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Clerk of Circuit Court of Lake County v. Illinois Labor Relations Board

Court of Appeals of Illinois, Second District

August 15, 2016

THE CLERK OF THE CIRCUIT COURT OF LAKE COUNTY, Petitioner,
v.
THE ILLINOIS LABOR RELATIONS BOARD, STATE PANEL; JOHN HARTNETT, as Chairman and Member of the State Panel; JOHN SAMOLIS, KEITH SNYDER, and AL WASHINGTON, as Members of the State Panel; and THE AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 31, Respondents.

         Petition for Review of Order of the Illinois Labor Relations Board, State Panel.

          JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices Hutchinson and Burke concurred in the judgment and opinion.

          OPINION

          BIRKETT JUSTICE

         ¶ 1 Petitioner, the Clerk of the Circuit Court of Lake County (Clerk), appeals the final decision and order of respondent the Illinois Labor Relations Board, State Panel (Board), certifying respondent the American Federation of State, County and Municipal Employees, Council 31 (Union), as the exclusive representative of a bargaining unit composed of certain of the Clerk's employees. On appeal, the Clerk challenges the propriety of the Board's decision, contending that it was not properly adopted. The Clerk also argues that the Board misapprehended the pleading requirements to challenge a majority-interest petition and that the Clerk produced sufficient evidence of fraud or coercion to warrant an evidentiary hearing. We confirm the Board's decision.

         ¶ 2 I. BACKGROUND

         ¶ 3 The record reveals, pertinently, that, on January 20, 2015, the Union submitted a majority-interest petition pursuant to section 9(a-5) of the Illinois Public Labor Relations Act (Act) (5 ILCS 315/9(a-5) (West 2014)), seeking to represent a bargaining unit composed of certain of the Clerk's employees. On January 21, 2015, the Clerk was notified of the petition and directed to respond if it so chose. Particularly, the Clerk was notified that, if it believed that the Union had used fraud or coercion to obtain the signatures necessary to demonstrate majority support, it was required to present clear and convincing evidence of the fraud or coercion in its response to the petition.

         ¶ 4 On February 6, 2015, the Clerk timely filed its response to the Union's majority-interest petition. Relevantly, the Clerk alleged that the Union had used fraudulent information and had threatened employees in an effort to coerce them into signing dues-deduction cards. The Clerk included two affidavits in its response.

         ¶ 5 Jeanne Polydoris, the chief deputy clerk, submitted one of the affidavits attached to the Clerk's response. Polydoris was not eligible to become a member of the proposed bargaining unit. She averred that four eligible employees of the Clerk complained to her about the Union's representatives. Three of the employees requested that their identities be kept confidential because they feared repercussions from the Union or from their coworkers.

         ¶ 6 According to Polydoris, one employee was visited by different Union representatives between 7 and 8 p.m., twice a week for an unspecified number of weeks. The employee "believed [the representatives] were watching her house and tracking her schedule." Polydoris reported that the employee was a single mother and that she was so frightened by their conduct that she filed a police report.

         ¶ 7 Polydoris averred that a second employee informed her that a Union representative visited her home. The second employee maintained that the Union representative was condescending and insulted her intelligence. The second employee reported to Polydoris that the representative claimed that union membership would result in better pay, better pay increases, and better vacation benefits. Additionally, the employee stated that the representative claimed that future pay raises under a collective bargaining agreement would be sufficient to cover her union dues. The second employee told Polydoris that the representative used insults and peer pressure to attempt to coerce her into joining the Union.

         ¶ 8 Polydoris noted that a third employee stated that a Union representative "came to her home and told her that joining the union would be free and there would not be any dues." The employee was concerned about how the representative knew her home address.

         ¶ 9 Veronica Ventura, an employee of the Clerk, submitted the second affidavit attached to the Clerk's response to the Union's petition. She averred that a coworker approached her about joining the Union. The next day, Ventura received a text message from the coworker, who was not scheduled to work that day, stating that the coworker would meet Ventura outside the office after working hours. Ventura averred that she "found [the coworker's] text threatening and it made [Ventura] feel uncomfortable." After work, the coworker was waiting for Ventura. Ventura informed the coworker that she would not sign a dues-deduction card.

