## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Internat ional B rotherhood of El

ectrical Workers, Loc al 21 v. Illin ois Labor Relation s Board , 2011 IL App (1st) 101671

Appellate Court Caption I NTERNATI ONAL BROTH ERHOOD OF EL E CT RI CA L WO RK E RS, L OCAL 21, Petitioner, v. I L L I NOI S L AB OR REL ATI ONS BO ARD; T H E C IT Y O F C H IC AG O; an d S E R V IC E E M P LO Y E E S I NTERNATI ONAL

UNI ON, L OCAL73, Respondents.

District & N o. First District, Third Division Docke t No. 1-10-1671

Rule 23 Order

filed Rule 23 Order withdrawn Opinion filed Aug ust 25, 2011

September 21, 2011 September 28, 2011

Held (Note : Thi s syl lab us

c o nst it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by th e Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The I llinois L abor Relations Boa rd had the authority to dismiss a petition seeking to sever three of responde nt cit y ’s j o b classifications from an exis ting collective barg aining unit with o u t a hear ing if the Boa rd deter mined there was no rea sonable cause to believe a q u es t i on of
repr ese n t at ion exis ted, and in the instant case the dismiss al was not clea rly err oneous whe re the majority interest petition filed by

petitioner

was not a procedurally proper means to achie ve a sever ance , petitioner did not satisfy th e t wo -p art test for sever ance , petitioner prese nted no basis to rec onsider the appropr iateness of the barg aining unit or to show that t h e em p loy ees seeking the sever ance had dominant interests that

wer e incompatible with t h e interests of the larg er unit, there was no “long -standing ” conflict or ineffe c ti v e r e p r e s e ntation, and the fac t that the exis ting unit voted to approve an ag ree ment to exchang e lay o ffs for

conce ssions was a re asonable trade off in the ba rg aining proce ss.Dec ision Under

Review Petition for revie w of order of I llinois L abor Re l at i o ns Boa rd, L ocal Panel, Nos. L -AC-10-006, L -UC-10-001, L -RC-10-001.

J udg ment Affir med.

Counsel on Appea l Robert E. Bloc h and O m ar J

. Shehabi, bot h of Dowd, Bloc h & Be nnet, of Chicag o, for pe titioner.

Mar a S

. Geor g es, Corporation Counsel, of Chicag o (B enna Ruth Solomon, My

riam Z rec zny Kaspe r, and Susanne M. L oose, Assist ant Corporation Counsel, of counse l), for r espondent City of Chicag o.

L isa Madig an, Att o rney Gene ral, of Chicag o (Evan Siege l, Assistant Attorney Gene ral, o f co u nsel), for responde nt I llinois L abor Relations Boa rd, L ocal Pane l.

J oel A. D’Alba and Mi chele Cotrupe, bot h of Asher, Gittler & D’Alba, L td., of Chicag o, for responde nt Service Employ ees International Union, L ocal 73.

Panel J USTI CE SAL ONE de livered the judgme nt of the cour t, with opinion. Presiding J ustice L avin and J ustice Sterba concur red in the judgme nt and opinion.

OP INION

¶ 1 This is a direc t appea l from a final order of the I llinois L abor Relations Boa rd (the B oard) dismiss ing petitions filed by the International Br otherhood of Electric al Workers, L ocal 21 (L ocal 21). I n these petitions, L ocal 21 soug ht to sever three of responde nt City of Chicag o’s (City) job classifications–P olice Communi cation s Of fi cers I and I I (PCOs) and Aviation Communi cations Offic ers (ACOs)–f rom the exis ting collective barg aining unit for p ublic safe ty employ ees, commonly known as “Unit I I .” Currently
, employ ees of Unit I I are jointly
repr esente d by L ocal 21 and respondent S ervic e Empl oy ees I nternational Union, L ocal 73 (L o ca l 7 3). Alleg ing that PCOs and ACOs share d a signific ant and distinct community of interest, and that they also had conflicts with other seg ments of the barg aining unit resulting

-2-in ineffe ctive repr esenta tion, L ocal 21 reque sted that these three job classifica t i o n s be

sever ed fr om Unit I Iand that L ocal 21 be cer tified as their e x clusive re prese ntative. ¶ 2 T h e C i t y fi l ed an o b j ection to the petitions, alleg ing they wer e proce durally an d substantively defic ient. L ocal 73 intervene d, and also objected on simil ar g rounds. An administrative law judge (AL J ) ag ree d with responde nts and subsequently issued a

rec ommended dec ision and order that the ca se be dismissed. ¶ 3 L ocal 21 filed exceptions with the Boa rd, challeng ing the AL J ’s rec ommendation. The City and L ocal 73 filed response s to these exceptions. Ultimately
, t h e Boa rd acc epted the AL J ’s re co m m en dation and dis missed the petit ions. L ocal 21 now appeals the decision of the Boa rd, contending that it err ed in dismiss ing L ocal 21’s case. For the rea sons that 1 follow, we a ffirm the B oard’ s ruling.

