County of Du Page v. Illinois Labor Relations Board

Docket No. 105395.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE COUNTY OF DU PAGE et al., Appellees, v. THE ILLINOIS
LABOR RELATIONS BOARD et al., Appellants.
Opinion filed December 18, 2008.
CHIEF JUSTICE FITZGERALD delivered the judgment of the
court, with opinion.
Justices Freeman, Kilbride and Burke concurred in the judgment
and opinion.
Justice Thomas concurred in part and dissented in part, with
opinion, joined by Justices Garman and Karmeier.
OPINION
The Illinois Labor Relations Board, State Panel (the Board), and
the Metropolitan Alliance of Police, Du Page County Sheriff’s Police
Chapter #126 (MAP or the Union) appeal from a judgment of the
appellate court vacating the Board’s certification of MAP as the
exclusive bargaining representative for a unit of deputy sheriffs
employed by the County of Du Page and the sheriff of Du Page
County (collectively, the Employer) (375 Ill. App. 3d 765). At issue
is the proper interpretation of section 9(a–5) of the Illinois Public
Labor Relations Act (5 ILCS 315/9(a–5) (West 2004)).
For the reasons discussed below, we reverse the judgment of the
appellate court, and remand to the appellate court for further review.
BACKGROUND
The Illinois Public Labor Relations Act (the Act) grants public
employees “full freedom of association, self-organization, and
designation of representatives of their own choosing for the purposes
of negotiating wages, hours and other conditions of employment.” 5
ILCS 315/2 (West 2004). Prior to the adoption of section 9(a–5) of
the Act (see Pub. Act 93–444, eff. August 5, 2003), unless a public
employee was a member of a historically recognized bargaining unit,
or the public employer voluntarily recognized a labor organization as
the exclusive bargaining representative for a unit of employees, the
only means available for public employees to exercise their
collective-bargaining rights was through a secret ballot election. See
5 ILCS 315/3(f), 9(d), (f) (West 2002). When the legislature enacted
section 9(a–5), it provided public employees and labor organizations
an alternative to the election process. Section 9(a–5) states:
“The [Illinois Labor Relations] Board shall designate an
exclusive representative for purposes of collective bargaining
when the representative demonstrates a showing of majority
interest by employees in the unit. If the parties to a dispute are
without agreement on the means to ascertain the choice, if
any, of employee organization as their representative, the
Board shall ascertain the employees’ choice of employee
organization, on the basis of dues deduction authorization
and other evidence, or, if necessary, by conducting an
election. 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. The Board shall also
investigate and consider a party’s allegations that the dues
deduction authorizations and other evidence submitted in
support of a designation of representative without an election
were subsequently changed, altered, withdrawn, or withheld
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as a result of employer fraud, coercion, or any other unfair
labor practice by the employer. If the Board determines that
a labor organization would have had a majority interest but
for an employer’s fraud, coercion, or unfair labor practice, it
shall designate the labor organization as an exclusive
representative without conducting an election.” (Emphasis
added.) 5 ILCS 315/9(a–5) (West 2004).
A union seeking to be certified under section 9(a–5) must file
with the Board a “majority interest petition,” i.e., a representation
petition “accompanied by a showing of interest evidencing that a
majority of the employees in the petitioned-for bargaining unit wish
to be represented by the labor organization.” 80 Ill. Adm. Code
§1210.80(b) (as amended at 28 Ill. Reg. 4172, eff. February 19,
2004). Under the Board’s rules, the showing of interest in support of
such a petition “may consist of authorization cards, petitions, or any
other evidence that demonstrates that a majority of the employees
wish to be represented by the union for the purposes of collective
bargaining.” (Emphasis added.) 80 Ill. Adm. Code §1210.80(d)(2)(A)
(as amended at 28 Ill. Reg. 4172, eff. February 19, 2004). The
evidence of majority support must contain original, legible,
signatures, which do not predate the filing of the petition by more
than six months. 80 Ill. Adm. Code §§1210.80(d)(2)(B), (d)(2)(C),
(d)(2)(D) (as amended at 28 Ill. Reg. 4172, eff. February 19, 2004).
In addition, the showing of interest “shall state that by signing the
card the employee acknowledges that if a majority of his/her co-
workers in an appropriate unit sign evidence of majority support, the
card can be used by the petitioner to obtain certification as the
employees’ exclusive representative without an election.” 80 Ill.
Adm. Code §1210.80(d)(2)(E) (as amended at 28 Ill. Reg. 4172, eff.
February 19, 2004). Evidence of majority support is not furnished to
any of the parties. 80 Ill. Adm. Code §1210.80(e)(1) (as amended at
28 Ill. Reg. 4172, eff. February 19, 2004).
The employer is required to submit signature exemplars for the
employees in the proposed bargaining unit and is permitted an
opportunity to respond to the petition. 80 Ill. Adm. Code
§1210.100(b)(2), (b)(3) (as amended at 28 Ill. Reg. 4172, eff.
February 19, 2004). In addition to providing “clear and convincing
evidence of any alleged fraud or coercion in obtaining majority
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support,” the employer must set forth its “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.” 80 Ill. Adm. Code §1210.100(b)(3) (as
amended at 28 Ill. Reg. 4172, eff. February 19, 2004). “Any person
aggrieved” by an order of the Board certifying a labor organization
“may apply for and obtain judicial review in accordance with
provisions of the Administrative Review Law *** directly in the
Appellate Court for the district in which the aggrieved party resides
or transacts business.” 5 ILCS 315/9(i) (West 2004).
The present legal dispute arose out of a majority interest petition
filed by MAP on June 15, 2005, in case number S–RC–05–153, in
which MAP sought to be certified as the exclusive representative for
a unit of Du Page County deputy sheriffs. The Employer objected to
the petition on several grounds. One of its objections, relevant here,
stemmed from the difference between the statutory language and the
Board’s rules. As set forth above, section 9(a–5) of the Act requires
the Board to ascertain the employees’ choice of representative “on the
basis of dues deduction authorization and other evidence,” whereas
the Board’s rules require “authorization cards, petitions, or any other
evidence” demonstrating a majority interest. (Emphases added.)
Compare 5 ILCS 315/9(a–5) (West 2004) with 80 Ill. Adm. Code
§1210.80(d)(2)(A) (as amended at 28 Ill. Reg. 4172, eff. February 19,
2004). The Employer argued that section 9(a–5) required the Union
to submit both dues deduction authorization evidence and some other
evidence of majority support, and that the Board’s rules to the
contrary were invalid. The Employer also argued that it was entitled
to copies of the Union’s evidence and that the requested bargaining
unit was inappropriate.
