Docket No. 105395.



### IN THE SUPREME COURT OF THE STA TE OF IL LINOIS

THE COUNTY OF DU

PAGE et al. , Appelle es, v. T HE ILLIN OIS LABOR REL

ATIONS BOARD et al. , Appella nts.

Opinion filed December 18, 2008.

CHIEF JUSTICE FITZ GERALD d el ivered the judgment of the court, with opinion. Justices Freeman, Kilbride and Burke concurr ed in the judgment and opinion. Justice Thomas concurre d in part a nd diss ent ed in par

t, with opinion, joined by Justices Garman and Karme ier.

OPINION

The Illinois Labor Relations Board, State Panel (the Board), a nd the Metropolitan Alliance of Police, Du Page County Sher iff’s Police Chapter #126 (MAP or the Union) appeal from a judgment of the appella te court vacating the Board’ s certification of MAP as the exclusive ba rgaining representa tive for a unit of deputy she riffs employed by the C ounty of

Du Page and th e sheri ff of Du Page County (collectively, the E

mployer) (375 Ill. App. 3d 765). At issue is the proper interpretation of section 9(a– 5) of the Illinois Public Labor Relations Act (5 I

LCS 315/9(a–5) (West 2004)).-2- For the reasons discussed below, we reverse the judgment of the appella te court, and

remand to the appellate court for further review

.

BACKGROUND The Illinois Public Labor R elat ions Act (

the Act)grants

public

em ploy ees “full freedom of association, self-org anization, and designation

of representatives of their own choosing for the purposes of negotiating

wages, hours and other conditions of employment.” 5 IL CS 315/2 (West 2004). Prior to the ado ption of section 9(a–5) of the Act (see

Pub. Act 93 –444, ef

f. Augu st 5, 2003) , unless a public employee was a member of a

historica lly recog nized bar gaining unit,

or the public

employer voluntarily

recognized a labor

organization as the excl usi ve bargaining repre sentative for a unit of employ ees, the only means available f

or p ublic emp loy ees to exe rcise the ir collective-bargaining

rights was through a

secret ballot election. See 5 IL CS 315/3(f), 9(d), (f) (West 2002). When the legislature enacted section9(a–5), it provided public employe es and labor organizations an alter native to the election proc ess. Sect ion 9(a–5 ) states: “The [Illino is La

bor Relat ions] Boar

d shall des ignate an exclusive representative for purposes of collective ba rgaining when the repres entative

demonstr

ates a showing of

majority interest by employ

ees in the unit. If the parties to a dispute are withoutagreement on t

he mea ns to asce

rtain the choice, if

an y, of employ

ee org aniz a tion as their representative, the Board shall ascertain the empl oye es’ choice of employee organization, on the bas is o f dues deduction authorization and other evidence , or, if necessary , by condu cting an election. If either party

provides to the Board, before the de signation o f a representative, clear a nd convincing evidence that the dues d

eduction authoriza

tio ns, and other evidence uponwhich the Board would otherwise rel y to ascertain the employ ees’ choice of representative, are fraudulent

or we re obtained through coercion, the Board sha ll p romptly thereafter conduct an election. Th e Board shall also i nvestig ate and consider a party ’s allegations that the dues dedu ctionauthorizations and other evidence submitted i n support of a designation of

representative without an election

were subseque

ntly chang ed, alte

red, with drawn, or withhel d-3- as a result of employe

r fraud, coe rcio n, or any

other unf

air labor practice by

the employer. If

the Board determines that

a labo r org aniza

tion wo uld have had a majority interest but for anemployer’s f

raud, coercion, or unfai

r labor practice , it sha ll designa

te the lab or orga

nization as

an exclu siv e repres e ntative without conducting an election.” (E

mphasis added.) 5 ILCS 315/9(a–5) (West 2004). A uni on s eeking

to be cer tified und er sect ion 9(a–5 ) must file with the Board a “majority

interest petition,” i.e. , a r ep resentation petition “accom

pani ed by

a showing

of intere st eviden

cing tha t a majority of the em ployees in the

petitione d-for ba

rgaini ng unit wish
to be represented by

the labor organization.” 80 I ll. Adm. Code §1210.80(b) (as amended at 28 Ill. Reg . 41 72, eff. February 19, 2004). Under the Board’s rules, the showing of interest in support of sucha petition “may consist of authorization cards, petitions, or any other evidence that de monstrat es that a majority of the e mployees wish to be re presen ted by the union for the pur poses of collective barga inin g.” (Emphasis added.) 80 Ill. Adm. Code §1210.80(d)(2)(A ) ( as ame nded at 28 Ill. Reg. 4172, ef f. February

19, 2004). The evidence of majori

t y s upport must contain original, legible, signatu res, which do not predate the filing of the petition by more thansix months . 80 I ll. Adm. Code §§1210.80(d)(2)(B), (d)(2)(C), (d)(2)(D) (as amended at 28 Ill. Reg . 4172, eff. February 19, 2004). Inaddition, the showin

g of inte rest “shal l state that by signing the card the employe e acknowledge s that if a majority of his/ her c oworkers in an appropriate unit sign evidence of majority support, the card ca n b e u se d b y th e petitioner to obtain certification as the employee s ’ exclusive

repres entative

without an

election .” 80 I ll. Adm. Code §1210.80(d)(2)(E) (as amended at 28 Ill. Reg. 4172, eff. February 19, 2004). Evidence of majority support is notfurnished

to any of the parties. 80 Ill. Adm. Code §1210.80(e)(1) (a s amended at 28 Ill. Reg. 4172, eff. F ebruary 19, 2004). The empl oyer is requir

ed to submit signature exemplars for the employees

in the proposed bargaining unit and is permitted an opportuni ty to respond to the petition. 80 Ill . Adm. Code §1210.100(b)(2), (b)(3) (as amended at 28 Ill. Reg. 4172, eff. February 19, 2004). In addition to providing “clear and convincing evidence of any all eged fra ud or c oercio n in o btain ing maj ority-4- support,” the employ

er must se t forth its “position with respect to the
matters asserted in the petition, including, but not limited to, the appropr iatenes s of the bargaining unit and, to the extent know n , whether any employ

ees sought by

petitioner to be included

should be excluded from the unit.” 80 Ill. Adm. Code §1210.100(b)(3) (a s amended at 2 8 Ill. Reg. 4172, eff. February 19, 2004). “Any pe

rson aggrieved”

by an orde

r of the Board certify

ing a labor organization “may apply for a

nd o btain j udicial r

eview in a

ccorda nce with provisions of the Ad

ministrati ve Revie w La w *** dir

ectl y in the Appellate Court for the district in which the aggrieved par

ty resides or transacts business.” 5 IL CS 315/9(i) (West 2004). The present

legal dispute arose out

of a majority intere st petition filed by MAP on June 15, 2005, in cas e number S–RC–05–153 , in whichMAP sought to be certified as the exclusive representa tive for

a unit of Du P age Cou

nty deputy sheriffs. The Employ

er objected to the petiti on on seve

ral gr ounds. One

of its objections, relevant here, stemmed from the difference between

the statutory lang

uage and the Board’s rules. As set forth above, section 9(a –5) of the Act

requires the Board to ascer tain the e mploy ees’ choice of representative “on the basis of dues deduction authorization and other evidence,” whereas the Board’s rules re quire “a uthorizati on cards
, petitions, or any other evidence” demonstrating a majority interest. (Emp hases added.) Compare 5 ILC S 315 /9(a–5) (West 2004) with 80 Ill. Adm. Code §1210.80(d)(2)(A) (as amended at 28 Ill. Reg. 4172, eff

