1 SIXTH DI VISI ON December 19, 2008 No. 1-06-1645

IL LI NOIS COUNCI

L OF POL

ICE, )

) Petitioner -Appella nt, ) On petition for direct review

) of a decision and order of the ) Illinois Labor Relations ) Board ) Loca

l Panel. v. ) ) IL LI NOIS L ABOR RELATI ONS BOARD, ) LOCAL PANEL; METROPOLI

TAN ) No. L-RC-05-014 WATER RECLAMATION DISTRI CT OF ) GREATER CHICAGO; FI REMEN AND ) OIL ERS UNION, L OCAL NO. 7, SEI U, )

) Responde nts-Appe llees. )

JUSTICE JOSEPH GORDO

N deliver ed the opi nion of the

court: This is a direct appeal from a final order of the Illinois Labor

Relations Board (the Board) dismissing a representation petition filed by the plaintiff, a labor union, the Illinois Council of Police (the ICO P). The c ase invol ves a disp ute betwe en two co mpeting labor uni ons, the ICOP, and the Firemen and Oilers Union, L ocal 7 (Local 7), who both se ek to exclusively represe nt the “poli ce offi cers” e mplo yed by the Met ropol itan W ater R eclam ation Dist rict o f Great er Chi cago (the Water District). The ICOP filed a repre sentation petition with the Board pursuant to section 9(a) of the Illinois Public L

abor Rela tions Act (

Act) (5 I LCS 315 /9(a) (We st 2006))asking t he Boar d to sever a group of police offic ers from the existing bargaining unit made up of both police andNo. 1-06-1645

1 The plaintiff has jurisdiction to directly a ppeal the dismissal of his petition to this court pursuant to section 9(i) of the Act (5 ILCS 315/9(i) (West 2006)), section 3-113 of the Administrative Review Law (735 I LCS 5/3-113 (West 2006)) and Supreme Court Rule 335 (155 Ill. 2d 335). None of the parties r aise questions regarding jurisdiction and we f ind none. 2 nonpolice employ ees wor king at t he Water District. Prior to thi s petition, Loca l 7 exclusive ly represented the entire barg aining unit, including the police officers. The B oard dismissed the ICOP’s petition, finding that there was no “ reasonable cause to believe” a que stion of representation existed under the Act and, therefore , no reason to hold an evidentiary hearing. The ICOP appeals the dec ision of the Board 1 contending that: (1) pursuant to section 9(a) of the Act (5 IL CS 315/9(a) (West 2006)) the Board had no authority to dismiss its petition without first conducting a hearing; and (2) the Board erred when it re fused to use the less stringent severance standard proposed by the ICOP in evaluating whethe r severance of the police offic ers from the e

xisting ba rgaini ng unit w as appro

priate. For the r

easons that follow , we aff irm. I. BACKGROUND 1. Proceedings Before the B oard On April 7, 2005, the ICOP filed a timely petition for representation/certification with the Board, seeking

to sever those emp loy ees desi gnated as “polic e offic ers” fr

om the bar

gaining unit repres ented by

Loca l 7, so as to

comprise a separ ate bar gaining unit requ iring se parate representation by

the ICOP. The petition alleged that it was be ing brought on behalf of 51 employees of the

Water District designated as “police office rs below the rank of sergea nt.” The petition further alleged that at least 30% of the 51 e mployees in the proposed unit re quested aNo. 1-06-1645

3

secret ballot election to determine whether the ICOP should be certified as the exclusive collective bargaining ag ent for the employe es in that unit. The petition acknowledged that at the present moment, Local 7 was the e xclusive bargaining agent for these employee s, under an existing collective bargaining ag reement between L ocal 7 and the Water District, which was set to expire on June 30, 2005. A copy of that collective bar gaining agree

ment was attached to the petition. On April 12, 2005, the clerk for the Board sent a le tter to the Water District notifying it of the ICOP’s petition and directing the Water District to: (1) submit a list of names and job classifications of the employe es that are police officers in L ocal 7, and (2) to post a notice to the Water District’s employee s informing them that a representation petition had been filed. A c opy of a tent ative he aring n

otice wa s attach ed to the l etter, in dicating that unle ss the par

ties both signed the attached waiver for m, a hearing was scheduled for Ma y 23, and May

24, 2005. On April 15, 2005, the Water District sent a letter to the Board cer tifying that it had posted the required notice to its employees and providing the Board with a list of its employ ees in the polic e offic er clas sificati on. That li st include d 41 names

. On April 22, 2005, Sharon B. Wells, an agent for the Boa rd, informed the parties (the Water District, the ICOP and the L ocal 7) by letter that there had been a sufficient showing of employee intere st to further entertain the ICOP’s petition, and she a sked the parties to advise her in writing whether there were a ny issues of law or f

act that warranted the hearing scheduled for Mary 23-24, 2005. In a letter dated Apr

il 27, 2005, the Water District informed the Board that there were noNo. 1-06-1645

2 In su pport of t his conte ntion, L ocal 7 at

tached: (1) cor

responde nce dati ng back to July 14, 1967, specifically r

eferencing “secur

ity officers”

as members of Local 7; and (2) a copy of a collective bargaining ag

reement between L ocal 7 and the Water District effective betwee n July 1, 1984, and June 30, 198 5, refe

rring t o “secur ity o fficers” as emp loy ees of th e Water D istrict. 4 issues that would warrant a hearing in the matter. Similarly , in a letter dated April 25, 2005, Local 7 agr

eed with the Water District stating that there were no issues wa rranting a hearing, a

nd on April 29, 2006, it requested that the Board dismiss the ICOP’s pe tition In its April 29, 2006, letter L ocal 7 argued that pursuant to the Boa rd’s long-standing precedent, including the decision in International Brothe rhood of Teamsters, Loca l 714 v. City of Chica go , 2 Pub. Employee Rep. (I ll.) par. 3015, No. L-RC-85-17 (I LL RB June 2, 1986) (hereinafter City of C hicago , 2 Pub. Employee Rep. (I ll.) par. 3015), in order to sever the “police officers” from the existing mixed bargaining unit, the ICOP was required to meet the “traditional

severa nce stan dard” by demonstr

ating th at the emp loy ees it sou ght to se ver fro m the existin

g unit both: (1) shared a significant and distinct community of interest, and (2) had conflicts with other segments of the exiting bargaining unit or a record of ineffective and unr esponsive representation of their peculiar interests. The letter asserted that the police officers at issue had been historically represented by Local 7 dating bac

k to 1967, when they we

re referred to as “sec

urity officer

s.” 2 The letter explained that in January 1987, under an ame ndment of the collective bargaining a greement betwee n Loc al 7 and th e Water D istrict, the “secu rity office r” title w as first c

hange d, appar

entlyNo. 1-06-1645

3 In support of this contention, L ocal 7 attached a copy of a transmittal letter for the board meeting of the Water District, dated January 13, 1987, indicating that the Water District and the Local 7 have mutually

agreed to amend their curr ent collective bargaining ag reement, inter alia , to incorporate, the following change s: “the reclassification of security guard to police officer.”

4 In support of this contention, L ocal 7 attached a copy of that collective bargaining agreement. 5 in name only, to that of “police of ficer,” and that it has remained “police off icer” ever since. 3 As such, Local 7 arg

ued that because the Act was never intende d to displace historical bargaining units, like the mixed unit represented by Local 7, the existing unit was “presumptively valid” under se ction 9 of

the Act ( 5 IL CS 315/9 (We st 2006))unless an d until a ma

jority of all the unit members voted otherwise. In addition, L ocal 7 asserted that the most recent collective bar gaining agree

ment between Local 7 a

nd the Water District was effective from July 1, 2003, to June 30, 2005, and gover ned the te rms and c onditions o f employ ment of a ll of the e mploy ees in the barga ining uni t, including police of ficers. 4 Local 7's letter ur ged that under this bargaining agreement, the 51 police officers “enjoy

identical or similar terms and conditions of employme nt as the other employ ees in the barga ining uni t.” I n addition , accor

ding to L ocal 7, th ey

have sig nifican t daily interaction with other employe es in the bargaining unit, and there is no evide nce that Local 7 has ever been ineffective or unre sponsive in its representation of them. On May 2, 2005, John Clifford, a Boar d agent, informed the parties that as of that date he was to act as the administrative law judge (AL J). The ALJ explained that the hearing datesNo. 1-06-1645

5 We note that this decision by the Boar d will be discussed below in our discussion of the merits of the issues raised on appeal. 6 would remain set for May 23-24, 2005, but informed the parties that their respective positions as to what standard should be applied to determine the right of the I COP to sever the subgroup of 51 police office rs from th e existing

barga ining uni t were un clear. The AL

J specific ally referenced the Boa

rd’s decision in County of St. Clair v. I llinois Fraternal Order of Police L abor Council , 18 Pub. Employee Rep. (I ll.) par. 2015, No. S-UC-99-018 (ISL RB February

19, 2002) (hereinafter County

of St. Clair , 18 Pub. Emp loy ee Rep. ( Ill.) par. 201 5), wher

e the Bo ard held that a union representing an entire bar gaining unit containing both peace officers and non-peace officers could upon request sever the pea ce officers from the unit and continue to repre sent both. 5 Accordingly , the ALJ asked the parties to address two spec ific issues. First, he asked the Water District if its letter indicating that there was no need for a hearing meant that it had no objection to the newly propose d unit, and he also asked the ICOP to explain what facts it wished to prove u

p, if any , showing that the Wa

ter Distr ict had no t maintained a “co ntinuous a ssent” to the current unit. Second, he asked the parties to explain what standard for judging severance should govern given that the existing unit was a “historical mixed unit.” On May 4, 2006, Local 7 responded in a letter to the AL J, explaining that it believed that County of St. Clair , 18 Pub. Employee Rep. (I ll.) par. 2015, did not provide a lower standard for severance to be applied to the I COP’s petition than had been traditionally applied by the Board. Loca l 7 explaine d that County of St. Clair

was a unique case, which dealt solely with the issue of whether the same union, which represented a combined unit of peace officers and nonpea ceNo. 1-06-1645

7

officers could sever its own unit, but still represent both the peace of ficers and nonpeace office rs in separate units. As such, according to Local 7, County of St. Clair

stood only for the rig

ht of a party to a collec

tive bargaining relationship to seek sever ance of a mixed unit. However, according to L ocal 7, because in the present case ne ither Local 7 nor the Water District ha d filed a petition to change the composition of the unit, and because the I COP was not a party to the underlying

collective bargaining ag

reement with the Water District, County of St. Clair

did not apply and there

was no basis upon which to base the ICOP’s seve rance argument. As such, according to L ocal 7, severance could be obtained only if the ICOP met the requirements of the “traditional severance standard,” as enunciated in City of C hicago , 2 Pub. Employee Rep. (I

ll.) par. 3015. Local 7 reiter ated its contention that under this standard, the ICOP’s petition had to be dismissed because the collective bargaining agr eement established the employees at issue sha

red the same terms and conditions of employ ment, the police officers had “significant daily

interaction” with other employ ees, and there was no evidence that L ocal 7 had engaged in the ty

pe of “ineffective or unresponsive re presentation” that would warrant severanc e. On May 4, 2005, the Water D istrict responded to the ALJ explaining that its prior letter was merely

an “attempt to remain neutral” in the labor dispute between the ICPO and L ocal 7. The Water District further added that it had not withdrawn its consent to L ocal 7's representation of the existing unit. In addition, the Water District agre ed with Local 7 that the less stringe nt

severa nce stan dard ar ticulate d in County

of St. Clair

did not app ly in

the caus e at bar , becau se unlike that case, here neither of the parties to the existing collective barga ining agreement (the Water District and the Local 7) ha d withdrawn consent to the current mixed bargaining unit.No. 1-06-1645