The Board rejected the Employer’s arguments and, on March 23,
2006, certified MAP as the exclusive bargaining representative for the
requested employee unit. The Board’s tally indicated that 189
employees were in the unit; 111 valid cards were signed in support of
MAP; no cards were found, or even alleged, to have been obtained
through the use of fraud or coercion; and 14 cards were found invalid
for other reasons (e.g., the employee was not included in the unit, or
the card was not signed or dated).
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The Employer sought administrative review of the Board’s
decision, arguing that the word “and,” as used in the statutory phrase
“dues deduction authorization and other evidence” (5 ILCS
315/9(a–5) (West 2004)), should be read in its conjunctive sense, and
that the Board’s rules contradict the statute and are therefore invalid.
The Employer also argued that the Board likely applied the invalid
regulations and did not require the Union to supply both dues
deduction authorization and other evidence in support of its petition.
The Employer also renewed its challenge to the makeup of the
bargaining unit.
The Board and the Union disagreed with the Employer’s
construction of section 9(a–5) and argued that the word “and,” when
construed in light of the entire section, should be read in its several,
disjunctive sense. The Board and the Union also argued that the
underlying evidence supporting a majority interest petition is
confidential and that the employer does not have a right to review it.
Finally, the Board and the Union maintained that the bargaining unit
is appropriate.
While the case was being briefed in the appellate court, the
Employer filed a motion seeking to have the record supplemented
with the Union’s evidence of majority support. The Board objected,
and the appellate court denied the Employer’s motion. Thus, the
evidence of majority support was not made a part of the record on
review.
The appellate court vacated the Board’s decision and remanded
the matter to the Board for further proceedings. 375 Ill. App. 3d 765.
The appellate court determined that both constructions of section
9(a–5) advanced by the parties were reasonable and that the statute
was therefore ambiguous. 375 Ill. App. 3d at 773-74. Ultimately,
however, the appellate court agreed with the Employer: “[T]he
majority interest provision requires that both dues deduction
authorization and other evidence be submitted demonstrating that a
majority of the employees support representation by the named
organization.” 375 Ill. App . 3d at 776. The appellate court also held
that because the Board’s regulations only require one form of
evidence to support a majority interest showing, and do not require
dues deduction authorization evidence, the Board’s regulations
conflict with the requirements of section 9(a–5) and, therefore, are
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invalid. 375 Ill. App. 3d at 777. The appellate court further held that
the Board’s decision on a majority interest petition is a final order,
expressly subject to administrative review, and that meaningful
review requires, at a minimum, that the reviewing court be able to
ascertain that the evidence submitted to the Board was “the type and
amount” sufficient to demonstrate a showing of interest by a majority
of the eligible employees. 375 Ill. App. 3d at 777-78. The appellate
court noted that there was no evidence of record to support the
Board’s decision, and inferred that MAP submitted evidence in
conformance with the Board’s invalid regulations, rather than the
requirements of section 9(a–5). Accordingly, the appellate court held
that the Board’s decision certifying MAP was against the manifest
weight of the evidence. 375 Ill. App. 3d at 778-79.
The appellate court also concluded that no reason existed to
prohibit the Employer from reviewing the Union’s evidence of
majority interest, where the employees’ identities are redacted.
“Further, because the majority interest petition stands in lieu of an
election, and to allow the meaningful review of the Board’s decision,
the Board must adopt some sort of regulation that provides for the
submission of the evidence it relied upon to the reviewing court ***.”
375 Ill. App. 3d at 779. The appellate court found it unnecessary to
address the Employer’s contention regarding the makeup of the
bargaining unit. 375 Ill. App. 3d at 779.
After entry of the appellate court opinion, the Employer filed a
petition in the appellate court, pursuant to section 10–55(c) of the
Illinois Administrative Procedure Act (5 ILCS 100/10–55(c) (West
2006)), seeking attorney fees of $47,254.50. While the fee petition
was pending, the Board filed its petition for leave to appeal with this
court, which we allowed. See 210 Ill. 2d R. 315. Shortly thereafter,
the appellate court granted the fee petition.
We allowed the Union, as an additional appellant in this court, to
adopt the Board’s briefs as its own. We also granted leave to the
Illinois State Federation of Labor; Chicago Federation of Labor;
American Federation of State, County & Municipal Employees,
Council 31; Illinois Federation of Teachers; Services Employees
International Union, Local 73, CTW, CLS; Associated Firefighters of
Illinois; and Illinois Educational Association to file an amicus curiae
brief in support of the Board and MAP. Finally, we granted leave to
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the Illinois Public Employer Labor Relations Association and Illinois
Municipal League to file an amicus curiae brief in support of the
Employer.
ANALYSIS
The Board identifies the following issues for review: (1) whether
section 9(a–5) requires both dues deduction authorization evidence
and another form of evidence in support of a majority interest
petition; (2) whether an employer is entitled to review the evidence
of majority support; (3) whether this court should consider the
bargaining unit issues not addressed by the appellate court and, if so,
how it should rule; and (4) whether the appellate court properly
awarded the full amount of attorney fees requested by the Employer.
We consider each in turn.
I. “Dues deduction authorization and other evidence”
The first issue raised by the Board is one of statutory
interpretation, which is subject to de novo review. Harrisonville
Telephone Co. v. Illinois Commerce Comm’n, 212 Ill. 2d 237, 247
(2004). Our primary objective is to ascertain and give effect to the
intent of the legislature. Harrisonville Telephone Co., 212 Ill. 2d at
251; Alternate Fuels, Inc. v. Director of the Illinois Environmental
Protection Agency, 215 Ill. 2d 219, 237-38 (2004). The most reliable
indicator of such intent is the language of the statute, which is to be
given its plain and ordinary meaning. Harrisonville Telephone Co.,
212 Ill. 2d at 251; Alternate Fuels, 215 Ill. 2d at 238. Words and
phrases should not be considered in isolation; rather, they must be
interpreted in light of other relevant provisions and the statute as a
whole. Williams v. Staples, 208 Ill. 2d 480, 487 (2004); In re
Detention of Lieberman, 201 Ill. 2d 300, 308 (2002). In addition to
the statutory language, the court may consider the purpose behind the
law and the evils sought to be remedied, as well as the consequences
that would result from construing the law one way or the other.