. February 19, 2004). The Employer a

rgued that

section 9(a–5) required the Union
to submit both dues deduction authorization evidence and some other

e vidence of majority support, and that the B oard’s rules to th e contrary were invalid. The Employer also ar gued that it was entitled
to copies of the Union’s ev ide nce and that the requested barg aining unit was inappropriate. The Board rejected the

Employer’s ar

guments and, on March 23, 2006, certifi ed MAP as the exclusive bargaining represe ntative for the requested employ ee unit. T

he Boar d’s ta l ly indicated that 189 employees

were in the unit; 111 va

lid cards were signed in support of MAP; no cards

were fo und, or e ven alle ged, to

have been obtained throu gh the use of fraud or coercion; and 14 ca rds were found

invalid for other re asons ( e.g. , the employee was not inc luded in

the unit, or the card was not signed or dated).-5- The Employ er s ought administrative review of the Board’ s decision, arguing

that the word “and,” as used in

the statut ory phrase “dues deduction authorization and other evidenc e” (5 I LCS 315/9(a–5) (West 2004)), should be read in its conjunctive sense, and that the Board’s rules contradict the statute and a re therefore invalid. The Employer

also arg ued that t

he Boar d likely applied t he invali d regulations and did not require the Union to supply both dues deductionauthoriza

tion and ot

her evid ence in support of its petition. The Employer also renewed i ts challenge to the makeup of the barga ining uni t. The B oardand the Union disagreed with the Employ er’s constructionof section 9(a–5) and argued that the word “and,” when construed in light of the entire section, should be read inits sever

al, disjunctive sense. The Board and t he Union also argued that the underlying

evidence suppo rt ing a ma jority interest petition is confidential and that the employer does not ha ve a right to revie w it. Fi na ll y, the Board and the Union maintained that the barga ining uni t is appropriate. While the case was being briefe d in the appel la te court, the Employer filed a motion seeking to have the record supplemente d with the Union’s evidence of majority support. The Board

objected, and the appellate court denied the Employ er’s motion. Thu s, the evidence of majority suppor t was not made a part of the record on review. The appellate court vacated the B oar d’s decision and remanded the matter to the Board for further proceedings. 375 I ll. App. 3d 765. The appellate court determined that both constructions of section 9(a–5) advanced by

the par ties wer

e reasonable an

d that the statute

w as th er ef

or e a mb ig uo us . 3 75 Ill . A pp . 3 d a t 7 73 -7 4. Ul ti ma te ly, however, the app ellate court agreed with the Employ er: “[T]he majority inte rest provision requires that both dues deduction authorization and other evidence be submitted de monstra ting tha t a

m a jority of the employee s support representation by the named organization.” 375 I ll. App . 3d at 776. Th e appell ate cour t also held that because the Board’s reg ulations only require one f orm of evidence to support

a majorit y inter est showing, and do not require dues deduction authorization evidence, the Board’s reg ulations conflict with the requirements of sect ion 9(a–5) and, therefore, are-6- invalid. 375 I ll. App. 3d

at 777. Th e appell ate court further held that th e Board’s decision on a majority interest petition is a final order, expressly subject to administrative revie w, and that meaningful review requires, at a minimum, that the reviewing court be able to
ascert ain that the evidence submitted to the Board was “thetype and amount” sufficient to demonstrate a showing of intere st

by a majority of the eligible employees. 375 Ill. App. 3d at 777-78 . The app ellate

co urt noted that there was no evidence of rec ord to support th e Board’s decision, and infer red th at MAP submi

tted evid ence in confor mance with the Board’s invalid regulations, rather tha n the require ments of section 9 (a–5). Accordin

gly , the appe llate court he ld that the Board’s decision certify ing MAP was ag ainst the manif est weight of the evidence. 375 Ill. App. 3d at 778-79. The appella

te court also conc luded tha

t no reas on existed to prohibit the Employer fr

om re viewi ng the Union’s evidence of majority interest, wh ere 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 B oard’s decision, the Board m

ust adopt s ome sort o f regu lation tha t p rovides for the submission of the ev

idence i trelied upon

to the reviewing court ***.” 375 Ill. A pp. 3d at 7 79. The app ellate c ourt foun d it unnec essary

to ad dress the Employer’s c ontention regarding the makeup of t h e bargaining unit. 375 I ll. App. 3d at 779. After entry of the a

ppellat e courtopinion, the Employer filed a petition in the appellate court, pursuant to section 10–55(c) of the Illinoi s Administra

tive Proc edure A ct (5 I

LCS 100 /10–55(c ) (West 2006)), seeki ng attorney

fees of $47,254.50. While the fee petition

was pending, the Board

filed its petition

for lea ve to appe al with this court, which we

allowed. See 210 I

ll. 2d R. 315. Shortly thereafter
, the appellate court granted the fe e petition.
We allowed the Union, as an additional appellant in this cou

rt, to adopt t he Boar d’s briefs as its own. We also granted leave to the Illinois State Fe deration of Labor; Chicago F ederation of Labor ; American Federation of

Stat e, County

& Munici

pal Employ

ees, Council 31; Illinois Federation of Teac hers ; Services Employees International

Union, Local

73, CTW, CLS; Associated Firefighters of Illinois; and Illinois Educational Association to file an amicus curiae brief insupport of the Board and MAP. Fina

lly, we gra

nted lea ve to-7- the Illinois Public Employ er L abor Rela

tions Assoc iation and Illi

nois Municipal League

to file an amicus curiae brief in support of the Employer.

ANA LYSIS The Board

identifies the following issues for review: (1) whether

se cti on9(a–5) requires both dues deduction authorization evidence and another form of e

vidence in support

of a majorit

y interest petition; (2 ) whether

an employer is e

ntitled to review the evidence of majority support; ( 3) wheth er this co urt should

consid er the bargaining

unit issues not addressed by the a ppellate court and, if so, how it should rule; and (4) whether the ap pellate c ourt prop erly awarded the full amount of attorney f

ees requested by

the Employer. We consider each in turn.