¶ 4 BA CKGROUND ¶ 5 Unit I I is the City ’s collective barg aining unit for public safe ty employ ees, composed of classifications of non-sworn personne l g ener ally involved in a law enfor ceme nt or protec tive service function. Upon its cre ation in 198 4
, Un i t I I consisted of 15 public safe ty job classifications. B etwee n 1993 and 1995, PCO a nd ACO classifications we re added to Unit I I

. Currently
, there are approximately 2,100 employ ees in Unit I I
, of wh i ch approximately 375 fall within the PCO and ACO classifica tions. ¶ 6 Since 1984, Unit I I has b een repr esente d by a coalition of unions, and since 1986, the Ci t y and Unit I I ’s joint repr esenta tives have neg otiated collective barg aining ag ree ments

cover ing all Unit I I job classifications. Currently
, the joint repr esentatives of Unit I I are L ocal 21–which repr esents only those employ ees with PCO a nd ACO titles–and L ocal 73, which
repr esents all other

job classifications withi n the unit. ¶ 7 Unit I I ’s s eventh collectiv e b ar g aining ag ree ment was neg otiated by the parties during the summer of 2009. On J uly 17, 2009, near the end of neg otiations on this ag ree ment, L ocal 2 21 filed three petitions with the Boa rd: a repr esentation petition, which L ocal 21 desig nated

as a “majority interest petition”; a unit clar ifica t i o n p etition; and a petition to amend

cer tification. In a letter acc ompanying the petitions, counsel for L ocal 21 stated that all three

wer e “dire cted to the same purpose: to sever the [P CO I ], [P CO I I ] and [ACO] classifications from a larg er unit known as the Public Safety Employ ees Union Unit I I ” and cre ate a standalone barg aining unit. The letter further stated that sever ance was war rante d on the basis that the petitioning g roup “shar e[s] a signific ant and distinct community of interest and ha[s]

rec eived ineffe ctive repr esentation of th ei r particula r interests within Unit I I *** [t o the

T his cou rt has j uri sdi ct ion to hea r d ir ect app eal s f rom d eci si ons of the Boar d pu rs uan t t o 1

sec ti on 9(i ) of the I ll ino is Publ ic Labo r Rel at ion s Act (5 I LCS 315/ 9(i ) (W est 2010 ))
, sec ti on 3- 113 of the Adm ini st ra ti ve Review Law (73 5 I LCS 5/3

- 113 (W est 2010 )) and I ll ino is Supr eme Cour t Rule 335 (I ll . S. Ct . R. 33 5 ( ef f. F eb. 1, 19 94) ).

T his agree m ent cover ed t he p er iod of J uly 1, 2 007, thr ough Dece m ber 31, 2010, andwas 2

ra ti fi ed b y the c it y counc il on Au gust 9 , 200 9.

-3-ex t ent that] L ocal 21 and the employ ees it repr esents no longe r consent to j o i n t

repr esentation.” The letter conclude d: “We regret any confusion that may be cause d by filing three separ ate petitions, but we wer e unable to locate any statutory or regulatory source that identifies prec isely the form of petition require d for this purpose.” The petitions wer e signe d by 315 of 375 employ ees in the thre e spec ified cla ssifications. ¶ 8 The City

filed a r esponse, alleg ing that the petitions were “proc edura lly inappropriate” under both the I llinois Public L abor Relations Act (5 I L CS 315/1 et seq. (West 2010)) (Ac t) and the Boa

rd’s rules and regulations contained within the I llinois Administrative Code (80 I ll. Adm. Code 1210 et seq. (2011))

. The C i t y also contende d that the petitions wer e substantively

defic ient, in that L ocal 21 sug g ested no fac ts to satisfy the B oard’ s standards for allowing se vera

nce f rom an already -existi ng barg aining unit. There afte r, L ocal 73 also filed a position statement larg ely mirroringthe ar g uments set forth by the City

. ¶ 9 On September 25, 2009, the AL J issued a rec ommended decision and order dismiss ing the petitions. As an initial matter, the AL J deter mined that both the unit clar ification petition and the petition to amend cer tification wer e proce durally inappropriate for seeking to sever

a seg ment of em p loy ees from an exis ting barg aining unit and placing them into a newly

cre ated stand- alone unit. ¶ 10 The AL J further found that the repr esentation petition was also proce durally barr ed. The AL J observe d that L ocal 21 filed this petition as a “majority interest petition” rathe r than as 3

an “ele ct i o n petition.” Howeve r, beca use PCOs and ACOs wer e alre ady repr esente d for
purposes of collective barg aining
, the AL J deter mined that pursuant to the Boa rd’s rules (80 I ll. Adm. Code 1210.20(b) (2011))
, a petition to sever a fra g ment of employ ees from a larg er barg aining unit is onl y

proper ly filed as a n elec tion petition. ¶ 11 Apar

t f rom the petitions’ pr ocedur al def iciencie s, the AL J further deter mined that they

wer e also substantively defic ient. The AL J found that even if L ocal 21 ref iled its sever ance p eti tion in the proper form, it would still be unable to demonstrate that sever anc e i s appropr iate bec ause it fa iled to present suff icient fa cts to satisfy

the B oard’ s two-par

t test. ¶ 12 Relying upon City of Chicago
, 9 PERI ¶ 3008 (I L L RB 1993) (her einaf ter City of Chicago ( Aviation Security Officers )), the AL J first found that L ocal 21 did not establish that the PCOs and ACOs share d a signific ant and distinct community of interest apar t from the larg er unit. The AL J noted t hat a petitioner “must do more than demonstrate that the group to be

sever ed constitutes an a

ppropriate unit for the purpose s of collec tive barg aining .” ¶ 13 The AL J further found that L ocal 21 also failed to satisfy the second prong of the B oard’ s

sever ance test, in that it did not demonstrate sufficie nt conflict betwee n the unit to be sever ed with oth er s egments of the exis ting barg aining unit or a rec ord of ineffe ctive and

I n a “maj ori ty int er est pet it ion ,” the pet it ion eral le ges th ata maj ori ty of the employees in 3

a uni t wis h to be re pre sen te d by the pet it ion for purpos es of col le ct ive bar gaini ng. I n con tr ast , in an “el ect ion pet it ion ,” the pet it ion er al le ges tha t at le ast 30% of the employees in a uni t re que st a sec re t bal lot el ect ion to det er m ine whet her pet it ion er sho uld be cer ti fi ed as the exc lu s i ve c o l le ct ive bar gaini ng agent for the employees in tha t uni t. Wh en fi li ng a Repr ese nta ti on Pet it ion
, the pet it ion er

m ust in dic at e un derwhi ch p roc edu re s i t wa nts it s pe ti ti on t o be pr oce sse d.

