The Clerk of the Circuit Cout of Lake County v. The Illinois Labor Relations Board

2016 IL App (2d) 150849, 60 N.E.3d 167

• Court: Appellate Court of Illinois
• Decided: August 15, 2016
• Docket: 2-15-0849
• Status: Unpublished

Opinion

2016 IL App (2d) 150849 No. 2-15-0849 Opinion filed August 15, 2016 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE CLERK OF THE CIRCUIT COURT ) Petition for Review of Order of the Illinois OF LAKE COUNTY, ) Labor Relations Board, State Panel. ) Petitioner, ) ) v. ) ILRB Case No. S-RC-15-049 ) THE ILLINOIS LABOR RELATIONS ) BOARD, STATE PANEL; JOHN ) HARTNETT, as Chairman and Member of the ) State Panel; JOHN SAMOLIS, KEITH ) SNYDER, and AL WASHINGTON, as ) Members of the State Panel; and THE ) AMERICAN FEDERATION OF STATE, ) COUNTY AND MUNICIPAL EMPLOYEES, ) COUNCIL 31, ) ) Respondents. ) ______________________________________________________________________________

JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices Hutchinson and Burke concurred in the judgment and opinion.

OPINION

¶1 Petitioner, the Clerk of the Circuit Court of Lake County (Clerk), appeals the final

decision and order of respondent the Illinois Labor Relations Board, State Panel (Board),

certifying respondent the American Federation of State, County and Municipal Employees,

Council 31 (Union), as the exclusive representative of a bargaining unit composed of certain of

the Clerk’s employees. On appeal, the Clerk challenges the propriety of the Board’s decision, 2016 IL App (2d) 150849

contending that it was not properly adopted. The Clerk also argues that the Board

misapprehended the pleading requirements to challenge a majority-interest petition and that the

Clerk produced sufficient evidence of fraud or coercion to warrant an evidentiary hearing. We

confirm the Board’s decision.

¶2 I. BACKGROUND

¶3 The record reveals, pertinently, that, on January 20, 2015, the Union submitted a

majority-interest petition pursuant to section 9(a-5) of the Illinois Public Labor Relations Act

(Act) (5 ILCS 315/9(a-5) (West 2014)), seeking to represent a bargaining unit composed of

certain of the Clerk’s employees. On January 21, 2015, the Clerk was notified of the petition and

directed to respond if it so chose. Particularly, the Clerk was notified that, if it believed that the

Union had used fraud or coercion to obtain the signatures necessary to demonstrate majority

support, it was required to present clear and convincing evidence of the fraud or coercion in its

response to the petition.

¶4 On February 6, 2015, the Clerk timely filed its response to the Union’s majority-interest

petition. Relevantly, the Clerk alleged that the Union had used fraudulent information and had

threatened employees in an effort to coerce them into signing dues-deduction cards. The Clerk

included two affidavits in its response.

¶5 Jeanne Polydoris, the chief deputy clerk, submitted one of the affidavits attached to the

Clerk’s response. Polydoris was not eligible to become a member of the proposed bargaining

unit. She averred that four eligible employees of the Clerk complained to her about the Union’s

representatives. Three of the employees requested that their identities be kept confidential

because they feared repercussions from the Union or from their coworkers.

¶6 According to Polydoris, one employee was visited by different Union representatives

between 7 and 8 p.m., twice a week for an unspecified number of weeks. The employee

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“believed [the representatives] were watching her house and tracking her schedule.” Polydoris

reported that the employee was a single mother and that she was so frightened by their conduct

that she filed a police report.

¶7 Polydoris averred that a second employee informed her that a Union representative

visited her home. The second employee maintained that the Union representative was

condescending and insulted her intelligence. The second employee reported to Polydoris that the

representative claimed that union membership would result in better pay, better pay increases,

and better vacation benefits. Additionally, the employee stated that the representative claimed

that future pay raises under a collective bargaining agreement would be sufficient to cover her

union dues. The second employee told Polydoris that the representative used insults and peer

pressure to attempt to coerce her into joining the Union.

¶8 Polydoris noted that a third employee stated that a Union representative “came to her

home and told her that joining the union would be free and there would not be any dues.” The

employee was concerned about how the representative knew her home address.

¶9 Veronica Ventura, an employee of the Clerk, submitted the second affidavit attached to

the Clerk’s response to the Union’s petition. She averred that a coworker approached her about

joining the Union. The next day, Ventura received a text message from the coworker, who was

not scheduled to work that day, stating that the coworker would meet Ventura outside the office

after working hours. Ventura averred that she “found [the coworker’s] text threatening and it

made [Ventura] feel uncomfortable.” After work, the coworker was waiting for Ventura.

Ventura informed the coworker that she would not sign a dues-deduction card.

¶ 10 Ventura further averred:

“That evening, around 8:00 pm [sic], [a Union] Representative came to my house to

pressure me into signing the card. I had already told [the coworker] that I was not

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interested and this conduct made me feel even more threatened. I escorted the [Union]

Representative out of my home and told him that I was not interested and that I had

already told [the coworker] that. As he was leaving, he said he was going to come back

on Sunday. I found this threatening and I was concerned about how the [Union]

Representative so reported it [sic] to my supervisor, *** upon returning to work the

following workweek.”

¶ 11 Ventura averred that the coworker continued to press Ventura to join the nascent

bargaining unit, both by text message and face-to-face. Ventura once again told the coworker

that she “did not appreciate [the coworker’s] text or the [Union] representative coming to [her]

home.” Ventura maintained that she “felt threatened by [her coworker] and even more

threatened by the [Union] Representative coming to [her] home.”