8

On May 5, 2005, the AL

J wrote to the parties with new proposed hearing dates. However, he sugge sted that he might elect to dismiss the petition instead of conducting a hearing because it appeared that the I COP could not make out the “traditional standard” for severanc e under the Board’s precede nt . The ALJ concluded that the only real question was whether a different standard similar to the one adopted in County of St. Clair

for employers and the current bargaining units should be extended to a third party seeking severance or se

paration of a mixed unit. The ALJ stated that having the parties build a re cord where the controlling standards we re unclear and disputed would be a “risky and expensive proposition.” Therefore he sugg ested the “cleaner and better result” for the parties would be a straight dismissal, which would allow a direct appeal to the Board on the issue. On May 9, 2005, the Water D istrict wrote a letter to the ALJ stating that it believed that the traditional severance standard should govern the ICOP’s petition. The Water D istrict further asserted that the ICOP could not meet that standar d because all the employ

ees shared a community of interest with one another , and there was no “record of unr esponsive or ineffective repres entation” by

the incum

bent union , Loc al 7. The Water Dis trict expla

ined that there wa s a 21-y ear bar gaining history betwee n Loc al 7 and th e Water D istrict, d ating ba ck to the p arties’ first collective bargaining ag reement in 1984. On May 9, 2005, the ICOP sent a letter to the ALJ indicating that its position did not change, even thought the Water D istrict had not withdrawn its consent to bargain with L ocal 7. In that letter the I COP urged the application of a “less stringent standa rd” for severance than the traditional one.No. 1-06-1645

9

On May 10, 2006, Local 7 sent a letter to the ALJ ag ain urging the dismissal of the ICOP’s petition and reasserting all of its previously raised a rguments. On May 11, 2006, t

he ALJ wrote to th e partie s informin g them th at a hea

ring, if it were t o occur, w ould be sc

heduled f or June 21, 2 6, and 27, 2005. The ALJ, however, reitera

ted his belief that dismissing the petition for immediate review by the Board “may

be the best course of action.” He further invited the I COP to set out in detail the standard it proposed to replace the standard enunciated in County of St. Clair

to be applied to third-party pe titions for severance of existing mixed bargaining units. In a ddition, on

June 14, 200 5, the AL

J invited the

parties, if they

wished to d

o so, to “amplify” their

respective positions and make an offer of proof , along with their respective positions. The lette

r specif ically stated: “This is in no way a re

proach to any

statement previously filed; I merely wa

nt to make sure that we afford all parties the fullest opportunity to tell the Board what standard they think important [and] the facts they would rely upon.” The AL J further i nvited co unsel for the Water

District a nd Loc al 7 to wor

k together to “create the stipula

tions nec essary

” to esta blish that t

he employ

ees at iss ue are, in fact, “peace

office rs” under the Act. On June 22, 2005, counsel for the ICOP wrote to the AL J asserting that there was no dispute a mong the parties a s to whethe

r the polic e offic ers wer

e “peac e offic ers” pursuant to section 14(k) of the Act (5 ILCS 315/14(k) (West 2006)). I n support of this statement, the ICOP attached a letter written by the ICOP to the Water District, dated September 28, 2004, in whichNo. 1-06-1645

10

the ICOP urged the Water District to permit the officers to carry concealed firearms when off duty pursuant to the L aw Enforcement Officers Safe ty Act of 2004 (Pub. L . 108-277, eff. July 22, 2004), and which revealed that the parties ag reed that the police officers employ ed by the Water District w ere “pe ace off

icers” within the

meaning of the Act. On June 29, 2005, the ICOP filed its official position statement with the Board, arg uing first that the employees c ould meet the traditional standard for severance and adopting the arguments set out in its earlier letters. The I COP argued that because County of St. Clair

held that mixed units of police/nonpolice were “presumptively invalid” under the Act, the ICOP had met the first criterion of traditional severance, name ly, that the office rs and employee s “shared a significant and distinct community of inter est.” With respect to the second criterion of traditional severance , i.e ., Local 7's alleg ed ineffectiveness in representing the police officers employ

ed by the Water District, the I COP argued that a review of the c urrent collective bargaining agreement reveale d that Local 7 had failed to secure basic contractual provisions that are “included in nearly

every othe

r police officer collective bargaining ag

reement.” Some of the missing provisions that the I COP complained about included provisions governing: investigations, police discipline, cour t-appearance compensa tion, reim burseme nt for uni forms and body

armor, 2 4-hour/3 -shift work, and sp ecialty pay. The I

COP asserted that these were “standard” pr ovisions in police agreements and that the Board could confirm this assertion by examining any of the “

myriad of collec

tive bargaining agreements” that had been f iled with the Board in other units involving police employ ees. The ICOP also pointed out that the sole provision in the current collective ba rgaining agre ementNo. 1-06-1645

11

between the Water District and L ocal 7 dealing specifically with police officers is a provision requiring random drug testing only of police officers, and not of any other employee

of the Water District. According to the I COP, this provision was detrimental rather than beneficial to the police officers. The I COP finally arg ued that, unlike itself, Local 7 had fa iled to support the police officers’ right to carr y conce aled weapons when off duty

. As an alternative argument, the ICOP argued that the traditional standard for sever ance should be modified. The ICOP reiterated tha t according to County

of St. Clair

a mixed unit of police/nonpolice employee s is presumptively invalid. I t further argued that continuing to allow Local 7 to be the exclusive repre sentative of the mixed bargaining unit “indefinitely ” represented poor publi c policy . Specifi cally , the I COP asser ted that a lthough p olice ar

e traditi onally repres ented by

special ty “ police un ions,” suc h police u nions coul d never s eek to re present a mixed unit because charters of police unions ty pically do not permit repre sentation of nonpolice officers. As such, according to the I COP the traditional severance requirement has the ef fect of unfairly “tra

pping the Water District officers in their existing represe ntation.” Inste ad of the

traditional sever

ance sta ndard, the ICO P propose d the following le ss stringe nt standa rd. I t contend ed that when police

employ ees peti tion to sev er themse lves fro m a mixed unit containing nonpolice employees, e ven without the consent of the current barga ining repres entative , an elec

tion should

be order ed if: (1) the third- party union peti

tioning on their behalf can show that 30% of the proposed unit desires seve rance, and (2) there is, at the time of the petiti on, no con

tract or certifi cation ba

r. The I COP asser

ted that it met the cr

iteria f or this standard.No. 1-06-1645

6 Those cases are State of I llinois De partmen t of Centr al Manag ement Ser

vices v. I llinois Frater nal Orde r of Polic e Council , 3 Pub. Empl oye e Rep. (I ll.) par. 2026, No. S-RC-258 ( ISL RB March, 9, 1987) (hereinafter Illinois Department of Central Manag ement Services , 3 Pub. Employ ee Rep. ( Ill.)

par. 202 6); ( Metropolitan Police Ass’n, Local 54 v. L ake County Sheriff’ s Department, Ill. State L abor Relations Bd. , 6 Pub. Employee Rep. (I ll.) par. 2037, No. S-RC-90- 19 (ISL RB July 20, 1990) (hereinaf ter Lake County

Sheriff’s Department , 6 Pub. Employee Rep. (Ill.) par. 2037); and City of C hicago Aviat ion S ecurit y Officers v. Ci ty of Chi cago , 9 Pub. Employee Rep. (I

ll.) par. 3008, No. L-RC-92-033 (I LL RB April 16, 1993) (hereinafter City of Chicago Aviation Security Officers , 9 Pub. Employee Rep. (I ll.) par. 3008). 12 In re sponse, o n July

14, 2005, L

ocal 7 fi led its posi

tion state ment. I n that stat ement, Local 7 first asserted that the me re fact that the existing unit contained both police and nonpolice employ ees was not a suff

icient re ason unde

r section 3(s)(1)of the Act (5 I LCS 315 /3(s)(1) (West 2006)) to grant a rival union “automatic” seve rance. Loca

l 7 cited three prior decisions by the Board, in which the Board had upheld a mixed unit of police/nonpolice employees, and denie d

severa nce peti tions. 6 In addition, L ocal 7 argued that the I COP had failed to present any evidence that it had met the traditional severance standard, and that ther efore the ICOP had fa

iled to raise a question of law or fact tha t would ne cessitat

e a hear ing in the instant ma

tter. With r

espect t o the firs t prong, although L ocal 7 admitted that police officers were unique in that they provide a different service to the Water District and enjoy a different set of rights under the Ac t and under many state law s, it asser

ted that th

is fact a lone is not

determinative of

the commu

nity of intere stNo. 1-06-1645

7 Specific ally , the I COP asser ted: “Relativ e to the c ontract s that cov er the po lice for ce of the [Water Dist

rict], with 13 question. Rather, Local 7 arg ued the appropriate inquiry is whether those officers share a community of interest with other employ ees in the existing bargaining unit as opposed to a separate, distinct and singular community of interest apart form the larger unit. Local 7 reiterated that a review of the existing collective barg aining agreement re vealed that the terms and conditions of employment for police of ficers were similar if not identical to the terms and conditions for other employe es in the bargaining unit, and that police offic ers have significant daily interaction with other e mployees in the barg aining unit. With respect to the second prong, L ocal 7 asserted that the I COP failed to provide any evidence indicating a conflict betwee n the police officers and the remainder of the unit that would nec essitate

a heari ng. Spec ifically

, Loc al 7 arg

ued that t he I COP prese

nted no ev

idence t o even suggest that L ocal 7 had, inter alia , abandoned the police officers, separ ated them from the rest of the unit, failed to seek a comparable wa ge increase for the police

officers, refused to give the officers full membership status in the union, failed to offer bargaining proposals on behalf or the officers, failed to represent police of ficers in their grievances, or f ailed to meet with them for the purpose of discussing bargaining proposals. On July 14, 2005, t

he I COP supplemented its p osition sta tement wi th a lette r in which

it cited to two more instances of Loca l 7's alleged ineffective r

epresentation of the police officers. First, the ICOP apparently contended that Local 7 sent a n inappropriate bargaining r epresentative to a barg aining s ession to negotia te on beha

lf of the o fficers. 7 Second, the ICOP asserted thatNo. 1-06-1645

the exclus ive repr

esentat ive being [Loca l 7], a numbe

r of polic e offic ers had r

equeste d to be part o f contra

ct nego tiations ( i.e. , those in the bargaining unit). Said police officer s

were no t made a p art of sa id nego tiations bu

t said [Wate

r District] sent a lie

utenant ( i.e. , nota part of the bargaining unit) to the ta ble to represent the police officers!”