I. “Dues deduction authorization and other evidence” The first issue raised by the B oard is one of statutory interpretation, which is subject to de novo review. Harri sonville Telephone Co. v. Illinois Commerce Comm’n , 21 2 Il l . 2d 237, 247 (2004). Ou r p ri ma ry o bject ive is to ascertain and give effec t to the inten t of the legislature. Harrisonville Telephone Co. , 212 Ill. 2d at 251; Alternate Fuels, Inc. v. Director of the Illinoi s Enviro nmental Protection Agency , 215 I ll. 2d 219, 2 37-38 (20 04). The most relia

ble indicator of such intent is the language of the statute, which is to be given its plain and

ordina ry meaning

. Harrisonville Telephone Co.
, 212 I ll. 2d at 251; Alternate Fuels , 215 Ill. 2d at 238. Words and phrases should not b e conside red in iso lati on; rather, they must be interpreted

in light o f other r

elevant provision s and the s ta tute as a whole. Williams v. Staples , 208 I ll. 2d 480, 4 87 (2004) ; In r e Dete ntion of Lieberman , 201 I ll. 2d 300, 3 08 (2002) . In a dditi on t o the statutory lang

uage, the court may

consider the purpose behind the law and the e

vils soug ht to be remedied, as well as the consequences that would result from construing the law one way or the other. Williams , 208 I ll. 2d at 487; Lieberman , 201 Ill. 2d at 308. Where a
statute is capable of more than one reasonable interpr etation, the
statute will be deemed

ambiguous. General

Motors Corp. v. State of Illinois Motor Veh icle

Review B oard

, 224 Ill. 2d

1, 13 (2007). In that-8- event, the court may

consider extrinsic aids to construction, such as legislative history. People v. Collins , 214 Ill. 2d 206, 214 (2005) For ease of discussion, we repeat a portion of section 9(a–5): “If the parties to a dispute are without agreeme nt on the

means to asce rta in the choice, if any , of employee organization

as their repres entative , the Boa

rd shall ascert ain the employ

ees’ choice of employ

ee organization, on

the basis of due s deducti on author ization and

other ev idence, or, if

ne ce ss ar y, by conducting

an e lec ti on. If

either party

provides
to the Board, before

the designation of a representative, c lear and conv incing evi dence that the dues deduction authoriza tions, and other

evidenc e upon whi c h the Board would otherwise rely

to ascertain the employ

ees’ choice of repre s entative, are frau dulen t or we re obt ained throu gh coercion, the Board shall promptly thereafter con d uct an election.” 5 ILCS 315/9(a–5) (West 2004). The Board argues that the word “ and,” as used in the phrase “dues deductionauthorization and other evidence,” when considere d in the
context of section 9(a

–5 ) as a whole, should be read in the disjunctive. Under

t his reading, “dues deduction authorization and other evidence” establishes a rang e or category of evidence which will support a

majority interest petition, b

ut it does not r equire that the petition be supported

by all such evidenc e. Rather, dues deduction authorization or

other evide nce, similar in kind to dues deduction authoriza tions, is sufficient. This interpretation is re flec ted in the Board’s rules, which sta

te in releva nt part: “ The showi

ng of int erest insupport of a majority interest petition may consist of authorization cards, pet iti ons, or

any other ev idence t hat demon strates t

hat a majority of the employee s wish to be represented by the unionfor the purposes o f

collecti ve barg aining. ” (Empha sis added .) 80 I ll. Adm. Code §121 0.80(d) (2)(A) (as amended at 28 I ll. Reg. 4172, eff. February 19, 2004). The Board a

lso posits that reading “and” as “or” avoids creating

aninternal inconsistency in the statute. The Board e xplains that , if, in the second sentence quoted above, the Boa rd could “otherwise” rely

on“other evidence” to ascertain t he empl oyees’ c

hoice of representative, then the phrase “due s d eduction authorization and-9- other evidence” i n the first sentence cannot require both forms of evidence. The Employ

er arg ues that “ and” ty

pically “signif ies and expr esses the relation

of addition” (

People v. A Parcel

of Propert

y Commonl

y Known as 1945 Nort

h 31st Stre et, Dec atur, Mac on County, Illinois
, 217 Ill. 2d 481, 501 (2005)), and t hus i s ge nerally re ad in the conjunctive. The Employer disputes that re ading “and”in this fashion
creates an incons istency

in the stat ute, and a dopts the reasoning of

the appella te court tha

t the term “otherw ise,” wh en give

n its o rdinary meani ng, can be reconciled wi th read ing “and” in the conjunctive. See 375 Ill. App. 3d at 775.
Inevaluat ing the p arties’ diverg ent inter pretations, we note that

use of the wo rd “and”

betwee n two statu

tory elements gener all y indic ates th at both of

the eleme

nts must be s atisfied

in order to comply with the statute. People v. A Parcel of Proper ty Commo nly Known as 1945 Nort

h 31st Stre et, Dec atur, Mac on County, Illinois
, 217 Ill. 2 d 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 ofte n use d interchangeably with “or,” the meaning being determined

by t he context. Sturgeon Bay, Etc. Ship Canal & Harbor Co. v. Leatha m , 164 Ill. 239, 243 (1896). Webster’s dictionary reflects this use of “ an d,” providing the following secondary definition: “2–used as a function word to express *** reference to either

or both of two

alterna tives ‹ch oose betwee

n him~me› esp. in le gal la nguage when also plainly intended to mean or ‹bequeathed

to a person~her

bodi ly is sue› ‹pr

operty taxable for state~county purpose s›.” ( Emp hasis in original.) Webster’s Third New Inter national Dictionary 80 ( 1993). See also Black’s Law

Dictionary 86 (6th e d. 1990) (stating that “and” is “[s]ometimes construed as ‘or’ ”).
Inconstruing statutes, the strict meaning of words like “and” “is

more readily depa

rted from than that of other wo r ds.” John P. Moriarty, Inc. v. Mur

phy , 387 Ill. 119, 129 (1944). Thus, if reading “and” in its liter

al sense would cr eate an inconsiste

ncy inthe statute

or “render[ ] the sense of a statutory e nactment dubious,” we will read “and” as “or.” John P. Moriarty, Inc. , 387 Ill. at 129-30; accord 1945-10- North 31st Street , 217 I ll. 2d at 50 0-01; People ex rel. Department of Registration & Educ

ation v. D.R.G., Inc. , 62 Ill. 2d 401, 405 (1976).
We conclude that the basic premise underly ing the Board’s reading of the statute–that “and” d oes not necessarily mean

“ and” –and

the basic premise underly ing the Employer ’s reading of the statute–t

hat “and ” ty pically me ans “an d”–both a

ppear, a t first blush, to be on sol id groun d. We conc lude also

that both interpretations can be h armonized , to a gr eater or lesser

degre e, with section9(a–5) as a whole, including the “otherw ise” clause. Ac co rd in gl y, because section 9(a–5) is “ ‘capab le of being understood by reasona bly well-inf ormed pe

rsons i n two o r more different senses,’ ” we deem the statute ambiguous. Wade v. City of North Chicago Police Pe

nsion Boar

d
, 226 Ill. 2d 485, 511 (2007), quoting People v. Jameson , 162 Ill. 2d 282, 288 (1994).
To resolve this ambiguity, we turn to the legislative his tory of section9(a–5), which began its life as Hou se Bill 3396. We find instructive the state

ments of Senator Martin Sandoval, who spoke in support of

this bill: “Under curren t law, worker s mus t go th rough a di fficult proces s to form a union. Workers must first sign union authorization cards stating that they want a union. Then, even thou gh they’ve a

lready said they want a un

ion, they must file for a *** Labor

Board-run election. The election process can b e lengthy a

nd cumbersome, as we all know, during whi c h time the employer ha s control of the employ

ers [ sic ] and can in te rfere with the e

mploy ees’ de cision. An

d, in fact, employers

routinely use this time to scare workers into voting agains ta union even if the worker s want a union. Solu

tion to this problem for public employe es is to allow them *** t o vote for a union through a process called card check.” 9 3d Ill