¶ 12 The matter was then assigned to an administrative law judge (ALJ) for further

proceedings. On March 10, 2015, the ALJ issued an order to show cause on two of the Clerk’s

objections. The ALJ explained:

“In its last objection, the [Clerk] argues that [the Union] obtained support for its

campaign through the use of fraud and coercion. Section 9(a-5) of the Act [(5 ILCS

315/9(a-5) (West 2014))] states that if a ‘party provides to the Board *** 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 [Clerk] states that [the Union] obtained

employees’ personal contact information to contact employees at home. It also states that

[the Union] provided fraudulent information to employees and threatened them into

signing representation cards. In support of its allegations, the [Clerk] provided two

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affidavits which describe [the Union’s] conduct in this matter. However, I do not find

that the affidavits are clear and convincing evidence of fraud or coercion as one affidavit

is based on hearsay and the other does not describe objectively coercive conduct.”

The ALJ then ordered the Clerk to “[d]emonstrate through specific evidence, case law, and/or

legal argument why the [Clerk’s] affidavits constitute clear and convincing evidence of fraud or

coercion, and/or provide clear and convincing evidence that [the Union] attempted to or actually

did obtain support for its campaign through fraud or coercion.”

¶ 13 The Clerk timely responded to the ALJ’s order to show cause. In its response, the Clerk

attached two additional affidavits, apparently from two of the unidentified employees referenced

in Polydoris’s affidavit.

¶ 14 Jeanette Halle, an employee of the Clerk, averred that, on a Saturday afternoon, a Union

representative came to her home but was not allowed past her building’s security door. The

representative kept Halle in conversation for 20 to 30 minutes. Halle averred that the

representative was condescending and insulted her intelligence. The representative tried to get

Halle to agree with complaints that other employees had purportedly made. The representative

claimed to Halle that “everyone” was unhappy in working for the Clerk. Halle averred that,

every time she made positive comments, “he tried to convince me otherwise.” According to

Halle, the representative “claimed that joining the union would result in better salaries, better

raises and better vacation benefits.” The representative also claimed that, after the Union had

bargained with the Clerk, Halle’s raise would cover the monthly dues to be paid to the Union.

Finally, Halle concluded that the representative “appeared to be attempting to use peer pressure

and insults to induce [her] into joining the union.”

¶ 15 Sandra Lucio, also an employee of the Clerk, averred that two different Union

representatives “kept coming to [her] house twice a week” between 7 and 8 p.m. Lucio would

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not open the door for the representatives. She further reported that “[t]hey were parking away

from [her] house and [she] could not see their car, which made [her] even more uncomfortable.”

Lucio, who was a single mother working two jobs and whose child was frequently home alone in

the evenings, became frightened by the representatives’ conduct, so she filed a police report.

Lucio further recounted that, “[a]fter [she] filed the report, [she] was getting [her] garbage cans

from the street when [a Union] representative approached [her]. They [sic] appeared to know

[her] schedule and [she] was concerned that they [sic] were watching [her] house and tracking

[her schedule].” Lucio averred that she was upset that the Union representatives had her

personal information and her home address. Lucio also believed that, if her coworkers became

aware that she had reported the representatives’ conduct, her coworkers would “make [her] life

miserable every day at work.”

¶ 16 Notably, neither Halle nor Lucio indicated that she had signed a dues-deduction card,

despite the fraudulent or coercive blandishments of the Union representatives. Likewise,

Ventura similarly did not indicate that she had signed a dues-deduction card, despite her

complaints of being pressured to do so.

¶ 17 On April 28, 2015, the ALJ issued her recommended decision and order. Pertinent to our

decision, the ALJ analyzed the Clerk’s fraud-and-coercion argument:

“The [Clerk] argues that the Union used fraud and coercion to obtain support for

its organizing campaign. The Act states that the Board will certify a union as the

exclusive representative of a unit of employees if the union ‘demonstrates a showing of

majority interest.’ 5 ILCS 315/9(a-5) [(West 2014)]. However, if an employer provides

the Board with ‘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,

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the Board shall promptly thereafter conduct an election.’ Id. The Board’s rules further

specify that:

‘[a]ll employers served with a majority interest petition shall file a written

response to the petition within 14 days after service of the petition. The response

filed shall set forth the party’s 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. The employer must also provide at

this time clear and convincing evidence of any alleged fraud or coercion in

obtaining majority support.’ 80 Ill. Adm. Code § 1210.100(b)(3) [(2004)]

(emphasis added [by the ALJ]).

If the employer provides ‘evidence demonstrating a material issue of fact or law relating

to fraud or coercion,’ the board will conduct a hearing. [80 Ill. Adm. Code]

1210.100(b)(5)(B) [(2004)]. However, if the employer fails to provide sufficient

evidence of fraud or coercion, ‘the Board will certify the union as the unit’s exclusive

representative if it is determined to have majority support.’ [80 Ill. Adm. Code]

1210.100(b)(5)(A) [(2004)].

In coercion cases, the Board applies ‘an objective standard to determine whether,

from the standpoint of the employee, the challenged conduct would reasonably have a

coercive effect.’ Vill. of Barrington Hills (Police Dep’t), 26 PERI ¶ 59 (IL LRB-SP

2010) [sic]. For example, in Vill. of Barrington Hills (Police Dep’t) [sic], the Board

agreed with the Executive Director’s decision to apply an objective standard, as well as

with his determination that the challenged conduct would not have reasonably coerced

employees. Id. In support of its argument, the village submitted two affidavits from

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village supervisors. Id. The supervisors described their conversations with several

employees regarding the union’s conduct. Id. First, the Board found that the village’s

evidence did not establish that employees had been threatened or that the employees’

fears of being retaliated against were reasonable. Id. More specifically, the village had

not presented ‘evidence of actual retaliation, for example, or even of threatened

retaliation.’ Id. The Board also noted that the affidavits constituted hearsay evidence and

‘[t]he statutory standard call[ed] for “clear and convincing” evidence of fraud or

coercion.’ Id. As such, the Board agreed ‘that the evidence the [v]illage presented here

falls far short of meeting the “clear and convincing” statutory standard.’ Id.