8 In this regar

d, the ICOP specifically

stated: “the police officers ***, for all intents and purposes, *** do security c hecks of the rest of the employ ees of the unit who enter facilities of the [Water District].” 14 Local 7 had allowed two g rievances filed by

the police officers to be postponed for more than nine months. The ICOP further amended its propose d less stringent severance standard, asserting that the standard should also require that the petitioning union be , as it is, a police union “by char

ter.” On August 17, 2005, the ICOP sought to fur ther amend its original position statement and filed an addendum to that position statement with the Board. I n this addendum, the ICOP argue d that in ord

er to pro ve that it met the first prong of the tra ditional se

veranc e standa

rd, it woul d call two witne sses, “th e Chief of Police,” and “a p olice of

ficer e mploy ed by the Water

District, ” to establish, inter alia , that the “police officers” employ ed by the Water District a re “peace officers” under section 3(k) of the Ac t (5 IL CS 315/3(k) (West 2006)) and that the members of that polic e force

do not “co

mmingle” with other

employ ees of th e Water D istrict, e special ly because the police force is responsible for investigating any

unlawful behavior by

other Water District e mploy ees. 8 With respect to the second prong of the traditional severa nce standard, the ICOP asse rtedNo. 1-06-1645

15

that it would call Timothy P. Healy, president of Local 7 and Thoma s Longini, L ocal 7's assigned representative for the police office rs of the Water District, to testify that: (1) the police officers had no re present ative pr esent at the neg otiation of

the curr ent colle ctive ba

rgaini ng ag reemen t; (2) the existing collective bargaining a greement contains no clause that in any way re flects the needs of police officers under a standa rd collective bargaining a greement for police, and (3) Local 7 had not advance d the officers’ interests in carry ing concealed weapons off duty by seeking a declaratory

judgment from the circuit court to define the status of Water District police officers pursuant to the then newly enacted federal L aw Enforcement Officers Safe ty Act of 2004 (Pub. L. 108-277, eff. July 22, 2004), which permitted “qualified law enforceme nt officers” and “qualified retired law enforceme nt officers” to carry

concealed firearms. On August 24, 2005, in response to the ICOP’s c ontention that the police officers had no representative at the negotiation of the c ollective bargaining ag reement, Local 7 submitted copies of letters sent to a

ll of its ste

wards c oncerni

ng the c ollective

barga ining ag reemen t negoti ations, in which e

very steward , includin

g Thoma s Long

ini, the po lice off

icer’s s teward, was invite d to discuss the pending contract negotiations and dema nds. On September 8, 2005, the ICOP filed a “sur rebuttal” in which it argued that L ocal 7 had waived two argu

ments by failing to deny them or re spond to the

m in any manner i n any of its pleadings: (1) the I COP’s argument that Loca l 7 had failed to represent the interests of the Water District’s police officers in carry ing concealed weapons off duty and (2) the ICOP’s proposed less stringent standard for severing peace officers from a historica lly mixed bargaining

unit. On Septem

ber 21, 2 005, the A

LJ sent t he parti es a lette

r asking for a cl arifica

tion as toNo. 1-06-1645

16

whether the existing bargaining unit was a pre-Act “election unit,” formed in 1984 just before the Act became effective, or a true “historical unit.” The ALJ further state d that after his review of several labor contracts between the pa rties, he wanted an explanation of whether there we re ever two distinct barga

ining uni ts of “pol ice off

icers” and “wa tchmen” and, if so , when the

two units merge d. Finall

y, he asked t

he Water District t o explain wh

y it had chan

ged the origina l job title of “s ec ur it y of

fi ce r” to “p ol ic e o ff

ic er ,” an d w he th er th at ti tl e c ha ng e w as in te nd ed to si gn if y a “real change” in the duties of the security-of

ficer designation. On October 13, 2005, the ICOP sent a letter to the ALJ responding to L ocal 7's assertion that the police officers were part of a “historical unit.” The ICOP asserted tha t because the police officers were not part of the bar gaining unit at the time of the adoption of the Act on July 1, 1984, the existing unit was not a “historical unit” under the Act. On November 8, 2005, the ICOP wrote a n additional letter to the ALJ explaining that until 1987 the police officers were classified as “se curity office rs” and that, therefore, there wa s no “historical bargaining unit of police off icers prior to the effective date of the [Act],” which was in 1984. The ICOP asserted that it would call on “r eputable witnesses” to testify to this fact. In tha t same let ter, the ICOP a lso compla

ined that while it ha

d been tol d it neede d to produce an affidavit in support of its offers of proof, L ocal 7 was allowed to make factual representations to the ALJ without such formal support. The ICOP suggested that it would not tender a ny a ffidavit in support

of its fac tual asse rtions unle ss Loc al 7 was d irected to do the sa

me in support of its statements. The ICOP further “e

mphatically disputed” Local 7's statement that in the past it hadNo. 1-06-1645

17

gathered input from police officers of the bargaining unit before pr oceeding to negotiate with the employer. I

n support of this contention, the ICOP asserted that it would produce thre e police officers who would testify as witnesses at a hearing that: (1) police of ficers are not contacted for their input as to contract negotiations; (2) no meetings ar e held as to the police officers for such input; and (3) there were never any police officers involved in the development of proposals for the most recent negotiations. I n addition, the ICOP stated that it would produce a list of contract clauses that it believes should have been, but were not, included in the collec tive bargaining agreement. On December 26, 2005, the I COP sent yet another adde ndum to it previous letter. In that addendum, the ICOP allege d the following facts: that none of the 51 police office rs set out in the ICOP’s petition had seen the proposals for the most re cent collective bargaining a greement, that none were present for its ratification and that none of them voted for its passage. The I COP asserte d that it wo

uld produc e witness es at the hearing before the Boa rd to cor roborat e these facts. 2. The ALJ’s Recommended Decision and Or der On January 5, 2006, the AL J filed his recommended decision and order, recommending that the petition be dismissed. In doing so, the AL J, made the following relevant and undisputed finding s of fac t. Since 1967, prior to the effective date of the Act, L ocal 7 has represented a barg aining unit composed of the Water District’s employe es. At the time the instant petition was filed, there were approximately 400 e mployees in the unit, of which 51 we re peace officers. The

re wasNo. 1-06-1645

18

sufficient evidence to show that the majority of these peace officers supporte d the position of the ICOP and sought severa

nce from the existing mixed-bargaining unit. The current collective barg aining agreement betwe en Local 7 and the Water D istrict covers all of the employ

ees of the Water District, including the peace of ficers. A review of that collecti ve barg aining a

greement reve als that ma

ny t erms and condition s of the pe ace off icers’ employ ment are similar, if

not identic al, to thos e applic able to nonpeace office rs. Acc ording t

o the AL J: “[T]he peace officers have *** a g iven wage rate and in the sec ond year of that agreement receive a wage inc

rease. Too, peace office

r shift rotations are set out specifically , but similar shift concepts are also set out for other classification involved in the [Water] District’ s 24 hour, seven da y a week ope

rations. Peace o fficers are spe cifical ly mentioned as being subject to random drug testing , whereas other employ ees are subject to testing upon reasonable suspicion of drug use. The same vacation, sick pay , personal leave, overtime compensatory time and holiday pay

provisions apply to peace officers as to the non-

peace o fficers in the uni

t. Health , dental a

nd life ins urance *** are a pplicabl e to peace officers on the same broa d basis they are

available to all other employ ees in the unit.” The ALJ next commented on the factual alleg ations and offers of proof made by the ICOP in its communications with the Board. The AL J first found that the ICOP nowhere disputed that peace officers have “sig nificant daily intera

ction with other employees in the unit.” The ALJ next commented on the ICOP’s asse rtions with respect to Local 7' s allegedNo. 1-06-1645

19

“ineffective and inadequate” r epresentation of police officers. The AL J first found no factual basis for ICOP’s assertion that the curr ent collective bargaining ag reement contains no provisions commonly found in labor ag reements covering peace

officer units. In that respe ct, the ALJ found that although the I COP contends that the current collective barga ining agreement should, but does not, contain provisions for “court time compensation” of police officers, f or police uniforms, and body a rmor, the ICOP provides no evidence that in practice officers are not in fact paid for their court time, that they have no uniforms, or that they are not provided body armor. Similarly, the AL J found that in the ICOP’s assertion that the collective barg aining agreement does not provide for a “ pay diffe rential for those [officers] serving in investigations rather than patrol,” the I COP failed to even allege that such assignments a re common in the Water District’s police force. The ALJ further found that the I COP does not dispute the following facts regarding negotiations conducted by Local 7: “First, historically L

ocal 7 has bargaining committees which c onsist only of the president of Lo cal 7 and

its busines s repre sentative . Hence , no employ ees in the unit are actually on the bargaining committee. Second, Local 7 sends a letter to each employ ee represented prior to commencing bar gaining requesting that they submit proposals to the union whic

h they wish pres ented in b argai

ning. Local 7 al so conducts member ship meetings and steward meetings for development of proposals, and such meetings are open to police officers on the same basis as other employ ees. The peace officers have a stewa rd who is a pe ace off icer, a nd th at ste ward i s inv ited t o stew ards’ m eetin gsNo. 1-06-1645

9 These included, inter alia , the ICOP’s contention that (1) the curr ent collective 20 condu cted b y Local 7 and, in add itio n, has the sa me righ t to at tend m embers hip m eetin gs as any other

member.” The ALJ noted that although the I COP contended that the police officers in the unit had filed g rievanc es that we

re reso lved only

after long dela

ys, it never

allege d that nonp eace of

ficers’ grievances are tre ated differently

. The ALJ then made the following ana lysis and conclusions of law. The ALJ first found that the ICOP had fa

iled to mak

e factu al alleg ations suf

ficient t o meet the

Board’ s “tradit

ional”

severa nce test . Specifically, the AL J concluded that the ICOP had not made any suggestion that it could meet its burden to show that the group to be severed was a “particularly

distinct and homogenous one that has suffered unresponsive or disparately poor r

epresentation in the existing unit.” The ALJ specifically found that there could be no “inherent” signific ant and distinct community of interest betwee n the police officers and the other employ ees of the Water District bec aus e th e Ac t s pec ifi cal ly pe rmi ts for mi xe d pe ace off ice r/n onp eac e of

fic er u ni ts . Th e ALJ further noted that in the entire history of the Board, a group of e mployees had succ essfully been severed under the traditional standard only once (see Independent Br idge Tenders Orga

nization v. Ci ty of Chi cago , 2 Pub. Employee Rep. (I ll.) par. 3022, No. L-RC-85-15 (I LL RB September 17, 1986) (hereinafter Independent Br idge Tenders , 2 Pub. Employee Rep. (I ll.) par. 3022) where over a period of 20 y

ears the bargaining r

epresentative had essentially abandoned the group of employees see

king severance. The AL

J finally found that many

of the deficiencies alleged by the ICOP in the colle ctive ba

rgaini ng ag reemen t had not be en shown t

o be mate rial. 9No. 1-06-1645

barga ining ag reemen t contain ed no pro visions re gardin g invest igation s of offic ers lea

ding to possible discipline or provisions regarding cause f or dismissal; and (2) the 2004 failure by Local 7 to take “any

strong and pronounced position that the police force of the [Water District] were pea ce o ffi cer s,” wit hi n he mea ni ng o f th e Law Enf orc eme nt Off

ice rs S afe ty Ac t o f 20 04 ( Pu b. L. 108-277, eff. July 22, 2004), which would have then permitted the peace officers to ca rry concealed firearms off duty

. 21 The ALJ next rejected the I COP’s alternative contention that some lesser standard other than the “traditional” standard should be applied. The AL J further i nformed the part ies that pu

rsuant to the Boa rd’s rule s they

could file exceptions to his recommended decision and order. On Februa ry 15, 2006, not having

received any exceptions from the par ties, the Board declared the AL J’s recommended decision and order to be “final and binding,” but “non-prece dential.” Howeve r, on Fe bruary 21, 2006, t

he I COP filed a

motion for

extension o f time to f

ile its exceptions, and on March 22, 2006, the Board gra nted that motion. In its exceptions to the ALJ’s recommended decision and orde r, the ICOP essentially

raised every

argument that it had raised b efore t

he ALJ since its in

itial filin g of the petition f or repr esentat ion. I n support o f its arguments, the ICOP included a s attached exhibits every pr evious correspondence it had filed with the Board with respect to its petition. On April 6, 2006, Loca l 7 filed its response to ICOP’s exceptions. On May 19, 2006, the B oard issued its decision and order upholding the AL J’s

rec om men ded dec is io n an d or der and ado pt in g it as t he B oar d’s fin al a dm in is tra ti ve d eci si on. InNo. 1-06-1645

22

doing so, the Board noted that it had reviewed the record, the exceptions and the responses, and that it agreed with the recommendations of the AL J to dismiss the ICOP’s petition. The ICOP now appe als. II . ARGUMENT On appeal, the ICOP contends that the B oard improperly dismissed its petition under the traditional severance standard without first conducting a hearing pursuant to section 9(a) of the Illinois Labor

