The County of Du Page v. Illinois Labor Relations Board

No. 2--06--0380 Filed: 8-24-07
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

THE COUNTY OF Du PAGE and ) On Petition for Administrative Review
THE Du PAGE COUNTY SHERIFF, ) from the Illinois Labor Relations Board,
) State Panel.
Petitioners, )
)
v. ) ILRB Case No. S--RC--05--153
)
ILLINOIS LABOR RELATIONS BOARD, )
STATE PANEL, and METROPOLITAN )
ALLIANCE OF POLICE, Du PAGE )
COUNTY SHERIFF'S POLICE )
CHAPTER No. 126, )
)
Respondents. )
_________________________________________________________________________________

JUSTICE O'MALLEY delivered the opinion of the court:

For at least the second time, petitioners County of Du Page (County) and Du Page County

sheriff (Sheriff) (collectively, petitioners) seek administrative review of the certification of

representative made by respondent Illinois Labor Relations Board, State Panel (Board), certifying

respondent Metropolitan Alliance of Police, Du Page County Sheriff's Police Chapter No. 126

(MAP) (collectively, respondents) as the exclusive bargaining representative of certain sheriff's

deputies employed by petitioners. Petitioners contend that the Board erred by excluding deputies

who were assigned to the corrections bureau of the Sheriff's office from the bargaining unit.

Petitioners also contend that the Board misinterpreted the statutory evidentiary requirements under

the majority interest provision of the Illinois Public Labor Relations Act (Act) (5 ILCS 315/9(a--5)
No. 2--06--0380

(West 2004)) necessary to certify a representative. We agree with petitioners' latter point and vacate

the Board's order and remand.

While involving a new petition for representation, many of the same aspects of this case have

been previously recounted in County of Du Page v. Illinois Labor Relations Board, State Panel, 358

Ill. App. 3d 174 (2005) (County of Du Page I). For clarity, we again summarize the factual and

procedural history surrounding the current petition for representation in the case at bar.

In 1987, the Fraternal Order of Police (FOP) sought to organize some, but not all, of the

deputies employed by the Sheriff. The FOP sought to represent a bargaining unit comprised of

deputies assigned only to the patrol unit and to exclude deputies in the court security and the

corrections divisions in the Sheriff's office. The FOP justified the scope of the bargaining unit by

alleging that the deputies in the court security and corrections divisions did not qualify as peace

officers under section 3(k) of the Act (now codified at 5 ILCS 315/3(k) (West 2004)). Petitioners

opposed this attempt at unionization, fearing that the deputy workforce would become fragmented

unless all deputies--patrol, court security, and corrections--were included in the same bargaining unit.

The Board's predecessor agreed in part with the FOP, ruling that deputies working in the

patrol and court security divisions could be included in the bargaining unit and that deputies working

in the corrections division should be excluded. The FOP appealed the decision to allow deputies in

the court security division to be included in the bargaining unit, but this court affirmed the

determination that deputies in the court security division were "peace officers" under the Act. See

Fraternal Order of Police, Lodge No. 109 v. Illinois Labor Relations Board, 189 Ill. App. 3d 914

(1989). Ultimately, however, the deputies rejected representation by the FOP, and the decision as

to who should be included in the bargaining unit was rendered moot.

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The County and the Sheriff also appealed the decision of the predecessor to the Board. We

dismissed the appeal, however, reasoning that, because the FOP's attempt to organize the Sheriff's

deputies had been rebuffed and its representation petition dismissed by the predecessor to the Board,

there was nothing for the County and the Sheriff to appeal. See County of Du Page v. Fraternal

Order of Police, Lodge No. 109, 183 Ill. App. 3d 1027 (1989). We also held that the decision of the

predecessor to the Board would not act as res judicata against the County or the Sheriff in subsequent

decisions. County of Du Page, 183 Ill. App. 3d at 1034.