. Gen. Assem., Senate Proceed ings, May 21, 2003, a t 12 (statements of Senator Sandoval). The senator ’s statements indic ate that t he legi s lature intended, throu gh its adoption of House Bill 3396, to provide an alter native to the “lengthy

and cu mb er so me ” s ta tu to ry e le ct io n p ro ce du re , n am el y,

a simple “card check” proce dure. We therefore cannot ag ree with the Employer that the legislature would have complicated the ca rd check-11- procedu re by requirin g two forms of evidence: a dues checkoff card and some other unspecified form of evidence. Supportfor this c onclusion is also fo und in the statements of Representative Larr

y McKeon: “House Bill 3396 i s modeled after a piece of legisla tion in NewYork that

simplifies the manner in which elections may be held to certify

a collective bargaining a gent ***.” 93d

Ill. Gen. Assem., H ouse Proc eedin gs , March 31, 2003, at 50 (statements of Representative McKeon). The New York legislation to which Representative McKeon referred is section 2 07 of New

York’s Pu

bli c Emp loyees’ F air Employment Act. The New York statute requires that for purpose s of re solving disputes concer

ning re present ati o n status, the public e mploy ees’ choice of representative shall be ascertaine d “on t he basis of dues deduction aut horization and other evidences.” (Emphasis added.) N.Y. Civ. Serv. §20 7 (Consol. 2008). To implement the statute, New York’s labor board adopted rules requiring a majority of the employees

to indica te their choice of representative “by the execution of dues deduction authorization cards which are current or

individual designation

cards.” (Emphasis added.) N.Y. Comp. Codes R. & Reg s. tit. 4, §201.9(g)(1) (2008). We presume that our leg islature, having modeled House Bill 3396 on the New York statute, was also aware of the correspon

ding ad ministrati ve reg ulations, which were then in effec t. Havin g adopt ed lan gu age that mirrors in pertinent part the langua ge of the New York statute, we also presume t hat the legislature intended a similar result. The Board’s reading of sec tion 9(a–5), as refle cted in its

regula tions, achieves that result

. To the extent, however, that the legislative hist ory fails to complete ly

resolve any

doubt as t o the legislature’s intent, we are guided by the principle that cour ts afford considerable defere nce t o the interpretation of an

ambiguous statute by the

agency charg ed with its administration. Lauer v. A mericanFamily Life Insurance Co.
, 199 Ill. 2d 384, 388 (2002); Phoenix Bond & Indemni t y Co. v. Pappas
, 194 Ill. 2d 99, 106 (2000). The reason f o r this deference is that the “agency can make informed judgments upon the issues, ba sed on its experience and exp erti se.” Bonoguro v. County Officers Electoral Board
, 158 Ill. 2d 391, 398 (1994), citing Abrahamso n v. Illino is Department

of Professional Regulation
, 153 Ill. 2d 76, 97-98 (1992);-12- see also Andrews v. Kowa Printing Corp. , 217 Ill. 2d 101, 116 (2005) (“the interpretation of a statute by invo lved administrative bodies constitutes ‘an informed sourc e for guidance when seeking to ascert ain the legislature’s intention when the statute was enacted’ ”), quoting Johnson v. Marshall Field & Co. , 57 I ll. 2d 272, 278 (1974). For this additional reason, we would adopt the construction urged by the Board.
We hold that the wo rd “and ,” as used in the phrase “dues deductionauthorization and other evidence,” was intended by the legislature to me an “or.” The appe llate cou

rt there fore er

red in holding section 1210.80(d)(2)(A ) o f the Board’s regulations, which do not require du es deduction authorization evidence, invalid. See 375 Ill. App. 3d at 777. The appellate cou rt also erred w hen it held that the Bo ard’ s decision certify

ing the union

was ag ainst the manifest weight of the evidence. See 375 I

ll. App. 3d at 778-79. That holding was based on the failure of the Board to require, a nd the pres umed f

ailure of the Unionto submit, dues deduction authorization evidence. Becau se the
statute does not r equire s

uch evide nce, the appella te court erred i n vacating the Board’s dec ision.

II . Employer Review of

Majority I

nterest Evidence The Board n ext argues that, contrary to the appellate court opinion, an employer is not entitled to review a union’s evidence of majority support. We reviewthis legal issue, which devolves into an issue of st atut ory construction, de novo

. Harrisonville Telephone Co.
, 212 Ill. 2d at 247.
T h e Board’s rules state that “[t]he Board shall maintain the confide ntia lit y of the showing of interest,” and that such evidenc e “shall not be furnished to any of the part ies.” 80 Ill. Adm. Code § 121 0.80(e)(1) (as amended at 28 Ill. Reg . 4172, eff. February 19, 2004). The Board argues that if the confidentiality of the

evidence of majority support is

not prese rved, the basic purposes

of the Act will be undermined. Rely

ing upon federa l case law analyzing

the National Labor Relations Act (29 U.S.C. §151 et seq. ), the Board contends that “employee s have a s trong p rivacy interest in their pe

rsonal se ntiments regarding union repres entation , and that this right to privacy

is a right-13- necessary to ful l and

free exerc ise of

the[i r] org aniza

t ional rig hts” under the Act. Pacific Molasses Co. v. National Labor Relations Board Regional Office #15 , 577 F.2d 11 72, 1182 (5th Cir. 1978). According

to the Board, disclosure of authorization cards , which identify the signers, wou

ld chill the

right of employ ees to expr

ess their union senti ments. Pacific Molasses , 577 F.2d at 1182; Co mmi ttee on Masonic Homes of R.W. Grand Lodge v. National Labor Relations Board , 556 F.2d 214, 221 (3d Cir. 1977). The Board
notes that even the attempted discovery of union authorization cards by an employer ha s been deemed an “illegal objective” by the fede

ral
court of appeals. Wright

Elect ric, Inc. v. National Labor Relations Board , 200 F.3d 1162, 1167 (8th Cir. 2000). The Employer

responds that majority interest evidenc e need not al wa ys be d eem ed c onf

id ent ial . In support, the Employer cites three d ecisions from the N ational Labor Rela tio ns Board (NLRB) involvin g unfair labor practice charges a

gainst the employe

rs. See Raley’s , 337 N.L.R.B. 719 (2002); America n Beef Pa ckers, Inc. , 187 N.L.R.B. 996 (1971); Stoner Ru bber C o

. , 123 N.L.R.B. 1440 (1959). We have reviewed these decisions and find them inapposite.
In Raley’s , the N LRB aff irmed the dismissal of a complaint alleging that t he employer unla

wfully refuse d to recognize and barga inwith the union as the major ity represe ntative at two of the employer’s

stores. After the General Counsel unsuccessfully soug

ht
to have the matter

of majority status submitted to a neutral third pa rt y, the un ion refu sed to pro duce the authoriza

tion car ds neces sary

to establish majority status, and

the complaint was dismissed. Raley’s
, 337 N.L.R.B. 719. I

n American Beef Pack

ers , the NLRB dismissed

a complain

t alleg ing that

t h e employ

er improp erly

engag ed in

c ollective barga

ining at a time whe

n the union

did not re

present a majority of the employee s. The dismissal was based on the failure of the NLRB’s Ge

ne ral Counsel to come forward with evidence establish in g the number of authorization cards and the number of employees

in the uni t at the time in question. American Meat P ackers
, 187 N.L.R.B. at 997. Finally , in Stoner Rubber

th e NLR B dismisseda c ompl aint alle ging the employ er unlaw fully

refuse d to barga inwith the unionbecause the General Counsel failed to produc e evidence of majority interest, other tha n the union’s cer

tificat ion order entered 1 4 months earlier. The NLRB note d that “[p]roof of-14- majority is pe cu li ar ly w i thin the special competence of the union” and “may be proved by sig

ned authorization cards, dues checkoff cards, membersh

ip lists, or any other evidentiar y means.” Stoner Rubber
, 123 N.L.R.B. at 1445. At most, the f

orego ing dec isions sug gest that where an employer is subject to a charge of an unfair la bor prac tice, the need to establish whether the union did or did not enjoy majority status may

result in the authorization cards or o ther e vidence of majority support being made part of the evidentiary reco rd befo re the f

inder of fact. These decisions do not, however, indicate that an employ er must be allowed

access to the union’s evidence of majority interest where, as here, the evide nce has been submitted to, and reviewed by , the body char ged with administration of the labor act. Rather, we agree with the B oard that preserving the confidentiality of the authorizationcards and other evidence of majori

ty s upport is c onsistent w

ith the pub lic employ

ees’ statutory right to full freedom of association, self-o rgan ization and union representation

