dissenting:
Section 2 of the Illinois Public Labor Relations Act provides:
“It is the public policy of the State of Illinois to grant public employees full freedom of association, self-organization, and designation of representatives of their own choosing for the purpose of negotiating wages, hours and other conditions of employment or other mutual aid or protection.” 5 ILCS 315/2 (West 1992).
In accordance with this policy, the General Assembly has determined that
“Employees of the State and any political subdivision of the State, excluding employees of the General Assembly of the State of Illinois, have, and are protected in the exercise of, the right of self-organization, and may form, join or assist any labor organization, to bargain collectively through representatives of their own choosing on questions of wages, hours and other conditions of employment, not excluded by Section 4 of this Act, and to engage in other concerted activities not otherwise prohibited by law for the purposes of collective bargaining or other mutual aid or protection, free from interference, restraint or coercion.” 5 ILCS 315/6 (West 1992).
This statute parallels section 7 of the National Labor Relations Act (29 U.S.C. § 157 (1994)). The National Labor Relations Board has construed section 7 to create “a statutory right in an employee to refuse to submit without union representation to an interview which [the employee] reasonably fears may result in his discipline.” National Labor Relations Board v. J. Weingarten, Inc., 420 U.S. 251, 256, 43 L. Ed. 2d 171, 177, 95 S. Ct. 959, 963 (1975). The United States Supreme Court has upheld the NLRB’s construction, declaring that it “plainly effectuates the most fundamental purposes of the Act” (Weingarten, 420 U.S. at 261, 43 L. Ed. 2d at 180, 95 S. Ct. at 966), “gives recognition to the right when it is most useful to both employee and employer” (Weingarten, 420 U.S. at 262, 43 L. Ed. 2d at 181, 95 S. Ct. at 966), and “is in full harmony with actual industrial practice” (Weingarten, 420 U.S. at 267, 43 L. Ed. 2d at 183, 95 S. Ct. at 968).
Shortly after the Illinois Public Labor Relations Act was promulgated, the Illinois State Labor Relations Board adopted the approach taken by the NLRB and the United States Supreme Court in Weingarten and held that the Illinois Public Labor Relations Act’s guarantee to employees of the right “to engage in *** concerted activities *** for the purposes of collective bargaining or other mutual aid or protection” (5 ILCS 315/6 (West 1992)) likewise “encompasses the right to refuse to submit to an investigatory interview without union representation where the employee reasonably fears that the interview might result in discipline.” Departments of Central Management Services & Corrections (Gerald Morgan), 1 Pub. Employee Rep. (Ill.) par. 2020, No. S — CA—54, at VIII — 120 (ISLRB September 13, 1985) (hereinafter Morgan). Under Morgan,
“if the employee requests [union] representation and the request is denied, the employer cannot continue the interview without violating the [Illinois Public Labor Relations] Act. If [the employer] disciplines the employee for refusing to continue in the absence of representation, the employer is, in effect, retaliating against the employee because he has engaged in protected concerted activity, and such conduct is clearly [an unfair labor practice] violative of Section 10(a)(1) of the Act.” Morgan, 1 Pub. Employee Rep. (Ill.) par. 2020, No. S — CA—54, at VIII — 120 (ISLRB September 13, 1985).
The Weingarten rule, adopted by Morgan, was followed by the Illinois Local Labor Relations Board in a case involving a peace officer (Chicago Police Department (James E. Kostro), 4 Pub. Employee Rep. (Ill.) par. 3006, Nos. L — CA—87—191, L — CA—87—208 (ILLRB February 26, 1988)) and. was properly adopted by the appellate court in the matter before us today.
