THE COUNTY OF DU PAGE et al., Appellees, v. THE ILLINOIS LABOR RELATIONS BOARD et al., Appellants.
No. 105395
Supreme Court of Illinois
December 18, 2008
231 Ill. 2d 593
CONCLUSION
For the foregoing reasons, the judgment of the appellate court is affirmed.
Affirmed.
(No. 105395.-
THE COUNTY OF DU PAGE et al., Appellees, v. THE ILLINOIS LABOR RELATIONS BOARD et al., Appellants.
Opinion filed December 18, 2008.
Joseph E. Birkett, State‘s Attorney, of Wheaton (Lisa Ann Hoffman, Assistant State‘s Attorney, of counsel), and James Baird and James J. Powers, of Seyfarth Shaw LLP, of Chicago, for appellees.
Gilbert Feldman, of Chicago, for amici curiae Illinois State Federation of Labor et al.
Roger Huebner, of Springfield, for amicus curiae Illinois Municipal League.
Michael I. Richardson, Terrence T. Creamer and Jennifer A. Niemiec, of Franczek Sullivan P.C., of Chicago, for amicus curiae Illinois Public Employer Labor Relations Association.
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
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.”
“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 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.”
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.
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
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).
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” (
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 inter-
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 (
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; Illinois Fraternal Order of Police Labor Council; and Illinois Educational Association to file an amicus curiae brief in support of the Board and MAP. Finally, we granted leave to 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
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.)
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 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
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, 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 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
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
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.)
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
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 construc-
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.”
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).
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 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
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 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
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
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
This conclusion finds support in the fact that, at the time the legislature adopted
To the extent
We are not persuaded by the Employer‘s argument that, under
“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) .
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
In sum, we hold that
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
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 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
IV. Attorney Fees
After entry of the appellate court opinion in this case, the Employer filed a petition in the appellate court, pursuant to
While the fee petition was pending, the Board filed its petition for leave to appeal, which we allowed. Shortly
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
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.
Reversed; cause remanded.
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
The appellate court correctly held that the Board improperly certified MAP as the exclusive representative without requiring dues deduction authorizations and other evidence.
“The pertinent conditions of section 8 are plainly joined with the term ‘and.’ This court long ago observed the obvious: ‘The conjunction “and” *** signifies and expresses the relation of addition.’ City of LaSalle v. Kostka, 190 Ill. 130, 137 (1901). Of course, the word ‘and’ is sometimes considered to mean ‘or,’ and vice versa, in the interpretation of statutes. However, ‘[t]his is not done except in cases where there is an apparent repugnance or inconsistency in a statute that would defeat its main intent and purpose. When these words are found in a statute and their accurate reading does not render the sense dubious they should be read and interpreted as written in the statute.’ Voight v. Industrial Comm‘n, 297 Ill. 109, 114 (1921). ‘As a general rule, the use of the conjunctive, as in the word “and,” indicates that the legislature intended for all of the listed requirements to be met. [Citations.]’ (Emphasis in original.)’ Byung Moo Soh v. Target Marketing Systems, Inc., 353 Ill. App. 3d 126, 131 (2004), quoting Gilchrist v. Human Rights Comm‘n, 312 Ill. App. 3d 597, 602 (2000).” People v. A Parcel of Property Commonly Known as 1945 North 31st Street, Decatur, Macon County, Illinois, 217 Ill. 2d 481, 500-01 (2005).
According to the majority, however, when the legislature used the word “and” in between the types of evidence required (“dues deduction authorization and other evidence“) it really meant “dues deduction authorization or other similar evidence.”
To the majority‘s credit, it does acknowledge that it may only assign the meaning “or” to the word “and” if giving “and” its conjunctive meaning renders the statute dubious or creates an inconsistency that defeats the statute‘s main intent and purpose. See 231 Ill. 2d at 606. The Board argues that such an inconsistency is found when the second sentence of
The Board sees an inconsistency, however. According to the Board, the second sentence cannot mean that dues deduction authorizations and other evidence are both required, because the third sentence provides that the Board may “otherwise” rely on other evidence. As the appellate court correctly explained, however, this represents a misunderstanding of the word “otherwise.” The term “otherwise” does not, as the majority and the Board believe, mean “in lieu of.” Rather, it means “under different circumstances.” See 375 Ill. App. 3d at 775, quoting Webster‘s Third New International Dictionary 1598 (1986). Thus, as the appellate court explained, the different circumstances are those in which there is no fraud or coercion. 375 Ill. App. 3d at 775. In other words, the third sentence would mean:
If either party provides to the Board, before the designation of a representative, clear and convincing evidence that the dues deduction authorizations, and other evidence upon which the Board would absent fraud or coercion rely to ascertain the employees’ choice of representative, are fraudulent or were obtained through coercion, the Board shall promptly thereafter conduct an election.