(5 IL CS 315/2 (West 2004)), and that disclosure of such evid

ence to t he employ

er would chill the e

xercise o f these statutory rights. As the Employ

er notes , howeve

r, the ap pellate c ourt atte

mpted to address the Board’s confidentiality concerns. The a

ppell ate court stated: “We note that r esponde nts [the Board and the Union]

r aise concerns over breaching the anonymity

protections of the employees who mig ht be seeking to or ga nize union representation, and the c hilling e ffect on unionizat io n t hat review of the ma jority interest petition mi ght enta

il. 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 m aj ority

interest on the par

t of the e ligible deputies while mai

ntaining the anony mity of the depu

ties. We certain ly see no problems in providing for some sort of review of the reda cted evi dence in

support of

a majorit

y in terest petition. Further, because the majority interest petition stands in lieu of a

n election, and toallow the meaningful review of the Board’ s decision, the Bo ard must a dopt some sort of regulation

that provides for

the submiss ion of the

evidenc e it-15- 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 an d other ev idence w ill both preserve the employees’ anonymity and allow the employ

er to have the same rights of review as provided in section 9(a) regarding the secret ballot election of a repr e sentative.” 375 Ill. App. 3d at 779. The Board questions the value of submitting redacted authoriza tio n cards . The Board notes that if all of the identify ing informationis redacted (name, signature, a ddres s, social

security number, work unit), only the original preprinted card r emains. Whatever the benefits, or burde n s, in submitting redacted copies of the evidenc e of majority

support, t he submiss io n of redacted evidence at least appears to address the confidentiality concerns raised by

the Board. The Board ’s disagreement with the appellate court opinion, however, goes be

yon d issues of

confidentia lity . The Bo ard also disagrees with the appellate co urt’s rationale for allowing an employer access to the evi dence o f majorit y su pport. Th e appell ate court reasone d as follows. The B oard’s c ertific ation ord er is a fi n a l administr ativ e decision and therefore subject to review by the appella te court under se ction 9(i)

of the Act (5 I LCS 315 /9(i) (We st 2004)). Review mu st

be meanin gful, i.e. , the cour t must be ab le to
ascert ain that the union’s evidence was the type and a mount sufficient to demonst

ratemajority support. Theref ore, the evidence of support
must be submitte d to the reviewing court and to the emp loy er. 375 I

ll. App 3d at 777-79. The Board argues

that the a ppellate court’s reasoning overlooks that the Act limits an employ

er’s ro le in the d

etermina tion of maj ority interest
, and that except in narrow circumstances not present here, the Board’s majority

interest determination is no t litigab le. See 80 Ill. Adm. Cod e §1210.80(e)(3) (as amended at 28 I ll. Reg. 4172, eff. February 1 9, 20 04) (providing that the showing of interest shall be determined

administr

a tively by t he Boar d and is not

subject to litigation, except for cases of fraud or coercion). We understand the Board’s argument to be this. If, under the Act, an e mployer may not chall enge the Board’s determination of majority statu s, then thi s is
not an iss ue that c ould be ra ised bef ore the B oard and

not an is su e-16- that could be raised on administrative review. Th erefore, no need exists to submit

copies of the evidence of majority support (redacted

or otherwise) to the employe r. In evaluating

this argument, we return to the lan guag e of the Act. Section9(a–5) mandates that “[t]he

Board shall d esignat e an exclusive representative for purposes of collective bargaining when the representative demonstrates a showing of majority interest by employees

in the un it.” 5 IL CS 315/9(a–5) (West 2004). Significant ly, the legislature pr ovided for minimal involvement by the employer in this proc edure. S ection 9( a–5) sta tes: “I f either

party provides to t he Board, before the designa tion of a representative, clear and convincing evidence that the dues deduction authorizations, and other evidence *** are fraudulent or we re obtained through coercion, the Board shall promptly the reafter con d uct an el ection.” 5 IL CS 315/9(a–5) (West 2004). The legislature made no other provision for the employer to involve

itself in the process by whic h the unionseeks certification

under section

9(a–5), or the process by whic h the Board dete rmines whether a union has established majority support und e r section9(a–5). We will not assume that the legislature intended a larger role f or the emplo yer than t he lan gu age of section 9(a–5) allows. See In re Ryan B. , 212 Ill. 2d 226, 234 (2004) (courts may not restrict or enl arge the meaning of an unambiguous statute). We thus agreewi th th e B oa rd th at it s d et er mi na ti on of wh et he r a un io n e nj oys majority support may

not be litigated. This conclusion finds support in the fact that, at the time the legislature adopted section 9(a–5), the Board’s rule s provided that the showing of intere st under s ecti on 9(a) would be determined administr atively by the Boa

rd and would not be subject to litigation. 80 Ill. Adm. Code §1210.80(d)(3) (as a mended at 27 Ill. Reg. 7393, eff. May 1, 2003). See a

lso County of Kane v. Illinois State Lab or Relations Board

, 165 Ill. App. 3d 614, 620 (1988 ) (holdin g that section9(a) showin g of interest is not litigable). If the le gislature desired a different result when it adopted section 9(a–5), it could have included appropriate languag e in the statute. It did not do so.
To the extentsection9(a–5) could be considered ambiguous and th e legislature’s intent in doubt, we would defer to the B oard’ s

reasona ble construction of the statute. See Lauer
, 199 Ill. 2d at 388; Phoenix Bond & I

ndemnity Co. , 194 Ill. 2d at 106. The Board’s-17- construction, which limits the employer’s ability to challenge a finding of majori

ty s upport, is consiste nt with the legislative hi st or y, set for th in sec ti on I supra , demonstr ating th at the Ge

neral As sembly intended section 9(a–5) to limit an empl oyer’s a bility to delay

or interfere in the pro cess of u nion rec ognition. Se e 93d Ill. Gen. Assem., Senate Proceedings, May 21, 2003, at 12 (statements of Senator Sandoval). The legis lature would not have provided a streamlined