-4-unresponsive repr esentation of th e p a r ticular interests of those employ ees. The AL J observe d that, in the letter acc ompanying the petitions, counsel simply alleg ed that the petitioned-for employ ees “have rec eived ineffe ctive repr esentation of their particula r interests within Unit I I ” without further fac tual support. The AL J also noted that althoug h L ocal 21 claimed that the PCOs and ACOs wer e ineffe ctively repr esente d, L ocal 21 itself “is one of the petitionedfor e mploy ees’ joint barg aining repr esenta tives.” ¶ 14 The AL J then distinguished City of Chicago
, 2 PERI ¶ 3022 (I L L RB 1986) (her einaf ter City of C h i ca g o ( Bridge Tenders ) or Bridge Tenders ), a case in which the Boa rd found

sever ance to be appropr iate wher e the exclusive ba rg aining repr esenta

tive of the employ ee g roup seeking sever ance had a long- standing rec ord of in effective and unresponsive
repr esentation
, b as ed upon numerous fac tors not prese nt here

. Finally
, the AL J observe d “that on sever al separ ate occa sions the Boa rd has dismiss ed previous attempts at sever ing Unit I I .” Ba sed upon the fore g oing, the AL J rec ommended dismiss al of L ocal 21’s petitions. ¶ 15 There afte r, L ocal 21 filed exceptions to the AL J ’s rec ommended decision and order , as well as a supporting brief. I n these documents, L ocal 21 focuse d on the events surrounding the neg otiation of Unit I I ’s s eventh succe ssive collective barg aining ag ree ment. L ocal 21 related that, during t hese neg otiations, the Cit y serve d approximately

500 lay off notice s to employ ees within Unit I I

. Howeve r, these notices wer e direc ted solely to job classifications
repr esente d by L ocal 73, with none sent to any employ ees repr esente d by L ocal 21. L ocal 21

asser ted that the City there afte r offe red a trade off: in exchang e for saving the jobs of the 500 employ ees who had rec eived lay off notices, all Unit I I employ ees wer e require d to ag ree to

conce ssions, including forg oing retroa ctive wag e incre ases, making holiday s un p ai d and substitut ing compensatory time for overtime pay

. L ocal 21 alleg ed that the C ity and L ocal 73 had neg otiated this amendment to the collective barg aining ag ree ment without notice to,

or involvement from, L ocal 21. L ocal 2 1 fu rt h er alleg ed that beca use its members g ained nothing from this amendment, and, in fac t, suffe red a d et ri m ent from it, the employ ees it
repr esente d voted nearly unanim o u s l y ag ainst ratification. The contract, neverthe less, was approve d, based upon the ag g reg ate vote of all members of Unit I I

. L ocal 21 pointed to this

course of events as evidence that it and L ocal 73 no longe r jointly repr esente d Unit I I , and that this conflict and inef fec tive repr esentation just ified seve ranc e. ¶ 16 L ocal 2 1 fu rt h er ar gu ed t hat althoug h the Boa rd had on repe ated previous occ asions found that seg ments of Unit I I could not be sever ed, that prec edent was “quest i o n ab l e” beca use of what it c hara cter ized a s the “cha ng ed circ umstances” in Unit I I as evidenc ed by these ne g otiations. ¶ 17 The City and L ocal 73 filed response s to L ocal 21’s exceptions. Both parties disputed the alleg ations of L ocal 21 with respe ct to the neg otiations surrounding the collective barg aining
ag ree ment, and argued that the AL J ’s rec ommendation that the Boa rd dismiss L ocal 21’s petitions was corr ect a

nd should be ac cepte d. ¶ 18 On M ay

13, 2010, the B oard issued its decision and order acc epting the recommended decision and order of t he AL J and dis missing L ocal 21’s petitions. First, the Boa rd agr eed with the AL J that the petition to amend cer tification and the unit clar ification petition wer e proce durally inappropriate vehicles for s ev ering a seg ment of employ ees from an already

-

-5-exis ting ba rg aining unit. ¶ 19 I n addit i o n , t h e Board agree d with the AL J ’s finding that L ocal 21’s re prese ntation petition was also proce durally defic ient. The Boa rd deter mined that L ocal 21 had incorre ctly filed this peti t i o n as a “majority interest petition.” Under its rules (80 I ll. Adm. Code 1210.20(b))
, the Boa

rd conclude d that a majority interest petition may not be used wher e, as here
, the employ ees reque sting sever ance from a barg aining unit are alre ady repr esente d by a labor org anization. ¶ 20 The Boa

rd also ag ree d with the AL J that even if L ocal 21 had filed its petition in proper form, dismiss al of the repr esentation petition was war rante d on substantive g rounds. Taking L ocal 21’s alleg ations as true, the Boa rd never theless held that the sever ance soug ht by L ocal 21 was improper for many of the same rea sons that it had previously reje cted the sever ance of o t h er j ob classifications from Unit I I

. Citi ng a decision which also involved Unit I I
, Illinois Fraternal Order of Police L abor Council v. Illinois L ocal L abor Relations Board
, 319 I ll. App. 3d 729 (2 0 0 1 ), the Boa rd deter mined that Unit I I continues to be “one barg aining unit” that is “jointly repr esente d by a coalition of unions.” Be cause “all of the unions, as a g roup, repr esent eac h member in [Unit I I ] reg ardle ss of how, for administrative purposes, the coalition has linked or divided up,” the Boa rd conclude d that L ocal 21 c ould
not meet the Boa

rd’s sever ance standards: it had shown neither that the PCOs and ACOs formed a distinct and homoge neous g roup apar t from the other members of Unit I I
, nor that the group suffere d unresponsive or disparate ly poor represe ntat i o n in the ex isting uni t. As did the AL J
, the Boa

rd also cited Bridge Tenders to note that Bridge Tenders was the only

case in which it g rante d s everanc e and distinguished the fac tual situation there from the circ umstances in the matter at bar

. ¶ 21 L o ca l 2 1 p etitioned for revie w of the Boa rd’s decision dismiss ing its repre sentatio n petition. As L ocal 21 has not appea led the Boa rd’s dismiss al of its petition t o am end

cer tification nor its unit clar ification petition, thes e two petitions are not at issue in this
appea l.

