                                                                                 THIRD DIVISION
                                                                                 November 10, 2009




No. 1-08-2566


THE CITY OF CHICAGO,                                   )       Petition for Review from
                                                       )       the Illinois Labor Relations Board
        Petitioner,                                    )       Local Panel
                                                       )
   v.                                                  )
                                                       )       No. LRC 8043
ILLINOIS LABOR RELATIONS BOARD                          )
LOCAL PANEL and INTERNATIONAL                          )
BROTHERHOOD OF TEAMSTERS, LOCAL                        )
743,                                                   )
                                                       )
        Respondents.                                   )


        JUSTICE QUINN delivered the opinion of the court:

        Petitioner, the City of Chicago (City), filed a petition seeking direct review of an order

from the Illinois State Labor Relations Board, Local Panel (Board) certifying respondent,

International Brotherhood of Teamsters, Local 743 (Teamsters), as the exclusive bargaining

representative of approximately 34 employees of the City in the classifications of "Public Health

Nurse III" and "Public Health Nurse IV" (PHN III and IV). The Board’s Executive Director

prepared a tally of majority support and certified the Teamsters as the exclusive bargaining

representative without granting a hearing on the City’s objection to the bargaining unit. The City

urges this court to reverse the Board’s decision and find that the bargaining unit is inappropriate
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based on the City’s historical pattern of collective bargaining, the community of interest among all

of the City’s nursing classifications, and the Board’s policy against fragmentation. The City also

argues that it presented reasonable cause to believe a question of representation existed to entitle

it to a hearing before the Board and that the Executive Director’s certification of the Teamsters is

void because the Board improperly delegated final authority to the Executive Director. This court

granted a motion filed by the Service Employees International Union (SEIU), Local 73, to file a

brief amicus curiae in support of the City’s argument. For the following reasons, we affirm.

                                       I. BACKGROUND

       On June 27, 2008, the Teamsters filed with the Board a petition to become the exclusive

bargaining representative of 34 City employees, classified as PHN IIIs and IVs. See 5 ILCS

315/9(a)(1) (West Supp. 2007). In its petition, the Teamsters stated that a majority of individuals

in the proposed unit wished to be represented by the Teamsters for purposes of collective

bargaining. On July 23, 2008, the City filed a position statement arguing that the proposed unit

was inappropriate for two reasons. First, all of the factors to be considered by the Board pursuant

to section 9(b) of the Illinois Public Labor Relations Act (Act) (5 ILCS 315/9(b) (West Supp.

2007)) weighed heavily in favor of the conclusion that the only appropriate unit for the City’s

PHN IIIs and IVs would be the existing bargaining unit represented by the Illinois Nurses

Association (INA), and consisting of all of the City’s represented nursing titles. Second, several

of the employees of the proposed unit should have been excluded because they were supervisors

and managers who are excluded from the Act. See 5 ILCS 315/3(j),(r) (West Supp. 2007).

       In its position statement, the City provided an overview of its collective bargaining


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structure for the approximately 33,947 employees, out of approximately 38,726, who are

represented by a union. The City stated that it currently engages in collective bargaining with the

following civilian units: (1) the Trades Coalition, which represents 32 bargaining units consisting

of approximately 7,730 City employees in various building trade, craft and related titles; (2)

American Federation of State, County and Municipal Employees (AFSCME), which represents

four separate bargaining units consisting of approximately 4,746 City employees in administrative,

clerical, human services and inspection, professional, and library titles; and (3) “Unit II,” a single

bargaining unit consisting of approximately 2,997 City employees in various nonsworn, uniformed

public safety titles, except for supervising police communications operators (SPCOs) who are

represented in a separate unit by Teamsters Joint Council 25;1 and INA, which represents all of

the approximately 123 City nurses in the "Occupational Health Nurse," PHN I, PHN I-Hourly,

PHN II, PHN-Temporary, and "Nurse Practitioner" (NP) job titles. PHN III and IV titles have

been in existence since before 1986, and have never been represented by any union.