“card check” proce dure for union recognition on the one hand, buton the other hand provide an employer the ability to delay

a certifi cati on o rder by a

llowing a fishing expedition in the union’s evidenc e of support. We are not persuaded by the Employ e r’s argument that, under section9(i) of the Act, all aspects of a certification order, including
t he sufficie

ncy of the ev

idence o f majorit

y su pport, ar e litiga ble

. Section 9( i) states

in pertine

nt part: “An order of the Board *** determini ng and certify

ing that a labor organiza

tion has be en fair

ly a nd free ly chosen by

a majority of employ

ees in an appr

opriate barga ining uni t,

*** is a final order. Any

person aggrieved by

any such orde

r
*** may apply

for and obtai n ju dicial review in accordance witht he provisions of the Administrative Review Law, ** *

exc ept that such review shall be afforded directly in the Appellat e Court for the district

in which the aggr

ieved pa rty resides or transacts business.” 5 I LCS 315/9(i) (West 2004). Section9(i) addresses who may appeal a certification order. I t does
notaddress the separate issue of reviewa bility, i.e. , the scope of review. See Greer v

. Illinois Housing De

velopme nt Authorit

y , 122 I ll. 2d 462, 496 (1988), qu otin g 2 C. Koch, Administrative Law & Pr actice §9.1, at 84 (1985) (“reviewability sets out the area of review”). The Employer’s

reli ance on

Champaign -Urbana P

ublic Hea lth District v. Illinoi s Labor Rel

ations Boar

d, State Panel , 354 Ill. App. 3d 482, 486 (2004), and County of Du Page v. I llinois L abor Relations Board, State Panel , 358 Ill. App. 3d 174 , 179 (200 5), is misplaced. Champaign-Urbana Public H ealt h held that, under section9(i), the employer had standing to appeal the B oard’s final order because the employ

er was a party

to the representation proceeding

and the c ertifi cation order binds the employer to a-18- col lective-bargaining

relationship with the union. Champaig n

Urbana P ublic H

ealth , 354 Ill. App. 3d at 486. County of Du Page followed suit, holding that because an aggrieved party may seek

re view of a certification of representative, a nd because the em

ployer’ s interest s were implic ated in th e case, they had stand

ing to ma intain the appeal. C ounty of Du Page , 358 Ill. App. 3d at 179. Neither opinion addressed the issue before us now.
In su m, we hold

that section 9(a–5) precludes an employer f rom litigating the Board’s determination that a u nion enjoy

s majority
status and, consequently, that an e mployer is not

entitled to review the evidence of majori

ty s upport. T he appe llate cou

rt erre d in requi

r i ng the Board to make this evidence available to the e mployer. Our holding does not mean that the Board’scertifi cation or der is im mune from cha

llenge and revi ew. “[T]he

interest in makin g administrative agenc ies conf orm to the l aw compe ls so me j udicial intervention.” Greer , 122 I ll. 2d at 49 5. Thus, ot her aspe cts of th e Board’s order

may be cha

llenged. Although we will not attempt to set
outan exhaustive list of the issues an employer ma y raise be fore the Board and on re view, we note that, in a

ddition to c laims of fraud or

coe rcion, an employer may challenge, as it did here, the Boa rd’s interpretation

of the Act and the a

ppropria te nes s of the bargaining unit. The employer

may also raise othe

r issues pertinent to the facts of the case. Se e 5 I LCS 315 /9(a–5)(West 2004); 80 Ill. Adm. Code §1210.100(b)(3) (as amended at 28 I ll. Reg. 4172, eff. February 19, 2004).

II

I. Ap propria teness of the Bar gaining Unit The propo sed ba rgaini ng u nit, 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, La w Enforcement

Bureau, Fugitive Apprehe n sion Unit within the Correct i ons Burea

u, School L

iaison Uni

t, Gang Suppress ion/Proble

m Inve st igation

Unit, Du Page County Me tropo litan Enforcement Grou p (DUME G) Consortium and Beat Auto Theft Through L aw Enfor ce ment

(BATTL

E) Consor

tium,” and excluded

“Deputy Sheriffs below the

rank of s ergea

nt em ployed by

the County of DuPage and the Sheriff of DuPage County in the Sheriff’s-19- Corrections Burea

u in position s in

the county jail, the

Sheriff’s Work Alternative Progra m, th e Youn g A d ult Work Cam p, the per

iodic Imprisonment

unit, the Correcti ons Tran sport Unit and the Re lease and Detention(R &D) unit; Deputy Sher iffs of the rank of sergea

nt and above; a ll supervisory, mana

gerial and confidential

employees as defined by the Act; all civilian and non-p eace officer employ ees of the Sheriff’s Department, and all other employ ees of the County of DuPage and Sheriff o f

DuPage County.”

The Board rejected the Employer’s

argument that the foregoing unit was ina

pprop riately

narrow and determined that no unit issues existed that warranted a hearin g. According

to the appellate court opinion, the Employer argued on administrative review “that the Boa rd erre d by excl udin g d eputie s

w ho were a ssigned

to the cor

rection s bureau

of the She

riff’s o ffic e fromthe barg aining u

nit.” 375 I

ll . App. 3d at 766. The appe llate court, however, ne ver rea ched this issue because it vacated the Board’s certification

order based on the court’s interpretation of the evidentiary

requirement of section

9(a–5). Because we ha

ve already held that the appellate court erred in vacatingthe Board’s order, we remand this matter to the appellate cou rt to consider the Board’s ruling on the appropriateness of the barg ain ing unit. See Waste Management

of Illinois, Inc. v. Illinois Pollution Control Boa rd , 145 Ill. 2d 345, 352 -53 (1991 ) (wher e this cou rt reve rsed th e appell a te court decisionon administrative review and remanded the matter to the appellate court to cons id er issue raised on review but not considered).

IV. Attorney Fees After en tr y o f the appellate court opinion in this case, the Employer filed a petition in the appellate court, pu r suant to section 10–55(c) of the Administrative Procedure Act (5 IL CS 100/10–55(c) (West 2006)), seeking

attorney fe es of $47,254.50. Section 10–55(c) provides that a co

urt shall a

ward re asonable

litigati on expense s, including reasonable attorney fees, “[i]n any case

in which a party ha s any administrative rule invalidated by a co urt for any r

eason, including but not limited to the agency ’s exceeding its statutory authority or the agency ’s failure to follow statutory procedur

es in the adoptionof the rule.” 5 ILCS 100/10–55(c) (West 2006). The-20- appella te court opini on express ly in vali dated se ctio n 12 10.80(d) (2)(A) of the Board’s rules because the y did not require
two forms of e

vidence of majori ty s upport an d did not require du es deduction authorization evidence. 375 Ill. App. 3d at 777. While the fee petit ion wa s pend ing, the Board filed its petition for leave to appeal, which we allowed. Shortly thereafter the app ellate
court entere d an orde

r award ing the E mploy er the f ull amount of

fees requested. Because the fee award postdated the filing of the Board’s petition for leave to appeal, the Board did not include any fee issue in its petition. T he Boar d, howeve r, did cha llenge the fee award in its opening brief fi l edin this court, and included copies of the fee petition, the Board’s response, and the Employ er’s rep ly in the Board’s separa

te appen dix. The Emp loy er argues that the Boar d forfeited review o f the pro

priety of th e fee award. See Buenz v. Frontline Transportation Co. , 227 Ill. 2d 302, 320 (2008) (“party ’s failure to raise an issue in its petition f or lea ve to appeal may

be deemed a forfeiture of that issue”). The method the Board

used to br

ing the f ee issue before this court

was improper. The Board could have soug ht an extension of

time in whichto file its

petition for leave to appeal, pending a ruling on the Employer’s

fee petition in

the appe llate cou

rt. The B oard mig

ht also have filed a motion in this court seeking to amend its petition for leave to appea

l. Noneth eless, we

recog nize that, i

nlight of our ruling that the appellate court

erred i n invalidating section 1210.80(d)(2)(A) of the Boar d’s rules, the fee award to the Employ er was improper. Ac co rd in gl y, in the interest of justice, we choos e to exercise our supervisory

authority and vac ate the appellate court order, entered on December

4, 2007, which awarded t h e Employ

er $47,2 54.40 in
attorne y f ees.