         ¶ 10 Ventura further averred:

"That evening, around 8:00 pm [sic], [a Union] Representative came to my house to pressure me into signing the card. I had already told [the coworker] that I was not interested and this conduct made me feel even more threatened. I escorted the [Union] Representative out of my home and told him that I was not interested and that I had already told [the coworker] that. As he was leaving, he said he was going to come back on Sunday. I found this threatening and I was concerned about how the [Union] Representative so reported it [sic] to my supervisor, *** upon returning to work the following workweek."

         ¶ 11 Ventura averred that the coworker continued to press Ventura to join the nascent bargaining unit, both by text message and face-to-face. Ventura once again told the coworker that she "did not appreciate [the coworker's] text or the [Union] representative coming to [her] home." Ventura maintained that she "felt threatened by [her coworker] and even more threatened by the [Union] Representative coming to [her] home."

         ¶ 12 The matter was then assigned to an administrative law judge (ALJ) for further proceedings. On March 10, 2015, the ALJ issued an order to show cause on two of the Clerk's objections. The ALJ explained:

"In its last objection, the [Clerk] argues that [the Union] obtained support for its campaign through the use of fraud and coercion. Section 9(a-5) of the Act [(5 ILCS 315/9(a-5) (West 2014))] states that if a 'party provides to the Board *** clear and convincing evidence that the dues deduction authorizations, and other evidence upon which the Board would otherwise rely to ascertain the employees' choice of representative, are fraudulent or were obtained through coercion, the Board shall promptly thereafter conduct an election.' The [Clerk] states that [the Union] obtained employees' personal contact information to contact employees at home. It also states that [the Union] provided fraudulent information to employees and threatened them into signing representation cards. In support of its allegations, the [Clerk] provided two affidavits which describe [the Union's] conduct in this matter. However, I do not find that the affidavits are clear and convincing evidence of fraud or coercion as one affidavit is based on hearsay and the other does not describe objectively coercive conduct."

         The ALJ then ordered the Clerk to "[d]emonstrate through specific evidence, case law, and/or legal argument why the [Clerk's] affidavits constitute clear and convincing evidence of fraud or coercion, and/or provide clear and convincing evidence that [the Union] attempted to or actually did obtain support for its campaign through fraud or coercion."

         ¶ 13 The Clerk timely responded to the ALJ's order to show cause. In its response, the Clerk attached two additional affidavits, apparently from two of the unidentified employees referenced in Polydoris's affidavit.

         ¶ 14 Jeanette Halle, an employee of the Clerk, averred that, on a Saturday afternoon, a Union representative came to her home but was not allowed past her building's security door. The representative kept Halle in conversation for 20 to 30 minutes. Halle averred that the representative was condescending and insulted her intelligence. The representative tried to get Halle to agree with complaints that other employees had purportedly made. The representative claimed to Halle that "everyone" was unhappy in working for the Clerk. Halle averred that, every time she made positive comments, "he tried to convince me otherwise." According to Halle, the representative "claimed that joining the union would result in better salaries, better raises and better vacation benefits." The representative also claimed that, after the Union had bargained with the Clerk, Halle's raise would cover the monthly dues to be paid to the Union. Finally, Halle concluded that the representative "appeared to be attempting to use peer pressure and insults to induce [her] into joining the union."

         ¶ 15 Sandra Lucio, also an employee of the Clerk, averred that two different Union representatives "kept coming to [her] house twice a week" between 7 and 8 p.m. Lucio would not open the door for the representatives. She further reported that "[t]hey were parking away from [her] house and [she] could not see their car, which made [her] even more uncomfortable." Lucio, who was a single mother working two jobs and whose child was frequently home alone in the evenings, became frightened by the representatives' conduct, so she filed a police report. Lucio further recounted that, "[a]fter [she] filed the report, [she] was getting [her] garbage cans from the street when [a Union] representative approached [her]. They [sic] appeared to know [her] schedule and [she] was concerned that they [sic] were watching [her] house and tracking [her schedule]." Lucio averred that she was upset that the Union representatives had her personal information and her home address. Lucio also believed that, if her coworkers became aware that she had reported the representatives' conduct, her coworkers would "make [her] life miserable every day at work."

