                                                                                  Digitally signed by
                                Illinois Official Reports                         Reporter of Decisions
                                                                                  Reason: I attest to the
                                                                                  accuracy and integrity
                                                                                  of this document
                                       Appellate Court                            Date: 2016.10.06
                                                                                  11:15:59 -05'00'




             Clerk of the Circuit Court v. Illinois Labor Relations Board, State Panel,
                                    2016 IL App (2d) 150849



Appellate Court           THE CLERK OF THE CIRCUIT COURT OF LAKE COUNTY,
Caption                   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, Respondents.



District & No.            Second District
                          Docket No. 2-15-0849

Filed                     August 15, 2016



Decision Under            Petition for review of order of Illinois Labor Relations Board, State
Review                    Panel, No. S-RC-15-049.



Judgment                  Confirmed.


Counsel on                Jack J. Murphy, A. Lynn Himes, and Anthony Scariano III, all of
Appeal                    Scariano, Himes & Petrarca, Chtrd., of Chicago, for petitioner.

                          Melissa J. Auerbach, of Dowd, Bloch, Bennett, Cervone, Auerbach &
                          Yokich, of Chicago, for respondent American Federation of State,
                          County and Municipal Employees.

                          Lisa Madigan, Attorney General, of Chicago (Ann C. Maskaleris and
                          Sharon A. Purcell, Assistant Attorneys General, of counsel), for other
                          respondents.
     Panel                     JUSTICE BIRKETT delivered the judgment of the court, with
                               opinion.
                               Justices Hutchinson and Burke concurred in the judgment and
                               opinion.

                                                 OPINION

¶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
                                                     -2-
       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.”


                                                   -3-
       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

                                                    -4-
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
                                     -5-
itself to prospective members. See PACE Heritage Division, 22 PERI ¶ 59 (IL LRB-SP
2006) [sic]; Midland Nat’l Life Ins. Co., 263 NLRB 127 (1982) [sic]. As such, I find the
[Clerk] has not established that the Union provided fraudulent information to
employees.
    The [Clerk] also argues that the Union used pro-Union employees to gain access to
employees’ home addresses. Under the [Clerk’s] policies, employees’ personal contact
information is kept confidential. Since the Union had the employees’ addresses, the
[Clerk] suggests the Union must have obtained the information in violation of the
[Clerk’s] policies. This argument is not supported by the evidence. While it is clear that
the Union had at least some of the employees’ home addresses, it is not a foregone
conclusion that pro-Union employees violated the [Clerk’s] policies to retrieve them.
There are a variety of ways to learn where someone lives, including the internet, the
phonebook, or even word of mouth. Thus, the [Clerk’s] suggestion that the Union must
have used surreptitious means to access employees’ addresses is not supported by the
evidence presented.
    The [Clerk’s] primary argument is that the Union intimidated, threatened, and
coerced employees into supporting its organizing drive. However, the evidence does
not establish that the Union’s conduct was objectively coercive. For example, one
employee felt threatened by her pro-Union coworker’s text messages. However, the
coworker did not threaten the employee or suggest that the employee would be
retaliated against for refusing to sign a card. Consequently, I cannot find the messages
objectively coercive.
    Additionally, I do not find the Union’s home visits to be coercive. The [Clerk]
argues that ‘the representatives stalked employees by lying in wait outside of
employees’ homes.’ Of the three employees visited by the Union, two employees
stated they felt threatened by the Union’s conduct. One employee said she was so
frightened by the Union’s conduct that she filed a police report. She also believed the
Union was tracking her schedule. The other employee stated she felt threatened when
the representative told her that he would come back to her home in a few days.
However, the evidence does not establish that their fears were reasonable. There is no
evidence that the Union actually threatened these employees or used other intimidation
tactics to force the employees to sign cards. Thus, under the objective standard, I do not
find this conduct would reasonably coerce employees. As to the third employee, she
stated that the Union representative she spoke to was condescending and insulting.
Although patronizing and rude behavior[s] are not ideal strategies to use during an
organizing campaign, in the absence of threats or other forms of intimidation, these
tactics are not coercive.
    Finally, there is no evidence demonstrating that the employees’ fears of being
retaliated against by their coworkers were justified. Again, there is no evidence that the
coworkers’ [sic] threatened to retaliate against the employees if they did not sign cards.
The employees’ assertions, on their own, are not enough to establish coercion. The
[Clerk] was required to provide evidence that the employees’ fears were reasonable.
    In sum, the [Clerk] has failed to establish that the Union used fraud or coercion to
gain support for its organizing campaign. Accordingly, I find that this objection is
without merit and does not raise an issue for hearing.”