In 1993, MAP tried to organize a group of the Sheriff's deputies consisting of those deputies

working in the patrol and court security divisions. The Board determined that, along with patrol and

court security deputies, selected corrections deputies should also be included in the bargaining unit.

A secret ballot election was held to ratify the union, but the deputies rejected representation by MAP.

In December 1999, MAP filed its second representation petition, this time seeking to

represent all Sheriff's deputies who qualified as "peace officers" under the Act (5 ILCS 315/3(k)

(West 2004)). After a fact-finding hearing, an administrative law judge concluded that the

bargaining unit should be limited to those deputies in the administrative bureau, the law enforcement

bureau, the fugitive apprehension unit within the corrections bureau, and a number of special stand-

alone and interdepartmental units. The remaining deputies who worked in the corrections bureau

would be excluded from the bargaining unit.

The Board confirmed the decision of the administrative law judge and directed that a secret

ballot election be held among the eligible deputies. In May 2002, the election was held, and the

eligible deputies again rejected representation by MAP. No appeal was taken of the Board's

determination of which deputies qualify as "peace officers" under the Act.

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Subsequently, the General Assembly amended the Act's certification process to include a

"majority interest" procedure, which allowed a union to be formed without undergoing a secret ballot

election. Pub. Act 93--444, eff. August 5, 2003 (adding 5 ILCS 315/9(a--5)). By its terms, the

amendment was to take effect upon becoming law. On August 5, 2003, the governor signed the

amendment into law. See 5 ILCS 315/9(a--5) (West Supp. 2003).

Following the amendment to the Act, the Board promulgated emergency rules to govern the

procedures for processing majority interest representation petitions. The Board justified the

emergency rules: "This emergency rulemaking implements PA 93--427 and PA 93--444 which

became effective immediately on August 5, 2003. The legislation provided a new means by which

the Board can certify unions as the exclusive representative for a group of employees." 27 Ill. Reg.

15563 (adopted September 22, 2003). Ultimately, in February 2004, the Board promulgated its final

rules addressing how majority interest petitions are to be conducted.

On December 18, 2003, MAP filed another representation petition, this time under the

majority interest provision of the Act (5 ILCS 315/9(a--5) (West 2004)) and pursuant to the Board's

emergency rules. MAP again sought to organize a bargaining unit that excluded the deputies

assigned to the corrections bureau of the Sheriff's office while including those deputies who qualified

as "peace officers." The Board solicited objections from the Sheriff, and the Sheriff filed a position

statement and requested a fact-finding hearing based on its assertion of changed circumstances.

Additionally, the Sheriff asserted that the Board's emergency rules were invalid, the majority interest

procedure required MAP to present both dues deduction authorization cards and "other evidence"

in addition to those cards before it could be certified, and there was additional evidence and changed

circumstances to demonstrate that deputies assigned to the corrections bureau were "peace officers"

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within the meaning of the Act. In February and March 2004, the Sheriff also submitted offers of

proof, proposed evidence, and argument to the Board in support of the Sheriff's positions regarding

unionization under MAP.

On March 19, 2004, the Board issued a "Tally and Certification" in which it rejected the

Sheriff's objections and declined to hold a fact-finding hearing. The Board's tally showed that a

majority of eligible deputies favored representation by MAP. The tally did not include over 180

deputies assigned to the corrections bureau. Also on March 19, 2004, the Board issued a

certification of representative in which MAP was certified as the exclusive bargaining representative

for deputies below the rank of sergeant in the administrative bureau, the law enforcement bureau,

and the fugitive apprehension unit within the corrections bureau (along with various stand-alone and

interdepartmental units). Respondents timely appealed. On June 2, 2005, this court determined that

the Board's emergency rules were invalidly enacted and reversed the Board's order and remanded for

further proceedings. County of Du Page I, 358 Ill. App. 3d at 183.

On June 15, 2005, MAP filed another representation petition, which is at issue in this appeal.