Williams, 208 Ill. 2d at 487; Lieberman, 201 Ill. 2d at 308. Where a
statute is capable of more than one reasonable interpretation, the
statute will be deemed ambiguous. General Motors Corp. v. State of
Illinois Motor Vehicle Review Board, 224 Ill. 2d 1, 13 (2007). In that
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event, the court may consider extrinsic aids to construction, such as
legislative history. People v. Collins, 214 Ill. 2d 206, 214 (2005)
For ease of discussion, we repeat a portion of section 9(a–5):
“If the parties to a dispute are without agreement on the
means to ascertain the choice, if any, of employee
organization as their representative, the Board shall ascertain
the employees’ choice of employee organization, on the basis
of dues deduction authorization and other evidence, or, if
necessary, by conducting an election. 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 2004).
The Board argues that the word “and,” as used in the phrase “dues
deduction authorization and other evidence,” when considered in the
context of section 9(a–5) as a whole, should be read in the
disjunctive. Under this reading, “dues deduction authorization and
other evidence” establishes a range or category of evidence which
will support a majority interest petition, but it does not require that
the petition be supported by all such evidence. Rather, dues deduction
authorization or other evidence, similar in kind to dues deduction
authorizations, is sufficient. This interpretation is reflected in the
Board’s rules, which state in relevant part: “The showing of interest
in support of a majority interest petition may consist of authorization
cards, petitions, or any other evidence that demonstrates that a
majority of the employees wish to be represented by the union for the
purposes of collective bargaining.” (Emphasis added.) 80 Ill. Adm.
Code §1210.80(d)(2)(A) (as amended at 28 Ill. Reg. 4172, eff.
February 19, 2004).
The Board also posits that reading “and” as “or” avoids creating
an internal inconsistency in the statute. The Board explains that, if, in
the second sentence quoted above, the Board could “otherwise” rely
on “other evidence” to ascertain the employees’ choice of
representative, then the phrase “dues deduction authorization and
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other evidence” in the first sentence cannot require both forms of
evidence.
The Employer argues that “and” typically “signifies and expresses
the relation of addition” (People v. A Parcel of Property Commonly
Known as 1945 North 31st Street, Decatur, Macon County, Illinois,
217 Ill. 2d 481, 501 (2005)), and thus is generally read in the
conjunctive. The Employer disputes that reading “and” in this fashion
creates an inconsistency in the statute, and adopts the reasoning of the
appellate court that the term “otherwise,” when given its ordinary
meaning, can be reconciled with reading “and” in the conjunctive.
See 375 Ill. App. 3d at 775.
In evaluating the parties’ divergent interpretations, we note that
use of the word “and” between two statutory elements generally
indicates that both of the elements must be satisfied in order to
comply with the statute. People v. A Parcel of Property Commonly
Known as 1945 North 31st Street, Decatur, Macon County, Illinois,
217 Ill. 2d 481, 501 (2005); Jarvis v. South Oak Dodge, Inc., 201 Ill.
2d 81, 87-88 (2002). Nonetheless, this court has also recognized that
“and” is often used interchangeably with “or,” the meaning being
determined by the context. Sturgeon Bay, Etc. Ship Canal & Harbor
Co. v. Leatham, 164 Ill. 239, 243 (1896). Webster’s dictionary
reflects this use of “and,” providing the following secondary
definition:
“2–used as a function word to express *** reference to either
or both of two alternatives ‹choose between him~me› esp. in
legal language when also plainly intended to mean or
‹bequeathed to a person~her bodily issue› ‹property taxable
for state~county purposes›.” (Emphasis in original.)
Webster’s Third New International Dictionary 80 (1993).
See also Black’s Law Dictionary 86 (6th ed. 1990) (stating that “and”
is “[s]ometimes construed as ‘or’ ”).
In construing statutes, the strict meaning of words like “and” “is
more readily departed from than that of other words.” John P.
Moriarty, Inc. v. Murphy, 387 Ill. 119, 129 (1944). Thus, if reading
“and” in its literal sense would create an inconsistency in the statute
or “render[ ] the sense of a statutory enactment dubious,” we will read
“and” as “or.” John P. Moriarty, Inc., 387 Ill. at 129-30; accord 1945
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North 31st Street, 217 Ill. 2d at 500-01; People ex rel. Department of
Registration & Education v. D.R.G., Inc., 62 Ill. 2d 401, 405 (1976).
We conclude that the basic premise underlying the Board’s
reading of the statute–that “and” does not necessarily mean
“and”–and the basic premise underlying the Employer’s reading of
the statute–that “and” typically means “and”–both appear, at first
blush, to be on solid ground. We conclude also that both
interpretations can be harmonized, to a greater or lesser degree, with
section 9(a–5) as a whole, including the “otherwise” clause.
Accordingly, because section 9(a–5) is “ ‘capable of being understood
by reasonably well-informed persons in two or more different
senses,’ ” we deem the statute ambiguous. Wade v. City of North
Chicago Police Pension Board, 226 Ill. 2d 485, 511 (2007), quoting
People v. Jameson, 162 Ill. 2d 282, 288 (1994).
To resolve this ambiguity, we turn to the legislative history of
section 9(a–5), which began its life as House Bill 3396. We find
instructive the statements of Senator Martin Sandoval, who spoke in
support of this bill:
“Under current law, workers must go through a difficult
process to form a union. Workers must first sign union
authorization cards stating that they want a union. Then, even
though they’ve already said they want a union, they must file
for a *** Labor Board-run election. The election process can
be lengthy and cumbersome, as we all know, during which
time the employer has control of the employers [sic] and can
interfere with the employees’ decision. And, in fact,
employers routinely use this time to scare workers into voting
against a union even if the workers want a union. Solution to
this problem for public employees is to allow them *** to
vote for a union through a process called card check.” 93d Ill.
Gen. Assem., Senate Proceedings, May 21, 2003, at 12
(statements of Senator Sandoval).
The senator’s statements indicate that the legislature intended,
through its adoption of House Bill 3396, to provide an alternative to
the “lengthy and cumbersome” statutory election procedure, namely,
a simple “card check” procedure. We therefore cannot agree with the
Employer that the legislature would have complicated the card check
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procedure by requiring two forms of evidence: a dues checkoff card
and some other unspecified form of evidence.
Support for this conclusion is also found in the statements of
Representative Larry McKeon:
“House Bill 3396 is modeled after a piece of legislation in
New York that simplifies the manner in which elections may
be held to certify a collective bargaining agent ***.” 93d Ill.
Gen. Assem., House Proceedings, March 31, 2003, at 50
(statements of Representative McKeon).