In this case, the [Clerk] argues that the Union used fraud and coercion during its

organizing drive. With regard to its fraud argument, the [Clerk] first contends that the

Union provided fraudulent information to employees. In one instance, a Union

representative told an employee that she would receive better benefits under Union

representation and that her dues would be covered by her first contract raise. According

to another employee, a representative said she would not have to pay dues. As an initial

matter, I note that the representative’s statement that an employee would not have to pay

dues is hearsay from an unidentified source and not generally considered clear and

convincing evidence. Regardless, I do not find this evidence sufficient to conclude the

Union gave employees fraudulent information. While I may find the Union’s statements

odd, I cannot say they are necessarily false. The Act does not require bargaining unit

members to pay dues, and the [Clerk] has not supplied any other evidence on the matter.

Further, it is permissible under the Act for a union to promote itself to prospective

members. See PACE Heritage Division, 22 PERI ¶ 59 (IL LRB-SP 2006) [sic]; Midland

Nat’l Life Ins. Co., 263 NLRB 127 (1982) [sic]. As such, I find the [Clerk] has not

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established that the Union provided fraudulent information to employees.

The [Clerk] also argues that the Union used pro-Union employees to gain access

to employees’ home addresses. Under the [Clerk’s] policies, employees’ personal

contact information is kept confidential. Since the Union had the employees’ addresses,

the [Clerk] suggests the Union must have obtained the information in violation of the

[Clerk’s] policies. This argument is not supported by the evidence. While it is clear that

the Union had at least some of the employees’ home addresses, it is not a foregone

conclusion that pro-Union employees violated the [Clerk’s] policies to retrieve them.

There are a variety of ways to learn where someone lives, including the internet, the

phonebook, or even word of mouth. Thus, the [Clerk’s] suggestion that the Union must

have used surreptitious means to access employees’ addresses is not supported by the

evidence presented.

The [Clerk’s] primary argument is that the Union intimidated, threatened, and

coerced employees into supporting its organizing drive. However, the evidence does not

establish that the Union’s conduct was objectively coercive. For example, one employee

felt threatened by her pro-Union coworker’s text messages. However, the coworker did

not threaten the employee or suggest that the employee would be retaliated against for

refusing to sign a card. Consequently, I cannot find the messages objectively coercive.

Additionally, I do not find the Union’s home visits to be coercive. The [Clerk]

argues that ‘the representatives stalked employees by lying in wait outside of employees’

homes.’ Of the three employees visited by the Union, two employees stated they felt

threatened by the Union’s conduct. One employee said she was so frightened by the

Union’s conduct that she filed a police report. She also believed the Union was tracking

her schedule. The other employee stated she felt threatened when the representative told

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her that he would come back to her home in a few days. However, the evidence does not

establish that their fears were reasonable. There is no evidence that the Union actually

threatened these employees or used other intimidation tactics to force the employees to

sign cards. Thus, under the objective standard, I do not find this conduct would

reasonably coerce employees. As to the third employee, she stated that the Union

representative she spoke to was condescending and insulting. Although patronizing and

rude behavior[s] are not ideal strategies to use during an organizing campaign, in the

absence of threats or other forms of intimidation, these tactics are not coercive.

Finally, there is no evidence demonstrating that the employees’ fears of being

retaliated against by their coworkers were justified. Again, there is no evidence that the

coworkers’ [sic] threatened to retaliate against the employees if they did not sign cards.

The employees’ assertions, on their own, are not enough to establish coercion. The

[Clerk] was required to provide evidence that the employees’ fears were reasonable.

In sum, the [Clerk] has failed to establish that the Union used fraud or coercion to

gain support for its organizing campaign. Accordingly, I find that this objection is

without merit and does not raise an issue for hearing.”

¶ 18 The ALJ held, in a section labeled “Conclusions of Law,” that the Clerk “has not

demonstrated an issue of law or fact exists regarding fraud or coercion.” The ALJ then

recommended that the Board certify the Union as the exclusive representative of the employees

described in the Union’s petition, and the ALJ recommended that, as the Clerk proposed, the

positions of ombudsman and principal court clerk be excluded from the bargaining unit. The

ALJ also noted that the parties were allowed to file exceptions to the recommended decision and

order and outlined the time frame and procedure for doing so.

¶ 19 On May 14, 2015, the Clerk timely filed its exceptions to the ALJ’s recommended

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decision and order. The Clerk again raised the arguments it had presented to the ALJ, and it

contended that the evidence about fraud and coercion was sufficient to require a hearing. The

Union filed a timely response to the Clerk’s exceptions.

¶ 20 On July 14, 2015, the Board issued its decision and order. The Board’s order stated:

“On April 28, 2015, [the ALJ] issued a Recommended Decision and Order (RDO)

recommending that the Board certify [the Union] as the exclusive representative of a unit

of certain full- and part-time non-professional employees employed by the [Clerk]. In so

holding, she rejected the [Clerk’s] contention that it had raised issues of fact for hearing

on the allegation that the Union had obtained its showing of interest through fraud or

coercion.

The [Clerk] filed timely exceptions to the ALJ’s RDO pursuant to Section

1200.135 of the Illinois Labor Relations Board’s Rules and Regulations. 80 Ill. Adm.

Code Parts 1200 through 1240. The exceptions focus solely on the ALJ’s finding that the

[Clerk] did not present clear and convincing evidence that would raise issues of fact for

hearing on [the Union’s] alleged fraud or coercion in obtaining majority support. [The

Union] filed a response.