                                    -6-
¶ 18       The ALJ held, in a section labeled “Conclusions of Law,” that the Clerk “has not
       demonstrated an issue of law or fact exists regarding fraud or coercion.” The ALJ then
       recommended that the Board certify the Union as the exclusive representative of the
       employees described in the Union’s petition, and the ALJ recommended that, as the Clerk
       proposed, the positions of ombudsman and principal court clerk be excluded from the
       bargaining unit. The ALJ also noted that the parties were allowed to file exceptions to the
       recommended decision and order and outlined the time frame and procedure for doing so.
¶ 19       On May 14, 2015, the Clerk timely filed its exceptions to the ALJ’s recommended decision
       and order. The Clerk again raised the arguments it had presented to the ALJ, and it contended
       that the evidence about fraud and coercion was sufficient to require a hearing. The Union filed
       a timely response to the Clerk’s exceptions.
¶ 20       On July 14, 2015, the Board issued its decision and order. The Board’s order stated:
                   “On April 28, 2015, [the ALJ] issued a Recommended Decision and Order (RDO)
               recommending that the Board certify [the Union] as the exclusive representative of a
               unit of certain full- and part-time non-professional employees employed by the [Clerk].
               In so holding, she rejected the [Clerk’s] contention that it had raised issues of fact for
               hearing on the allegation that the Union had obtained its showing of interest through
               fraud or coercion.
                   The [Clerk] filed timely exceptions to the ALJ’s RDO pursuant to Section
               1200.135 of the Illinois Labor Relations Board’s Rules and Regulations. 80 Ill. Adm.
               Code Parts 1200 through 1240. The exceptions focus solely on the ALJ’s finding that
               the [Clerk] did not present clear and convincing evidence that would raise issues of fact
               for hearing on [the Union’s] alleged fraud or coercion in obtaining majority support.
               [The Union] filed a response.
                   The ALJ’s decision will stand as a non-precedential ruling because the Board could
               not reach a majority decision on whether to affirm or reverse it. Member Washington
               was absent and did not vote. Chairman Hartnett voted to reverse the ALJ’s decision on
               the basis that a hearing would shed additional light on the circumstances referenced in
               the [Clerk’s] objections and supporting affidavits. Member Snyder voted to reverse the
               ALJ’s decision on the basis that the [Clerk] presented sufficient evidence to raise issues
               of fact for hearing on [the Union’s] alleged fraud or coercion. Members Coli and
               Samolis voted to affirm the ALJ’s decision for the reasons stated in the RDO. In the
               absence of a majority vote on the disposition of the RDO, we do not address the
               substance of the exceptions and leave the ALJ’s decision to stand as non-precedential.”
¶ 21       The Clerk timely appeals.

¶ 22                                         II. ANALYSIS
¶ 23       On appeal, the Clerk argues that the Board abdicated its responsibility by entering an order
       that did not contain any reviewable findings. Alternatively, the Clerk challenges the 2 to 2 tie
       vote by the Board, arguing that the Board erred by convening in the absence of one of its
       members and allowing the resultant tie vote. The Clerk also argues that the Board’s decision
       was arbitrary and capricious because the Board expressly stated that it did not address the
       substance of the Clerk’s exceptions, in derogation of its statutory responsibility, and it “let
       stand” the ALJ’s recommended decision and order. Finally, the Clerk argues that,
       substantively, the Board and the ALJ placed a higher burden on the Clerk by requiring that it

                                                   -7-
       initially provide clear and convincing evidence of fraud or coercion, instead of following a
       two-step process of first determining whether the evidence submitted demonstrated a material
       issue of fact or law and then conducting an evidentiary hearing to determine whether the
       evidence was clear and convincing; additionally, the Clerk argues that the ALJ’s determination
       that it had not demonstrated a material issue of fraud or coercion was erroneous. We consider
       each of the Clerk’s contentions in turn.

