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"And" Really Means "Or": the Illinois Supreme Court Rules on Card Check Legislation

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December 22, 2008

The Illinois Supreme Court recently interpreted for the first time the legislation that established the card check recognition process for Illinois public sector employees. In County of DuPage et al. v. Illinois Labor Relations Board, Docket No. 105395 (12/18/08), the Court held that unions need not submit dues deduction authorization cards to achieve exclusive bargaining agent status under the Illinois Public Labor Relations Act.

A question of statutory interpretation was at the heart of this dispute. Section 9(a-5) of the Act, commonly referred to as the "card check" legislation, requires the Illinois Labor Relations Board to certify a union as an exclusive bargaining representative when that union demonstrates a showing of majority interest. The legislation expressly provides that the Board shall make its determination on the basis of "dues deduction authorization and other evidence." Under the Board’s implementing regulations, however, a union may submit "authorization cards, petitions, or any other evidence" to demonstrate that a majority of employees with to be represented by that union.

In County of DuPage, the Employer argued that the legislation clearly requires the Union to submit both dues deduction authorization cards and some other evidence of majority support. In other words, "and" as used in the statute meant precisely that -- "and," or additional. The Board, on the other hand, argued that the legislature really intended "and" to mean "or," and that any one type of evidence demonstrating majority support is all that is required by the statute.

Although the Court found both arguments meritorious, it ultimately sided with the Board, finding support for its interpretation in the legislative history. The sponsors of the legislation had emphasized their intent to provide an alternative to the "lengthy and cumbersome" statutory election procedure. In the Court's view, requiring two forms of evidence -- as the Employer argued -- would have complicated the simple card check procedure envisioned by the legislature. As a result, "and," as used in the Illinois card check legislation, really meant "or," and the Board's regulations permitting any one form of evidence to be submitted in card check cases were valid.

Justices Thomas, Garman and Karmeier dissented, stating that "and" is presumed to be used in its customary conjunctive sense, and that the legislature could have intended that the less reliable card check method be supported by two forms of evidence demonstrating majority support. All of the justices agreed, however, that public employers are not entitled to inspect or review the showing of majority support submitted in card check cases.

This case validated the card check process in Illinois, as established by the Board's implementing regulations. It also foreshadows the debate between labor and management regarding the Employee Free Choice Act, which would permit card check recognition in the private sector.

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