In urging a contrary conclusion, Sheriff Kilquist asserts that the Weingarten rule should not be extended to public employees because they enjoy protection not shared by employees in the private sector. This argument is untenable. Taken to its logical conclusion, it would mean that public employees should not even be permitted to organize and bargain collectively. While a current majority of this court may regard that as a good idea (see, e.g., City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191 (1998); Chief Judge of the Sixteenth Judicial Circuit v. Illinois State Labor Relations Board, 178 Ill. 2d 333 (1997); American Federation of State, County & Municipal Employees v. Department of Central Management Services, 173 Ill. 2d 299 (1996); Office of the Cook County State’s Attorney v. Illinois Local Labor Relations Board, 166 Ill. 2d 296 (1995), such anti-union bias reflects a value system that was expressly rejected by the people of Illinois through their elected representatives when they enacted the Illinois Public Labor Relations Act.
Having no legitimate basis for assailing the appellate court’s conclusion that the Weingarten rule is applicable to public employees under the Illinois Public Labor Relations Act, but incapable of overcoming its innate hostility to union activities by public employees, the majority takes the only course left open to it. It resorts to the doctrine of waiver.
The threshold problem with the majority’s approach is that Sergeant Ehlers, herself, waived nothing. To the contrary, her invocation of the right to union representation under Weingarten was timely, clear, and definite. Accordingly, the majority is forced to argue that Ehlers’ Weingarten rights were actually waived by her union when it negotiated the collective-bargaining agreement. This contention is contrary to the facts and the law.
As previously indicated, the Weingarten doctrine is statutory in nature. As adopted in Illinois, it is encompassed within the Illinois Public Labor Relations Act’s guarantee to employees of the right “to engage in *** concerted activities *** for the purposes of collective bargaining or other mutual aid or protection” (5 ILCS 315/6 (West 1996)). Under fundamental principles of labor law, waiver of a statutorily protected right must be stated clearly and unmistakably. The language sustaining the waiver must be specific and evince an unequivocal intent to relinquish the right. Waiver is never presumed. See American Federation of State, County & Municipal Employees v. Illinois State Labor Relations Board, 274 Ill. App. 3d 327, 334 (1995); County of Cook v. Illinois Local Labor Relations Board, 214 Ill. App. 3d 979, 987 (1991).
In what is a stretch even for this court, the majority asserts that the employees’ Weingarten rights were expressly waived by the collective-bargaining agreement here. That is patently untrue. An express waiver would be the kind included in the collective-bargaining agreement at issue in the Prudential Insurance Co. case cited by the majority, where the employer was given the explicit right to interview employees outside of the presence of members of the union grievance committee. There is nothing in the collective-bargaining agreement here remotely analogous to that provision.
In an argument that can charitably be characterized as convoluted, the majority tries to tease a waiver out of the collective-bargaining agreement’s incorporation of the Uniform Peace Officers’ Disciplinary Act (50 ILCS 725/1 et seq. (West 1992)). To anyone viewing the collective-bargaining agreement objectively, however, it is clear that the purpose of the provisions incorporating the Uniform Disciplinary Act is not to forgo any right to union representation in informal proceedings, but to ensure that employees enjoy the maximum protection possible during formal investigations. As the appellate court correctly reasoned,
“[t]he standard announced in Weingarten and adopted in Morgan is different from and in addition to the guaranteed right of union representation set forth in section 3.9 of the Disciplinary Act. The Disciplinary Act does not subtract Ehlers’ Weingarten right to union representation upon request in an informal inquiry but merely adds an additional guarantee of union representation in formal investigations.” 289 Ill. App. 3d at 1127.
In sum, I would hold that the Weingarten doctrine applies to public employees covered by the Illinois Public Labor Relations Act, that Weingarten rights were not waived by the collective-bargaining agreement at issue in this case, and that Sergeant Ehlers properly invoked her Weingarten rights when questioned by Sheriff Kilquist. Under Morgan, the termination of Ehlers for refusing to continue in the absence of representation constitutes an unfair labor practice. The judgment of the appellate court reversing the circuit court’s affirmance of the Merit Commission’s decision discharging Ehlers for cause should therefore be affirmed, and Ehlers should be reinstated to her former position with back pay and benefits.