MAP again sought to organize the deputies it asserted to be peace officers under the Act, in the same

unit it had previously sought to create. The Sheriff again opposed the petition, contending that all

deputies should be eligible for the bargaining unit. Also, the Sheriff again argued, among other

things, that at least two kinds of evidence, dues deduction authorization cards and "other evidence"

not specified, were required to make a showing of majority interest under section 9(a--5) of the Act

(5 ILCS 315/9(a--5) (West 2004)), and a hearing needed to be held in order to consider new evidence

that deputies assigned to the corrections bureau were "peace officers" under the Act. The Sheriff

submitted an offer of proof and a supplemental position statement to the Board.

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On March 23, 2006, the Board issued a "Tally and Certification" in which it determined that

MAP had made a sufficient showing of interest in support of its petition. The Board also determined

that there were no other issues that warranted a hearing and rejected the objections. The Board

certified MAP as the exclusive collective bargaining representative for those deputies employed by

the Sheriff who were below the rank of sergeant and who were assigned to the administrative bureau,

the law enforcement bureau, the fugitive apprehension unit within the corrections bureau, and several

stand-alone and interdepartmental units. Petitioners timely appeal. See 5 ILCS 315/9(i) (West

2004); 735 ILCS 5/3--113 (West 2004); 155 Ill. 2d R. 335.

On appeal, petitioners contend first that the Board erred by not finding that the deputies

assigned to the corrections bureau were "peace officers" under the Act. Petitioners also contend that

the Board erred by certifying MAP without requiring both dues deduction authorization cards and

other evidence pursuant to section 9(a--5) of the Act. Petitioners raised a third argument on appeal,

that MAP's 2005 representation petition, which was filed while there was a pending petition for leave

to appeal to the supreme court on the previous representation petition resolved in County of Du Page

I, was premature because MAP was already certified as the exclusive collective bargaining

representative at that time while the petition for leave to appeal was pending. In its reply brief,

however, the County expressly withdrew this contention. Petitioners also contend that the Board

erred by refusing to hold a hearing on the proposed evidence they submitted on the issue of whether

deputies assigned to the corrections bureau qualified as "peace officers." We find the second issue,

the evidentiary requirement to prevail under the majority interest provision, to be dispositive and

address it first.

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Preliminarily, we note that, after the parties completed their briefing of the issues in this

appeal, the Board filed a motion to strike petitioners' reply briefs because of formal defects in the

briefs and also to strike a portion of the argument contained in the Sheriff's reply brief. Additionally,

MAP filed a motion to modify or correct its prayer for relief in its response brief. These motions

have been taken with the case. We have considered the Board's contentions and petitioners'

responses and hereby deny the Board's motion to strike the reply briefs and argument. We grant

MAP's motion to modify its prayer for relief.

We first consider the well-established principles guiding our review of the issues raised on

appeal. The standard by which we review an issue on administrative review depends on whether the

issue presents a question of law, a question of fact, or a mixed question of law and fact. County of

Du Page I, 358 Ill. App. 3d at 179. We review a question of law de novo. County of Du Page I, 358

Ill. App. 3d at 179. We review the agency's factual findings under the manifest weight of the

evidence standard. County of Du Page I, 358 Ill. App. 3d at 179. For a mixed question of law and

fact, we review the agency's finding for clear error. County of Du Page I, 358 Ill. App. 3d at 179.

We now turn to petitioners' arguments regarding the evidentiary showing necessary to sustain

a majority interest petition under section 9(a--5) of the Act. Section 9(a--5) provides:

"The 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

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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 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." 5 ILCS 315/9(a--5) (West 2004).

The Board's regulations for implementing section 9(a--5) provide:

"(2) Representation Cases Involving Majority Interest Petitions

(A) 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.

(B) Any evidence submitted as a showing of interest must contain legible

signatures and each signature must be dated by the employee.

(C) The showing of interest shall be valid only if signed within 6 months prior

to the filing of the petition.

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(D) Where signatures are used to determine showing of interest, the Board

will not accept copies of the documents bearing such signatures. The Board also will

not count signatures from employees who were not employed by the employer on the

date the majority interest petition was filed.