¶ 24                                       A. Standard of Review
¶ 25       As an initial matter, we consider the standard of review applicable to the Board’s decision.
       We review the Board’s decision pursuant to the Administrative Review Law. 5 ILCS
       315/11(e) (West 2014); 735 ILCS 5/3-101 et seq. (West 2014); American Federation of State,
       County & Municipal Employees, Council 31 v. Illinois State Labor Relations Board, State
       Panel, 216 Ill. 2d 569, 577 (2005) (Council 31). The Administrative Review Law empowers
       judicial review of all questions of fact and law presented by the record before the reviewing
       court. 735 ILCS 5/3-110 (West 2014); Council 31, 216 Ill. 2d at 577. The standard of review to
       be applied depends on whether the question presented is a question of fact, a question of law,
       or a mixed question of fact and law. Council 31, 216 Ill. 2d at 577. The Board’s determination
       of a question of fact is held to be prima facie true and correct and will be disturbed only if it is
       against the manifest weight of the evidence. Id. A question of law is subject to de novo review
       (id.); however, in the administrative review setting, deference to the agency’s experience and
       expertise is accorded to the agency’s interpretation of the law or rule at issue (Department of
       Central Management Services/Department of Public Health v. Illinois Labor Relations Board,
       State Panel, 2012 IL App (4th) 110209, ¶ 16).
¶ 26       A mixed question of fact and law occurs where the historical facts are admitted or
       established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory
       standard or, in other words, whether the rule of law as applied to the established facts is or is
       not violated. Council 31, 216 Ill. 2d at 577. The Board’s decision on a mixed question of fact
       and law will be disturbed only where it is clearly erroneous. Id. A decision is clearly erroneous
       when the reviewing court is left with the definite and firm conviction that a mistake has been
       committed. Id. at 577-78. With these standards in mind, we turn to the Clerk’s contentions on
       appeal.

¶ 27                            B. Irregularities in the Board’s Decision
¶ 28       The Clerk contends that the Board’s decision should not be honored because one of the
       members was absent. The Clerk argues that the Board did not provide a sufficient reason for
       that member’s failure to vote and that, unlike in a case involving the recusal of a member, the
       member’s failure to vote can be cured by simply requiring the member to vote. This, according
       to the Clerk, would result in a substantive outcome and is easily accomplished. While we
       understand the Clerk’s contention, we disagree because it is based on an incorrect assumption.
¶ 29       Underlying the Clerk’s contention is an unstated but implied assumption that, because one
       of the Board’s members was absent, it improperly convened. Section 5(c) of the Act provides
       that three members constitute a quorum of the Board and that a vacancy does not impair the
       right of the remaining members to exercise all of the Board’s powers. 5 ILCS 315/5(c) (West
       2014). Here, four members participated in the decision, arriving at a tie vote. According to the


                                                    -8-
       Act, the Board properly discharged its responsibilities because the four participating members
       constituted a quorum and were able to exercise all of the Board’s powers.
¶ 30        We note that, where members have recused themselves from a case, Illinois courts have not
       hesitated to recognize the validity of the panel’s decision, so long as a quorum was maintained.
       See, e.g., Support Council of District 39 v. Illinois Educational Labor Relations Board, 366 Ill.
       App. 3d 830, 833 (2006) (where one member of a five-member panel recused herself, a tie vote
       ensued, resulting in the adoption of the recommended decision, but the decision was not given
       precedential effect); Chicago School Reform Board of Trustees v. Illinois Educational Labor
       Relations Board, 315 Ill. App. 3d 522, 527 (2000) (same); Board of Education of Community
       Consolidated High School District No. 230 v. Illinois Educational Labor Relations Board, 165
       Ill. App. 3d 41, 53-54 (1987) (District No. 230) (recusal of one member from three-member
       panel did not impair the remaining members from exercising the powers of the Board even if
       the two members could not agree upon an outcome). Because a quorum was maintained, we
       cannot accept the Clerk’s argument on this point.
¶ 31        We note that the Clerk seizes upon commentary from District No. 230 as support for its
       position that a tie is illegitimate. In District No. 230, the court noted the potential for difficulty
       where a three-member panel, set up “without regard for the possibility of conflict, disability, or
       absenteeism of any one member,” would likely result in two-member decisions in which the
       remaining members took opposing views. District No. 230, 165 Ill. App. 3d at 54. The court
       lamented the lack of a statutory mechanism to empanel a tiebreaking special member, but it
       recognized that, under the law, the tie vote was required to stand. Id. The Clerk suggests that
       the court’s commentary ought to be the basis for invalidating the result here and remanding this
       cause to the Board with the direction that the absent member vote whether to accept or reject
       the ALJ’s recommended decision and order. However, as noted in District No. 230, there
       appears to be no mechanism in either the Act or the Board’s rules to remand for an absent
       member’s vote or to appoint a special member in cases where there was a quorum with an even
       number of members remaining. See id. Instead, we are compelled to accept the result of the
       quorum exercising the Board’s authority. See id. Accordingly, we see nothing improper about
       the Board’s tie vote, and we reject the Clerk’s suggestion that we invalidate it because there is
       no basis in the law or the Board’s rules that authorizes us to do so.
¶ 32        Next, the Clerk argues that the Board’s decision cannot stand because the Board included
       no findings or conclusions suitable for this court to review. While we might agree that the
       Board’s decision was infelicitously stated, we believe that the clear upshot of its decision was
       to adopt the ALJ’s recommended decision and order as a nonprecedential disposition. See
       Support Council, 366 Ill. App. 3d at 833 (where the remaining members cannot reach a
       majority decision, the result is the adoption of the hearing officer’s recommended decision and
       order as a nonprecedential disposition). Accordingly, because the Board adopted the ALJ’s
       recommended decision and order, we have sufficient and specific factual findings and legal
       conclusions to review.
¶ 33        The Clerk also argues that the Board’s decision was arbitrary and capricious because the
       Board stated that it was not addressing the substance of the Clerk’s exceptions. Again, this
       argument is based on the flawed premise that there are not sufficient findings and conclusions
       for us to review. Again, while its decision perhaps was inartfully stated, the Board clearly
       adopted the ALJ’s recommended decision and order. The ALJ’s recommended decision and
       order addressed the substance of the exceptions, because the exceptions were largely the same
       as the objections in the response to the Union’s petition. Ultimately, the Clerk is arguing that
                                                     -9-
       the inartful form of the Board’s decision should trump its substance, the adoption of the ALJ’s
       recommended decision and order. In our view, the ALJ’s recommended decision and order
       adequately addressed the exceptions and provides a sufficient basis for us to review the Clerk’s
       contentions on appeal. Accordingly, we cannot say that the Board’s decision was arbitrary and
       capricious for not addressing the substance of the Clerk’s exceptions. For the foregoing
       reasons, then, we reject the Clerk’s contentions regarding the purported formal irregularities of
       the Board’s decision.