The New York legislation to which Representative McKeon referred
is section 207 of New York’s Public Employees’ Fair Employment
Act. The New York statute requires that for purposes of resolving
disputes concerning representation status, the public employees’
choice of representative shall be ascertained “on the basis of dues
deduction authorization and other evidences.” (Emphasis added.)
N.Y. Civ. Serv. §207 (Consol. 2008). To implement the statute, New
York’s labor board adopted rules requiring a majority of the
employees to indicate their choice of representative “by the execution
of dues deduction authorization cards which are current or individual
designation cards.” (Emphasis added.) N.Y. Comp. Codes R. & Regs.
tit. 4, §201.9(g)(1) (2008). We presume that our legislature, having
modeled House Bill 3396 on the New York statute, was also aware
of the corresponding administrative regulations, which were then in
effect. Having adopted language that mirrors in pertinent part the
language of the New York statute, we also presume that the
legislature intended a similar result. The Board’s reading of section
9(a–5), as reflected in its regulations, achieves that result.
To the extent, however, that the legislative history fails to
completely resolve any doubt as to the legislature’s intent, we are
guided by the principle that courts afford considerable deference to
the interpretation of an ambiguous statute by the agency charged with
its administration. Lauer v. American Family Life Insurance Co., 199
Ill. 2d 384, 388 (2002); Phoenix Bond & Indemnity Co. v. Pappas,
194 Ill. 2d 99, 106 (2000). The reason for this deference is that the
“agency can make informed judgments upon the issues, based on its
experience and expertise.” Bonoguro v. County Officers Electoral
Board, 158 Ill. 2d 391, 398 (1994), citing Abrahamson v. Illinois
Department of Professional Regulation, 153 Ill. 2d 76, 97-98 (1992);
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see also Andrews v. Kowa Printing Corp., 217 Ill. 2d 101, 116 (2005)
(“the interpretation of a statute by involved administrative bodies
constitutes ‘an informed source for guidance when seeking to
ascertain the legislature’s intention when the statute was enacted’ ”),
quoting Johnson v. Marshall Field & Co., 57 Ill. 2d 272, 278 (1974).
For this additional reason, we would adopt the construction urged by
the Board.
We hold that the word “and,” as used in the phrase “dues
deduction authorization and other evidence,” was intended by the
legislature to mean “or.” The appellate court therefore erred in
holding section 1210.80(d)(2)(A) of the Board’s regulations, which
do not require dues deduction authorization evidence, invalid. See
375 Ill. App. 3d at 777.
The appellate court also erred when it held that the Board’s
decision certifying the union was against the manifest weight of the
evidence. See 375 Ill. App. 3d at 778-79. That holding was based on
the failure of the Board to require, and the presumed failure of the
Union to submit, dues deduction authorization evidence. Because the
statute does not require such evidence, the appellate court erred in
vacating the Board’s decision.
II. Employer Review of Majority Interest Evidence
The Board next argues that, contrary to the appellate court
opinion, an employer is not entitled to review a union’s evidence of
majority support. We review this legal issue, which devolves into an
issue of statutory construction, de novo. Harrisonville Telephone Co.,
212 Ill. 2d at 247.
The Board’s rules state that “[t]he Board shall maintain the
confidentiality of the showing of interest,” and that such evidence
“shall not be furnished to any of the parties.” 80 Ill. Adm. Code
§1210.80(e)(1) (as amended at 28 Ill. Reg. 4172, eff. February 19,
2004). The Board argues that if the confidentiality of the evidence of
majority support is not preserved, the basic purposes of the Act will
be undermined. Relying upon federal case law analyzing the National
Labor Relations Act (29 U.S.C. §151 et seq.), the Board contends that
“employees have a strong privacy interest in their personal sentiments
regarding union representation, and that this right to privacy is a right
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necessary to full and free exercise of the[ir] organizational rights”
under the Act. Pacific Molasses Co. v. National Labor Relations
Board Regional Office #15, 577 F.2d 1172, 1182 (5th Cir. 1978).
According to the Board, disclosure of authorization cards, which
identify the signers, would chill the right of employees to express
their union sentiments. Pacific Molasses, 577 F.2d at 1182;
Committee on Masonic Homes of R.W. Grand Lodge v. National
Labor Relations Board, 556 F.2d 214, 221 (3d Cir. 1977). The Board
notes that even the attempted discovery of union authorization cards
by an employer has been deemed an “illegal objective” by the federal
court of appeals. Wright Electric, Inc. v. National Labor Relations
Board, 200 F.3d 1162, 1167 (8th Cir. 2000).
The Employer responds that majority interest evidence need not
always be deemed confidential. In support, the Employer cites three
decisions from the National Labor Relations Board (NLRB) involving
unfair labor practice charges against the employers. See Raley’s, 337
N.L.R.B. 719 (2002); American Beef Packers, Inc., 187 N.L.R.B. 996(1971); Stoner Rubber Co., 123 N.L.R.B. 1440 (1959). We have
reviewed these decisions and find them inapposite.
In Raley’s, the NLRB affirmed the dismissal of a complaint
alleging that the employer unlawfully refused to recognize and
bargain with the union as the majority representative at two of the
employer’s stores. After the General Counsel unsuccessfully sought
to have the matter of majority status submitted to a neutral third party,
the union refused to produce the authorization cards necessary to
establish majority status, and the complaint was dismissed. Raley’s,
337 N.L.R.B. 719. In American Beef Packers, the NLRB dismissed
a complaint alleging that the employer improperly engaged in
collective bargaining at a time when the union did not represent a
majority of the employees. The dismissal was based on the failure of
the NLRB’s General Counsel to come forward with evidence
establishing the number of authorization cards and the number of
employees in the unit at the time in question. American Meat
Packers, 187 N.L.R.B. at 997. Finally, in Stoner Rubber the NLRB
dismissed a complaint alleging the employer unlawfully refused to
bargain with the union because the General Counsel failed to produce
evidence of majority interest, other than the union’s certification
order entered 14 months earlier. The NLRB noted that “[p]roof of
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majority is peculiarly within the special competence of the union” and
“may be proved by signed authorization cards, dues checkoff cards,
membership lists, or any other evidentiary means.” Stoner Rubber,
123 N.L.R.B. at 1445.
At most, the foregoing decisions suggest that where an employer
is subject to a charge of an unfair labor practice, the need to establish
whether the union did or did not enjoy majority status may result in
the authorization cards or other evidence of majority support being
made part of the evidentiary record before the finder of fact. These
decisions do not, however, indicate that an employer must be allowed
access to the union’s evidence of majority interest where, as here, the
evidence has been submitted to, and reviewed by, the body charged
with administration of the labor act. Rather, we agree with the Board
that preserving the confidentiality of the authorization cards and other
evidence of majority support is consistent with the public employees’
statutory right to full freedom of association, self-organization and
union representation (5 ILCS 315/2 (West 2004)), and that disclosure
of such evidence to the employer would chill the exercise of these
statutory rights.