Thus, because “and” can be read in its conjunctive sense without creating an inconsistency in the statute or rendering the sense of the statute dubious, we must give it that reading. See A Parcel of Property Commonly Known as 1945 North 31st Street, 217 Ill. 2d at 500-01.
Despite explicitly acknowledging that the statute can be read with “and” having its conjunctive sense without creating an inconsistency in the statute or rendering the sense of the statute dubious (231 Ill. 2d at 606), the majority inexplicably does not end its analysis there, but rather continues to construe the statute to resolve the ambiguity. The majority‘s analysis follows this pattern: (a) the statute is ambiguous because “and” can be read either as “and” or as “or“; (b) the rule we have for resolving such ambiguities is that “and” must be given its conjunctive meaning if we can do so without creating an inconsistency in the statute or rendering the sense of the statute dubious; (c) here, giving “and” its conjunctive sense can indeed be harmonized with the statute as a whole, including the “otherwise” clause; (d) however, the use of the disjunctive “or” can also be harmonized with the statute as a whole; (e) consequently, the statute is ambiguous and we must resort to other aids of construction. Two problems are immediately apparent. First, the majority, with no explanation, elevates the disjunctive meaning to the same status as the conjunctive meaning, improperly considering whether it can be harmonized with the statute as a whole. Second, if all that our rule for resolving whether “and” means “and” or “or” does is to get you back to the original ambiguity,
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
“Workers sometimes sign union authorization cards not because they intend to vote for the union in the election but to avoid offending the person who asks them to sign, often a fellow worker, or simply to get the person off their back, since signing commits the worker to nothing (except that if enough workers sign, the employer may decide to recognize the union without an election). See NLRB v. S.S. Logan Packing Co., 386 F.2d 562, 565 (4th Cir. 1967); NLRB
v. Gruber‘s Super Market, Inc., supra, 501 F.2d at 705; Walgreen Co. v. NLRB, supra, 509 F.2d at 1020, 1023 (dissenting opinion). A study referred to in the Logan Packing case found that even where the union had authorization cards from between 50 and 70 percent of the employees, it won only 48 percent of the elections. See 386 F.2d at 565. (The study itself gives the figure 52 percent, but this is evidently an arithmetical error, since the study reports that the union won 42 out of 87 elections, which is 48 percent. McCulloch, A Tale of Two Cities: Or Law in Action, Proceedings of ABA Section of Labor Relations Law 14, 17 (1962).) Another study found that 18 percent of those signing authorization cards did not want union representation at the time they signed. See Getman, Goldberg & Herman, supra, at 132.” National Labor Relations Board v. Village IX, Inc., 723 F.2d 1360, 1371 (7th Cir. 1983).
Thus, it is quite possible that the legislature required two forms of evidence as a way to help ensure that the union truly had majority support. Moreover, is Senator Sandoval‘s statement that the legislature intended to implement a “card check” procedure really supportive of the majority‘s position that dues check-off cards are merely optional?1 Is it not just as reasonable to conclude that if the legislature‘s intent is to enact a “card check” procedure and if the legislature then enacts a statute requiring “dues deduction authorization and other evidence,” the legislature intended for the union to submit dues check-off cards as proof of majority support?
Next, the majority finds support for its interpretation in the fact that
Finally, the majority states that to the extent that there is any doubt as to the meaning of the statute, we should defer to the Board‘s interpretation. Again, however, I do not believe that we ever get to this step because our rule for determining the meaning of “and” requires us to read it in the conjunctive in this case. Consequently, there is no need to defer to the Board‘s interpretation.
At most, then, the majority has demonstrated only
JUSTICES GARMAN and KARMEIER join in this partial concurrence and partial dissent.