¶ 34                 C. Burden to Produce Evidence Demonstrating Fraud or Coercion
¶ 35        The Clerk contends that the Board and the ALJ misapprehended and misapplied its own
       rules when it considered the Clerk’s objections alleging that the Union employed fraud and
       coercion in its attempt to organize the bargaining unit. According to the Clerk, the Board’s
       rules set forth a two-step process in which the party alleging fraud or coercion must first
       produce sufficient evidence to demonstrate a material issue of fact or law relating to the
       allegations of fraud or coercion, and then, if that party passes the production hurdle, a hearing
       will be held to determine whether the evidence of fraud or coercion is clear and convincing. 80
       Ill. Adm. Code 1210.100(b)(5) (2004).
¶ 36        The Clerk argues that the Board and the ALJ both compressed this procedure into a single
       step. First, the Board’s notification to the Clerk that the Union had filed a majority-interest
       petition indicated that, if the Clerk believed that the Union had used fraud or coercion in
       obtaining its showing of majority support, the Clerk was required to provide clear and
       convincing evidence of that fraud or coercion with its response to the petition. Second, in her
       order to show cause, the ALJ directed 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.” Third,
       in her recommended decision and order, the ALJ stated that, “[i]n sum, the [Clerk] has failed to
       establish that the Union used fraud or coercion to gain support for its organizing campaign.”
       The Clerk contends that all three of these examples show that the Board and the ALJ employed
       a single-step process, requiring production of clear and convincing evidence, rather than the
       two-step process set forth in the Board’s rules, requiring a demonstration that a material issue
       of fact or law exists followed by a hearing to establish whether the Clerk produced clear and
       convincing evidence of fraud or coercion. The Clerk closes by urging us to remand the cause
       for a hearing to establish whether the Union used fraud or coercion in its organizing campaign.
¶ 37        In our view, then, the Clerk argues that the Board did not follow its own rules in
       considering the Clerk’s objections to the Union’s petition and its exceptions to the ALJ’s
       recommended decision and order. We note that the Clerk does not cite any authority beyond
       the Illinois Administrative Code in making its argument. We do not imply that the lack of other
       authority means that the Clerk has forfeited its argument; rather, we note that the lack of other
       authority means that the Clerk’s argument, based on the text of the rule, appears either to be
       uncorroborated by decisions of the courts or the Board or to present an issue of first
       impression.1