Relations Act (Act) (5 IL CS 315/9(a) (West 2006)). The ICOP contends that there was suff icient ev idence presente d to the B oard in th e course of the inv estiga

tion to war

rant a hearing, and that the Board ther efore erred when it found that the ICOP had failed to present such evidence. The I COP further argues that the Boar d erred when it refused to use the I COP’s proposed less strin gent sta ndard for sever

ing polic e employ

ees fro m an existing

unit of bot

h peace officers and nonpeace offic er employee s. For the reasons that follow, we disagre e. 1. Dismissa

l Under the Tradit

ional Tes t We first address the ICOP’s contention that the Boa rd erred when it dismissed its petition for representation under the traditional severa nce standard without first conducting an evidentiary he aring. The I COP specifically contends tha t the Board erred when it found that there was no “reasonable ca use” to believe a question of representation existed under the traditional sever

ance sta ndard, so as to req uire a he aring p

ursuant t o section 9 of the A ct (5 I

LCS 315/9 (West 2006)). For the reasons that follow, we disagr ee. Before addressing the me rits of this issue, we first address the applicable standard ofNo. 1-06-1645

23

review. Our supreme court has held that “the standa rd of review applicable to the age ncy’s decision depends upon whether the question presented is one of fa ct or law.” City of Belvidere v. Illinois State Labor

Relations Board , 181 Ill. 2d 191, 204, 692 N.E.2d 295, 302 (1998). An administrative agency ’s findings on questions of fact are deemed to be prima faci e true (735 IL CS 5/3-110 (West 2006)), and a reviewing court will reverse the Board’s factual determinations only if it concludes that they were contrary

to the manifest weight of the evidence. Illinois Fraternal Orde r of Police Labor Council v. Illinois Local La bor Relations Board , 319 Ill. App. 3d 729, 736, 745 N.E.2d 647, 653 (2001) (“[T]he decision is ag ainst the manifest weight of the evidence only if the opposite conclusion is clearly evident”). The Board’s conclusi ons of law , howeve r, are n ot entitle d to the sa

me defe rence, and we r

eview the m de

novo . Illinois Frat

ernal Or der of Pol ice L abor Coun cil , 319 Ill. App. 3d at 736, 745 N.E.2d at 653. If the question presented f or review is one of mixed law and fact, then a y et third standard applies, and we review the Board’ s decision to determine if it was clearly erroneous. City of Belvidere , 181 Ill. 2d at 204, 692 N.E.2d at 302; see also Illinois Fraternal Orde r of Police Labor Council , 319 Ill. App. 3d at 736, 745 N.E.2d at 654. In the present case , the ICOP contends that review should be de novo , while the Board and Local 7 contend that a c learly er roneous standard applies. We find that as between the two, the clea rly errone ous standa

rd is more

appropr iate. While

the I COP may

be corr ect that t he test to determine whether a hearing is re quired under the Act is a legal one, involving w hether the Board had “no re asonable cause” to believ e that a q

uestion of repres entation

existed (se e 5 I LCS 315/9 (West 2006)), as shall be more fully explained below, that test must be applied to andNo. 1-06-1645

24

depend upon the sufficiency of facts presented to the Board during its investigation of the representation/election petition. See 5 ILCS 315/9 (West 2006); see 80 Ill. Adm. Code §1210.100(a), as amended by 28 Ill. Req. 4172, eff. Febr uary 19, 2004. As such, our review of the Board’s finding would not be de novo ; rather the “clearly erroneous” standard of review applies. See City of Belvidere , 181 Ill. 2d at 205, 692 N.E.2d at 302; see also Illinois Fraternal Order o f Police L

abor Coun

cil , 319 I ll. App. 3d

at 736, 74 5 N.E.2d a

t 654; Elementary School District 159 v. Schiller , 221 Ill. 2d 130, 143, 849 N.E.2d 349, 358 (2006). Under this standard an agency ’s decision will not be upheld only wher e “the reviewing court, on the entire record, is ‘left with the definite and f irm conviction that a mistake has been committed.’ ” AFM Mess enger Service , Inc ., v. Depa

rtment of Employ ment Secu

rity , 198 Ill. 2d 380, 3 95, 76 3 N.E. 2d 272 , 282 ( 2002) , quot ing United States v. United States Gypsum Co. , 333 U.S. 364, 395, 92 L. Ed. 2d 746, 766, 68 S. Ct. 525, 542 (1948) ; see also Illinois Fraternal Orde r Of Police Labor Council , 319 Ill. App. 3d at 736, 745 N.E.2d at 654 (“[w]hen mixed questions of law and fact are involved, requiring an examination of the legal effect of a g iven set of facts, the [Board’s] resolution of such questions will be upheld if ‘reasonable, consistent with labor law and ba sed on findi ngs su pport ed by subs tanti al evi dence’ ”), qu otin g Northwe st Mosquito Abatement District v. Illinois State L abor Relations Board , 303 Ill. App. 3d 735, 748, 708 N.E.2d 548 (1999). We next turn t

o the mer its of the p arties’ contenti ons. I n the pre sent cas e, the I COP first argues that the Board did not follow proper procedure in dismissing its petition. Specifically , the ICOP contends that summary judgment proceedings should have applied in this instance, a ndNo. 1-06-1645

25

that t he Boar d shou ld no t have been p ermit ted to dism iss i ts pet itio n wit hout first condu cting a hearing, where the ICOP’s pleadings provided sufficient evidence to show the existence of “ [a] genuine issue of material fact.” 735 I LCS 5/2-1005 (West 2006). On the other hand, the Boa rd and Local 7 contend that summary judgment proceedings do not apply to the cause at bar and that, instead, the Board followed proper investiga tory and dismissal procedur es as defined by

the Act (5 IL CS 315/1 et seq . (West 200 6)) and t he Boar d’s own r ules and r egulat ions (80 I ll. Adm. Code §1210.100(a)(6), as amended by 28 Ill. Req. 4172, eff. Febr uary 19, 2004). F or the reasons that follow, we agree. We first no te that se ction 9(a ) of the A ct gove

rns elections and s tates in pe rtinent pa rt: “Whenever in accordance with such r egulations as may

be prescribed by

the Board a petition has been filed: (1) by a public e

mployee or g

roup of public employee s or any labor or ganization acting in their be

half demonstratin

g that 30 % of the p

ublic emp loy ees in an

appropr iate unit (A) wish to be represented for the purposes of c ollective bargaining by a labor organization as exclusive representative, or (B) asserting that the labor organization which has been certified or is currently recognized by

the public employer a s bargaining representative is no longer the repr esentative of the majority of public employees in the unit; or (2) by a public e

mployer alleging that one or more labor orga nizations have presented to it a claim that they be recognized as the represe ntative of a majority of the public employees in an a

ppropriate unit,No. 1-06-1645

26

the Board shall investigate such petition, and if it has r easonable

cause to b elieve

that a question of representation exists, shall provide for an appropriate hearing upon due notice.” (Emphasis added.) 5 ILCS 315/9(a) (West 2006). Therefore, unlike in summary judgment proceedings where evidence cannot be weighe d, the Act on its fac e provide s for the evaluat ion of the evidenc e gathe

red and a determination of it s sufficiency

before an appropriate hear ing must be held. See 5 ILCS 315/9(a) (West 2006). This interpretation is fully consistent with and borne out by the Board’s own regulations promulgated to implement section 9(a) of the Act. See 80 I ll. Adm. Code §1210.100(a), as amended by 28 I

ll. Req. 4172, eff. February 19, 2004. These regulations provide for a proc edure under which inappropriate petitions can be dismissed without the need for a he aring. As section 1210.100( a)(6) s tates in r elevant part: “Upon re ceipt of

the [repr esentat ion] petitio n, the Bo ard or its agent shall investigate the petition. If, for any rea son during the investigation, the Board or its ag ent discovers that the petition may be ina ppropriate, the Board or its age nt may issue an order to show cause requesting that the petitioner provide suffic ient evidence to overcome the inappropriatene ss. Failu

re to pro vide suff

icient ev idence o f the pet

ition’s ap propria teness can result in the dismissal of the petition.” 80 Ill. Adm. Code §1210.100(a)(6) , as amended by 28 I

ll. Req. 4172, eff. February 19, 2004. The regulations further provide: “After the investigation, the Executive Director shall dismiss a petition, or the Administrative Law Judge shall recommend to the Board that a petition be dismissed,No. 1-06-1645

27

when a petition has been filed untimely ; when the bargai ning unit is c learly inappropri

ate ; when the showing of interest is not adequate; when the employ er is not

covere d by

the Act; w

hen the e mploy ees are not cover

ed by the Act; or for any other reason the

re is no re

asonable c

ause to be lieve tha t a questio n of repre sentationexists .” (Emphasis added.) 80 Ill. Adm. Code §1210.100(a) (7), as amended by 28 Ill. Req. 4172, eff. February

19, 2004. Our courts have repeatedly held a reviewing court must give def erence to the administrative agency ’s interpretation of the statute it was created to enfor ce. County of Will v. Labor Relations Board, 219 Ill. App. 3d 183, 185, 580 N.E.2d 884, 885 (1991). “A sig nificant reason for deferring to a

n agency ’s interpretation of its enabling statute is that the agenc y makes informed decisions based on its experience and expertise.” County of Will , 219 Ill. App. 3d a 185, 580 N.E.2d at 885; see also Water Pipe Extension, Bureau of Engineering v. I llinois Local labor Relations Board , 252 Ill. App. 3d 932, 936, 625 N.E.2d 733, 735 (1993) (the B oard’s interpre tation of i ts own stan

dards an d regu lations is a

ccorde d defer

ence as “courts apprec iate that agencies can make informe d judgments upon the issues, based upon their experience and expertise ”; this policy is consistent with the principle that “administrative ag encies must have wide latitude to adopt regulations reasonably necessary

to effectuate their statutory functions”); see also Decatur Federation of Tea chers v. Educational La

bor Relations Board , 199 Ill. App. 3d 190, 197, 556 N.E.2d 780, 784-85 (1990) (“[c]ourts may not inter fere with the discretionary authority vested in an a

dministrative agency

unless that authority is exercised in an ar bitrary or capricious manner or is against the manifest we ight of the evidence. [Citation.] ***No. 1-06-1645

28

[C]onsiderable deference must be given the Boa rd because of the Board’s e xpertise in *** labor matters. [Citation.] To do otherwise would, for practical purposes, transform appellate revie w into trial de novo . [Citation.] Indeed, such a result would appear to substitute our ge neral knowledge for the expertise required of B oard members by *** the Act [citation]”). In addition, we agr

ee with the Board that the languag e of section 9 of the Act permitting prehearing dismissals substantially parallels the language of section 9(c)(1)(A) of the National Labor Relatio ns Act (N

LRA)(29 U.S.C. §159(c) (1)(A)(1982)) , which ha s been co nstrued a s “ ‘an “ad ministrati ve expedie

nt[ ] only , adopted

to enable [the Boar

d] to deter

mine for i tself whether or not further proceeding s are warranted, and to avoid needle ss dissipation of the Government’s time, effort and funds” through inve stigation of frivolous petitions. [Citations.]’ ” See County of Kane v. I

llinois State Labor Relations Board , 165 Ill. App. 3d 614, 619, 518 N.E.2 d 1339 , 1342 (1988 ), quo ting NLRB v. Metro Truck B ody, I nc. , 613 F. 2d

746, 749 ( 9th Cir. 1979). In that rega

rd, we note that even though we are not bound by a fede

ral court’s interpretation of a federal statute, we find the a forementioned characterization of the dismissal procedures under the NL