¶ 22 DI SCUS SI ON ¶ 23 L ocal 21 contends that the Boa rd err ed in sever al respe cts by dismiss ing it s r e p r e s e ntation petition. As an initial matter, L ocal 21 asser ts that it was error

for the B oard to dismiss the petition without first conducting an evidentiary hear ing pur suant to section 9(a ) of the Act (5 I L CS 315/9(a) (West 2010)). In addition, L ocal 21 maintains that the Boa rd err ed in finding that the petition was proce durally inappropriate, and in concluding that even if it had been filed in the proper form, L ocal 21 had not adduce d sufficie nt evidenc e to s at i s fy t h e Boa rd’s seve ranc e standa

rd. We hold that the arguments advanc ed by L ocal 21 lac k merit. ¶ 24 The Admi n i s t ra t i v e R ev i ew L aw (735 I L CS 5/3-101 et seq

. (West 2008)) g overns judicial revie w of Boa

rd decisions and extends to all questions of law and fac t prese nted by the rec ord. Illinois Frater n a l Or der of Police Labor Council v. Illinois Local Labor Relations Board
, 319 I ll. App. 3d 729, 736 (2001); 5 I L CS 315/9(i) (West 2010). The standard of revie w applicable to an ag ency ’s d ec i s ion depends upon whether the question
prese nted is one of fac t or law. City of Belvide re v. Illinois State Labor Relations Board
, 181

-6-I ll. 2d 191, 204 (1998). An administrative ag ency ’s finding s on questions of fac t are deeme d

to be prima facie true a

nd corr ect ( 735 I L CS 5/ 3-110 (West 2010)), a nd such finding s will only be set as i d e if they are ag ainst the m anife st weig ht of t he evidence. County of Peoria

v. Illinois S t a t e L abor Relations Board
, 305 I ll. App. 3d 827, 830 (1999). A decision is
ag ainst the manifest weig ht of the evidenc e only if the opposite conclusion is clea rly evident. Illinois Fraternal Order of Police Labor Council , 319 I ll. App. 3d at 736. ¶ 25 The same defe renc e, howeve r, is not acc orded to the Boa rd’s conclusions of law, which

are revie wed de novo. City of Belvide re , 181 I ll. 2d at 205. A s such, “an ag ency ’s statutory interpre tation is not binding on a revie wing court, and will be reje cted, if u n re as o n able or

err oneous.” City of Tuscola v. Illinois State Labor Relations Board
, 314 I ll. App. 3d 731, 734 (2000). ¶ 26 A mix ed question of law and fac t is prese nted when an ag ency “examin[ es] *** the leg al eff ect of a g iven set of fac ts.” City of Belvide re , 181 I ll. 2d at 205. When suc h a question is
prese nted, the Boa

rd’s decision will be reve rsed only if it is clea rly err oneous. Illinois Council of

Police v. Illinois Labor Relations Board, Local Panel
, 387 I ll. App. 3d 641, 657- 58 (2008). This standard of revie w lies “betwe en a manifest weig ht of the evidenc e standard and a de novo standard so as to provide some defe renc e to the Boa rd’s experience and expertise.” City of Belvidere , 181 I ll. 2d at 205. ¶ 27 I n the prese nt case , L ocal 21 contends that revie w should be de novo , while re spondents

asser t that a clearly err oneous st andar d applies. Alt houg h the t est to deter mine wheth er an evidentiar y hear ing is require d under the Act is a leg al one, beca use “that test must be applied
to and depend upon the s ufficie ncy of facts prese nted t o the B oard dur ing its investigation of the repr esentation *** petition,” it is a mix ed question of law and fac t to which the clea rly

err oneous standard of revie w applies. Illinois Council ofPolice
, 387 I ll. App. 3d at 657-58. Simi larly
, the Boa

rd also applied the law to the fac ts of the case to deter mine whether L ocal 21 had filed a proce durally appropr iate petition and whether sever ance of PCOs and ACOs from Unit I I was war

rante d. Acc ording ly
, on these issues as well, the Boa rd’s decision will
not be reve rsed unless that deter mination was clea

rly err oneous. Under the clea rly err oneous standard, we must aff

irm an ag ency ’s decision unless we are “lef t with the definite and firm conviction that a mistake ha s been c ommitt ed.” ( Interna l quotation marks omitted.) Id

.

¶ 28 A. The B oard’ s Fa ilure to Gra nt a Hea ring ¶ 29 L ocal 21 contends that the Boa rd err ed by dismiss ing its petition without an evidentiar y hear ing. We disag ree , and hold that the Boa rd followed pr oper inve stigatory and dismissal
proce dures a s defined by

the Act a nd the B oard’ s own rules. ¶ 30 Both the Act and the Boa rd’s rules authorize the Boa rd to issue decisions in the abse nce of conducting a hear ing. The Act decla res th at i t s p u rp ose is to provide an “expeditious, equitable and eff

ective proce dure for the resolution of labor disputes.” 5 I L CS 315/2 (West 2010). To achie ve this g oal, the Act does not require the Boa rd to hold evidentiar

y hear ings in ever y instance on disp u t ed qu es tions of repr esenta tion. Rather, it provides that when considering a repr esentation petition, “the Boa rd shall investigate such petition, and if it has

rea sonable cause to believe t h at a question of repr esentation exis ts, shall provide for an

