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

-15-

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

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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).

-26-

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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