RA relevant to our understanding of the dismissal procedure s under the Illinois Act. See County of Kane , 165 Ill. App. 3d at 620, 518 N.E.2d at 1342 (holding that “when the State legislature passes a State statute ba sed upon a [f]ederal statute, the statue can presumably be inter

preted in conformity w

ith the decisions of the [f]ederal courts rendered prior to th e adop tion of the statu te,” an d it m ay be presu med th at the legisl ature a dopt ed the langua ge with knowledge of the construction previously enunciated in the federal courts). Consequently, under the a forementioned principles, we find that in the present case , theNo. 1-06-1645

10 We observe here that on three occasions in its brief, the I COP parenthetically notes that the dismissal of its petition without a hearing is “a violation of due process.” However , the ICOP makes no argument with respect to this contention, nor does it cite to any case law to support it. As such, b ecause

the I COP has fa

iled to co mply

with the r

equirements of Supreme Cour t Rule 341(h)(7), we find that the I COP has waived this contention, if it be a contention at all, for purposes of this appeal. See 210 Ill. 2d R. 341(h)(7) (providing tha t arguments made in support of issues raised on appeal “shall contain the contentions of the appe llant and the reasons therefor, with citation of the authorities and the pages of the rec ord relied on” and noting that “[p]oints not argued are waived”

for purposes of appeal); see also People v. Ramirez , 98 Ill. 2d 439, 472, 457 N.E.2d 31, 47 (1983). 29 regulations promulgated by the Board pursuant to section 1210.100 of title 80 of the Administrative Code (80 Ill. Adm. Code §1210.100(a)(6), a s amended by 28 I ll. Req. 4172 eff. February 19, 2004) vested the ALJ with express authority to dismiss the ICOP petition, or recommend that the petition be dismissed, without a hearing if after his investig ation, he found that “the petition w as clea

rly inappropriate” o

r there was “no r

easonab le cause ” to belie ve that a question of representation existed. 10 The ICOP nevertheless cites to Cano v.Village of Dolton, 250 Ill. App. 3d 130, 620 N.E.2d 12 00 (1993) , contend ing that the Boa rd’s adm inistrativ e rule, a

llowing t he Boar d to dismiss a petition if its investigation shows that the petition is inappropriate (80 Ill. Adm. Code §1210.100 (a)(6) , as amen ded by 28 Ill . Req. 4172 , eff. F ebruar y 19 , 2004), mu st neces sarily invoke the same standards as would be applied in the circuit courts to resolve a motion forNo. 1-06-1645

30

summary judgme

nt under section 2-1005 of the Code of Civil Procedure (735 I LCS 5/2-1005 (West 2006)). The ICOP therefor e contends that the Board erred by not imposing a summary judgment standard on the parties and by not requiring both parties, as opposed to merely the ICOP, to file affidavits or evidence in support of their positions. For the reasons that follow, we find that case inapposite. Cano involved the proper standard for resolving a miscaptioned “summary judg ment motion” brought before the Department of Huma n Rights in an age discrimination case pursuant to the Illinois Human Rights Act (I ll. Rev. Stat. 1991, ch. 68, par. 1-103). Cano , 250 Ill. App. 3d at 132, 620 N.E.2d at 1202. The court in Cano first found that since the motion was not brought before any

circuit court, but rather before the Human Rig hts Commission (HRC), the rules of civil procedure governing summar y judgment (se e Ill. Rev. Stat. 1991, ch. 110, par. 2-1005) we re inapplicable. Cano , 250 Ill. App. 3d at 132, n.1, 620 N.E.2d at 1203, n.1. The court then state d that it would assume that in seeking “summary judgment,” the movant was in fact refer ring to the summary decision proc edure available to the Human Rights Commission by the controlling statutory scheme, i.e. , section 8-106.1 of the Illinois Human Rights Act (I ll. Rev. Stat. 1989, ch. 68, par. 8-106.1) , which pe rmitted a n investig ator to iss

ue a rec ommended

order without a hearing “if the pleadings a nd affidavits, if any , show that there is no genuine issue as to any material fact and that the moving party is entitled to a recommended order as a matter of law .” Cano , 250 Ill. App. 3d at 137, citing Ill. Rev. Stat. 1989, ch. 68, par. 8-106.1. The court then held that because the lang uage of the I llinois Human Rights Act governing summary orders (Ill. Rev. Stat. 1989, ch. 68, par. 8-106.1) par alleled the language of the Code ofNo. 1-06-1645

31

Civil Procedure governing motions for summary judgment (Ill. Rev. Stat. 1991, ch. 110, par. 2- 1005), the HRC had properly applied the rules of summary judgment in reaching its decision. Cano , 250 Ill. App. 3d at 138. I n doing so, the court wrote: “A summary de cision is the administrative agency procedural analogue to the motion for summary judgme nt in the Code of Civil Procedure. (Ill. Rev. Stat. 1991, ch. 110, par . 2-1005. ) Beca

use of the similariti es of the

two, it wou

ld seem a ppropria te to employ the case

law which has grown out of the summary judgment motion practice when reviewing the propriety of such an order on direct review, the only difference being that while this cour t review s motions for summary judgmen t de novo , (see Myers v. Health Sp ecialist s , S.C., (1992), 225 Ill. App. 3d 68, 72, 587 N.E.2d 494, 497, appeal denied (1992), 1 45 Ill . 2d 635, 59 6 N.E.2d 6 30), the H uman Rig hts Act em

powers th is court to reverse a decision made by HRC only if it is against the manifest we ight of the evidence. Ill. Rev. Stat. 1991, ch. 68, par. 8- 111(A)(2).” Cano , 250 Ill. App. 3d at 138. Unlike in Cano , in the pr

esent ca se, the la

nguag e of sec tion 9(a)of the Ac t (5 I LCS 315/9(a) (West 2006)), as well as the procedures outlined in section 1210.100 of title 80 of the Administrative Code (80 Ill. Adm. Code §1210.100(a)(6), a s amended by 28 I ll. Req. 4172, eff. February 19, 2004) explaining how section 9(a) is to be applied, in no way parallel the rules of summary judgmen t articul ated in se ction 2-1 005 of the Code of Civ

il Proced ure. See 5 IL CS 315/9(a) (West 2006) (“the Board shall investigate such a petition, and if it has r easonable

cause to believe that a question of representation exists, shall provide for an appropriate hearing upon due notice” (emphasis added)); 80 Ill. Adm. Code §1210.100(a)(6), as amended by 28 Ill. Req.No. 1-06-1645

32

4172, ef f. Febr uary 19, 2004 ( “Upon re ceipt of the [repr esentat ion] petitio n, the Bo ard or its agent shall inve stigate

the petiti on. I f, for a

ny r eason du ring the investig ation, the

Board or its agent discovers that the petition may be inappropriate, the Board or its ag ent may issue an orde r to show cause requesting that the petitioner provide suffic ient evidence to overcome the inappropriateness. Failure to provide sufficient evide nce of the petition’s appropriateness can result in the dismissal of the petition. ***After the investigation, the Executive Director shall dismiss a petition, or the Administrative Law Judge shall recommend to the Board that a petition be dismissed, when a petition has been filed untimely ; when the bargai ning unit is c learly inappropri

ate ; when the showing of interest is not adequate; when the employ er is not covered by t he Act; w hen the e mploy ees are not cover

ed by the Act; or for any other reason there is no reasonab le cause

to believ e that a que

stion of rep resentat

ion exists ” (emphasis added)); but see 735 IL CS 5/2-1005 (West 2006) (“if the pleadings, depositions, and admissions on file, together with the affidavits, if any , show that there is no genuine issue as to any material fact and that the moving party is e

ntitled to a judgment as a matter of law”). Moreove r, unlike in a summary judgmen t procee ding, un

der the a dministra tive reg ulations in

the caus e at bar , during

his investigation of the petition, the ALJ was explicitly permitted to require only the petitioning party to provide the B oard with sufficient evidence to overcome the AL J’s finding that the petition was inappropriate, and to dismiss the petition if the petitioner failed to provide such evidence. See 80 Ill. Adm. Code §1210.100(a )(6), as amended by

28 Ill. Req. 4172, eff. February 19, 2004. As such we find Cano , clearly ina pplicable to the cause at bar, and conclude that the B oard cou

ld proper ly d ismiss the I

COP’s peti

tion withou

t a hear ing if after itsNo. 1-06-1645

33

investigation, it found that there was “no reasonable c ause to believe” a question of representation existed. See 80 Ill. Adm. Code §1210.100(a) (7), as amended by 28 Ill. Req. 4172, eff. February

19, 2004. Thus, we next conside

r whethe r such a f inding by the Boa rd in this c ase was

clearly erroneous. The Board first found that bec ause the ICOP wanted to repr esent 51 peace officers represented since 1967 by Local 7 within a barg aining unit of approximately 400 employ ees of the Water District, the ICOP petition essentially sought severance of “an e xisting recognized unit.” As such the Board applied the “traditional severa nce” standard as enunciated in City of Chica go , 2 Pub. Empl oye e Rep. (I ll.) par. 3015. The

Board next found th at the I COP faile d to provide it with sufficient factual information to meet the requirements of the “ traditional severance” test and that therefor e there was no reasonable ca use to believe a question of representation existed warranting a hea ring. For the reasons that follow, we find that the B oard’s conclusions were not clearly erroneous. City of Belvidere , 181 Ill. 2d at 205, 692 N.E.2d at 302. We first note that this court has previously made clear that a subgroup of a bar gaining unit is not entitled to separate representation simply because it is a more appropriate barg aining unit, so long as the existing bargaining unit is itself appropriate. See Illinois Fraternal Orde r of Police L abor Coun

cil , 319 Ill. App. 3d at 744, 745 N.E.2d at 660. I n Illinois Fraternal Orde

r Of Police , this court upheld the Board’s refusal to break up a n existing larger bargaining unit and replac e it wi th th e incu mbent unio n, hol ding:

“Sec tion 9 (b) [o f the

Act ( 5 I LCS 315/9 (b) (

West 2 006) )] does not re quire that a proposed unit be the

most appro

priate uni t

. Rather, it requires that the unit beNo. 1-06-1645

11 We note tha

t the lang uage o f section

9 of the A ct (5 I

LCS 315 /9 (West 200 6)) itsel f reflects the inte

nt of the le gislato rs to maint ain colle ctive ba

rgaini ng stabi lity . See 5 I

LCS 315/9(b) (West 2006) (“in cases *** where the employ er has recognized the union as the sole and exclusive bargaining age

nt for a specified existing unit, the Board shall find the employees in the unit then r

eprese nted by the union p

ursuant t o the rec ognition

to be the a

ppropria te unit” (emphasis added)); see also 5 I LCS 315/9(c) (West 2006) (“[n]othing in this Act shall interfere with or negate the current re presentation rights or patterns and practice s of labor organizations which have historically

represented public employ ees for the purpose of collective barg aining *** unless a majority of the e mployees so repr

esented express a contrary desire pursuant to the procedures set forth in this Act”). 34 appropriat

e .” (Emphasis added.) Illinois Frat ernal Or der of Pol ice L abor Coun cil , 319 Ill. App. 3d at 743, 745 N.E.2d at 659. Under this principle it appears that to warrant severa nce from an existing bargaining unit, the petitioning group must not only e stablish that the proposed unit is appropriate, but also that the existing bargaining unit is not. See Illinois Frat ernal Or der of Pol ice L abor Coun cil , 319 I ll. App. 3d at 743, 745 N.E.2d at 659. Consistent

with this ho lding, in

construi ng its dut ies under section 9 of the Act (5 I LCS 315/9 (West 2006)), the Board has traditionally disfavored severance of employ ees from existing bargaining units because of “ the policy ag ainst disrupting existing stable bargaining relationships.” 11 See County of Peoria & Sher iff of Peoria County v. I

llinois Sate Labor Relations Board , 305 Ill. App. 3d 827, 834-35, 713 N.E.2d 745, 749-50 (1999); see a lso, e.g. ,No. 1-06-1645