           1
            We also note that, in opposing the Clerk’s argument, the Union fails to cite any authority directly
       contradicting the Clerk’s argument.
                                                     - 10 -
¶ 38       The Clerk’s argument presents two separate strands of inquiry for us to resolve. First, we
       must review the Act and the Board’s rules to determine the applicable legal principles. This
       presents a question of statutory interpretation, which we review de novo (albeit with some
       deference to the Board’s experience and expertise in interpreting the Act and its rules). Council
       31, 216 Ill. 2d at 577; Department of Central Management Services, 2012 IL App (4th)
       110209, ¶ 16. Second, we must determine whether the Board followed its own rules. This
       question presents a mixed question of fact and law and is reviewed for clear error. Council 31,
       216 Ill. 2d at 577 (a mixed question of fact and law occurs where the historical facts are
       admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy
       the statutory standard or, in other words, whether the rule of law as applied to the established
       facts is or is not violated). With these principles in mind, we turn to the relevant language of the
       Act.
¶ 39       Section 9(a-5) of the Act provides:
                “If either party provides to the Board, before the designation of a representative, 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.” 5 ILCS 315/9(a-5) (West 2014).
       The Act therefore requires proof of fraud or coercion to be by clear and convincing evidence.
       The Act does not, however, specify the procedures to be used in proving a claim of fraud or
       coercion.
¶ 40       In order to effectuate the purposes of the Act, the Board promulgated rules to be observed
       when a union seeking to organize a group of employees submits a majority-interest petition.
       The Board’s rules provide, pertinently:
                “All 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).
       Regarding allegations of fraud or coercion, the rules provide:
                     “(A) A party or individual alleging that the petitioner’s evidence of majority
                support was obtained fraudulently or through coercion must provide evidence of that
                fraud or coercion to the Board or its agent. If a party has not provided evidence
                demonstrating a material issue of fact or law relating to fraud or coercion, the Board
                will certify the union as the unit’s exclusive representative if it is determined to have
                majority support.
                     (B) If the Board finds a party has provided evidence demonstrating a material issue
                of fact or law relating to fraud or coercion, it will conduct a hearing to determine
                whether there is clear and convincing evidence of fraud or coercion. *** If the Board
                finds clear and convincing evidence of fraud or coercion, the Board will conduct an
                election in the petitioned[-]for unit to determine majority support for the petitioner. If
                the Board finds clear and convincing evidence of fraud or coercion to be lacking, it will