The ALJ’s decision will stand as a non-precedential ruling because the Board

could not reach a majority decision on whether to affirm or reverse it. Member

Washington was absent and did not vote. Chairman Hartnett voted to reverse the ALJ’s

decision on the basis that a hearing would shed additional light on the circumstances

referenced in the [Clerk’s] objections and supporting affidavits. Member Snyder voted to

reverse the ALJ’s decision on the basis that the [Clerk] presented sufficient evidence to

raise issues of fact for hearing on [the Union’s] alleged fraud or coercion. Members Coli

and Samolis voted to affirm the ALJ’s decision for the reasons stated in the RDO. In the

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absence of a majority vote on the disposition of the RDO, we do not address the

substance of the exceptions and leave the ALJ’s decision to stand as non-precedential.”

¶ 21 The Clerk timely appeals.

¶ 22 II. ANALYSIS

¶ 23 On appeal, the Clerk argues that the Board abdicated its responsibility by entering an

order that did not contain any reviewable findings. Alternatively, the Clerk challenges the 2 to 2

tie vote by the Board, arguing that the Board erred by convening in the absence of one of its

members and allowing the resultant tie vote. The Clerk also argues that the Board’s decision

was arbitrary and capricious because the Board expressly stated that it did not address the

substance of the Clerk’s exceptions, in derogation of its statutory responsibility, and it “let stand”

the ALJ’s recommended decision and order. Finally, the Clerk argues that, substantively, the

Board and the ALJ placed a higher burden on the Clerk by requiring that it initially provide clear

and convincing evidence of fraud or coercion, instead of following a two-step process of first

determining whether the evidence submitted demonstrated a material issue of fact or law, and

then conducting an evidentiary hearing to determine whether the evidence was clear and

convincing; additionally, the Clerk argues that the ALJ’s determination that it had not

demonstrated a material issue of fraud or coercion was erroneous. We consider each of the

Clerk’s contentions in turn.

¶ 24 A. Standard of Review

¶ 25 As an initial matter, we consider the standard of review applicable to the Board’s

decision. We review the Board’s decision pursuant to the Administrative Review Law. 5 ILCS

315/11(e) (West 2014); 735 ILCS 5/3-101 et seq. (West 2014); American Federation of State,

County & Municipal Employees, Council 31 v. Illinois State Labor Relations Board, State Panel,

216 Ill. 2d 569, 577 (2005) (Council 31). The Administrative Review Law empowers judicial

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review of all questions of fact and law presented by the record before the reviewing court. 735

ILCS 5/3-110 (West 2014); Council 31, 216 Ill. 2d at 577. The standard of review to be applied

depends on whether the question presented is a question of fact, a question of law, or a mixed

question of fact and law. Council 31, 216 Ill. 2d at 577. The Board’s determination of a

question of fact is held to be prima facie true and correct and will be disturbed only if it is

against the manifest weight of the evidence. Council 31, 216 Ill. 2d at 577. A question of law is

subject to de novo review (id.); however, in the administrative review setting, deference to the

agency’s experience and expertise is accorded to the agency’s interpretation of the law or rule at

issue (Department of Central Management Services/Department of Public Health v. Illinois

Labor Relations Board, State Panel, 2012 IL App (4th) 110209, ¶ 16).

¶ 26 A mixed question of fact and law occurs where the historical facts are admitted or

established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory

standard or, in other words, whether the rule of law as applied to the established facts is or is not

violated. Id. The Board’s decision on a mixed question of fact and law will be disturbed only

where it is clearly erroneous. Id. A decision is clearly erroneous when the reviewing court is left

with the definite and firm conviction that a mistake has been committed. Id. at 577-78. With

these standards in mind, we turn to the Clerk’s contentions on appeal.

¶ 27 B. Irregularities in the Board’s Decision

¶ 28 The Clerk contends that the Board’s decision should not be honored, because one of the

members was absent. The Clerk argues that the Board did not provide a sufficient reason for that

member’s failure to vote and that, unlike in a case involving the recusal of a member, the

member’s failure to vote can be cured by simply requiring the member to vote. This, according

to the Clerk, would result in a substantive outcome and is easily accomplished. While we

understand the Clerk’s contention, we disagree because it is based on an incorrect assumption.

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¶ 29 Underlying the Clerk’s contention is an unstated but implied assumption that, because

one of the Board’s members was absent, it improperly convened. Section 5(c) of the Act

provides that three members constitute a quorum of the Board and that a vacancy does not impair

the right of the remaining members to exercise all of the Board’s powers. 5 ILCS 315/5(c) (West

2014). Here, four members participated in the decision, arriving at a tie vote. According to the

Act, the Board properly discharged its responsibilities, because the four participating members

constituted a quorum and were able to exercise all of the Board’s powers.

¶ 30 We note that, where members have recused themselves from a case, Illinois courts have

not hesitated to recognize the validity of the panel’s decision, so long as a quorum was

maintained. See, e.g., Support Council of District 39 v. Illinois Educational Labor Relations

Board, 366 Ill. App. 3d 830, 833 (2006) (where one member of a five-member panel recused

herself, a tie vote ensued, resulting in the adoption of the recommended decision, but the

decision was not given precedential effect); Chicago School Reform Board of Trustees v. Illinois

Educational Labor Relations Board, 315 Ill. App. 3d 522, 527 (2000) (same); Board of

Education of Community Consolidated High School District No. 230 v. Illinois Educational

Labor Relations Board, 165 Ill. App. 3d 41, 53-54 (1987) (District No. 230) (recusal of one

member from three-member panel did not impair the remaining members from exercising the

powers of the Board even if the two members could not agree upon an outcome). Because a

quorum was maintained, we cannot accept the Clerk’s argument on this point.

