The County of Du Page v. Illinois Labor Relations Board

SUPREME COURT CASES

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State: Illinois

Court: 2nd District Appellate

Docket No: 2-06-0380 Rel

Case Date: 08/24/2007

Preview:No. 2--06--0380 Filed: 8-24-07 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________________ THE COUNTY OF Du PAGE and THE Du PAGE COUNTY SHERIFF, ) On Petition for Administrative Review ) 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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No. 2--06--0380 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 standalone 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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No. 2--06--0380 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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No. 2--06--0380 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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No. 2--06--0380 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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No. 2--06--0380 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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No. 2--06--0380 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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No. 2--06--0380 (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

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