, the Clerk’s response to the petition was
required to include clear and convincing evidence to support the Clerk’s allegations of fraud.
80 Ill. Adm. Code 1210.100(b)(3) (2004). Accordingly, we cannot say that the ALJ used the
wrong standard in evaluating the evidence submitted.
¶ 53 Moreover, we cannot say that second- and third-hand hearsay from unidentified
individuals rises to the level of clear and convincing evidence. See Metropolitan Alliance of
Police, 26 PERI ¶ 59 (ILRB State Panel 2010) (hearsay evidence from anonymous sources is
insufficient to meet the clear-and-convincing evidentiary standard of section 9(a-5) of the Act
(5 ILCS 315/9(a-5) (West 2014))). The ALJ and the Board determined that the evidence
presented by the Clerk simply could not meet the statutory standard of clear and convincing.
We cannot say that the Board’s decision was clearly erroneous.
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¶ 54 The Clerk’s arguments disputing the ALJ’s recommended decision, adopted by the Board,
consist of claims that the ALJ and the Board misapprehended the required procedure and that
the Clerk’s evidence was sufficient to demonstrate material issues regarding fraud and
coercion. As we noted above, however, the Act and the Board’s rules both require the
submission of clear and convincing evidence when the employer responds to a
majority-interest petition. Thus, the Clerk’s procedural argument fails.
¶ 55 Regarding the sufficiency argument, the Clerk contends that it presented evidence that, in
order to garner support for the Union’s organizing campaign, the Union promised that no dues
would be charged and that employees would receive better benefits. While the affidavits do,
conclusorily, support the Clerk’s contentions, in one instance, the person making the claim of
fraud is anonymous, and in another, the Union representative’s identity and words are not
given. As such, the affidavits provide only hearsay and conclusory evidence, and thus we
cannot say that the Clerk met its evidentiary obligation. Accordingly, we reject the Clerk’s
claims that the Union used fraudulent means to obtain majority support.
¶ 56 The Clerk next argues that it provided sufficient evidence that the Union engaged in
coercive tactics during its organizing campaign. In particular, the Clerk points to Ventura’s
affidavit in which Ventura averred that she felt threatened when an identified coworker who
was in favor of unionizing texted her that she would be waiting outside to meet with Ventura
after work and when an unidentified Union representative came to her dwelling to discuss
signing a dues-deduction card. The Clerk also points to Halle’s affidavit in which she
complained that an unidentified Union representative “appeared to be attempting to use peer
pressure and insults” to coerce her into joining the Union. Finally, the Clerk especially
highlights Lucio’s affidavit in which she averred that the behavior of two unidentified Union
representatives was so disturbing that she filed a police report. In particular, the Clerk contends
that, for a single mother, the unannounced approach of men during the evening hours was
objectively threatening and coercive.
¶ 57 We first note that, despite these claims of coercion, none of the affiants stated that either a
Union representative or a coworker either threatened to or actually did retaliate against her.
Additionally, and more significantly, despite the claimed coercion, none of the affiants
actually reported that she signed a dues-deduction card. Thus, none of the affiants was so
subjectively intimidated that her will was overborne and she acquiesced to the purported
coercion.
¶ 58 The Clerk repeats its contention that it supplied sufficient evidence to raise a material issue
regarding coercion. The Clerk argues that the ALJ and the Board erred in rejecting the
evidence as failing to surmount the clear-and-convincing standard when all they should have
been doing was to ascertain whether the evidence raised an issue. We have repeatedly
addressed this argument in the various guises presented by the Clerk; both the Act and the
Board’s rules require that the employer present clear and convincing evidence supporting a
claim of coercion. Accordingly, we reject the Clerk’s argument on that point.
¶ 59 Next, the Clerk suggests that the conduct of the unidentified employees and Union
representatives was objectively coercive. While the Clerk correctly notes that the Board has
cited no authority indicating what constitutes coercion in a union representation case, the
Board has analogized coercion in a representation case to coercion in an unfair-labor-practice
case, which measures the allegedly coercive conduct against an objective standard.
Metropolitan Alliance of Police, 26 PERI ¶ 59 (ILRB State Panel 2010). Thus, the ALJ and the
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Board chose the correct rule of law to employ, namely, whether the conduct identified in the
Clerk’s affidavits was objectively coercive.
¶ 60 The ALJ held that, with respect to the Ventura affidavit, the texts from the coworker and
the home visit by the Union representative were not objectively coercive because Ventura was
not threatened or warned of impending retaliation if she did not sign a dues-deduction card.
Based on the objective standard, we cannot say that the ALJ’s and the Board’s determination
was clearly erroneous.
¶ 61 The ALJ also held that the home visits to the other affiants were not objectively coercive.
Although Lucio’s affidavit suggested that the Union representatives were stalking her and
lying in wait outside of her dwelling, the affidavits provided no other evidence, such as
actually threatening words or actions, and included only subjective statements of the affiants’
discomfort with the visits. Once again, in light of the objective measure, we cannot say that the
ALJ’s and the Board’s determination was clearly erroneous. Accordingly, we conclude that the
Board and the ALJ properly determined that the evidence did not rise to the necessary quantum
because the Clerk did not present evidence of threats, retaliation, or other adverse
consequences that the affiants would experience unless they signed the dues-deduction cards.
We therefore reject the Clerk’s coercion argument.
¶ 62 III. CONCLUSION
¶ 63 For the foregoing reasons, the decision of the Board is confirmed.
¶ 64 Confirmed.
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