¶ 31 We note that the Clerk seizes upon commentary from District No. 230 as support for its

position that a tie is illegitimate. In District No. 230, the court noted the potential for difficulty

where a three-member panel, set up “without regard for the possibility of conflict, disability, or

absenteeism of any one member,” would likely result in two-member decisions in which the

remaining members took opposing views. District No. 230, 165 Ill. App. 3d at 54. The court

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lamented the lack of a statutory mechanism to empanel a tiebreaking special member, but it

recognized that, under the law, the tie vote was required to stand. Id. The Clerk suggests that

the court’s commentary ought to be the basis for invalidating the result here and remanding this

cause to the Board, with the direction that the absent member vote whether to accept or reject the

ALJ’s recommended decision and order. However, as noted in District No. 230, there appears to

be no mechanism in either the Act or the Board’s rules to remand for an absent member’s vote or

to appoint a special member in cases where there was a quorum with an even number of

members remaining. See id. Instead, we are compelled to accept the result of the quorum

exercising the Board’s authority. See id. Accordingly, we see nothing improper about the

Board’s tie vote, and we reject the Clerk’s suggestion that we invalidate it, because there is no

basis in the law or the Board’s rules that authorizes us to do so.

¶ 32 Next, the Clerk argues that the Board’s decision cannot stand, because the Board

included no findings or conclusions suitable for this court to review. While we might agree that

the Board’s decision was infelicitously stated, we believe that the clear upshot of its decision was

to adopt the ALJ’s recommended decision and order as a nonprecedential disposition. See

Support Council, 366 Ill. App. 3d at 833 (where the remaining members cannot reach a majority

decision, the result is the adoption of the hearing officer’s recommended decision and order as a

nonprecedential disposition). Accordingly, because the Board adopted the ALJ’s recommended

decision and order, we have sufficient and specific factual findings and legal conclusions to

review.

¶ 33 The Clerk also argues that the Board’s decision was arbitrary and capricious because the

Board stated that it was not addressing the substance of the Clerk’s exceptions. Again, this

argument is based on the flawed premise that there are not sufficient findings and conclusions for

us to review. Again, while its decision perhaps was inartfully stated, the Board clearly adopted

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the ALJ’s recommended decision and order. The ALJ’s recommended decision and order

addressed the substance of the exceptions, because the exceptions were largely the same as the

objections in the response to the Union’s petition. Ultimately, the Clerk is arguing that the

inartful form of the Board’s decision should trump its substance, the adoption of the ALJ’s

recommended decision and order. In our view, the ALJ’s recommended decision and order

adequately addressed the exceptions and provides a sufficient basis for us to review the Clerk’s

contentions on appeal. Accordingly, we cannot say that the Board’s decision was arbitrary and

capricious for not addressing the substance of the Clerk’s exceptions. For the foregoing reasons,

then, we reject the Clerk’s contentions regarding the purported formal irregularities of the

Board’s decision.

¶ 34 C. Burden to Produce Evidence Demonstrating Fraud or Coercion

¶ 35 The Clerk contends that the Board and the ALJ misapprehended and misapplied its own

rules when it considered the Clerk’s objections alleging that the Union employed fraud and

coercion in its attempt to organize the bargaining unit. According to the Clerk, the Board’s rules

set forth a two-step process in which the party alleging fraud or coercion must first produce

sufficient evidence to demonstrate a material issue of fact or law relating to the allegations of

fraud or coercion, and then, if that party passes the production hurdle, a hearing will be held to

determine whether the evidence of fraud or coercion is clear and convincing. 80 Ill. Adm. Code

1210.100(b)(5) (2004).

¶ 36 The Clerk argues that the Board and the ALJ both compressed this procedure into a

single step. First, the Board’s notification to the Clerk that the Union had filed a majority-

interest petition indicated that, if the Clerk believed that the Union had used fraud or coercion in

obtaining its showing of majority support, the Clerk was required to provide clear and

convincing evidence of that fraud or coercion with its response to the petition. Second, in her

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order to show cause, the ALJ directed the Clerk to “[d]emonstrate through specific evidence,

case law, and/or legal argument why the [Clerk’s] affidavits constitute clear and convincing

evidence of fraud or coercion, and/or provide clear and convincing evidence that [the Union]

attempted to or actually did obtain support for its campaign through fraud or coercion.” Third, in

her recommended decision and order, the ALJ stated that, “[i]n sum, the [Clerk] has failed to

establish that the Union used fraud or coercion to gain support for its organizing campaign.” The

Clerk contends that all three of these examples show that the Board and the ALJ employed a

single-step process, requiring production of clear and convincing evidence, rather than the two-

step process set forth in the Board’s rules, requiring a demonstration that a material issue of fact

or law exists followed by a hearing to establish whether the Clerk produced clear and convincing

evidence of fraud or coercion. The Clerk closes by urging us to remand the cause for a hearing

to establish whether the Union used fraud or coercion in its organizing campaign.

¶ 37 In our view, then, the Clerk argues that the Board did not follow its own rules in

considering the Clerk’s objections to the Union’s petition and its exceptions to the ALJ’s

recommended decision and order. We note that the Clerk does not cite any authority beyond the

Illinois Administrative Code in making its argument. We do not imply that the lack of other

authority means that the Clerk has forfeited its argument; rather, we note that the lack of other

authority means that the Clerk’s argument, based on the text of the rule, appears either to be

uncorroborated by decisions of the courts or the Board or to present an issue of first impression. 1

¶ 38 The Clerk’s argument presents two separate strands of inquiry for us to resolve. First, we

must review the Act and the Board’s rules to determine the applicable legal principles. This

1 We also note that, in opposing the Clerk’s argument, the Union fails to cite any

authority directly contradicting the Clerk’s argument.