                                                    - 11 -
               determine majority support for the petitioner based upon the evidence filed with the
               petition.” 80 Ill. Adm. Code 1210.100(b)(5) (2004).
¶ 41       The Board’s rules delineate its responsibilities in investigating a majority-interest petition:
               “Upon receipt of the petition, the Board or its agent shall investigate the petition. If, for
               any reason during the investigation, the Board or its agent discovers that the petition
               may be inappropriate, the Board or its agent may issue an order to show cause
               requesting that the petitioner provide sufficient evidence to overcome the
               inappropriateness. Failure to provide sufficient evidence of the petition’s
               appropriateness can result in the dismissal of the petition. Moreover, in conjunction
               with subsection (b)(3), if, for any reason during the investigation, the Board or its agent
               discovers that the employer’s objections to the majority interest petition are insufficient
               in either law or fact, the Board or its agent may issue an order to show cause requesting
               that the employer or union provide sufficient evidence to support its defenses. Failure
               to provide sufficient evidence can result in the waiver of defenses.” 80 Ill. Adm. Code
               1210.100(b)(6) (2004).
¶ 42       Finally, the Board’s investigation of the majority-interest petition will result in one of three
       outcomes: (1) dismissing the petition (80 Ill. Adm. Code 1210.100(b)(7)(A) (2004)); (2)
       certifying the petitioning union as bargaining representative (80 Ill. Adm. Code
       1210.100(b)(7)(B) (2004)); or (3) scheduling an oral hearing (80 Ill. Adm. Code
       1210.100(b)(7)(C) (2004)). Similar to the procedure used to resolve a motion for summary
       judgment, an oral hearing will occur only if the parties’ opposing documents fail to resolve an
       important question about the petition or, in other words, only if “ ‘the investigation discloses
       that there is reasonable cause to believe that there are unresolved issues relating to the question
       concerning representation.’ ” Department of Central Management Services/Illinois Commerce
       Comm’n v. Illinois Labor Relations Board, State Panel, 406 Ill. App. 3d 766, 773 (2010)
       (quoting 80 Ill. Adm. Code 1210.100(b)(7)(C) (2004)). In short, the Board will hold an oral
       hearing “only if it has reasonable grounds for believing that the case presents unresolved
       issues, significant questions that have resisted resolution through the written submissions.” Id.
¶ 43       In its argument on appeal, the Clerk entirely ignores subsection (b)(3) and focuses
       exclusively on subsection (b)(5). The Clerk reads subsection (b)(5) as setting forth a two-step
       process in which the first step is the production of sufficient evidence to demonstrate a material
       issue of fact or law relating to fraud or coercion, and the second step is an oral hearing to
       determine whether there is clear and convincing evidence of fraud or coercion. See 80 Ill.
       Adm. Code 1210.100(b)(5) (2004). Perhaps unsurprisingly, but certainly disappointingly, the
       Union, in its counter to the Clerk’s argument, entirely ignores subsection (b)(5) and focuses
       exclusively on subsection (b)(3). According to the Union, the employer is required to provide
       clear and convincing evidence of alleged fraud or coercion with its response to a union’s
       majority-interest petition. See 80 Ill. Adm. Code 1210.100(b)(3) (2004). From the parties’
       arguments, the question thus becomes: how are subsections (b)(3) and (b)(5) to be reconciled?
¶ 44       We begin with the Act. The Act defines the quantum of proof necessary to prove an
       allegation of fraud or coercion, but it does not provide a procedure for the parties and the Board
       to follow. See 5 ILCS 315/9(a-5) (West 2014) (a party must provide “to the Board, before the
       designation of a representative, 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”).
       When a party succeeds in demonstrating, by clear and convincing evidence, that the
                                                    - 12 -
       petitioner’s evidence of majority support was procured by fraud or coercion, the Board is to
       promptly conduct an election. Id. Thus, the Act specifies that a party must provide clear and
       convincing evidence of fraud or coercion, and it implies that, procedurally, this clear and
       convincing evidence is to be presented before the designation of a representative.
¶ 45        Illinois Commerce Comm’n, 406 Ill. App. 3d at 771-73, provides a useful overview of the
       general process for resolving a majority-interest petition. Subsection (b)(3) requires an
       employer to file a “written response,” which lays out the employer’s position on issues raised
       by the petition, and the employer must, in its written response, provide clear and convincing
       evidence supporting any allegations that the majority support was obtained through fraud or
       coercion. Id. at 771-72. The Board or its agent (i.e., an ALJ) will then investigate the petition.
       Id. at 772. If the investigation uncovers a potential weakness or insufficiency in either party’s
       case, the Board or the ALJ may, through an order to show cause, require the party to provide
       evidence supporting its position. Id. In other words, “if, in the course of his or her
       investigation, the ALJ encounters what appears to be a legal or factual deficiency in either
       party’s case, the ALJ can require the party to shore up the deficiency by the submission of
       ‘sufficient evidence.’ ” Id. (quoting 80 Ill. Adm. Code 1210.100(b)(6) (2004)).
¶ 46        The goal of these rules is to provide a means to discover, ahead of time and through the
       parties’ documentary submissions, any fatal deficiency in either party’s case instead of
       discovering the deficiency during the administrative hearing and thereby wasting both time
       and resources. Id. Section 1210.100(b) (80 Ill. Adm. Code 1210.100(b) (2004)) thus sets out a
       procedure that is roughly comparable to the summary-judgment procedure from the Code of
       Civil Procedure, except that it is the ALJ, rather than the parties, who identifies any
       deficiencies. Illinois Commerce Comm’n, 406 Ill. App. 3d at 772-73. In this fashion, the ALJ
       may require the parties to participate in the investigation by supplying evidence to overcome or
       eliminate apparent problems, either factual or legal, that are uncovered in the investigation. Id.
       at 773. This collaborative investigation will result in one of three outcomes: the dismissal of
       the petition, the certification of the union as the bargaining representative, or the scheduling of
       an oral hearing. Id. The hearing occurs only if the written and evidentiary submissions have
       failed to resolve a significant issue. Id.
¶ 47        The Board’s rules, then, implement the Act. The purpose of section 9(a-5) of the Act is to
       provide a streamlined “card check” procedure for union recognition. County of Du Page v.
       Illinois Labor Relations Board, 231 Ill. 2d 593, 615 (2008). As part of this streamlined
       procedure, the Board’s rules contemplate the resolution of the employer’s objections solely
       through written submissions. See 80 Ill. Adm. Code 1210.100(b)(3) (2004) (requiring the
       employer to submit with its written response “clear and convincing evidence of any alleged
       fraud or coercion in obtaining majority support”). Only if unresolved issues persist after the
       submission of the parties’ written arguments and documentary evidence will an oral hearing be
       conducted. See 80 Ill. Adm. Code 1210.100(b)(7)(C) (2004) (if the collaborative investigation
       by the ALJ and the parties “discloses that there is reasonable cause to believe that there are
       unresolved issues,” an oral hearing will be held). Thus, the Board’s rules lean toward resolving
       a majority-interest petition by considering the parties’ written submissions, with an oral
       hearing necessary only if those submissions cannot by themselves resolve the issues raised by
       the parties and the ALJ’s collaborative investigation.
¶ 48        With these principles firmly in mind, we address the Clerk’s argument that the Board and
       the ALJ misapprehended these rules in requiring the Clerk to submit clear and convincing
       evidence of the Union’s alleged fraud or coercion in its organizing campaign, both with the
                                                   - 13 -
       Clerk’s original objections to the petition (i.e., the written response required under subsection
       (b)(3)) and with the Clerk’s response to the ALJ’s order to show cause. This argument fails in
       light of our interpretation of the Act and the Board’s rules. The Board’s rules clearly required
       the original response to the petition (or, as denominated by the Clerk in this case, the objections
       to the petition) to include clear and convincing evidence of the alleged fraud or coercion in the
       Union’s organizing campaign. 80 Ill. Adm. Code 1210.100(b)(3) (2004). Thus, the Board’s
       initial notification properly informed the Clerk that it was required to include clear and
       convincing evidence with its response to the petition. Likewise, the ALJ’s order to show cause
       also properly informed the Clerk that it was also required to include clear and convincing
       evidence in its supplemental submission to rectify the weaknesses the ALJ identified in the
       Clerk’s response. Accordingly, we reject the Clerk’s argument that the Board and the ALJ
       erroneously placed on the Clerk a higher burden than that required by the Act or the Board’s
       rules.