        The City provided its classification and pay plan, which showed that the PHN I-Hourly,

PHN I, PHN II, PHN III, PHN IV, PHN-Temporary and NP titles are all part of the City’s


        1
            The Board certified the Teamsters Joint Council 25 as the representative of the

approximately 17 SPCOs on October 16, 2007. See International Brotherhood of Teamsters, 23

Pub. Employee Rep. (Ill.) par. 172, No. L-RC-06-008 (Illinois Labor Board, Local Pnael October

16, 2007)(hereinafter 23 Pub. Employee Rep. (Ill.) par172) (SPCOs) (appeal dismissed for lack of

jurisdiction); City of Chicago v. Illinois Labor Relations Board, Local Panel, 392 Ill. App. 3d

1080 (2009).

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“Public Health Nursing” title series. All of these nursing titles, except for PHN-Temporary, are

compensated on the same salary schedule, in ascending order, with the PHN Is at the lowest pay

grade and the NPs at the highest grade. The City explained that all of the nurses employed by the

Chicago Department of Public Health (CDPH) work together on a daily basis and supervise one

another. Many of the PHN IIIs and IVs supervise PHN Is and IIs and also work beside them in

clinical and field settings to administer care to the public. All of the PHNs and NPs employed by

the CDPH must be licensed as registered nurses (RNs) with the State of Illinois and share the

common purpose of providing nursing care to communities throughout the City. The exact

capacity in which each classification of nurse fulfills this purpose may vary. All of the PHNs and

NPs must wear the same uniform and are subject to the City’s personnel rules, as well as the

compensation terms in the City’s salary resolution.

       The City’s classification system reflects an increase in the educational and experience

requirements from one title to the next higher title in the series. The City’s job description states

that a PHN IV manages public health nursing programs for an assigned region or develops and

administers citywide procedures, protocols and standards for public health nursing programs.

Minimum qualifications for a PHN IV are a bachelor’s degree in nursing from a program

accredited by the National League for Nursing or an approved foreign credential evaluation; a

master’s degree in nursing or public health; three years of progressively responsible public health

nursing experience, including one year of supervisory experience or an equivalent combination of

training and experience; and certification in a nursing specialty.

       The job description states that a PHN III supervises a staff of public health nurses


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performing nursing activities in a health clinic or in a community. The minimum qualifications for

a PHN III include a bachelor’s degree in nursing from a program accredited by the National

League for Nursing or an approved foreign credential evaluation supplemented by two years of

progressively responsible nursing experience.

       The job description states that a PHN II works primarily in the field, providing nursing

care to individuals, groups and families, and may function as a nursing team leader in a health

clinic. Minimum qualifications include a bachelor’s degree in nursing from a program accredited

by the National League for Nursing or an approved foreign credential evaluation supplemented by

one year of public health nursing experience. The job description states that a PHN I provides

professional nursing care to individuals, groups and families in a health clinic or in a community

environment. Minimum qualifications for a PHN I include a licence to practice as an RN in

Illinois and two years of work experience in ambulatory care nursing or a bachelor’s degree in

nursing from a program accredited by the National League for Nursing, or an equivalent

combination of training and experience.

       Based on these facts, the City argued in its position statement that the PHN IIIs and IVs

shared a substantial community of interest with the other PHNs and that placing PHN IIIs and IVs

into a separate unit would fragment the bargaining process and disrupt the City’s established

bargaining structure. The City maintained that the only bargaining unit appropriate to represent

PHN IIIs and IVs was the existing bargaining unit of represented city nurses.

       On July 31, 2008, an attorney for the Board issued a letter directing the City to show

cause why certain PHN IIIs and IVs were alleged by the City to be supervisory or managerial


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employees, who should have been excluded from the proposed bargaining unit. The City

responded to the Board’s request for more information.

       On August 20, 2008, the Executive Director of the Board certified the Teamsters as the

exclusive representative of the unit of PHN IIIs and IVs, excluding two individuals as supervisory

or managerial employees. The “Certification of Representative” found that the unit in question

was “appropriate for the purposes of collective bargaining with respect to rates of pay, wages,

hours of employment, or other conditions of employment.” A tally sheet accompanying the

certification indicated that 23 of the 32 members of the proposed unit had submitted signed cards

reflecting their desire to have the Teamsters represent the proposed unit of PHN IIIs and IVs,

which was a sufficient showing of majority support.