35

Lake County

Sheriff’s Department , 6 Pub. Empl oye e Rep. (I ll.) par. 2037; Watley & Holcomb v. Chica go Cros sing Gu ards A ss’n & t he Cit y of Chica go , 2 Pub. Employee Rep. (I ll.) par. 3009, No. L-RD-85-08 (I

LL RB April 17, 1986) (hereinafter Chicago Crossing Guards Ass’n , 2 Pub. Employ ee Rep. ( Ill.)

par. 300 9, at I

X-33) (n oting tha t “the fu ndamenta l objectiv e of the Act [is] peace a nd stabilit y in barga ining re lationship s”). As su ch, the B oard has

been ve ry relucta nt to find severance appropriate, in the abse nce of an incumbent union’s near-abandonment of the petitioned-for employe es. See e.g ., Cook County Sheriff’s Enforc ement Ass’n v. County of Cook & She

riff of C ook County

, 16 Pub. Employee Rep. (I ll.) par. 3003, No. L-RC-99-026 (IL LRB October 12, 1999) ( hereinafter County

of Cook &

Sheriff of Cook Cou

nty ,16 Pub. Employ ee Rep. ( Ill.)

par. 300 3); Rundle v. Chicago Park District , 6 Pub. Employee Rep. (I ll.) par. 3006, No. L-RD-89-030 (I LL RB February

5, 1990) (hereinafter Chicago Park District , 6 Pub. Employ

ee Rep. ( Ill.)

par. 300 6); National Pharmacists Ass’n v. County of Cook , 7 Pub. Employee Rep. (I

ll.) par. 3028, No. Order L- RC-91-008 (IL LRB June 21, 1991) (hereinafte r National Pharmacists Ass’n , 7 Pub. Employee Rep. (I ll.) par. 3028); County of Macon , 17 Pub. Employee Rep. (I

ll.) par. 2042, No. S-RD-01-004 (ISL RB July 23, 2001) (hereinaf ter County of Macon , 17 Pub. Employee Rep. (I ll.) par. 2042), but see Independent Br idge Tenders , 2 Pub. Employee Rep. (I

ll.) par.3022 (the only c ase where the Board per mitted severance of an existing historical bargaining unit). Consequently, the Boa

rd has created a two-prong test to determine whether severance of a subgroup from an already existing larger bargaining unit is appropriate. Under this test, a petitioner seeking severance must meet a significant burden by

demonstrating that the employ eesNo. 1-06-1645

36

to be severed: (1) share a signif icant and distinct community of interest; and (2) have had conflicts with other segments of the existing barga ining unit or a record of ineffective and unresponsive representation of their peculiar inter ests by the existing unit’s barg aining agent. See Chicago Park District , 6 Pub. Empl oye e Rep. (I ll.) par 3 006; Chicago Crossing Guards Ass’n , 2 Pub. Empl oye e Rep. (I ll.) par. 3009; Independent Br idge Tenders , 2 Pub. Employee Rep. (Ill.) par. 3022. “The standard is in the conjunctive so that both parts must be met in order to allow the severance.” County of Cook &

Sheriff of Cook Cou

nty , 16 Pub. Employee Rep. (Ill.) par. 3003, at XI -5. With respect to the first prong of that standard, the Boar d has long maintained that the appropr iate inqu iry is whethe

r the gr oup to be se

vered is so distinct , homoge

nous and s ingular

so as to have a separate identity and community of interest fr om the employees in the alr eady existing larger bargaining unit. See Chicago Park District , 6 Pub. Employee Rep. (I ll.) par. 3006 (under the first prong of the traditional sever ance standard, the petitioner “ ‘must show more than simply that [the group to be sever ed] could constitute an appropriate unit in the abstract, if no broader unit already

existed.’ [Citation.] Rather, it must be shown that the unit to be severed has a ‘d is ti nct , ho mo gen eou s an d se par ate id ent it y’ ** * i n co mp ari son wit h ** * t he l arg er u ni t”) . In applying this principle, the Board has repeatedly

held that even where the members of the proposed unit share certain commonalities and traits, the first prong of the traditional severance standard is nevertheless not met where these same membe rs “share a broad-based func tional purpose and have common employ ment conditions and benefits” with the members of the already existing larger bargaining unit. See e.g ., County

of Cook &

Sheriff of Cook Cou

nty , 16No. 1-06-1645

37

Pub. Employee Rep. (I

ll.) par. 3003, at XI-5; see a lso Chicago Crossing Guards Ass’n , 2 Pub. Employ ee Rep. ( Ill.)

par. 300 9; National Pharmacists Ass’n , 7 Pub. Employee Rep. (I ll.) par. 3028. While here argument can be made tha t because the members of the Water District’s police f orce pr ovide a di ffere

nt servic e to the Wa

ter Distr ict from t he other members o f Loc al 7 (including, inter alia , firema n-oilers , princip al storek

eepers , labore

rs, patr ol boat ope

rators, materia l handlers, and poll

ution cont

rol tech nicians) , they

are mor e homog enous an

d inhere ntly differe nt from no npeace

office rs so as to have a se parate community

of intere st, we ne

verthel ess must also c onsider t

hat the pe ace off

icers a nd nonpea

ce offi cers in the barg aining u nit essen tially share common employme nt conditions and benefits, which may well establish sufficient commonality between the two groups so as not to require severance

. The rec ord reve als that th e police employ ees are retaine d to servi ce the sa fety requirements of the Water District premises and as such function as a ny other employ

ee segment designed to promote the overall function of the Water District. More over, a review of the collective bargaining ag

reement between L ocal 7 and the Water District demonstrates that the terms and condition s of emplo yme

nt for pe ace off

icers a re simila r, if not id

entical t o the ter ms and conditions of employment for nonpe ace officers. First, the collective ba rgaining agre ement reveals that the contract covers all of the e mployees of the Water D istrict, including the peace officers. In addition, the collec tive bargaining agr

eement sets out the pay

rates and shift rotations for all employee s, including peace officers. More over, the same vacation, sick pay, personal leave, overtime, compensatory time and holiday pay

provisions apply to all Water DistrictNo. 1-06-1645

38

employees, including

peace officers. Likewise, under the agreement, he alth, dental and life insurance are available to peac e officers on the same basis as they are available to nonpeace officers. Notwithstanding, even if the ICOP’s pe tition has satisfied the first prong of the traditional standard, it would nevertheless fail to provide sufficient evidence to establish the second prong of that test. Chicago Park District , 6 Pub. Empl oye e Rep. (I ll.) par. 3006 PERI

¶ 3006; Chica go Crossing Guards Association , 2 Pub. Empl oye e Rep. (I ll.) par. 3009; Independ ent Bri dge Tenders , 2 Pub. Employee Rep. (I ll.) par. 3022. As already

noted above, in order to satisfy the second prong of the traditional severa nce standard, the petitioning party must show that the employees see king severance have ha

d dominant interests that are incompatible with the interests of the larger unit and, as such, have conflicts with other segments of the existing barga ining unit, or that the existing bargaining representative has a record of ineffective and unresponsive represe ntation of their peculiar interests. Chicago Crossing Guards Ass’n , 2 P ub. Emp lo yee R ep. (Ill .) p ar. 300 9. In demonstrating that the group seeking severance has not received a dequate representation from their bargaining repre sentative, the evidence concerning the ineffective representation must be “ ‘obvious, longstanding and directed exclusively at the employee s to be severed.’ ” County of Macon , 17 P ub. Em ployee Re p. (Ill. ) par. 2 042, a t X-27 1, quo ting International Brothe rhood of Teamste rs, Chauf feurs, Wa rehouse men & He lpers of

America , Loc al Union N o. 371 v. Co unty of Rock I sland & Sheriff of Rock I sland Coun

ty , 7 Pub. Empl oye e Rep. (I ll.) par. 2040, No. SRC-91-98, at X-195 (ISL RB August 22, 1991) (hereinafter County of Rock I sland , 7 Pub.No. 1-06-1645

39

Employ ee Rep. ( Ill.)

par. 204 0). More over, the Board has made i

t clear t hat “evidence merely

reflect[ing] the fact that the [incumbent] Union has perhaps been unable to achieve the maximum benefits for each individual group of employees—a problem that might occur in any unit that encompasses more than one job title *** does not necessarily suppor

t the conclusion that *** there exists a record of ineffective and unresponsive representation of their peculiar inter ests ***.” County of St. Clair, 18 Pub. Employee Rep. (I

ll.) par. 2015, at X-116. The rea son for th

is is that “ it is a rea sonable bypr oduct of c ollective

barga ining pr ocess tha t a favora ble barg ain for a

small par t of a bro ad-base d unit may be lost in f

avor of a better b argai

n for the *** whole.” County of Cook &

Sheriff of Cook Cou

nty , 16 Pub. Employee Rep. (I ll.) par. 3003, at XI-6. We note that the Board has only once found that a group seeking severance from the existing b argai

ning unit has met the

second prong of

the trad itional sta ndard, namely

in Independent Br

idge Tenders , 2 Pub. Employee Rep. (I ll.) par. 3022. In that case, the Board found tha t a unit of 1 15 bridg e tenders could pr operly be sever ed from a large r barg aining u

nit, also containing 550 electricians, where the existing bargaining unit had “all but abandoned representing the group of e mployees seeking

severance.” County of Cook & Sheriff of Cook County , 16 P ub. Em ployee Re p. (Ill. ) par. 3 003, a t XI, cit ing Independent Br idge Tenders , 2 Pub. Employee Rep. (I

ll.) par. 3022. The Board specifically found that the petitioning bridge tenders had met the second prong of the traditional sever ance standard because, inter alia , the incumbent union had not processed any grievances on behalf of the br idge tenders, had not provided theNo. 1-06-1645

40

bridge tenders with a steward, did not admit the bridg e tenders to regular membership in the union, and did not consult the bridge tenders for barg aining input so that the bridge tenders steadily lost ground to other unit members in wage and hour improvements. Independ ent Bri dge Tenders , 2 Pub. Employee Rep. (I ll.) par. 3022. As such, the Board in Independ ent Bri dge Tenders found that the representation of the bridge te nders by the incumbe

nt union had been essentially “nonexistent since the 1960s’ or e arly 1970s.” Independent Br idge Tenders , 2 Pub. Employee Rep. (I

ll.) par. 3022, at IX-110. Since rendering its decision in Independent Br idge Tenders , the Board has asserted that the fact pattern in Independent Br idge Tenders is “the litmus test to determine if a union has failed to represent a group of e mployees for pur

poses of severance from an existing unit,” and has refused to find that the second prong of the traditional severance standard has bee n satisfied where the failure to provide repre sentation does not mirror that of Independent Br idge Tenders

. See County

of Cook &

Sheriff of Cook Cou

nty , 16 Pub. Employee Rep. (I ll.) par. 3003; see also, e.g ., Chicago Park District , 6 Pub. Employee Rep. (I ll.) par. 3006. In the present case , with respect to the second prong of the traditional seve rance test, the ICOP contends, just as it did before the Boa rd, that Local 7 has been ine ffective and unresponsive in its representation of the peace off icers because (1) the provision in the collective bargaining agr

eement with the Water District do not meet the needs of the peace officers; (2) Loca l 7 did not “ gather

input” fr om its polic e offic ers as to contract negoti ations; an d (3) in 2004, L ocal 7 did

not file a declar atory judgmen t action on behalf

of the pol ice off

icers in i ts bargaining unit to determine whether “ police officers” were full-time police of ficers, so as to beNo. 1-06-1645