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presents a question of statutory interpretation, which we review de novo (albeit with some

deference to the Board’s experience and expertise in interpreting the Act and its rules). Council

31, 216 Ill. 2d at 577; Department of Central Management Services, 2012 IL App (4th) 110209,

¶ 16. Second, we must determine whether the Board followed its own rules. This question

presents a mixed question of fact and law and is reviewed for clear error. Council 31, 216 Ill. 2d

at 577 (a mixed question of fact and law occurs where the historical facts are admitted or

established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory

standard or, in other words, whether the rule of law as applied to the established facts is or is not

violated). With these principles in mind, we turn to the relevant language of the Act.

¶ 39 Section 9(a-5) of the Act provides:

“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 2014).

The Act therefore requires proof of fraud or coercion to be by clear and convincing evidence.

The Act does not, however, specify the procedures to be used in proving a claim of fraud or

¶ 40 In order to effectuate the purposes of the Act, the Board promulgated rules to be observed

when a union seeking to organize a group of employees submits a majority-interest petition. The

Board’s rules provide, pertinently:

“All employers served with a majority interest petition shall file a written response to the

petition within 14 days after service of the petition. The response filed shall set forth the

party’s position with respect to the matters asserted in the petition, including, but not

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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. The

employer must also provide at this time clear and convincing evidence of any alleged

fraud or coercion in obtaining majority support.” 80 Ill. Adm. Code 1210.100(b)(3)

(2004).

Regarding allegations of fraud or coercion, the rules provide:

“(A) A party or individual alleging that the petitioner’s evidence of majority

support was obtained fraudulently or through coercion must provide evidence of that

fraud or coercion to the Board or its agent. If a party has not provided evidence

demonstrating a material issue of fact or law relating to fraud or coercion, the Board will

certify the union as the unit’s exclusive representative if it is determined to have majority

support.

(B) If the Board finds a party has provided evidence demonstrating a material

issue of fact or law relating to fraud or coercion, it will conduct a hearing to determine

whether there is clear and convincing evidence of fraud or coercion. *** If the Board

finds clear and convincing evidence of fraud or coercion, the Board will conduct an

election in the petitioned[-]for unit to determine majority support for the petitioner. If the

Board finds clear and convincing evidence of fraud or coercion to be lacking, it will

determine majority support for the petitioner based upon the evidence filed with the

petition.” 80 Ill. Adm. Code 1210.100(b)(5) (2004).

¶ 41 The Board’s rules delineate its responsibilities in investigating a majority-interest

petition:

“Upon receipt of the petition, the Board or its agent shall investigate the petition.

If, for any reason during the investigation, the Board or its agent discovers that the

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petition may be inappropriate, the Board or its agent may issue an order to show cause

requesting that the petitioner provide sufficient evidence to overcome the

inappropriateness. Failure to provide sufficient evidence of the petition’s appropriateness

can result in the dismissal of the petition. Moreover, in conjunction with subsection

(b)(3), if, for any reason during the investigation, the Board or its agent discovers that the

employer’s objections to the majority interest petition are insufficient in either law or

fact, the Board or its agent may issue an order to show cause requesting that the employer

or union provide sufficient evidence to support its defenses. Failure to provide sufficient

evidence can result in the waiver of defenses.” 80 Ill. Adm. Code 1210.100(b)(6) (2004).

¶ 42 Finally, the Board’s investigation of the majority-interest petition will result in one of

three outcomes: (1) dismissing the petition (80 Ill. Adm. Code 1210.100(b)(7)(A) (2004)); (2)

certifying the petitioning union as bargaining representative (80 Ill. Adm. Code

1210.100(b)(7)(B) (2004)); or (3) scheduling an oral hearing (80 Ill. Adm. Code

1210.100(b)(7)(C) (2004)). Similar to the procedure used to resolve a motion for summary

judgment, an oral hearing will occur only if the parties’ opposing documents fail to resolve an

important question about the petition or, in other words, only if “the investigation discloses that

there is reasonable cause to believe that there are unresolved issues relating to the question

concerning representation.” Department of Central Management Services/Illinois Commerce

Comm’n v. Illinois Labor Relations Board, State Panel, 406 Ill. App. 3d 766, 773 (2010)

(quoting 80 Ill. Adm. Code 1210.100(b)(7)(C) (2004)). In short, the Board will hold an oral

hearing “only if it has reasonable grounds for believing that the case presents unresolved issues,

significant questions that have resisted resolution through the written submissions.” Id.

¶ 43 In its argument on appeal, the Clerk entirely ignores subsection (b)(3) and focuses

exclusively on subsection (b)(5). The Clerk reads subsection (b)(5) as setting forth a two-step

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process in which the first step is the production of sufficient evidence to demonstrate a material

issue of fact or law relating to fraud or coercion, and the second step is an oral hearing to

determine whether there is clear and convincing evidence of fraud or coercion. See 80 Ill. Adm.

Code 1210.100(b)(5) (2004). Perhaps unsurprisingly, but certainly disappointingly, the Union,

in its counter to the Clerk’s argument, entirely ignores subsection (b)(5) and focuses exclusively

on subsection (b)(3). According to the Union, the employer is required to provide clear and

convincing evidence of alleged fraud or coercion with its response to a union’s majority-interest

petition. See 80 Ill. Adm. Code 1210.100(b)(3) (2004). From the parties’ arguments, the

question thus becomes: how are subsections (b)(3) and (b)(5) to be reconciled?

¶ 44 We begin with the Act. The Act defines the quantum of proof necessary to prove an

allegation of fraud or coercion, but it does not provide a procedure for the parties and the Board

to follow. See 5 ILCS 315/9(a-5) (West 2014) (a party must provide “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”). When

a party succeeds in demonstrating, by clear and convincing evidence, that the petitioner’s

evidence of majority support was procured by fraud or coercion, the Board is to promptly

conduct an election. Id. Thus, the Act specifies that a party must provide clear and convincing

evidence of fraud or coercion, and it implies that, procedurally, this clear and convincing

evidence is to be presented before the designation of a representative.