-7-appropr iate hearing upon due n o tice.” 5 I L CS 315/9(a) (West 2010). Thus, the Act allows

the Bo ard to forg o a hear ing if the Boa rd’s investiga

tion finds the absenc e of “re asonable

cause .” Id .; see a lso Illinois C ouncil of Police , 387 I ll. App. 3d at 663. ¶ 31 Simi larly
, the Boa rd’s rules provide that a repr esentati o n p et i t i o n may be dismissed without a hear ing under sever al circ umstances: when the petition is untimely ; when the barg aining unit is inappropria te; when the showing of inte re s t is inadequate; when the employ er is not cover ed by the Act; or when “ther e is no rea sonable c ause to be lieve that a question of re prese ntation exi sts.” 80 I ll. Adm. Code 1210.100(b)(7) (A) ( 2011). ¶ 32 Although L ocal 21 does not dispute that the Boa rd has the authority to de cide petitions without conducting an evidentiar y heari n g, i t never

theless contends that a hear ing was require d under the fac ts prese nted in this case

. Acc ording to L ocal 21, the “AL J should have issued a show cause order ” asking i t t o ex p lain “why a hear ing was nece ssary befor e dismiss ing the petition.” We rejec t L ocal 21’s argument, finding that it is premised upon a misapprehe nsion of law. ¶ 33 I n an action for administrative revie w, it is the final decision of the administrative ag ency which is subject to re view. Marconi v. Chicago Heights Police Pe nsion Board , 225 I ll. 2d 497, 531 (2006). L ocal 21 appea rs to have lost sight of the fac t that under this principle, our revie w is of the decision rende red by the Boa rd–not that of the AL J

. Although the AL J found L ocal 21’ s petition to be procedur ally and subst antively flawe d, L ocal 21 availed itself of 4 the opportunity under the Boa rd’s rules (see 80 I ll. Adm. Code 1200.135(b)( 1) (2011)) to challeng e the AL J ’s fin d i n gs an d rec ommendation by filing ex ceptions wit h the Board. In its brief in support of these exceptions, L ocal 21 explained in detail all the rea sons it believed that its petition was valid and should not be dismiss ed. The Boa rd, afte r revie wing L ocal 21’s exceptions a

nd supporting brief, was authorized to e ither dismiss the petition wher e “ther e is no rea sonable cause to believe that a question of repr esentation exis ts” (80 I ll. Adm. Code 1210.100(b)( 7)(A) ), or is sue an order to show cause reque sting that the petitioner provide sufficie nt evidenc e to overc ome the petition’s defic i encie s (80 I ll. Adm. Code 1210.100(b)( 6)). ¶ 34 Under this fra

mework, we hold that the Boa rd could proper ly dismiss L ocal 21’s petition without conducting an evidentiar y hear ing. The Boa

rd was vested with express authority to dismiss the petit ion without a hearingif, afte r it revie wed the case it deter mined that there

was no re asonable cause to believe a question of re prese ntation exi sted. 5

¶ 35 B. D ismiss al of the Petition ¶ 36 Having found that the Boa rd could proper ly dismiss L ocal 21’s petition without a hear ing

We n o t e t h a t a lt hough a pet it ion er nee d not pre sen t al l it s eviden ce in the pet it ion
, “t he 4
p e ti ti on sho uld at le ast ra is e an is sue as to whet her ” the eviden ti ar y r equ ir ements “co uld pos si bly be met.” Count

y of Lak e ( She ri ff ’s Depa rt ment ), 8 PERI ¶ 2051 (I LLRB 199 2), at X

- 304.

We not e tha t, in it s re ply bri ef
, Loca l 21 o m it s a ny dis cus si on o f the con te nti on ra is ed in 5 it s op eni ng bri ef

th at th e Boa rd er re d i n f

ai li ng to pr ovide i t wi th an e vident ia ry hea ri ng.

-8-wher e it had no rea sonable cause to believe that a question of repr esentation exis ted, we next

cons i d er the broade r issue of whether the dismiss al itself was clea rly err oneous. L ocal 21 contends that the Boa

rd err ed in concluding that there was no rea sonable cause to believe that

a repr esentation question exis ted by finding that the petition was proce durally inappropria te, and in concluding that even if it had been filed in the proper form, L ocal 21 could not meet the B oard’ s standard f

or g rantingsever ance . We rejec t L ocal 21’ s arguments.

¶ 37 1. Procedur al Grounds ¶ 38 L o cal 21’s repr esentation petition was filed as a majority interest peti t i o n , s ee k i n g

cer tification as the exclusive repr esentative by attempting to establish throug h evidenc e submitt ed with the petition that a majority of the employ ees in the proposed unit supported its repr esentation. See County of Du Page v. Illinois Labor Relations Board
, 231 I ll. 2d 593, 597-99 (2008). Applying its rules to the fac ts prese nted, the Boa rd deter mined that a majority interest petition was a proce durally improper vehicle for L ocal 21 t o u s e in reque sting

s ev er an ce of employ ees from a barg aining unit wher e those employ ees are alre ady
repr esente d by

a labor org anization. ¶ 39 L ocal 21’s arg ument that the Boa

rd err ed in dismiss ing its petition on proce dural g rounds consists of statements scatter ed throug hout its briefs, including tha t it s r e p r e s e nta

ti o n petition was dismissed on a “hy

perte chnica l” basis, that “the Boa rd or its a g ent could have advised L ocal 21 to [select] the election option,” and that the Board “fail[ ed ] to allow L ocal 21 an opportunity

to amend its majority

interest petition to make it an ele ction petition.” ¶ 40 Contrary to L ocal 2 1’s assertion, a petiti oner’ s desig nation of a repr esentation petition