41

entitled to carry

firearms off duty

pursuant to the Law Enforc ement Officers Safety Act of 2004 (Pub. L. 108-277, eff. July 22, 2004). For the reasons that follow, we disagr ee. The Boa rd found a

nd it is undis

puted tha t despite t he ALJ’s reque sts to the ICOP to proffer evidence in support of its contention that L ocal 7 had ineffectively represented the peace officers, the ICOP failed to pr ovide any such e

vidence. Aside from genera lized arguments that peace officers had “no re al input” into contract negotiations, the I COP presented no evidence that Local 7 abandoned the pe ace officers, separate d the officers form the rest of the unit, gave peace office rs full me mbership in the union, or fai led to re present them with r

espect t o major iss

ues in the collective bargaining proc ess, i.e. seeking comparable wag e increases, hours or benefits. See Independent Br

idge Tenders , 2 Pub. Employee Rep. (I ll.) par. 3022. Instead, as alr eady noted above, the collective bar

gaining agree ment rev ealed th at much of the peac e offic er’s wa

ges, hours, benefits and vacations, were similar, if not, identical to the benef its of the other members of the bargaining unit. We note that the ICOP does not even alleg e that Local 7 failed to off er bargaining proposals on behalf of the peace office rs, or that there was a conflict of interest betwe en the peace officers and the re

mainder of the unit. Instead, L ocal 7 asserted and the Board found undisputed that “Local 7 sends a letter to e ach employe e represented prior to commencing barga ining re questing

that they submit prop osals to the

union whic

h they wish pres ented in bargaining,” that “L

ocal 7 *** conducts membership meetings and steward me etings for development of proposals, and such meetings are ope n to police officers on the same basis as other em ployees,” that “pea

ce offi cers ha

ve a stew ard who i s a peac e offic er, and t hat stewa rd isNo. 1-06-1645

42

invited to stewards’ meetings conducted by Local 7 and *** has the same r ight to attend membership meetings as any other member.” In f

act, the record contains a copy of letters provided to the Board by

Local 7, which Local 7 sent to all of its stewards concerning the collective bargaining ag

reement negotiations, in which every steward, including Thomas Longini, the police office rs’ steward, was invited to discuss the pending contract negotiations and dema nds. In addition, with respect to the I COP’s assertion that Local 7 failed to file a de claratory judgment action on behalf of the police office rs in its bargaining unit to determine whether “police office rs” wer e full-ti me police office rs, so as t o be entit led to ca rry firear ms off duty pursuant to the Law Enforc ement Officers Safety Act of 2004 (Pub. Law. 108-277, ef f. July 22, 2004), the

ALJ spe cifical ly f

ound that t

he compla

ints reg arding

the abilit y of the peac e offic ers to use firearms off duty

was of no significance to L ocal 7's overall representation of the peace officers. Moreover, the Boar d found that the ICOP failed to alleg e that Local 7 was eve n aware of the ICOP’s grieva

nces in 2004 with respect to this issue. As such, under the aforementioned record, we find that the Board’s c onclusion that ICOP failed to prove the second prong of the traditional severance test was not clearly erroneous. See County of Cook & Sheriff of Cook County , 16 Pub. Employee Rep. (I ll.) par. 3003 (the Board held that even thoug h the sheriff’s deputies had a conflict with the rest of the unit in that their wage rate was based on a lower pay scale than the remainder of the unit and the incumbent had f ailed to represent the concerns of the petition- for depu

ties reg arding

safety issues an d other ma

tters re lating to

training , self-d

efense and hazardous duty pay

, the incumbents’ alleged failure in neg otiations to address issues ofNo. 1-06-1645

43

specific interest to the deputies raised no claim that warra nted a hearing). Conseque ntly , we find

that in dism

issing th e ICO P’s petition, the Bo ard act ed in conformance with established case law and w ithin its authority as defined by both the Act (5 IL CS 315/1 et seq (West 2006)) and the Board’s rules and reg ulations (80 Ill. Adm. Code §1210.100 (a)(6), as amended by 28 Ill. Req. 4172, eff. Febr uary 19, 2004). 2. Applicability of a Less Stringent Severance Standard The ICOP alternatively

contends that in determining the appropriateness of its petition, the Board should have applied a less stringent se verance standard. Rely

ing on the Board’s decision in County

of St. Clair , 18 Pub. Employee Rep. (I ll.) par. 2015, and on section 3(s)(1) of the Act (5 IL CS 315/3(s)(1) (West 2006)), the ICOP specifically contends that because the legislators have determined that mixed units of peace office rs and nonpeace officers ar e presumptively invalid, the Boa rd should have adopted a less stringent standard for severance. The ICOP proposed two possible standards befor e the Board. The first standard was e nunciated in County of St. Clair , 18 Pub. Employee Rep. (I ll.) par. 2015, and permits severance of pea ce officers from mixed bargaining units containing both peace officers and non-pea ce officers at the

mere re quest of t

he petitioning pa

rty . Under t

he secon d standar d propose d by

the I COP a petitioner could obtain severance by establishing that: (1) the employ ees to be severed are police employees who a

re in a mixed unit of nonpeace officers; (2) that the employ ees have complied with section 9(a)(1) of the Act (5 I LCS 315/9(a)(1) (West 2006)) by having a labor organization acting on their behalf demonstrating that 30% of the public employees wish to be r epresented for the purpose of collective bargaining pursuant to section 3(s)(1) of the Act (5 I LCS 315/3(s)(1)No. 1-06-1645

44

(West 2006)), by that said labor or ganization as exclusive representative; and (3) that there is no certification or contract bar. For the reasons that follow, we reject both standar ds and find that the Board properly

applied the traditional severance standard. We first note that although our review of the Boar d’s determination regarding the applica bility of a less stringe nt sever ance sta ndard is de novo ( Illinois Fraternal Orde r of Police Labor Council , 319 Ill. App. 3d at 736, 745 N.E.2d at 653), we neve rtheless “ ‘accord [some] deference to the interpretation place d on a statute by the ag ency c harged with its administration’ ” ( City of Tuscola v. L abor Relations Board , 314 Ill. App. 3d 731, 734, 732 N.E.2d 784, 786 (2000 ), quo ting William Rainey Harper Community College 512 v. Harper College Adjunct Faculty A ss’n , 273 Ill. App. 3d 648, 651, 653 N.E.2d 411, 414 (1995)). See also People ex r el. Birket t v. C ity of Ch icago , 202 I ll. 2d 36, 46 , 779 N.E. 2d 875, 881 (2002) ( “a rea sonable construction *** by

the age ncy charg ed with tha

t statute' s enforc ement, if contemporaneous , consiste nt, long- continue d, and in c oncurre nce with l egisla

tive acq uiescen ce, cre ates a presumption of correctness that is only slightly less persuasive

than a judicial construction of the same act”); see also Nationwide General I nsurance Co. v. Shapo , 328 Ill. App. 3d 1028, 1031, 767 N.E.2d 936, 1031 (2002) ( “ we defer to the reasonable interpr etation placed on a statute by the agency

charged with its administration and enforcement” ); see also Board of Education of DuPage High School District No. 88 v. I llinois Educational Labor Relations Board , 246 Ill. App. 3d 967, 973-74, 617 N.E.2d 790, 794 (1993) (when reviewing a Board’s decision “[i]f the question r aised is p urely legal, such as st

atutory construction, an a

gency 's inter pretation should receiv e defer

ence be cause it

flows fr om its exper

ience a nd experti se [citation], but our r eview isNo. 1-06-1645

45

de novo ”). We next turn to the merits of the ICOP’s contention. The I COP first asserts that section 3(s)(1) of the Act (5 I

LCS 315/3(s)(1) (West 2006)) itself crea tes a less stringent severance standard that applies specifically to the severance of peace of ficers from existing bargaining units. We disagree. Section 3( s)(1) of

the Act, r

eads in pe rtinent pa rt: “A bargaining unit determined by the Board to contain peace offic ers shall contain no employees other

than peace officers unless otherwise a greed to by

the employer a

nd the labor organization or labor organizations involved.” 5 I LCS 315/3(s)(1) (West 2006). Therefore according

to the plain language of this section, although ba rgaining units that combine peace officers with nonpeace officers are disfavored, they are expressly pe

rmitted where the parties to the collective bargaining r elationship agree to such an arra ngement. Despite the ICOP’s contention to the contrary , the language of section 3(s)(1) of the Act (5 ILCS 315/3(s)(1) (West 2006)) does not require the severance of peace officers from an e

xisting unit. In fact the Board has ruled on this issue on several occasions, ea ch time rejecting the severance of peace officers from an existing unit upon the filing of a petition by a third party in orde

r to preserve the stability of the parties’ existing bargaining units. See Illinois Department of Central Management Services , 3 Pub. Empl oye e Rep. (I ll.) par. 2026; Lake County Sheriff’s Department , 6 Pub. Employe e Rep. (I

ll.) par. 2037;; City of Chicago Avia tion Security Office

rs , 9 Pub. Employee Rep. (I

ll.) Par. 3008.

In Illinois Department of Central Manag ement Services , 3 Pub. Employee Rep. (I ll.) par.No. 1-06-1645

46

2026, the Board found that the preservation of a historica l bargaining unit of mixed peace office rs and non

peace o fficers superc eded sec tion 3(s)( 1) of the

Act (5 I LCS 315 /3(s)(1)

(West 2006)), requiring that peace off icers not be placed into bargaining units with nonpeace officers. In that case, similarly

to the cause at bar, the Fraterna l Order of Police (the petitioner) filed a petition for representation seeking to remove e mployees whom the par

ties agreed were “pe ace officers” within the meaning of section 3(k) of the Act (5 ILCS 315/3(k) (West 2006)) from certain bargaining units of the State of I llinois employees who were represented by

two other incumbent unions. Illinois Department of Central Manag ement Services , 3 Pub. Employee Rep. (Ill.) par. 2026. These ba rgaining units contained employ ees who were not peace off icers. Illinois Department of Central Manag ement Services , 3 Pub. Employee Rep. (I ll.) par. 2026. The ALJ fou nd that she

was req uired to r econcil e two see

mingly inconsiste

nt statutor

y pr ovisions, section 9(b) of the Act (5 ILCS 315/9(b) (West 2006)), which requires the AL J to presume a historical unit the appropriate unit for the purpose of collective bar gaining, and section 3(s)(1) of the Act (5 IL CS 315/3(s)(1) (West 2006)), which provides that no bargaining unit dete rmined by the Boa rd to cont ain peac e offic ers shal l also con tain employe es other

than pea ce offi cers unl ess such a “mixed” unit is agreed to by the employer a

nd the labor organization or organizations involved. Illinois Department of Central Manag ement Services , 3 Pub. Employee Rep. (I ll.) par. 2026. The

ALJ fou nd that al l of the pa

rties to th e origi

nal agr eements establish ing thes e bargaining units agre ed to their "mixed" status, and continued to do so. Illinois Department of Central Management Services , 3 Pub. Employee Rep. (I ll.) par. 2026. She therefore concluded that “it would contravene the Act's strong purpose of preserving historical relationships to allowNo. 1-06-1645