¶ 45 Illinois Commerce Comm’n, 406 Ill. App. 3d at 771-73, provides a useful overview of the

general process for resolving a majority-interest petition. Subsection (b)(3) requires an employer

to file a “written response,” which lays out the employer’s position on issues raised by the

petition, and the employer must, in its written response, provide clear and convincing evidence

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supporting any allegations that the majority support was obtained through fraud or coercion. Id.

at 771-72. The Board or its agent (i.e., an ALJ) will then investigate the petition. Id. at 772. If

the investigation uncovers a potential weakness or insufficiency in either party’s case, the Board

or the ALJ may, through an order to show cause, require the party to provide evidence

supporting its position. Id. In other words, “if, in the course of his or her investigation, the ALJ

encounters what appears to be a legal or factual deficiency in either party’s case, the ALJ can

require the party to shore up the deficiency by the submission of ‘sufficient evidence.’ ” Id.

(citing 80 Ill. Adm. Code 1210.100(b)(6) (2004)).

¶ 46 The goal of these rules is to provide a means to discover, ahead of time and through the

parties’ documentary submissions, any fatal deficiency in either party’s case instead of

discovering the deficiency during the administrative hearing and thereby wasting both time and

resources. Id. Section 1210.100(b) (80 Ill. Adm. Code 1210.100(b) (2004)) thus sets out a

procedure that is roughly comparable to the summary-judgment procedure from the Code of

Civil Procedure, except that it is the ALJ, rather than the parties, who identifies any deficiencies.

Illinois Commerce Comm’n, 406 Ill. App. 3d at 772-73. In this fashion, the ALJ may require the

parties to participate in the investigation by supplying evidence to overcome or eliminate

apparent problems, either factual or legal, that are uncovered in the investigation. Id. at 773.

This collaborative investigation will result in one of three outcomes: the dismissal of the petition,

the certification of the union as the bargaining representative, or the scheduling of an oral

hearing. Id. The hearing occurs only if the written and evidentiary submissions have failed to

resolve a significant issue. Id.

¶ 47 The Board’s rules, then, implement the Act. The purpose of section 9(a-5) of the Act is

to provide a streamlined “card check” procedure for union recognition. County of Du Page v.

Illinois Labor Relations Board, 231 Ill. 2d 593, 615 (2008). As part of this streamlined

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procedure, the Board’s rules contemplate the resolution of the employer’s objections solely

through written submissions. See 80 Ill. Adm. Code 1210.100(b)(3) (2004) (requiring the

employer to submit with its written response “clear and convincing evidence of any alleged fraud

or coercion in obtaining majority support”). Only if unresolved issues persist after the

submission of the parties’ written arguments and documentary evidence will an oral hearing be

conducted. See 80 Ill. Adm. Code 1210.100(b)(7)(C) (2004) (if the collaborative investigation

by the ALJ and the parties “discloses that there is reasonable cause to believe that there are

unresolved issues,” an oral hearing will be held). Thus, the Board’s rules lean toward resolving a

majority-interest petition by considering the parties’ written submissions, with an oral hearing

necessary only if those submissions cannot by themselves resolve the issues raised by the parties

and the ALJ’s collaborative investigation.

¶ 48 With these principles firmly in mind, we address the Clerk’s argument that the Board and

the ALJ misapprehended these rules in requiring the Clerk to submit clear and convincing

evidence of the Union’s alleged fraud or coercion in its organizing campaign, both with the

Clerk’s original objections to the petition (i.e., the written response required under subsection

(b)(3)) and with the Clerk’s response to the ALJ’s order to show cause. This argument fails in

light of our interpretation of the Act and the Board’s rules. The Board’s rules clearly required

the original response to the petition (or, as denominated by the Clerk in this case, the objections

to the petition) to include clear and convincing evidence of the alleged fraud or coercion in the

Union’s organizing campaign. 80 Ill. Adm. Code 1210.100(b)(3) (2004). Thus, the Board’s

initial notification properly informed the Clerk that it was required to include clear and

convincing evidence with its response to the petition. Likewise, the ALJ’s order to show cause

also properly informed the Clerk that it was also required to include clear and convincing

evidence in its supplemental submission to rectify the weaknesses the ALJ identified in the

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Clerk’s response. Accordingly, we reject the Clerk’s argument that the Board and the ALJ

erroneously placed on the Clerk a higher burden than that required by the Act or the Board’s

rules.

¶ 49 D. Sufficiency of Evidence Demonstrating Fraud or Coercion

¶ 50 The Clerk next argues that it submitted sufficient evidence to demonstrate the existence

of material issues of fraud and coercion, which should have required an oral hearing to resolve

the issues raised. First addressing fraud, the Clerk argues that the Union promised employees

better salaries, better raises, and better vacation benefits. The Clerk also criticizes the ALJ’s

reasoning that the claim that the Union was not going to charge dues was not “necessarily false,”

because the Act did “not require bargaining unit members to pay dues, and the Clerk ha[d] not

supplied any other evidence on the matter.” The Clerk argues that it had only to supply some

evidence demonstrating a material issue of fraud. The Clerk contends that in Halle’s affidavit it

demonstrated a material issue “by showing that the employee was promised that there would be

no dues.”

¶ 51 We note that the Clerk has not accurately stated the evidence presented in the affidavit.

Halle averred that the Union representative “claimed that the raise [she] would get would cover

the dues of $40.00 per month.” Thus, the Union representative did not promise that there would

be no dues charged to employees joining the Union.