(E) The showing in interest shall include the name of the petitioner, and 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. This provision shall not apply to evidence of

majority support signed prior to February 19, 2004.

(F) Evidence of majority support signed prior to August 5, 2003[,] is invalid

for determining majority support." 80 Ill. Adm. Code §1210.80(d)(2), amended at

28 Ill. Reg. 4172, eff. February 19, 2004.

Petitioners make several arguments based on the foregoing provisions. First, petitioners

argue that section 9(a--5) sets out an evidentiary standard for a showing of majority interest

consisting "of dues deduction authorization and other evidence." 5 ILCS 315/9(a--5) (West 2004).

Relatedly, petitioners contend that the Board's regulations are invalid because they contradict the

requirements of section 9(a--5) by providing that a majority interest showing may consist of either

dues deduction authorization cards or other evidence. See 80 Ill. Adm. Code §1210.80(d)(2)(A),

amended at 28 Ill. Reg. 4172, eff. February 19, 2004. Petitioners also contend that the Board likely

applied the invalid regulations and did not require MAP to supply both "dues deduction authorization

and other evidence" in order to demonstrate the showing of majority interest by the eligible deputies.

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Petitioners' initial two arguments require us to interpret section 9(a--5), and as this involves statutory

interpretation, our review is de novo. See Strategic Energy, LLC v. Illinois Commerce Comm'n, 369

Ill. App. 3d 238, 251 (2006). Petitioners' remaining argument involves the assessment of the

evidence appearing of record, and we will review whether the Board's decision was against the

manifest weight of the evidence. County of Du Page I, 358 Ill. App. 3d at 179.

Petitioners argue that section 9(a--5) sets forth a requirement that both dues deduction

authorization cards and other evidence be submitted in order to sustain a showing of majority

interest. In interpreting a statute, the court's primary goal is to determine and give effect to the intent

of the legislature. Harroun v. Addison Police Pension Board, 372 Ill. App. 3d 260, 263 (2007). The

best indicator of the legislature's intent is the language of the statute, which, if clear and

unambiguous, should be given effect as written. Harroun, 372 Ill. App. 3d at 263. It is not proper

for the court to depart from the plain language of the statute by reading into it exceptions, limitations,

or conditions that conflict with the legislature's clearly expressed intent. Harroun, 372 Ill. App. 3d

at 263. Where the statute is clear and unambiguous, it must be applied as it is written, without

resorting to extrinsic aids to statutory construction. People v. Perry, 224 Ill. 2d 312, 323 (2007). If

the language of the statute is ambiguous, requiring the court to construe its language, we must

construe the statute, if possible, so that no term is rendered superfluous or meaningless. Perry, 224

Ill. 2d at 323; Harroun, 372 Ill. App. 3d at 263. The canons and maxims of statutory construction

are not themselves rules of law but rather are aids to determine the legislative intent and must yield

to that intent. Perry, 224 Ill. 2d at 324.

Petitioners contend that section 9(a--5) requires the Board to determine a showing of majority

interest "on the basis of dues deduction authorization and other evidence." (Emphasis added.) 5

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ILCS 315/9(a--5) (West 2004). Petitioners note that "and" is usually conjunctive and that, in section

9(a--5), there is nothing to indicate that "and" is meant disjunctively. Petitioners conclude that,

based on the legislature's use of "and," at least two types of evidence are necessary to sustain a

showing of majority interest and one of those types of evidence must be dues deduction authorization

cards.

Respondents contend that the word "and" in the phrase, "dues deduction authorizations, and

other evidence," is meant to be understood in its several, disjunctive sense. Respondents contend

that "and" is used interchangeably with "or" depending on the context. According to respondents,

the sentence in section 9(a--5) (5 ILCS 315/9(a--5) (West 2004)):

"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"

illustrates that "and" is meant to be disjunctive by reference to the word "otherwise." Respondents

argue that, "[i]f the Board could 'otherwise rely' on 'other evidence,' then dues deduction

authorization cards are not required in every instance." (Emphasis in original.) Thus, respondents

dispute petitioners' construction of section 9(a--5).