         ¶ 16 Notably, neither Halle nor Lucio indicated that she had signed a dues-deduction card, despite the fraudulent or coercive blandishments of the Union representatives. Likewise, Ventura similarly did not indicate that she had signed a dues-deduction card, despite her complaints of being pressured to do so.

         ¶ 17 On April 28, 2015, the ALJ issued her recommended decision and order. Pertinent to our decision, the ALJ analyzed the Clerk's fraud-and-coercion argument:

"The [Clerk] argues that the Union used fraud and coercion to obtain support for its organizing campaign. The Act states that the Board will certify a union as the exclusive representative of a unit of employees if the union 'demonstrates a showing of majority interest.' 5 ILCS 315/9(a-5) [(West 2014)]. However, if an employer provides the Board with 'clear and convincing evidence that the dues deduction authorizations, and other evidence upon which the Board would otherwise rely to ascertain the employees' choice of representative, are fraudulent or were obtained through coercion, the Board shall promptly thereafter conduct an election.' Id. The Board's rules further specify that:
'[a]ll employers served with a majority interest petition shall file a written response to the petition within 14 days after service of the petition. The response filed shall set forth the party's position with respect to the matters asserted in the petition, including, but not limited to, the appropriateness of the bargaining unit and, to the extent known, whether any employees sought by petitioner to be included should be excluded from the unit. The employer must also provide at this time clear and convincing evidence of any alleged fraud or coercion in obtaining majority support.' 80 Ill. Adm. Code § 1210.100(b)(3) [(2004)] (emphasis added [by the ALJ]).
If the employer provides 'evidence demonstrating a material issue of fact or law relating to fraud or coercion, ' the board will conduct a hearing. [80 Ill. Adm. Code] 1210.100(b)(5)(B) [(2004)]. However, if the employer fails to provide sufficient evidence of fraud or coercion, 'the Board will certify the union as the unit's exclusive representative if it is determined to have majority support.' [80 Ill. Adm. Code] 1210.100(b)(5)(A) [(2004)].
In coercion cases, the Board applies 'an objective standard to determine whether, from the standpoint of the employee, the challenged conduct would reasonably have a coercive effect.' Vill. of Barrington Hills (Police Dep't), 26 PERI ¶ 59 (IL LRB-SP 2010) [sic]. For example, in Vill. of Barrington Hills (Police Dep't) [sic], the Board agreed with the Executive Director's decision to apply an objective standard, as well as with his determination that the challenged conduct would not have reasonably coerced employees. Id. In support of its argument, the village submitted two affidavits from village supervisors. Id. The supervisors described their conversations with several employees regarding the union's conduct. Id. First, the Board found that the village's evidence did not establish that employees had been threatened or that the employees' fears of being retaliated against were reasonable. Id. More specifically, the village had not presented 'evidence of actual retaliation, for example, or even of threatened retaliation.' Id. The Board also noted that the affidavits constituted hearsay evidence and '[t]he statutory standard call[ed] for "clear and convincing" evidence of fraud or coercion.' Id. As such, the Board agreed 'that the evidence the [v]illage presented here falls far short of meeting the "clear and convincing" statutory standard.' Id.
In this case, the [Clerk] argues that the Union used fraud and coercion during its organizing drive. With regard to its fraud argument, the [Clerk] first contends that the Union provided fraudulent information to employees. In one instance, a Union representative told an employee that she would receive better benefits under Union representation and that her dues would be covered by her first contract raise. According to another employee, a representative said she would not have to pay dues. As an initial matter, I note that the representative's statement that an employee would not have to pay dues is hearsay from an unidentified source and not generally considered clear and convincing evidence. Regardless, I do not find this evidence sufficient to conclude the Union gave employees fraudulent information. While I may find the Union's statements odd, I cannot say they are necessarily false. The Act does not require bargaining unit members to pay dues, and the [Clerk] has not supplied any other evidence on the matter. Further, it is permissible under the Act for a union to promote ...

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