¶ 52 The Clerk also refers to Polydoris’s hearsay averment that an anonymous employee

reported that an unnamed representative told her that “joining the union would be free and there

would not be any dues.” From this, the Clerk argues that the ALJ used the wrong standard when

she stated that hearsay from an unidentified source is “not generally considered clear and

convincing evidence.” As we saw above, however, the Clerk’s response to the petition was

required to include clear and convincing evidence to support the Clerk’s allegations of fraud. 80

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Ill. Adm. Code 1210.100(b)(3) (2004). Accordingly, we cannot say that the ALJ used the wrong

standard in evaluating the evidence submitted.

¶ 53 Moreover, we cannot say that second- and third-hand hearsay from unidentified

individuals rises to the level of clear and convincing evidence. See Metropolitan Alliance of

Police, 26 PERI ¶ 59 (ILRB State Panel 2010) (hearsay evidence from anonymous sources is

insufficient to meet the clear-and-convincing evidentiary standard of section 9(a-5) of the Act (5

ILCS 315/9(a-5) (West 2014))). The ALJ and the Board determined that the evidence presented

by the Clerk simply could not meet the statutory standard of clear and convincing. We cannot

say that the Board’s decision was clearly erroneous.

¶ 54 The Clerk’s arguments disputing the ALJ’s recommended decision, adopted by the

Board, consist of claims that the ALJ and the Board misapprehended the required procedure and

that the Clerk’s evidence was sufficient to demonstrate material issues regarding fraud and

coercion. As we noted above, however, the Act and the Board’s rules both require the

submission of clear and convincing evidence when the employer responds to a majority-interest

petition. Thus, the Clerk’s procedural argument fails.

¶ 55 Regarding the sufficiency argument, the Clerk contends that it presented evidence that, in

order to garner support for the Union’s organizing campaign, the Union promised that no dues

would be charged and that employees would receive better benefits. While the affidavits do,

conclusorily, support the Clerk’s contentions, in one instance, the person making the claim of

fraud is anonymous and, in another, the Union representative’s identity and words are not given.

As such, the affidavits provide only hearsay and conclusory evidence, and thus we cannot say

that the Clerk met its evidentiary obligation. Accordingly, we reject the Clerk’s claims that the

Union used fraudulent means to obtain majority support.

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¶ 56 The Clerk next argues that it provided sufficient evidence that the Union engaged in

coercive tactics during its organizing campaign. In particular, the Clerk points to Ventura’s

affidavit in which Ventura averred that she felt threatened when an identified coworker who was

in favor of unionizing texted her that she would be waiting outside to meet with Ventura after

work and when an unidentified Union representative came to her dwelling to discuss signing a

dues-deduction card. The Clerk also points to Halle’s affidavit in which she complained that an

unidentified Union representative “appeared to be attempting to use peer pressure and insults” to

coerce her into joining the Union. Finally, the Clerk especially highlights Lucio’s affidavit in

which she averred that the behavior of two unidentified Union representatives was so disturbing

that she filed a police report. In particular, the Clerk contends that, for a single mother, the

unannounced approach of men during the evening hours was objectively threatening and

coercive.

¶ 57 We first note that, despite these claims of coercion, none of the affiants stated that either

a Union representative or a coworker either threatened to or actually did retaliate against her.

Additionally, and more significantly, despite the claimed coercion, none of the affiants actually

reported that she signed a dues-deduction card. Thus, none of the affiants was so subjectively

intimidated that her will was overborne and she acquiesced to the purported coercion.

¶ 58 The Clerk repeats its contention that it supplied sufficient evidence to raise a material

issue regarding coercion. The Clerk argues that the ALJ and the Board erred in rejecting the

evidence as failing to surmount the clear-and-convincing standard when all they should have

been doing was to ascertain whether the evidence raised an issue. We have repeatedly addressed

this argument in the various guises presented by the Clerk; both the Act and the Board’s rules

require that the employer present clear and convincing evidence supporting a claim of coercion.

Accordingly, we reject the Clerk’s argument on that point.

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¶ 59 Next, the Clerk suggests that the conduct of the unidentified employees and Union

representatives was objectively coercive. While the Clerk correctly notes that the Board has

cited no authority indicating what constitutes coercion in a union representation case, the Board

has analogized coercion in a representation case to coercion in an unfair-labor-practice case,

which measures the allegedly coercive conduct against an objective standard. Metropolitan

Alliance of Police, 26 PERI ¶ 59 (ILRB State Panel 2010). Thus, the ALJ and the Board chose

the correct rule of law to employ, namely, whether the conduct identified in the Clerk’s affidavits

was objectively coercive.

¶ 60 The ALJ held that, with respect to the Ventura affidavit, the texts from the coworker and

the home visit by the Union representative were not objectively coercive, because Ventura was

not threatened or warned of impending retaliation if she did not sign a dues-deduction card.

Based on the objective standard, we cannot say that the ALJ’s and the Board’s determination was

clearly erroneous.

¶ 61 The ALJ also held that the home visits to the other affiants were not objectively coercive.

Although Lucio’s affidavit suggested that the Union representatives were stalking her and lying

in wait outside of her dwelling, the affidavits provided no other evidence, such as actually

threatening words or actions, and included only subjective statements of the affiants’ discomfort

with the visits. Once again, in light of the objective measure, we cannot say that the ALJ’s and

the Board’s determination was clearly erroneous. Accordingly, we conclude that the Board and

the ALJ properly determined that the evidence did not rise to the necessary quantum, because the

Clerk did not present evidence of threats, retaliation, or other adverse consequences that the

affiants would experience unless they signed the dues-deduction cards. We therefore reject the

Clerk’s coercion argument.

¶ 62 III. CONCLUSION

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¶ 63 For the foregoing reasons, the decision of the Board is confirmed.

¶ 64 Confirmed.

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