Both parties' constructions of section 9(a--5) are reasonable. Further, the multiple references

to "dues deduction authorization and other evidence" appear to have differing meanings, leading to

potential confusion and ambiguity. We therefore determine that the provision is ambiguous and

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resort to statutory construction to attempt to discern the legislative intent. See Perry, 224 Ill. 2d at

324.

Having carefully considered both parties' arguments and considering the tools of statutory

construction, we agree with petitioners' position. Several considerations lead us to this conclusion.

We look first to the grammar of the provision. First, "other evidence," if not given meaning apart

from "dues deduction authorization" cards, would necessarily encompass dues deduction

authorization cards, thereby rendering the words "dues deduction authorization" wholly superfluous.

When interpreting a statutory provision, we must give meaning to each word employed in the statute

and will not presume that the statute contains surplusage within its provisions. Harris Bank of

Roselle v. Village of Mettawa, 243 Ill. App. 3d 103, 115 (1993). Here, interpreting "and"

disjunctively effectively renders "dues deduction authorization" redundant to "other evidence,"

thereby violating one of the fundamental tenets of statutory construction.

Next, the sentence relied upon by respondents differs from the sentence that specifies the

evidentiary burden. The sentence that specifies the evidentiary burden to sustain a showing of

majority interest reads:

"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." 5 ILCS 315/9(a--5) (West 2004).

The sentence relied upon by respondents commands the Board to conduct an election if the evidence

of majority support were demonstrated to have been procured by fraud or coercion:

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"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).

Respondents' argument does make sense in the context of the particular sentence. A party need not

show that both the dues deduction authorization cards and the other evidence are tainted by fraud

or coercion to mandate an election, only one or the other, as well as both. The addition of the

comma after "dues deduction authorization" in the election sentence serves to underscore the

possible joint and several meaning of "and" in the sentence. The lack of a comma in the evidentiary

burden sentence suggests that "and" is meant in its joint and not several sense. Further, "otherwise"

does not mean "in lieu of" as suggested by respondents. Instead, it commonly means "under different

circumstances." See Webster's Third New International Dictionary 1598 (1986). Respondents

suggest that the Board can rely on "other evidence" instead of or in lieu of "dues deduction

authorization" cards when determining whether the employees' choice of representative was obtained

through fraud or coercion. "Otherwise" refers to the different circumstance of evidence untainted

by fraud or coercion. Taken together, the sentences and the varying meanings of "and" coherently

mesh. Both dues deduction authorization cards and unspecified other evidence are necessary to

demonstrate a showing of majority interest. However, if one or both types of evidence are shown

to have been obtained through fraud or coercion, then an election must be conducted.

Turning from grammatical considerations to the other tools of statutory construction, we note

that "dues deduction authorization" is a term of art. Its use in section 9(a--5) stands in marked

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contrast to the language employed in section 9(a) of the Act requiring a 30% showing of interest to

initiate an election of representative. Section 9(a), which culminates in a secret ballot election to

recognize the representative, requires the process to be initiated only by a petition "demonstrating

that 30% of the public employees" wish to be represented by a specific representative. 5 ILCS

315/9(a)(1) (West 2004). By contrast, to make a showing of majority interest, the employees must

demonstrate majority interest "on the basis of dues deduction authorization and other evidence." 5

ILCS 315/9(a--5) (West 2004). The difference in the language employed in the election provision

(5 ILCS 315/9(a) (West 2004)) and the majority interest provision (5 ILCS 315/9(a--5) (West 2004))

supports the conclusion that the legislature intended that a different evidentiary showing is needed

under each provision. See In re K.C., 186 Ill. 2d 542, 549-50 (1999) ("It is well established that, by

employing certain language in one instance and wholly different language in another, the legislature

indicates that different results were intended"). While both the election and the majority interest

provisions discuss a showing of interest, the election provision makes no specific evidentiary

requirement for the threshold 30% showing of interest (5 ILCS 315/9(a) (West 2004)), whereas the

majority interest provision specifies a particular evidentiary threshold in order that the showing of

majority interest be accomplished.