As the Employer notes, however, the appellate court attempted to
address the Board’s confidentiality concerns. The appellate court
stated:
“We note that respondents [the Board and the Union]
raise concerns over breaching the anonymity protections of
the employees who might be seeking to organize union
representation, and the chilling effect on unionization that
review of the majority interest petition might entail. We note
further, however, that petitioners [the Employer] appear to be
sensitive to such concerns and have requested only that they
be allowed to review such redacted evidence that
demonstrates majority interest on the part of the eligible
deputies while maintaining the anonymity of the deputies. We
certainly see no problems in providing for some sort of review
of the redacted evidence in support of a majority interest
petition. Further, because the majority interest petition stands
in lieu of an election, and to allow the meaningful review of
the Board’s decision, the Board must adopt some sort of
regulation that provides for the submission of the evidence it
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relied upon to the reviewing court and follows the mandates
of section 9(a–5). We imagine that the submission of redacted
dues authorization cards and other evidence will both
preserve the employees’ anonymity and allow the employer to
have the same rights of review as provided in section 9(a)
regarding the secret ballot election of a representative.” 375
Ill. App. 3d at 779.
The Board questions the value of submitting redacted
authorization cards. The Board notes that if all of the identifying
information is redacted (name, signature, address, social security
number, work unit), only the original preprinted card remains.
Whatever the benefits, or burdens, in submitting redacted copies of
the evidence of majority support, the submission of redacted evidence
at least appears to address the confidentiality concerns raised by the
Board.
The Board’s disagreement with the appellate court opinion,
however, goes beyond issues of confidentiality. The Board also
disagrees with the appellate court’s rationale for allowing an
employer access to the evidence of majority support. The appellate
court reasoned as follows. The Board’s certification order is a final
administrative decision and therefore subject to review by the
appellate court under section 9(i) of the Act (5 ILCS 315/9(i) (West
2004)). Review must be meaningful, i.e., the court must be able to
ascertain that the union’s evidence was the type and amount sufficient
to demonstrate majority support. Therefore, the evidence of support
must be submitted to the reviewing court and to the employer. 375 Ill.
App 3d at 777-79.
The Board argues that the appellate court’s reasoning overlooks
that the Act limits an employer’s role in the determination of majority
interest, and that except in narrow circumstances not present here, the
Board’s majority interest determination is not litigable. See 80 Ill.
Adm. Code §1210.80(e)(3) (as amended at 28 Ill. Reg. 4172, eff.
February 19, 2004) (providing that the showing of interest shall be
determined administratively by the Board and is not subject to
litigation, except for cases of fraud or coercion). We understand the
Board’s argument to be this. If, under the Act, an employer may not
challenge the Board’s determination of majority status, then this is
not an issue that could be raised before the Board and not an issue
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that could be raised on administrative review. Therefore, no need
exists to submit copies of the evidence of majority support (redacted
or otherwise) to the employer. In evaluating this argument, we return
to the language of the Act.
Section 9(a–5) mandates that “[t]he Board shall designate an
exclusive representative for purposes of collective bargaining when
the representative demonstrates a showing of majority interest by
employees in the unit.” 5 ILCS 315/9(a–5) (West 2004).
Significantly, the legislature provided for minimal involvement by the
employer in this procedure. Section 9(a–5) states: “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 *** are fraudulent or were obtained through coercion,
the Board shall promptly thereafter conduct an election.” 5 ILCS
315/9(a–5) (West 2004). The legislature made no other provision for
the employer to involve itself in the process by which the union seeks
certification under section 9(a–5), or the process by which the Board
determines whether a union has established majority support under
section 9(a–5). We will not assume that the legislature intended a
larger role for the employer than the language of section 9(a–5)
allows. See In re Ryan B., 212 Ill. 2d 226, 234 (2004) (courts may not
restrict or enlarge the meaning of an unambiguous statute). We thus
agree with the Board that its determination of whether a union enjoys
majority support may not be litigated.
This conclusion finds support in the fact that, at the time the
legislature adopted section 9(a–5), the Board’s rules provided that the
showing of interest under section 9(a) would be determined
administratively by the Board and would not be subject to litigation.
80 Ill. Adm. Code §1210.80(d)(3) (as amended at 27 Ill. Reg. 7393,
eff. May 1, 2003). See also County of Kane v. Illinois State Labor
Relations Board, 165 Ill. App. 3d 614, 620 (1988) (holding that
section 9(a) showing of interest is not litigable). If the legislature
desired a different result when it adopted section 9(a–5), it could have
included appropriate language in the statute. It did not do so.
To the extent section 9(a–5) could be considered ambiguous and
the legislature’s intent in doubt, we would defer to the Board’s
reasonable construction of the statute. See Lauer, 199 Ill. 2d at 388;
Phoenix Bond & Indemnity Co., 194 Ill. 2d at 106. The Board’s
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construction, which limits the employer’s ability to challenge a
finding of majority support, is consistent with the legislative history,
set forth in section I supra, demonstrating that the General Assembly
intended section 9(a–5) to limit an employer’s ability to delay or
interfere in the process of union recognition. See 93d Ill. Gen.
Assem., Senate Proceedings, May 21, 2003, at 12 (statements of
Senator Sandoval). The legislature would not have provided a
streamlined “card check” procedure for union recognition on the one
hand, but on the other hand provide an employer the ability to delay
a certification order by allowing a fishing expedition in the union’s
evidence of support.
We are not persuaded by the Employer’s argument that, under
section 9(i) of the Act, all aspects of a certification order, including
the sufficiency of the evidence of majority support, are litigable.
Section 9(i) states in pertinent part:
“An order of the Board *** determining and certifying
that a labor organization has been fairly and freely chosen by
a majority of employees in an appropriate bargaining unit,
*** is a final order. Any person aggrieved by any such order
*** may apply for and obtain judicial review in accordance
with the provisions of the Administrative Review Law, ***
except that such review shall be afforded directly in the
Appellate Court for the district in which the aggrieved party
resides or transacts business.” 5 ILCS 315/9(i) (West 2004).