¶ 49                  D. Sufficiency of Evidence Demonstrating Fraud or Coercion
¶ 50       The Clerk next argues that it submitted sufficient evidence to demonstrate the existence of
       material issues of fraud and coercion, which should have required an oral hearing to resolve the
       issues raised. First addressing fraud, the Clerk argues that the Union promised employees
       better salaries, better raises, and better vacation benefits. The Clerk also criticizes the ALJ’s
       reasoning that the claim that the Union was not going to charge dues was not “necessarily
       false” because the Act did “not require bargaining unit members to pay dues, and the Clerk
       ha[d] not supplied any other evidence on the matter.” The Clerk argues that it had only to
       supply some evidence demonstrating a material issue of fraud. The Clerk contends that in
       Halle’s affidavit it demonstrated a material issue “by showing that the employee was promised
       that there would be no dues.”
¶ 51       We note that the Clerk has not accurately stated the evidence presented in the affidavit.
       Halle averred that the Union representative “claimed that the raise [she] would get would cover
       the dues of $40.00 per month.” Thus, the Union representative did not promise that there
       would be no dues charged to employees joining the Union.
¶ 52       The Clerk also refers to Polydoris’s hearsay averment that an anonymous employee
       reported that an unnamed representative told her that “joining the union would be free and
       there would not be any dues.” From this, the Clerk argues that the ALJ used the wrong standard
       when she stated that hearsay from an unidentified source is “not generally considered clear and
       convincing evidence.” As we saw above, however, the Clerk’s response to the petition was
       required to include clear and convincing evidence to support the Clerk’s allegations of fraud.
       80 Ill. Adm. Code 1210.100(b)(3) (2004). Accordingly, we cannot say that the ALJ used the
       wrong standard in evaluating the evidence submitted.
¶ 53       Moreover, we cannot say that second- and third-hand hearsay from unidentified
       individuals rises to the level of clear and convincing evidence. See Metropolitan Alliance of
       Police, 26 PERI ¶ 59 (ILRB State Panel 2010) (hearsay evidence from anonymous sources is
       insufficient to meet the clear-and-convincing evidentiary standard of section 9(a-5) of the Act
       (5 ILCS 315/9(a-5) (West 2014))). The ALJ and the Board determined that the evidence
       presented by the Clerk simply could not meet the statutory standard of clear and convincing.
       We cannot say that the Board’s decision was clearly erroneous.