Last, considering the legislative history of the provision, we conclude that the majority

interest provision is intended to stand as an alternative to the election provision, whereby a

representative may be certified. The showing of majority interest is equivalent to the election. This

is demonstrated by the comments of one of the sponsors of the majority interest provision:

"[Representative] Black: *** The Senate Amendment changes [the Bill] somewhat,

but the underlying Bill is still in force. And that . . . that says, if I have in my possession, a

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majority of cards signed by employees that say they want to unionize, the union can then

bypass the election. Correct?

[Representative] McKeon: No, Representative. That is, in fact, the election.

***

Black: Oh, the card becomes the election?

McKeon: Right.

***

Black: *** [The amendment] makes the intent much more onerous by mandating the

employers voluntary recognition of a bargaining unit. Is that . . . is that your interpretation

of the Senate Amendment?

McKeon: Well, yes, it is in the sense as I responded to your original question. This

is in lieu of a . . . a meeting for the purposes of election. In that case, if the board certified

the election results as valid, in other words there's no fraud or deception, that they shall

designate that as the representative labor organization.

Black: Okay.

McKeon: This . . . this in sense . . . in the original language that we put in there, we

made it consistent with the card check, when that's used in lieu of an election." 93d Ill. Gen.

Assem., House Proceedings, May 28, 2003, at 153 (statements of Representatives Black and

McKeon).

Thus, the legislature intended and understood that the showing of majority interest pursuant to

section 9(a--5) would be an equivalent to the election process. It makes sense, then, that the majority

interest showing requires a specific evidentiary burden while the showing of interest in the election

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provision, which has been held to be preliminary and not subject to judicial review (see County of

Kane v. Illinois State Labor Relations Board, 165 Ill. App. 3d 614, 619-20 (1988) (the existence of

the 30% showing of interest is a step in the election process and is not itself subject to appellate

review)), does not specify an evidentiary burden. For these reasons, then, we are persuaded that the

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.

In a related argument, petitioners contend that the Board's administrative regulations are

contrary to the requirements of the Act and, therefore, are invalid. It is well established that "an

administrative body cannot extend or alter the enabling statute's operation by the exercise of its

rulemaking powers." Department of Revenue v. Civil Service Comm'n, 357 Ill. App. 3d 352, 364

(2005). "If an agency promulgates rules that are beyond the scope of the legislative grant of authority

or that conflict with the statute, the rules are invalid." Department of Revenue, 357 Ill. App. 3d at

364; see also Greco v. McHenry County Sheriff's Department Merit Comm'n, 267 Ill. App. 3d 303,

306 (1994) (agency rule that conflicts with statute is invalid). Petitioners argue that the Board's

regulations implementing section 9(a--5) do not require that dues deduction authorization cards be

a part of the evidence establishing a showing of majority interest and that this omission directly

contradicts the requirements of the statute. We agree.

We turn to the regulations promulgated by the Board. They state, pertinently: "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." 80 Ill. Adm. Code §1210.80(d)(2)(A), amended

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at 28 Ill. Reg. 4172, eff. February 19, 2004. The regulation does not require dues deduction

authorization cards. It also does not require two forms of evidence, one of which is dues deduction

authorization cards. As we determined above, section 9(a--5) requires two forms of evidence, the

dues deduction authorization cards and other, unspecified evidence. The Board's regulations require

only one form of evidence and do not require that dues deduction authorization cards be used to

support the showing of majority interest. Based on this, we hold that the Board's regulations

regarding the evidence necessary to support a showing of majority interest conflict with the plain

requirements of section 9(a--5) and, therefore, are invalid.