Section 9(i) addresses who may appeal a certification order. It does
not address the separate issue of reviewability, i.e., the scope of
review. See Greer v. Illinois Housing Development Authority, 122 Ill.
2d 462, 496 (1988), quoting 2 C. Koch, Administrative Law &
Practice §9.1, at 84 (1985) (“reviewability sets out the area of
review”).
The Employer’s reliance on Champaign-Urbana Public Health
District v. Illinois Labor Relations Board, State Panel, 354 Ill. App.
3d 482, 486 (2004), and County of Du Page v. Illinois Labor
Relations Board, State Panel, 358 Ill. App. 3d 174, 179 (2005), is
misplaced. Champaign-Urbana Public Health held that, under
section 9(i), the employer had standing to appeal the Board’s final
order because the employer was a party to the representation
proceeding and the certification order binds the employer to a
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collective-bargaining relationship with the union. Champaign-
Urbana Public Health, 354 Ill. App. 3d at 486. County of Du Page
followed suit, holding that because an aggrieved party may seek
review of a certification of representative, and because the employer’s
interests were implicated in the case, they had standing to maintain
the appeal. County of Du Page, 358 Ill. App. 3d at 179. Neither
opinion addressed the issue before us now.
In sum, we hold that section 9(a–5) precludes an employer from
litigating the Board’s determination that a union enjoys majority
status and, consequently, that an employer is not entitled to review the
evidence of majority support. The appellate court erred in requiring
the Board to make this evidence available to the employer.
Our holding does not mean that the Board’s certification order is
immune from challenge and review. “[T]he interest in making
administrative agencies conform to the law compels some judicial
intervention.” Greer, 122 Ill. 2d at 495. Thus, other aspects of the
Board’s order may be challenged. Although we will not attempt to set
out an exhaustive list of the issues an employer may raise before the
Board and on review, we note that, in addition to claims of fraud or
coercion, an employer may challenge, as it did here, the Board’s
interpretation of the Act and the appropriateness of the bargaining
unit. The employer may also raise other issues pertinent to the facts
of the case. See 5 ILCS 315/9(a–5) (West 2004); 80 Ill. Adm. Code
§1210.100(b)(3) (as amended at 28 Ill. Reg. 4172, eff. February 19,
2004).
III. Appropriateness of the Bargaining Unit
The proposed bargaining unit, as described in the Union’s
majority interest petition, included “[a]ll Deputy Sheriffs below the
rank of sergeant in the Sheriff’s Administrative Bureau, Law
Enforcement Bureau, Fugitive Apprehension Unit within the
Corrections Bureau, School Liaison Unit, Gang Suppression/Problem
Investigation Unit, Du Page County Metropolitan Enforcement Group
(DUMEG) Consortium and Beat Auto Theft Through Law
Enforcement (BATTLE) Consortium,” and excluded “Deputy
Sheriffs below the rank of sergeant employed by the County of
DuPage and the Sheriff of DuPage County in the Sheriff’s
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Corrections Bureau in positions in the county jail, the Sheriff’s Work
Alternative Program, the Young Adult Work Camp, the periodic
Imprisonment unit, the Corrections Transport Unit and the Release
and Detention (R&D) unit; Deputy Sheriffs of the rank of sergeant
and above; all supervisory, managerial and confidential employees as
defined by the Act; all civilian and non-peace officer employees of
the Sheriff’s Department, and all other employees of the County of
DuPage and Sheriff of DuPage County.” The Board rejected the
Employer’s argument that the foregoing unit was inappropriately
narrow and determined that no unit issues existed that warranted a
hearing.
According to the appellate court opinion, the Employer argued on
administrative review “that the Board erred by excluding deputies
who were assigned to the corrections bureau of the Sheriff’s office
from the bargaining unit.” 375 Ill. App. 3d at 766. The appellate
court, however, never reached this issue because it vacated the
Board’s certification order based on the court’s interpretation of the
evidentiary requirement of section 9(a–5). Because we have already
held that the appellate court erred in vacating the Board’s order, we
remand this matter to the appellate court to consider the Board’s
ruling on the appropriateness of the bargaining unit. See Waste
Management of Illinois, Inc. v. Illinois Pollution Control Board, 145
Ill. 2d 345, 352-53 (1991) (where this court reversed the appellate
court decision on administrative review and remanded the matter to
the appellate court to consider issue raised on review but not
considered).
IV. Attorney Fees
After entry of the appellate court opinion in this case, the
Employer filed a petition in the appellate court, pursuant to section
10–55(c) of the Administrative Procedure Act (5 ILCS 100/10–55(c)
(West 2006)), seeking attorney fees of $47,254.50. Section 10–55(c)
provides that a court shall award reasonable litigation expenses,
including reasonable attorney fees, “[i]n any case in which a party has
any administrative rule invalidated by a court for any reason,
including but not limited to the agency’s exceeding its statutory
authority or the agency’s failure to follow statutory procedures in the
adoption of the rule.” 5 ILCS 100/10–55(c) (West 2006). The
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appellate court opinion expressly invalidated section
1210.80(d)(2)(A) of the Board’s rules because they did not require
two forms of evidence of majority support and did not require dues
deduction authorization evidence. 375 Ill. App. 3d at 777.
While the fee petition was pending, the Board filed its petition for
leave to appeal, which we allowed. Shortly thereafter the appellate
court entered an order awarding the Employer the full amount of fees
requested. Because the fee award postdated the filing of the Board’s
petition for leave to appeal, the Board did not include any fee issue in
its petition. The Board, however, did challenge the fee award in its
opening brief filed in this court, and included copies of the fee
petition, the Board’s response, and the Employer’s reply in the
Board’s separate appendix. The Employer argues that the Board
forfeited review of the propriety of the fee award. See Buenz v.
Frontline Transportation Co., 227 Ill. 2d 302, 320 (2008) (“party’s
failure to raise an issue in its petition for leave to appeal may be
deemed a forfeiture of that issue”).
The method the Board used to bring the fee issue before this court
was improper. The Board could have sought an extension of time in
which to file its petition for leave to appeal, pending a ruling on the
Employer’s fee petition in the appellate court. The Board might also
have filed a motion in this court seeking to amend its petition for
leave to appeal. Nonetheless, we recognize that, in light of our ruling
that the appellate court erred in invalidating section 1210.80(d)(2)(A)
of the Board’s rules, the fee award to the Employer was improper.
Accordingly, in the interest of justice, we choose to exercise our
supervisory authority and vacate the appellate court order, entered on
December 4, 2007, which awarded the Employer $47,254.40 in
attorney fees.