CONCLUSIO N For the rea sons s tated, we reve rse the ju dgment o f the app ellate
court vacating the Board’s

certification

order, and remand this matter to the appellate court to consider the barga ining unit issue raised by the Employ

er. We al so reverse the ap pellate c ourt’s o rd er awarding attorney fe es to the Employer.-21- Reversed; cause remanded

.

JUSTICE THOMAS, c oncurri

ng in pa rt and dis senting

in part:
Iconcur with that portion of the majority opinion

that holds that the employ

er is not a

llowed torevi ew the union’s evidence of majority support. Idisagree, however, with the majority ’s conclusion that “and” in the second sentence of section 9(a–5) mea ns “or.” I agreewith the a

ppellate court’s construction of section 9(a–5), and I would therefore affirm that portion of its opinion that invalidated the Board’s regula

tion as conflicting

with the st

atute. I would also

uphold the appella

te court’s attorney

fees award. Consequently , I would not remand the cause t o the appellate court to address the employ er’s argume nt about th e approp

riatene ss of the b argai

ning unit

. The appellate court corre ctly he ld that the Board i mproper ly certified MAP as the exclusive representative without requiring dues deductionauthorizations and other evidence. Section 9(a–5) is clear

onthis point: “the Board shall ascer tain th e employee s’ choice of employee organization, on the bas is of dues deduction authorization and other evidence.” 5 IL CS 315/9(a–5) (West 20 06). The majority ignores the statute’s clear directive, concluding that the legislature’s

use of the word

“and” in this sentence means “or.” Slip op. at 12. The majority notes th at a secondary

definition of the word “and” is “or” and cites a dictionary de finition that gives examples in which “and” unquestionably

means “or.” Slip op. at 9 . Of course, the primary meaningof the word

“and,” according to the majority ’s ownsources , is “along with or together with” (Webster’s Third New International Dictionary

80 (1993)), or “[a] conjunction connecting words or phrases expressin

g th e idea that the latter is to be added to or taken along with the first. Added to; together with; joined wit h; as well as; including” (Black’s L aw Dictionary 86 (6th ed. 1990)).
For this reason, courts generally pre sume t hat when the legislature

uses the word “and” it intends that the term b e used in i

ts conjunctive sense. Indeed, we

recently de scribed this rule as “obvious”: “The pertine

nt conditio

ns of section 8 are

plainly joined wit

h the term ‘ and.’ This court long a go obs erved the obvious:-22- ‘The conjunction “and” *** signifies and expresses the relation of addition.’ City o

f LaSa lle v. Kostka , 190 Ill. 130, 137 (1901). Of course, the wor d ‘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 statut

e that would defeat its main inte

nt and pur

pose. When

these words are found in a statute and their accura te reading does
notre nder the sense dubious they should be re ad and interpreted

as written in the statute.’ Voight v. Industrial Comm' n , 297 I ll. 109, 11 4 (1921). ‘ “As a genera l rule, the

use of the conjunctive, as in the word ‘and,’ indicates that the legisl ature i ntended 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), quot ing Gilchrist v. H u man R ights

Comm' n , 312 I ll. App. 3d 597, 6 02 (200 0).” People v . A Parce l of Proper

ty Commo nly

Known as 194 5 North 31st S treet, De catur, Macon Cou nty, Illin ois , 217 Ill. 2d 481, 500-01 (2005). According

to the majority, however
, when the legislature used the word “and” in between the ty pes of evidenc e required (“dues deductionauthor ization and other evidence”) it really meant “dues deduction authorization or other similar evidence .”
To the majority’s cre dit, it does acknowledge that it may on ly assign the meaning “or” to t he word “ and” if g

iving “a nd” its conjun ctive meaning renders the statute dubious or crea tes an inconsistency

that defeats the statute’s main intent and purpose. See slip op. a t 9. The Board argues that such a n inconsistency is found

w hen th e second sentence of section 9(a–5) is compa red with the third. The second

sentence, which sets forth the necessary evidentiary burden for a showing

of majori ty interest, states that a determination of majority interest shal l be made “on the basis of dues deduction authorization and

other evidence.” 5 IL CS 315/9(a–5) (West 2006). The third sentence, which deals with showings of fraud or coercion, provides that , “If either party provides to the Board, before the designation

of a representa

tive, cle ar and c onvincin

g evidence that the dues deduction authorizat ions, and other evidence upon which the Board would oth erwise rely to asce rtain the employee s’ choice of-23- representative, are fraudulent or were obtained

through coercion, the Board shall promptly thereaf ter c onduct an

election .” 5 ILCS 315/9(a–5) (West 1996 ). Both p arties to this dispute

agree that, in this sentence, “and” means “or.” I n other words, if evidence is provided that anyof

the evidence of majority

support was the product of fraud or coercion, an election is required. The appellate court did not find that this was a problem, however, noting that the two sentences serve different purposes and that t

h e le gislature placed a comma befor e “and” in the third sen

tence a nd not in the second. 375 Ill. App. 3d at 774-75. The Board sees an inconsistency
, ho wever. According to the Board, the second senten ce cann ot m e an 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 ap

pellate c ourt cor

rectly explain ed, h owever , this repres ents a misun derst anding of the word “otherwise.” The term “otherwise” does not, a s the major ity a nd the Bo ard beli eve, mea n “in li eu of.” Rather, it means “under different c ircumstances.” See 375 I ll

. App. 3d at 775, quoting Webster’s Third New I nternational Dictionary

1598 (1986). Thus, as the ap pellate court explained, the different circumst ances a re those in whic h there i s no fraud or

coe rcion

. 375 Ill. App. 3d at 775. I n other words, the third sentence would mean: If either party

provides to the Board, before the designa tion of

a representative, clear and convinc ing evidence that the dues deductionauthorizations, and other evidence upon

which the Board would absent fraud or coercion rely to as certain the empl oye es’ choice of representative, are fraudulent or were obtained through coercion, the Boar d shall pr omptly thereafter conduct an election. Thus, because

“and” c an be re ad in its conju ncti ve sense without creating an inconsistency in the statute or

rendering the sense of the
statute dubious, w e must g ive it th at reading. See A Parcel of Property Commonly