In their final section 9(a--5)-based argument, petitioners contend that the Board's decision

certifying MAP as the collective bargaining representative was against the manifest weight of the

evidence. This contention is subdivided into two parts. First, petitioners contend that the Board's

decision on a majority interest petition is inherently reviewable. We agree. The Board's decision

results in the designation of an exclusive collective bargaining representative (or the dismissal of the

majority interest petition). 5 ILCS 315/9(a--5) (West 2004). This is a final order, which is expressly

subject to administrative review. 5 ILCS 315/9(i) (West 2004).

Respondents argue that the underlying evidence supporting a majority interest petition is

confidential and that the employer does not have a right to review it. This contention is misplaced.

Respondents equate the majority interest petition of section 9(a--5) with the 30% showing of interest

threshold to initiate an election of a collective bargaining representative under section 9(a). This

argument misses the mark. As we have noted above, the majority interest petition is equivalent to

the secret ballot election, as the outcome determines whether a certain organization will be certified

as the exclusive representative. Thus, the majority interest showing stands in the same position as

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the election under section 9(a). In order to give effect to section 9(i), authorizing administrative

review, then, the Board's decision on a majority interest petition must be subject to some sort of

meaningful appellate review. This would mean, at a minimum, the reviewing court must be able to

ascertain that the evidence submitted to the Board in support of the majority interest petition was the

type and amount sufficient to demonstrate that a majority of the eligible employees supported or

rejected the particular organization as the exclusive representative. Therefore, we hold that, even

for a majority interest petition, the Board's decision is subject to meaningful appellate review.

Next, petitioners contend that the Board's decision was not supported by the evidence in the

record. Petitioners note that, in its brief in another pending case,1 MAP admitted that it typically

does not seek or submit dues deduction authorization cards from employees when submitting a

majority interest petition. We take judicial notice of this concession. People v. Dye, 23 Ill. App. 3d

453, 456 (1974) (a court may take judicial notice of the authenticity of the record in another case

pending before it); see also Bobber Auto Truck Plaza v. Department of Revenue, 143 Ill. App. 3d

614, 618 (1986) (appellate court may take judicial notice of facts in an administrative review

proceeding). We agree that this concession supports a reasonable inference that dues deduction

authorization cards were not submitted to the Board, contrary to the requirements, as we discerned

above, of section 9(a--5) of the Act. Further, our review of the record indicates that there is nothing

submitted of record to demonstrate that the Board properly received the required forms and amount

of evidence to render its decision designating MAP as the exclusive collective bargaining

representative. Accordingly, because there is no evidence of record to support the Board's decision,

and because the Board committed legal error in enacting regulations that contradicted the

1
Forest Preserve District of Du Page County v. Illinois Labor Relations Board, No. 2--06--
0781.

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requirements of section 9(a--5) of the Act, we infer that MAP submitted evidence in conformance

with the Board's invalid regulations rather than the Act. Therefore, we hold that the Board's decision

was against the manifest weight of the evidence.

We note that respondents 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 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 relied upon to the reviewing court and follows the mandates of section

9(a--5). We imagine that the submission of redacted dues deduction 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.

However, the invalid regulations as currently set forth contradict the evidentiary requirements of

section 9(a--5) as well as frustrate the reviewing court's ability to meaningfully review the Board's

decision under section 9(i).

Because MAP's petition was processed by the Board pursuant to invalid regulations and in

contradiction of the requirements of section 9(a--5) of the Act, we vacate the Board's decision to

certify MAP as the exclusive representative. Based on our resolution of this issue, we need not

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address petitioners' remaining contentions regarding the proper designation of those deputies eligible

to be considered "peace officers" under the Act and to be included in the proposed bargaining unit.

For the foregoing reasons, the order of the Illinois Labor Relations Board certifying MAP as

the exclusive representative is vacated, and the cause is remanded for further proceedings.

Vacated and remanded.

BOWMAN and ZENOFF, JJ., concur.

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