CONCLUSION
For the reasons stated, we reverse the judgment of the appellate
court vacating the Board’s certification order, and remand this matter
to the appellate court to consider the bargaining unit issue raised by
the Employer. We also reverse the appellate court’s order awarding
attorney fees to the Employer.
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Reversed;
cause remanded.
JUSTICE THOMAS, concurring in part and dissenting in part:
I concur with that portion of the majority opinion that holds that
the employer is not allowed to review the union’s evidence of
majority support. I disagree, however, with the majority’s conclusion
that “and” in the second sentence of section 9(a–5) means “or.” I
agree with the appellate court’s construction of section 9(a–5), and I
would therefore affirm that portion of its opinion that invalidated the
Board’s regulation as conflicting with the statute. I would also uphold
the appellate court’s attorney fees award. Consequently, I would not
remand the cause to the appellate court to address the employer’s
argument about the appropriateness of the bargaining unit.
The appellate court correctly held that the Board improperly
certified MAP as the exclusive representative without requiring dues
deduction authorizations and other evidence. Section 9(a–5) is clear
on this point: “the Board shall ascertain the employees’ choice of
employee organization, on the basis of dues deduction authorization
and other evidence.” 5 ILCS 315/9(a–5) (West 2006). The majority
ignores the statute’s clear directive, concluding that the legislature’s
use of the word “and” in this sentence means “or.” Slip op. at 12. The
majority notes that a secondary definition of the word “and” is “or”
and cites a dictionary definition that gives examples in which “and”
unquestionably means “or.” Slip op. at 9. Of course, the primary
meaning of the word “and,” according to the majority’s own sources,
is “along with or together with” (Webster’s Third New International
Dictionary 80 (1993)), or “[a] conjunction connecting words or
phrases expressing the idea that the latter is to be added to or taken
along with the first. Added to; together with; joined with; as well as;
including” (Black’s Law Dictionary 86 (6th ed. 1990)).
For this reason, courts generally presume that when the legislature
uses the word “and” it intends that the term be used in its conjunctive
sense. Indeed, we recently described this rule as “obvious”:
“The pertinent conditions of section 8 are plainly joined with
the term ‘and.’ This court long ago observed the obvious:
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‘The conjunction “and” *** signifies and expresses the
relation of addition.’ City of LaSalle v. Kostka, 190 Ill. 130,
137 (1901). Of course, the word ‘and’ is sometimes
considered to mean ‘or,’ and vice versa, in the interpretation
of statutes. However, ‘[t]his is not done except in cases where
there is an apparent repugnance or inconsistency in a statute
that would defeat its main intent and purpose. When these
words are found in a statute and their accurate reading does
not render the sense dubious they should be read and
interpreted as written in the statute.’ Voight v. Industrial
Comm'n, 297 Ill. 109, 114 (1921). ‘ “As a general rule, the
use of the conjunctive, as in the word ‘and,’ indicates that the
legislature intended for all of the listed requirements to be
met. [Citations.]” (Emphasis in original.)’ Byung Moo Soh v.
Target Marketing Systems, Inc., 353 Ill. App. 3d 126, 131
(2004), quoting Gilchrist v. Human Rights Comm'n, 312 Ill.
App. 3d 597, 602 (2000).” People v. A Parcel of Property
Commonly Known as 1945 North 31st Street, Decatur,
Macon County, Illinois, 217 Ill. 2d 481, 500-01 (2005).
According to the majority, however, when the legislature used the
word “and” in between the types of evidence required (“dues
deduction authorization and other evidence”) it really meant “dues
deduction authorization or other similar evidence.”
To the majority’s credit, it does acknowledge that it may only
assign the meaning “or” to the word “and” if giving “and” its
conjunctive meaning renders the statute dubious or creates an
inconsistency that defeats the statute’s main intent and purpose. See
slip op. at 9. The Board argues that such an inconsistency is found
when the second sentence of section 9(a–5) is compared with the
third. The second sentence, which sets forth the necessary evidentiary
burden for a showing of majority interest, states that a determination
of majority interest shall be made “on the basis of dues deduction
authorization and other evidence.” 5 ILCS 315/9(a–5) (West 2006).
The third sentence, which deals with showings of fraud or coercion,
provides that, “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
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representative, are fraudulent or were obtained through coercion, the
Board shall promptly thereafter conduct an election.” 5 ILCS
315/9(a–5) (West 1996). Both parties to this dispute agree that, in this
sentence, “and” means “or.” In other words, if evidence is provided
that any of the evidence of majority support was the product of fraud
or coercion, an election is required. The appellate court did not find
that this was a problem, however, noting that the two sentences serve
different purposes and that the legislature placed a comma before
“and” in the third sentence and not in the second. 375 Ill. App. 3d at
774-75.
The Board sees an inconsistency, however. According to the
Board, the second sentence cannot mean that dues deduction
authorizations and other evidence are both required, because the third
sentence provides that the Board may “otherwise” rely on other
evidence. As the appellate court correctly explained, however, this
represents a misunderstanding of the word “otherwise.” The term
“otherwise” does not, as the majority and the Board believe, mean “in
lieu of.” Rather, it means “under different circumstances.” See 375
Ill. App. 3d at 775, quoting Webster’s Third New International
Dictionary 1598 (1986). Thus, as the appellate court explained, the
different circumstances are those in which there is no fraud or
coercion. 375 Ill. App. 3d at 775. In other words, the third sentence
would mean:
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 absent fraud or coercion rely to ascertain the
employees’ choice of representative, are fraudulent or were
obtained through coercion, the Board shall promptly
thereafter conduct an election.
Thus, because “and” can be read in its conjunctive sense without
creating an inconsistency in the statute or rendering the sense of the
statute dubious, we must give it that reading. See A Parcel of
Property Commonly Known as 1945 North 31st Street, 217 Ill. 2d at
500-01.
Despite explicitly acknowledging that the statute can be read with
“and” having its conjunctive sense without creating an inconsistency
in the statute or rendering the sense of the statute dubious (slip op. at
-23-
10), the majority inexplicably does not end its analysis there, but
rather continues to construe the statute to resolve the ambiguity. The
majority’s analysis follows this pattern: (a) the statute is ambiguous
because “and” can be read either as “and” or as “or”; (b) the rule we
have for resolving such ambiguities is that “and” must be given its
conjunctive meaning if we can do so without creating an
inconsistency in the statute or rendering the sense of the statute
dubious; (c) here, giving “and” its conjunctive sense can indeed be
harmonized with the statute as a whole, including the “otherwise”
clause; (d) however, the use of the disjunctive “or” can also be
harmonized with the statute as a whole; (e) consequently, the statute
is ambiguous and we must resort to other aids of construction. Two
problems are immediately apparent. First, the majority, with no
explanation, elevates the disjunctive meaning to the same status as the
conjunctive meaning, improperly considering whether it can be
harmonized with the statute as a whole. Second, if all that our rule for
resolving whether “and” means “and” or “or” does is to get you back
to the original ambiguity, then that rule has no meaning or function.