47

the FOP, which was not party to the units' formation, to now disrupt the established patterns of bargaining by

dismantling the units.” Illinois Department of Central Manag ement Services , 3 3 Pub. Employee Rep. (I

ll.) par. 2026, at VII

I-8. The Board in Illinois Department of Central Manag ement Services agreed with the findings of the ALJ and dismissed the petition, holding that a historical unit of mixed peace office rs and non -peace

office rs was ap propria te under section 9 of the Act (5 ILCS 315 /9 (West 2006)) because historical units are presumptively valid. Illinois Department of Central Management Services , 3 Pub. Employee Rep. (I ll.) par. 2026. In coming to this conclusion, the Board relied, inter alia , on the Act’s policy a s enunciated by se ctions 9(b) and 9(c) of the Act. See 5 IL CS 315/9(b) (West 2006) (“in cases where the employ er has recognized the union as the sole and exclusive bargaining ag ent for a specified existing unit, the Board shall find the employees in the unit then re presented by

the union pursuant to the recognition to be the appropr iate unit” (emphas is added) ); see a lso 5 I LCS 315 /9(c) (We st 2006) ( “[n]othing in this Act shall interfere with or negate the current representation rights or pa tterns and practices of labor organizations which have historically represented public employ ees for the purpose of collective bargaining *** unless a major ity of employ

ees so represented express a contrary desire pursuant to the procedures set forth in this Act”). Three years later, in Lake County Sheriff’s Department , 6 Pub. Employee Rep. (I ll.) par. 2037, the Board found that even absent the existence of a historical bargaining unit, section 3(s)(1) of the Act (5 I

LCS 315/3(s)(1) (West 2006)) did not permit automatic severa nce of peace officers from mixed peace officer a nd nonpeace-officer bargaining units, unless requested by theNo. 1-06-1645

48

parties to the collective bargaining a greement. I

n that case, the petitioner argued that sec tion 3(s)(1) of the Act (5 I

LCS 315/3(s)(1) (West 2006)) conferr ed a “right” on peace of

ficers to sever from an e xisting mixed

unit of pe ace off

icers a nd nonpea

ce offi cers an

d be repr esented in their own bargaining units. Lake County Sheriff’s Department , 6 Pub. Employee Rep. (I ll.) par. 2037. The ALJ found petitioner’s arg ument without merit, and noted that, the express terms of section 3 (s)(1) merely

restric ted the B oard’s “ discreti on to fash ion appro priate b argai

ning unit s in police employment.” Lake County Sheriff’s Department , 6 Pub. Employee Rep. (I ll.) par. 2037, at X-254. The ALJ further found that to the e xtent that section 3(s)(1) creates any rights at all, “those rights devolve not upon public employ ees but upon parties to collective bargaining relationships, namely public employ ers and labor unions.” Lake County Sheriff’s Department , 6 Pub. Employee Rep. (I

ll.) par. 2037, at X-254. The ALJ theref ore concluded that it is not individual employees themselves but public employ ers and labor organizations who must agree before the Board may

certify mixed peac e officer/nonpeace-off icer units. Lake County

Sheriff’s Department , 6 Pub. Employee Rep. (I ll.) par. 2037. The ALJ compared sec tion 3(s)(1) with the special provisions in the Act pertaining to unit determinations for professional and c raft employees. Lake County Sheriff’s Department , 6 Pub. Employee Rep. (I ll.) par. 2037. In that respec t, the AL

J found that

“[i]f the le gislatu

re had in tended to grant p eace of

ficers t he same freedo m of choic e profe ssional a nd craf t employ ees have with resp ect to the

composition of their bargaining units, it presumably would have done so by pr oviding, ‘...unless a majority of peace officers votes for inclusion in such unit’ or languag e to that effect.” Lake County Sheriff’s Department , 6 PERI ¶ 2037 (I L SLRB 1990). Instead, as the AL J noted, the legislature left thatNo. 1-06-1645

49

choice to unions and employe rs. Lake County

Sheriff’s Department , 6 Pub. Employee Rep. (I ll.) par. 203 7, at X-2 54. According to the AL J, this distinction strong

ly in dicated that, unlik

e certa in other public employee s, peace officers are not statutorily entitled to determine the composition of their bargaining units. Lake County Sheriff’s Department , 6 Pub. Employee Rep. (I ll.) par. 2037. The Board agree d with the findings of the ALJ and concluded that se verance of the mixed unit was inappropriate. Lake County Sheriff’s Department , 6 Pub. Employee Rep. (I ll.) par. 2037. In doing so, the Boa rd stated: “In Illinois Department of Central Manag ement Services , 3 PERI ¶ 2026 (IL SLRB 1987), we held that [s]ection 3( s)(1) did

not gra nt rival un

ions automatic sev erance rights with respect to historical mixed units of State peace officers and non-pea ce officers. We reasoned in that case that the clear leg islative intent of the Act was to preserve the stability of existing historical barg aining units including those containing both State peace officers and non-pea ce officers. Given this intent we found it unlikely that the legislature intended [s]ection 3(s)(1) as a vehicle for disrupting such units. The legislative policy of prese

rving the stability of e

xisting bargaining units must, of course, extend to exis ting ce rtifi ed uni ts as w ell as hist orical unit s. Acco rdingl y, we agree wi th th e Heari ng Officer's [ALJ’s] finding that the legislature did not intend [s]ection 3(s)(1) as a vehicle for allowing automatic severance of peace officers from existing ‘mixed units.’ The petitioned-for unit is, therefore, inappropriate.” Lake County Sheriff’s Department , 6 Pub. Employee Rep. (I

ll.) par. 2037, at X-246. Finally, in City of Chicago Avia tion Security Office

rs , 9 Pub. Employee Rep. (I ll.) par.No. 1-06-1645

50

3008, the Board reaffirmed its prior holdings. I n that case, the relevant issue was whether the employer’s 175 a

viation security offic ers were peace offic ers, and if so, whether they could be severed from a larger

bargaining unit of public safety employees. City of Chicago Avia tion Security Offic ers , 9 Pub. Employee Rep. (I ll.) par. 3008. The petitioner (the Fraternal Or der of Police) a rgued that sec tion 3(s)( 1) of the Act requ ired tha t peace office rs be sev ered fr

om a unit unless all “labor organizations involved” agre ed to the combining of the peace officers with nonpeace officers in one unit. City of Chicago Avia tion Security Office

rs , 9 Pub. Employee Rep. (Ill.) par. 3008. The petitioner f urther argued that it was an “involved labor organization,” and that it would not consent to a unit combining peace officers and nonpe ace officers. City of Chicago Aviation Security Officers , 9 Pub. Employee Rep. (I ll.) par. 3008. The ALJ rejected the contentions of the petitioner, and dismissed the petition without a hearing rely ing on Lake County Sheriff 's Depa rtment, 6 Pub. Employee Rep. (I ll.) par. 2037. City of Chicago Avia tion Security Offic ers , 9 Pub. Empl oye e Rep. (I ll.) par. 3008. The

Board u pheld the ALJ’s d ismissal, concluding that even if the employ ees met the definition of “peace office rs,” this alone would not automatically entitle the petitioner to seve rance. City of Chicago Avia tion Security Office

rs , 9 Pub. Employee Rep. (I

ll.) par. 3008. The Board specifically found that pursuant to Lake County Sheriff 's Depa rtment, 6 Pub. Employee Rep. (I ll.) par. 2037, “a third party may not use *** [s] ectio n 3(s) (1) to effect an aut omati c sever ance of peace o fficer s from an ex isti ng mixed unit.” City of Chicago Avia

tion Security Office

rs , 9 Pub. Employee Rep. (I ll.) par. 3008, at XI-53. Based on the aforementioned decisions by the Board, we are persua ded to conclude that contrary to the ICOP’s contention, section 3(s)(1) of the Act (5 IL CS 315/3(s)(1) (West 2006))No. 1-06-1645

51

does not create a less stringent sever ance standard that applies specifically to the severance of peace officers from existing barg aining units. The ICOP nevertheless cites to County of St. Clair , 18 Pub. Employee Rep. (I ll.) par. 2015, for the proposition that a less stringent standard may be applied. We disagree, and find that case inapposite.

In County of St. Clair , 18 Pub. Employee Rep. (I ll.) par. 2015, the issue presented to the Board was whether the same union, which wa s the representative of a combined unit of peac e officers and non-peace off icers could sever its own unit, but still continue to represent both the peace o fficers and non-

peace o fficers in separ

ate units. Inte

rpreting section 3 (s)(1) o f the Act , in that case, the Board stated:

“The Act compels us to sever mixed units in the absence of the parties’ current express agreeme nt. To rule otherwise would create a situation in which the parties to a collecti ve barga ining rela tionship would be forced to maintain a bargaining unit which the Act sp ecifica

lly d isfavor s even wh en the str ucture n o longe r advanc es their inte

rest .” (Emphasis added.) County of St. Clair , 18 Pub. Employee Rep. (I ll.) par. 2015. As such, the County

of St. Clair

stands only for the rig

ht of a party to a

collective bargaining relationship composed of peace officers a nd non-peace officers to end its consent to the mixed unit. County

of St. Clair , 18 Pub. Employee Rep. (I ll.) par. 2015. In the present case , unlike in County of St. Clair , neither Local 7, nor the Water District have filed a petition to change the composition of the unit. I nstead, both Local 7 and the WaterNo. 1-06-1645

52

District are satisfied with the current composition and want to maintain the existing unit, which was created by

these two parties almost 40 ye ars ago. As such, we find the County of St. Clair inapplicable to the cause at bar. Consequently, we also find that the B oard properly looked to its well-established precedent holding that section 3(s)(1) of the Act did not permit a petitioning union to sever peace officers from an existing unit because of the disruptive ef fect to existing collective bargaining units, and properly re

jected the application of the I COP’s proposed less stringent standard. For the foregoing r

easons we affirm the decision of the Boa rd. Affirmed. O’MALL EY, P.J., and CAHILL , J., concur.No. 1-06-1645

53 __________________________________________________________________________________________________________________________ REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT

(Front Sheet to

be Attached to Each Case)

_________________________________________________________________________________________________________________________ Please use

the follow

ing form IL LI NOIS COUNCI

L OF POL

ICE, Petitioner-Appellan

t ,

v.

IL LI NOIS L ABOR RELATI ONS BOARD, LOCAL PANEL; METROPOLI

TAN WATER RECLAMATION DISTRI CT OF GREATER CHICAGO; FI REMEN AND OILER S U NION , LOC AL NO . 7, SE IU

Respondents-A

ppellees

.

______________________________________________________________________________________________________________ No

. 1-06- 1645 Docket No. Ap pellate Co urt of Illino is COURT First D istrict, SI XTH Divi sion Opinion File d December 19, 2008 (Give month, day and year)

______________________________________________________________________________________________________________ JUSTI CE JOSEPH GORDON DEL IVE RED TH E OPI NIO N OF T HE CO URT:

JUSTI CES PRESID ING JUSTI CE O’MALLEY, and JUSTICE C AHILL concur.

Lower Court and Trial Judge(s) in form indicated i n margin: APP EAL from the Circuit Court of Cook Appeal from a petiti on for r

eview of the o rder County ; t

he Hon___ of the Illinois L abor Relations Board, Local Panel Judge Presiding. Local Panel.No. 1-06-1645

54 __________________________________________________________________________________________________________________________

Indicate if attorney represents APPELLANT S or APPELLEES and include attorney's of counsel. Indicate the word FOR APPELLANTS NONE if not represe

nted. John Do e, of Chicago

For APPELLE

ES, : FOR APPELL ANT: Noel T. W

roblewsk i, 1349 North A

rtesian A ve., Suite 3, Chicago, IL 60622

Smith and Smith of Chicago, APPELLEES: For IL Labor Relations Board : Attorne y Ge neral Li sa Madiga

n, Solicitor G

eneral G ary Feinerma

n, and Ass. A ttorney Genera

l Carl J. Elitz, Stat

e of Illi nois, 100 W. Ra

ndolph St. 12 th Floor, Chica go, IL 60601; F or Local 7 : Marvin G ittler, Patri cia Collins , and Michele Cotrupe, A sher, Gi

ttler, G reenfield & D’A

lba, Ltd., 200 W. Jack

son Blvd., Suite 1900, Chica

go IL, 60606.

_____________________________________________________________________________________________________________ Add attorne

ys for thirdparty a ppellants a

nd/or appellees.