as either a m aj o ri t y interest petition or an elec tion petition is not a mere technica l require ment. The Boa

rd’s rules clea

rly define the distinctions betwee n elec tion and majority interest petitions and under what cir cumstance s they may be used: “(a ) A labor org an i z at i on seeking rec og nition in a proposed appropr iate barg aining unit in which no other labor organization has attained recognition rights in acc ordanc e with the Act may reque st that the employ er voluntarily rec og nize it or may file a r epre sentation petition with the Boar d. (b) A labor org anizati o n s e e k in g r e c o g n ition in a proposed appropr iate barg aining unit in whi ch an o t h er labor org anization is rec og nized in acc ordanc e with the Act
may pursue its re quest only by filing a repr esentation petition seeking elec tion with the Boa rd. Majority interest petitions may not be utiliz ed wher e a n o t h er labor organization is recognized in accordanc e with the Act. ” (Emphase s added.) 80 I ll. Adm. Code 1210.20(a) , (b) ( 2011). 6

I n add it ion
, the se two types of pet it ion s ar e pro ces sed by the Boar d in si gnifi can tl y dif fe re nt 6

w ays. For exa m

ple
, dif fe re nt sho wings of int er est ar e re qui re d for the se dif fe re nt pet it ion s , u n d e r bot h t he Ac t a nd t he Bo ar d’s ru le s. Se e 5 I LCS 315 /9( a) (1) , (a

- 5) (W est 2010 ); 80 I ll . Adm. Code 1210 .80 ( 2011 ). T he Bo ar d ha s a ls o se t f ort h se par at e qu al if

ic at ion s for the sho wing of in te re st in el ect ion and in m aj ori ty int er est ca ses . See 80 Ill. Ad m . Code 121 0.80 (d) . T her e are al so d if fe re nt pro ced ure s f

or pro ces si ng thes e t wo ty pes of pet it ion s, inc lud ing diff er ent ti m e limita ti ons as wel l

-9-Thus, t h e Boa rd’s rules expli citly prohibit the use of a majority interest petition when the employ ees in the petitioned-for unit are alre ady repr esente d. Her e, the Boa rd deter mined that PCOs and ACOs are in a unit “in which another labor orga nization is recog nized.” Unit I I is repr esente d by L ocal 21 and L ocal 73, acting toge ther as a single joint repr es en t ative known as the “Unit I I coalition.” There fore
, L ocal 21 was not permitted to file a majori ty interest petition. In addition, there is no evidenc e that L ocal 21 soug ht to amend its petition

or to file a new elec tion petition to confor m to the Boa

rd’s rules. L ocal 21’s choice to pursue repr esentation without elec tion was a proce dural nullity under the Act and Rules. Acc ording ly
, it was not clea rly err oneous for the Boa

rd to conclude that L ocal 21 could not achie ve seve ranc e with a major ity interest petition.

¶ 41 2. Fa ilure to Satisfy the B oard’ s Severa

nce Standa

rds ¶ 42 Notwithstanding, L ocal 21 asser ts that it adduce d sufficie nt ev i d en ce t o s ati sfy the Bo ar d ’s two-par

t sever ance test, and that the Boa rd err ed in concluding that there wa s n o

rea sonable cause to believe that a question of repr esentation exis ted even if the petition had been f iled in proper f

orm. ¶ 43 L ocal 21 alleg es that the Boa rd rea ched this re s u l t b y i gn oring numerous fac ts which

wo u l d have satisfied the sever ance standard. In addition, L ocal 21 further argues t h at althoug h the Boa

rd has previously found on repe ated occa sions that seg ments of Unit I I could
not be sever ed
, t h at prec edent is not controlling beca use of the rec ent “cha ng ed circ umstances” in Unit I I as highlig hted by t h e course of neg otiations for the collective barg aining ag ree ment. We disag ree

. ¶ 44 The Boa

rd deter mined that L ocal 21 could not meet its long- established two-par t test for

sever ance

. Under this standard, the g roup of employ ees petitioning for sever ance must: (1)

7 share a signific ant and distinct community of interest; and (2) must have had conflicts with other seg ments of the exis ting barg aining unit or a rec ord of ineffe ctiv e an d u n responsive
repr esentation of the interes t s by the exis ting unit’s barg aining ag ent. City of Chicago ( Bridge Tenders ), 2 PERI ¶ 3022; see also County of St. Clair
, 18 PERI ¶ 2015 (I L RB State

as in the in for m at ion pr ovided to employees. See 80 Ill. Ad m . Code 121 0.10 0.

Loca l 21 a r gu es tha t ins te ad of it s tr adi ti ona l sever anc e te st , the Boar d sho uld ado pt a 7 dif fe re nt te st bas ed upon a de c i s i o n r e n d er ed by the Nat ion al Labo r Rel at ion s Boar d (NLRB)

. Acco rdi ng to Loca l 21, when a pet it ion is fi le d by m embers of a j oin t re pre sen ta ti ve see king to sever employees fr om a uni t the y j oin tl y re pre sen t, sever anc e sho uld be grant ed “i f the uni on (1) re fus ed to par ti ci pat e in j oin t bar gaini ng and ( 2) the se vered cl ass if ic at ion s f orm an appr opr ia te uni t.” See 220 Tel evi si on, I

nc. , 172 N.L.R.B. 1 304 (19 68)

. Loca l 21 has wai ved thi s con te nti on. Argum ent s not ra is ed bef ore an agency ar e wai ved for
purpos es of adminis tr at ive re view. Carp et lan d U.S.A., Inc

. v. Il li noi s Depar tme nt of Empl oyme nt Sec uri ty , 201 I ll

. 2d 351, 396-97 (20 02)

. I n it s bri ef to the Boar d in sup por t of it s exc ept ion s, Loca l 21 ci te d the 220 Tel evi si on c ase in a two-sent enc e foo tno te to poi nt out tha t the NLRB use d a

sever anc e st and ar d dif

fe re nt f r om tha t employed by the Boar d. However, Loca l 21 m ade no

ar gum ent–as it doe s he re –th at th e Boa rd sho uldado pt tha t a ppr oac h.