Known as 194 5 North 31st Street , 217 I ll. 2d at 500-01. Despite explicitly acknowledging that the statute can be read wit h “and” having its conjunctive sense without creating an inconsistency inthe statute or rendering the sense of the statut e dubious ( slip op. at-24- 10), the majority inexplicably does not end its an a lysis there, but rather continue s to construe

the statut e to resolve the ambiguity . The majority’s analy

sis follows this pattern: (a) the statute is ambiguous because “and” can

be read either as “and” or a s “or”; (b) the rule we have for resolving such ambiguities is that “and” mus t b e given its conjunctive meaning if we can do s o without creating an inconsistency

in the stat

ute or re ndering the sense

of the sta

tute dubio us; (c) here, giving “and” its conjunctive se nse can indeed be harmonized

with th e statut e as a whole, including the “otherwise” clause; (d) however, the use of the disjunctive “or” c anal so be harmonized

with the statute as a w ho le ; ( e) co ns eq ue nt ly, the statut e is ambiguous and we must resort to other aids of construction. Two problems are immedi ately

apparent. First, the majority , with no explanation, elevate s the disjun ctiv e mean ing to the same status as the

con j unctive meaning, improperly considering whether it can be harmonized

with the st

atute as a whole. Second, i f allthat our r ule for resolving whether “and” means “and” or “or” does is to get y ou back
to the original ambiguity , thenthat rule has no meaning or function. This is obviously

not how the

rule has been applied previously . See,
e.g. , People v. A Parcel of Real Prop erty Comm only Knownas 1435 North 31st Street , 217 Ill. App. 3d at 500-01.
Becau se our rule for resolving the meaning of “and” answers the question, I would end the analy sis there and not consider other statutory construction aids. I will
, however, briefly comment on the other statutory construction aidsrelied u pon by the major ity. First, the majority claims that

the leg islative h

istory supports i

ts interpretation. Insupport, the majority cites the statements of a single legislator that the intent of s ection 9( a–5) wa s t o replace the lengthy and cumbers ome election

process with a

process called “ card check.” Sli

p op. at 10. The majority states that it does not believe that the legislature would have complicated the card-chec k pro cedur e by requiringtwo forms of evidence: a dues checkoff card and some other unspecified

form of evidence. S lip op. at 10. The majority does not explain, ho weve r, what would be so cumbersome about obtaining employee signatures onmore tha

n one piec e of evid

ence, p articula

rly

as compared

to org anizing and conducting an election. Card-c heck procedures have been recognized a s less reliable than secret ballot elections in deter

mining ma

jority support. See, e.g. , In re Joe Hearin,1 Senator Sandov al’s s tatem ent suggests yet a third po ssible interpretation

of section 9(a–5): dues deduction authorization and anyother

-25- Lumber
, 66 N.L.R.B. 1276, 1283 (1946) (“We do not feel, however, that a c ard ch eck ref

lects emp loy ees’ tru

e desire s with the s ame degreeof cert

ainty as such a n electio n”). As the Seventh

Circuit has recognized: “Workers sometimes sign union authorization cards not because they intend to v ote for the union in t he election but to avoid offending the person who as k s them to sign, often a fellowworker, or simply to g et the p erson off their back, since signing commits the worker to not hing (except that if enough workers sign, the

employe r may deci de toreco gniz e the union without an elec tion). See NLRB v. S.S. Logan Packing Co. , 386 F.2 d 562, 565 (4th Cir. 196 7); NLRB v. Grube r's Super Market, Inc., supr a , 501 F.2d at 705; Walgreen Co. v. NLRB, sup ra , 509 F.2d at 1020, 1023 (dissenting opinion). A study refer red to in the Logan Packing

casefound that even

where the union had authorization cards from betwe en 50 and 70 percent of the employ ees, it won only 48 percent of the elections. See 3 86 F.2d at 565. (The study itself gives the figur

e 52 perc ent, but th

is is evide ntly an arithmetical error, since the study reports that the union won 42 out of 87 e lections, which is48 percent. McCulloch, A Taleof Two Cities: Or Law in Action , Proceedings of ABA Sectionof Labor Relations L aw 14, 17 (1962).) Another study found that 18 pe

rcent of those sig ning au thorization cards d

id
notwant 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 1 360, 1371 ( 7th Cir. 1983). Thus, it is quite possibl e that th e legislature required two forms of evidence as a way

to help en sure tha

t the union

truly had maj ority

support. Moreove

r, is Sena

tor Sandoval’s stat

ement tha

t th e legislature intended to implement a “card check” proced ure rea lly supportive of the majority’s position that dues chec k-off cards are merely optional? 1 Is it not just as reasonabl e to co nclude that if theevidence. In o ther w ords , this provision co uld mean that the union may subm itwhatever

evide nce it w ants to demo nstrate majorit y sup port, but, at

a minimum

, it must submit dues d

eduction authorizations. Ido not find it suppor tive of

the majority’s con

clusionthat dues deduction au thorizations are opti onal.

2 It is wo rth not ing t hat New York ’s regulation, althoug h using the disjunctive, puts a far more restrictive interpretation on the phrase “dues deduction authori zation

and other evi dence” than do es the I llinois regulation, which provid

es that anything

can be subm

itted to demonstrate majorit y support. See80 Ill. Adm. Code §1210.80(d)(2)(A) (as amended a t 28 I ll. Reg . 4172 , eff. F ebruary 19, 20 04).

-26- legislature’s inte nt is t o enact a “card check” procedure and if the legislature then enacts a statute requiring “dues deduc tion authorization and o ther evidence,” the legislature intende d for the union to submit dues check-of f cards as proof of majori ty s upport? Next, the maj ority finds support for its interpreta tion in the fact that section 9(a–5) was modeled aft er a New York stat ute that a lso contains the phra se “dues deduction au thorization and other evidence.” The majority notes that the New York labor board promulgated

a regul ation pursuant to this statute that uses the disjunctive. The regulation in question provides that major ity support may be demonstrated by

the “ ‘exec ution of dues deduction authorization cards which are current or individua l designation

car ds.’ ” 2 (Emphasis omitted.) Slip op. at 11, quoting N.Y . Comp

. Codes R. & Regs. tit. 4, §201.9(g)(1) (2008). The majority then states that it presumes that the legislature was aware of this regulation when it modeled its statute after the New York statute and, thus, the legislature m u st have in

tended “ and” to me an “or.” In other word s, accordi ng to the majority, the legislature was aware that the N e w York statute used “and,” while the regulation used “o r,” but then, rather than clear up the confusion by using the wor d “or” in the Illinois statute, the legislature instead used “and” and

rolled the dice

onthe chance that the Board would conc lude that “and” means “or.” I am unwilling to ascribe suc h irrational behavior to the legislature. Fi na ll y, the ma

jority states that to the extent that there is any doubtas to the meaning of the statute, we should defer to the Board’s-27- interpretation. Ag ain, howev er, I do not beli eve that

we ever get to this step b ecause our ru le for determ inin g t he meaning of “and” requires us to read it i n t he co nj un ct iv e i n t hi s c as e. Co ns eq ue nt ly, there is no need to defer to the Board’ s interpretation. At most, then, the majority has demonstrated only that the statute is ambiguo

us and tha t there a re at lea st two way s to read it. What the majority has not demonstrated is that the statute cannot be read giving “and” its conjunctive meani n g without creating a statutory inconsistency

or rendering the sense of t he statute dubious. Therefore,

we must apply the “obvious” (see A Parcel of Propert

y Commonl

y Known as 1945 Nor th 31 st Street , 217 Ill. 2d at 500-01) rule that “and” means “and” and uphold the appella te court’s interpretation of the statute. Accordingly , I would hold tha t the ap pellate court

correc tly r e versed the certification order bec ause the Board did not require MAP to submit

the evidence of majority

support required

by the legislature.

JUSTICES GARMAN and KARMEIER join in this partial

concurr ence an d partia l dissent.