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.” 231 Ill. 2d at 604-05. 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.” 231 Ill. 2d at 606. 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: ‘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 231 Ill. 2d at 606. 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 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 (231 Ill. 2d at 606), 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. 2d 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.” 231 Ill. 2d at 607. 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 check-off card and some other unspecified form of evidence. 231 Ill. 2d at 607-08. 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, 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 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.) 231 Ill. 2d at 608, 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 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.
Senator Sandoval’s statement suggests yet a third possible interpretation of section 9(a — 5): dues deduction authorization and any other 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.
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).