-10-Panel 2002). This court has observe d that “the Boa rd has traditionally disfavore d sever ance of employ ees from exis ting barg aining units beca use of the policy ag ainst disrupting exis ting stable barg aining relationships.” (I nterna l quotati o n m arks omitted.) Illinois Council of Police, 387 I ll. App. 3d at 664. ¶ 45 I n order to satisfy the first prong of this test, L ocal 21 was require d to e stablish that the
g roup of PCOs and ACOs is “so distinct, homoge neous and singula r so as to have a separ ate identity and community of interest from the employ ees in t h e already exis ting larg er barg aining unit.” Id. at 666. L ocal 21 misappre hends the nature of this inqui ry by focusing its argument on its asser

tion that PCOs and AC Os s h ar e a community of interest among themselves. Howeve r, the fac t that employ ees in a proposed new unit share cer tain traits does
not satisfy the first prong of the sever ance standard “whe re those sam e members ‘shar e a broad- based functional purpose and have commo n e mp lo y me nt c o n d it io n s a

n d benef its’ with the members of the alre ady exis ting barg aining unit.” Id. Thus, L ocal 21 must not only show

a co m m u n i t y of interest among PCOs and ACOs, but that community of interest must b e apar t from the employ ees in Unit I I

. ¶ 46 L ocal 21 asser ts that both PCOs an d AC Os wo rk fo r the City ’s Offic e of Emer g ency Manag ement and Communi cations (OEMC), and their work is simil ar: PCOs take 911 calls from the public and ACOs take emer g ency calls at O’Ha re and Midway airports. T h e fac t that these classifications take emer g ency calls, howeve r, appea rs to be the only commonality betwee n PCOs and ACOs that dis t i n gu i s h es them from the other employ ees in Unit I I

. I n d eed, L ocal 21 acknow ledg es that PCOs and ACOs work at differ ent locations: PCOs work
at the OEMC fac ility
, while ACO s wo rk at one of the two are a airports. See also City of Chicago
, 16 PERI ¶ 3016 (I L L RB 2000) (AL J decision) (her einaf ter City of Chicago ( Unit II Coa l i t i o n )) (discussing details of PCO and ACO positions, including hours, uniforms, training and supervision). Fr om their s eparate locations, PCOs dispatch calls to police office rs city -wide, wher eas ACOs dispatch calls to Aviation Security Offic ers at the airports (anothe r title repr esente d within Unit I I ) and other airport secur ity office rs. Id

. Fur ther, L ocal 21 makes no claim that these three classifications have regular contac t with eac h other, and does not dispute the City ’s asser tion that ACOs have regular daily contac t wi t h Unit I I Aviation Security Offic ers and Traf fic Control Aide titles who work in the same depar tment

as PCOs. Thus, rathe r than having a signific ant community of interest separ ate an d apar t from the rest of Unit I I
, it appea rs that ACOs and PCOs share signific ant commonalities with the rest of Unit I I
, including “ce ntralized personne l administration, common conditions and benef its, and–the h al l m ark of Unit I I –responsibility for dealing with the public in a law enfor ceme nt-related capa cit y

. ” City of Chicago
, 2 PERI ¶ 3015, at I X-61 (I L L RB 1986) (her einaf ter City of Chi cago ( Security G uards )). ¶ 47 We further note the extensive Boa rd prec edent which has consistently reje cted attempts t o s ev er s u b set employ ee g roups out of Unit I I
, finding that these g roups did not meet the first prong of its sever ance standard. See, e.g. , City of Chicago ( Unit II Coalit ion ), 16 PERI ¶ 3016 (I L L RB 2000) (re jecting peti t ion to hold elec tion among a subset of Unit I I

em p l o y ee s ); City of Chicago ( Aviation Security Officers ), 9 PERI ¶ 3008 (I L L RB 1993) (dismissing petition seeking to sever aviation secur ity office rs); City of Chicago ( Security Guards ), 2 PERI ¶ 3015 (I L L RB 1986) (re fusing to sever secur ity g uards) ; City of Chicago
,

-11-2 PERI ¶ 3009 (I L L RB 1986) (her einaf t er City of Chicago (

Animal Control Officers )) reje cting dece rtification petition seeking to sever animal control office rs); see also City of Chicago
, 18 PERI ¶ 3020 (I L RB L ocal Panel 2002) (rejec ting unf air labor prac tice charg e based on PCO’s inclusion in Unit I Ibeca use that unit is the appropriate unit for them). 8 ¶ 48 L ocal 21 prese nted no evidenc e that either the composition of Unit I I or the nature of the employ ees’ functions have chang ed since these case s wer e decide d which would war rant that the appropr iateness of Unit I I should be rec onsidered. L ocal 21 h as there fore failed to demonstrate that the employ ees it wants sever ed from Unit I I have the kind of separ ate and distinct communit y

of intere st that justi fies for ming a separ ate unit. ¶ 49 The Boa

rd also did not err in finding that L ocal 21 cannot also satisfy the second pr ong of the sever ance test, which require s a showing that “the employ ees seeking sever ance have had dominant interests that are incompatible with the interests of the larg er unit and, as such, have conflicts with other seg ments of the exis ting barg aining unit
, o r t hat the exis ting barg aining repr esenta

tive has a rec ord of ineffe ctive and unresponsive repr esentation of their peculiar interests.” Illinois Council of Police , 387 I ll. App. 3d at 667. ¶ 50 Although L ocal 21 asser ts that the g roup of PCOs and ACOs are “d i s p roportionately

siz ed” with respe ct t o the rest of Unit I I and that their i ntere sts “we re subordinated” to the majority during the summer 2009 neg otiations on the collective barg aining ag ree ment, these contentions are insufficient to satisfy the second prong of the sever ance standard. That test require s considera

tion of “the eff

ectivene s s as part of the history of the sever ance g roup’s
repr esentation in the larg er unit” ( Bridge Tenders , 2 PERI ¶ 3022), and the ineff ectivene ss of that repr esen t at ion must be “obvious, long- standing and direc ted exclusively at the employ ees to be sever ed.” County of R ock Island &Sheriff of Rock Island County , 7 PERI ¶ 2040, at X-195 (I L L RB 1991) (her einaf ter County of