                                                   - 14 -
¶ 54       The Clerk’s arguments disputing the ALJ’s recommended decision, adopted by the Board,
       consist of claims that the ALJ and the Board misapprehended the required procedure and that
       the Clerk’s evidence was sufficient to demonstrate material issues regarding fraud and
       coercion. As we noted above, however, the Act and the Board’s rules both require the
       submission of clear and convincing evidence when the employer responds to a
       majority-interest petition. Thus, the Clerk’s procedural argument fails.
¶ 55       Regarding the sufficiency argument, the Clerk contends that it presented evidence that, in
       order to garner support for the Union’s organizing campaign, the Union promised that no dues
       would be charged and that employees would receive better benefits. While the affidavits do,
       conclusorily, support the Clerk’s contentions, in one instance, the person making the claim of
       fraud is anonymous, and in another, the Union representative’s identity and words are not
       given. As such, the affidavits provide only hearsay and conclusory evidence, and thus we
       cannot say that the Clerk met its evidentiary obligation. Accordingly, we reject the Clerk’s
       claims that the Union used fraudulent means to obtain majority support.
¶ 56       The Clerk next argues that it provided sufficient evidence that the Union engaged in
       coercive tactics during its organizing campaign. In particular, the Clerk points to Ventura’s
       affidavit in which Ventura averred that she felt threatened when an identified coworker who
       was in favor of unionizing texted her that she would be waiting outside to meet with Ventura
       after work and when an unidentified Union representative came to her dwelling to discuss
       signing a dues-deduction card. The Clerk also points to Halle’s affidavit in which she
       complained that an unidentified Union representative “appeared to be attempting to use peer
       pressure and insults” to coerce her into joining the Union. Finally, the Clerk especially
       highlights Lucio’s affidavit in which she averred that the behavior of two unidentified Union
       representatives was so disturbing that she filed a police report. In particular, the Clerk contends
       that, for a single mother, the unannounced approach of men during the evening hours was
       objectively threatening and coercive.
¶ 57       We first note that, despite these claims of coercion, none of the affiants stated that either a
       Union representative or a coworker either threatened to or actually did retaliate against her.
       Additionally, and more significantly, despite the claimed coercion, none of the affiants
       actually reported that she signed a dues-deduction card. Thus, none of the affiants was so
       subjectively intimidated that her will was overborne and she acquiesced to the purported
       coercion.
¶ 58       The Clerk repeats its contention that it supplied sufficient evidence to raise a material issue
       regarding coercion. The Clerk argues that the ALJ and the Board erred in rejecting the
       evidence as failing to surmount the clear-and-convincing standard when all they should have
       been doing was to ascertain whether the evidence raised an issue. We have repeatedly
       addressed this argument in the various guises presented by the Clerk; both the Act and the
       Board’s rules require that the employer present clear and convincing evidence supporting a
       claim of coercion. Accordingly, we reject the Clerk’s argument on that point.
¶ 59       Next, the Clerk suggests that the conduct of the unidentified employees and Union
       representatives was objectively coercive. While the Clerk correctly notes that the Board has
       cited no authority indicating what constitutes coercion in a union representation case, the
       Board has analogized coercion in a representation case to coercion in an unfair-labor-practice
       case, which measures the allegedly coercive conduct against an objective standard.
       Metropolitan Alliance of Police, 26 PERI ¶ 59 (ILRB State Panel 2010). Thus, the ALJ and the

                                                   - 15 -
       Board chose the correct rule of law to employ, namely, whether the conduct identified in the
       Clerk’s affidavits was objectively coercive.
¶ 60       The ALJ held that, with respect to the Ventura affidavit, the texts from the coworker and
       the home visit by the Union representative were not objectively coercive because Ventura was
       not threatened or warned of impending retaliation if she did not sign a dues-deduction card.
       Based on the objective standard, we cannot say that the ALJ’s and the Board’s determination
       was clearly erroneous.
¶ 61       The ALJ also held that the home visits to the other affiants were not objectively coercive.
       Although Lucio’s affidavit suggested that the Union representatives were stalking her and
       lying in wait outside of her dwelling, the affidavits provided no other evidence, such as
       actually threatening words or actions, and included only subjective statements of the affiants’
       discomfort with the visits. Once again, in light of the objective measure, we cannot say that the
       ALJ’s and the Board’s determination was clearly erroneous. Accordingly, we conclude that the
       Board and the ALJ properly determined that the evidence did not rise to the necessary quantum
       because the Clerk did not present evidence of threats, retaliation, or other adverse
       consequences that the affiants would experience unless they signed the dues-deduction cards.
       We therefore reject the Clerk’s coercion argument.

¶ 62                                      III. CONCLUSION
¶ 63      For the foregoing reasons, the decision of the Board is confirmed.

¶ 64      Confirmed.




                                                  - 16 -