This is obviously not how the rule has been applied previously. See,
e.g., People v. A Parcel of Real Property Commonly Known as 1435
North 31st Street, 217 Ill. App. 3d at 500-01.
Because our rule for resolving the meaning of “and” answers the
question, I would end the analysis there and not consider other
statutory construction aids. I will, however, briefly comment on the
other statutory construction aids relied upon by the majority. First, the
majority claims that the legislative history supports its interpretation.
In support, the majority cites the statements of a single legislator that
the intent of section 9(a–5) was to replace the lengthy and
cumbersome election process with a process called “card check.” Slip
op. at 10. The majority states that it does not believe that the
legislature would have complicated the card-check procedure by
requiring two forms of evidence: a dues checkoff card and some other
unspecified form of evidence. Slip op. at 10. The majority does not
explain, however, what would be so cumbersome about obtaining
employee signatures on more than one piece of evidence, particularly
as compared to organizing and conducting an election. Card-check
procedures have been recognized as less reliable than secret ballot
elections in determining majority support. See, e.g., In re Joe Hearin,
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Lumber, 66 N.L.R.B. 1276, 1283 (1946) (“We do not feel, however,
that a card check reflects employees’ true desires with the same
degree of certainty as such an election”). As the Seventh Circuit has
recognized:
“Workers sometimes sign union authorization cards not
because they intend to vote for the union in the election but to
avoid offending the person who asks them to sign, often a
fellow worker, or simply to get the person off their back,
since signing commits the worker to nothing (except that if
enough workers sign, the employer may decide to recognize
the union without an election). See NLRB v. S.S. Logan
Packing Co., 386 F.2d 562, 565 (4th Cir. 1967); NLRB v.
Gruber's Super Market, Inc., supra, 501 F.2d at 705;
Walgreen Co. v. NLRB, supra, 509 F.2d at 1020, 1023
(dissenting opinion). A study referred to in the Logan Packing
case found that even where the union had authorization cards
from between 50 and 70 percent of the employees, it won
only 48 percent of the elections. See 386 F.2d at 565. (The
study itself gives the figure 52 percent, but this is evidently an
arithmetical error, since the study reports that the union won
42 out of 87 elections, which is 48 percent. McCulloch, A
Tale of Two Cities: Or Law in Action, Proceedings of ABA
Section of Labor Relations Law 14, 17 (1962).) Another study
found that 18 percent of those signing authorization cards did
not want union representation at the time they signed. See
Getman, Goldberg & Herman, supra, at 132.” National Labor
Relations Board v. Village IX, Inc., 723 F.2d 1360, 1371 (7th
Cir. 1983).
Thus, it is quite possible that the legislature required two forms of
evidence as a way to help ensure that the union truly had majority
support. Moreover, is Senator Sandoval’s statement that the
legislature intended to implement a “card check” procedure really
supportive of the majority’s position that dues check-off cards are
merely optional?1 Is it not just as reasonable to conclude that if the
1
Senator Sandoval’s statement suggests yet a third possible
interpretation of section 9(a–5): dues deduction authorization and any other
-25-
legislature’s intent is to enact a “card check” procedure and if the
legislature then enacts a statute requiring “dues deduction
authorization and other evidence,” the legislature intended for the
union to submit dues check-off cards as proof of majority support?
Next, the majority finds support for its interpretation in the fact
that section 9(a–5) was modeled after a New York statute that also
contains the phrase “dues deduction authorization and other
evidence.” The majority notes that the New York labor board
promulgated a regulation pursuant to this statute that uses the
disjunctive. The regulation in question provides that majority support
may be demonstrated by the “ ‘execution of dues deduction
authorization cards which are current or individual designation
cards.’ ”2 (Emphasis omitted.) Slip op. at 11, quoting N.Y. Comp.
Codes R. & Regs. tit. 4, §201.9(g)(1) (2008). The majority then states
that it presumes that the legislature was aware of this regulation when
it modeled its statute after the New York statute and, thus, the
legislature must have intended “and” to mean “or.” In other words,
according to the majority, the legislature was aware that the New
York statute used “and,” while the regulation used “or,” but then,
rather than clear up the confusion by using the word “or” in the
Illinois statute, the legislature instead used “and” and rolled the dice
on the chance that the Board would conclude that “and” means “or.”
I am unwilling to ascribe such irrational behavior to the legislature.
Finally, the majority states that to the extent that there is any
doubt as to the meaning of the statute, we should defer to the Board’s
evidence. In other words, this provision could mean that the union may
submit whatever evidence it wants to demonstrate majority support, but, at
a minimum, it must submit dues deduction authorizations. I do not find it
supportive of the majority’s conclusion that dues deduction authorizations
are optional.
2
It is worth noting that New York’s regulation, although using the
disjunctive, puts a far more restrictive interpretation on the phrase “dues
deduction authorization and other evidence” than does the Illinois
regulation, which provides that anything can be submitted to demonstrate
majority support. See 80 Ill. Adm. Code §1210.80(d)(2)(A) (as amended at
28 Ill. Reg. 4172, eff. February 19, 2004).
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interpretation. Again, however, I do not believe that we ever get to
this step because our rule for determining the meaning of “and”
requires us to read it in the conjunctive in this case. Consequently,
there is no need to defer to the Board’s interpretation.
At most, then, the majority has demonstrated only that the statute
is ambiguous and that there are at least two ways to read it. What the
majority has not demonstrated is that the statute cannot be read giving
“and” its conjunctive meaning without creating a statutory
inconsistency or rendering the sense of the statute dubious. Therefore,
we must apply the “obvious” (see A Parcel of Property Commonly
Known as 1945 North 31st Street, 217 Ill. 2d at 500-01) rule that
“and” means “and” and uphold the appellate court’s interpretation of
the statute. Accordingly, I would hold that the appellate court
correctly reversed the certification order because the Board did not
require MAP to submit the evidence of majority support required by
the legislature.
JUSTICES GARMAN and KARMEIER join in this partial
concurrence and partial dissent.
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