Rock Island ( Correctional Officers )). ¶ 51 Bridge Tenders s the only case in which the Boa rd found the second prong to have been met, on the basis that “sig nificant repr esentation of bridg etende rs ha[d] been nonexis tent in the exis ting unit” for deca des. Bridge Tenders
, 2 PERI ¶ 3022, at I X-110. The Boa rd noted that the union had failed to file any g rieva nces on behalf of the bridg e tender s, consult with employ ees for collective barg aining
, provide a union stewar d, or gra n t em p loy ees regular union membership. L ocal 21 asser ts n o s imilar fac ts here

. Indeed, since rende ring its decision in Bridge Tenders
, “the Boa rd has asser

ted that the fac t pattern [t here ] *** is ‘the litmus test to deter mine if a union has failed to repr esent a g roup o f employ ees for purposes of

sever ance from an exis ting unit,’ and has ref us ed t o fi nd that the second prong of the traditional sever ance standard has been satisfied wher e the failure to provide repr esentation does not mirror that of [ Bridge Tenders ].” Illinois Council of Police
, 387 I ll. App. 3d at 668;

T he Boar d has al so re pea te dly rul ed tha t publ ic saf et y employees ar e pro per ly inc lud ed in 8 Unit I I when the Unit I I coa li ti on has pet it ion ed to re pre sen t the m

. See
, e.g. , Cit y of Chi c a go , 11 PERI ¶ 3024 (I LLRB 1995 ) (he re ina ft er C i t y of Chic ago ( Civ il ian Dis pat che rs )) (f

ind ing Unit I I
app rop ri at e and re

j ect ing st and

- al one uni t for ci vili an dis pat che rs ); Cit y of Chic ago , 2 PERI ¶ 3014 (I LLRB 1986 ) (he re ina ft er Cit y of Chic ago ( Det ent ion Aid es )) (de eming Unit I I app rop ri at e and

re j ect ing st and

- al one uni t f or det ent ion ai des ).

-12-see also County of Cook
, 16 PERI ¶ 3003, at XI -6 (I L L RB 1999) (her einaf ter County of Cook ( Deputy Sheriffs )) (cha

rac terizing Bridge T

en ders as a case wher e the union had “all but abandone d” the e mploy ees)

. ¶ 52 He re , t h e re cord ref lects that for almost the entire h i s t o ry t h ey re ce i v ed j o i n t repr esentation–between 1985 and 2009

– P C Os and ACOs alleg ed neither conflict nor inadequate repr esentation. L ocal 21 claims that conflict arose near the end of the last round of neg otiations reg arding the collectiv e barg aining ag ree ment over what conce ssions Unit I I would provide in exchang e for the City ’s agree ment not to lay off 500 Unit I I employ ees, and that the interests of PCOs and ACOs wer e subordinated to those of th e majority

. Howeve r, an a lleg ed conf lict in the summer of 2009 duringwhich the group’s wishes ma y have been overr idden by th e m aj o ri t y does not meet the Boa rd’s require ment of “longs t anding” conflict or ineffe ctive repr esentation. It is a “re asonable by product of the collective barg aining proce ss that a favor able barg ain for a small part of a broad- based unit
may be lost in favor of a better bargai n fo r t h e u n it as a whole.” County of Cook ( Deputy Sheriffs ), 16 PERI ¶ 3003, at XI (citing Vaca v. Sipes
, 386 U.S. 171 (1967))

. This descr ibes the situation at bar. ¶ 53 Unit I I fac ed a decision: have hundreds of its m em b er s l ai d o ff or save those jobs by

m ak i n g conce ssions in an amount equivalent to those salarie s. A m ajority of Unit I I voted
to approve the amende d collective barg aining ag ree ment that exchang ed lay offs for various

conce ssions, and a more favor able barg ain for PCOs, ACOs and other Unit I I employ ees who

wer e not slated for lay off was sacr ificed for the g ood of the whole. Such trade offs are ty pical and re asonable in the collective ba rg aining proce ss. I n addition, we note that the sacr ifices

wer e not borne s o l el y b y the employ ees who wish to be sever ed; rathe r, they aff ecte d all employ ee s in Unit I I

. I n essenc e, L ocal 21 is complaining that its members and those of L ocal 73 wer e treated the same. Thus, it cannot acc urate ly b e s ai d that the interests of the

near ly 400 PCOs and ACOs wer e s u b o rdinated to the 1,700 other employ ees in Unit I I

. Rather, with 500 lay offs among L ocal 73’s 1,700 employ ees, the other 1,200 wer e in exactly the same position as the PCOs and ACOs. Acc ordingly
, members of L ocal 21 wer e not unfairly single d out to bear the burden of saving hundreds of jobs. In sum, it was not clea rly

err oneous for the Boa

rd to conclude that L ocal 2 1 fa i l ed t o m eet the second prong of the

sever ance test. ¶ 54 I n light of our dispositi on, we need not addre ss the rema inder of the parties’ arguments.

¶ 55 CONCL USI ON ¶ 56 For

the fore g oing r easons, the de cision of the B oard is af firmed.

¶ 57 Affir

med.

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