       On August 25, 2008, the Executive Director issued a letter to the City, which explained

that the information submitted by the City was not sufficient to raise an issue warranting a hearing

about the appropriateness of the bargaining unit. The Executive Director stated that the present

case was similar to the issues presented in SPCOs, 23 Pub. Employee Rep. (Ill.) par. 172 (appeal

dismissed for lack of jurisdiction), and City of Chicago v. Illinois Labor Relations Board, Local

Panel, 392 Ill. App. 3d 1080 (2009), in which the City maintained that the petitioned-for unit was

inappropriate and that the only appropriate unit for the petitioned-for employees would be an

existing unit of employees represented by a non-party union. The Executive Director noted that,

similar to SPCOs, the City argued in the present case that the only appropriate unit for PHN IIIs

and IVs would be the existing unit of City employees in the titles of PHN I, II, and NPs,

represented by INA. The Executive Director noted that INA had failed to seek to represent the


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petitioned-for employees. The Executive Director also explained that no one disputed that the

unit represented by INA would be an appropriate placement, but that issue was irrelevant because

the issue, as in SPCOs, was “whether the petitioned-for unit is an appropriate unit.” The

Executive Director concluded, “In light of the factors set forth in Section 9(b) of the Act, again,

as in the earlier case [of SPCOs], only the fragmentation factor favors the City’s position, and by

itself, is insufficient to deny the instant Teamster petition.”

        On August 27, 2008, the Executive Director issued another letter to the City, noting the

City’s reliance on the Board’s decisions reflecting a preference for large, functionally based

bargaining units. The Executive Director, relying on the Board’s decision in SPCOs, again found

that “pursuant to Section 9(b) of the Act, only the fragmentation factor favored the City’s

position, which by itself was sufficient to deny the instant petition.” The City subsequently filed a

petition for review of the Executive Director’s certification order with this court.

                                            II. ANALYSIS

                     A. The Appropriateness of the Proposed Bargaining Unit

        On appeal, the City first contends that the Board’s certification of the bargaining unit

consisting of only two of the eight City nursing titles was clearly erroneous. SEIU filed a brief

amicus curiae in support of the City’s argument. The Board maintains that a PHN III and IV

bargaining unit is appropriate.



                                        1. Standard of Review

        We begin by addressing the question of whether a PHN III and IV bargaining unit is


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appropriate. Because this issue presents a mixed question of fact and law, “ ‘requiring an

examination of the legal effect of a given set of facts,’ ” we apply a clearly erroneous standard of

review. County of Cook (Provident Hospital) v. Illinois Labor Relations Board, Local Panel, 369

Ill. App. 3d 112, 118 (2006), quoting Illinois Fraternal Order of Police Labor Council v. Illinois

Local Labor Relations Board, 319 Ill. App. 3d 729, 736 (2001). The Board’s “resolution of such

questions will be upheld if ‘reasonable, consistent with labor law and based on findings supported

by substantial evidence.’ ” Illinois Fraternal Order of Police Labor Council, 319 Ill. App. 3d at

736, quoting Northwest Mosquito Abatement District v. Illinois State Labor Relations Board, 303

Ill. App. 3d 735, 742 (1999).

                                      2. Section 9(b) Factors

       Section 9(b) of the Act provides:

                “The Board shall decide in each case, in order to assure public employees the

       fullest freedom in exercising the rights guaranteed by this Act, a unit appropriate for the

       purpose of collective bargaining, based upon but not limited to such factors as: historical

       pattern of recognition; community of interest including employee skills and functions;

       degree of functional integration; interchangeability and contact among employees;

       fragmentation of employee groups; common supervision, wages, hours and other working

       conditions of the employees involved; and the desire of the employees. For purposes of

       this subsection, fragmentation shall not be the sole or predominant factor used by the

       Board in determining an appropriate bargaining unit.” 5 ILCS 315/9(b) (West Supp.

       2007).


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"Section 9(b) of the Act does not require that a proposed unit be the most appropriate or the only

appropriate unit." County of Cook (Provident Hospital), 369 Ill. App. 3d at 118.

       The City and SEIU argue that the Board went against its many prior decisions by

certifying a small unit of City nurse titles where the City has engaged in a historical practice of

bargaining only with large, functionally based units and where the petitioned-for employees share

a community of interest with the other employees who are already represented in a large unit.

The Board argues that the section 9(b) factors, other than fragmentation, support the finding that

the unit is appropriate and fragmentation alone is not a sufficient basis to find the unit

inappropriate.

       In support of their argument that the petitioned-for unit is inappropriate, the City and

SEIU cite previous Board decisions indicating a preference for large, broad-based bargaining

units. See City of Chicago Law Department, 3 Pub. Employee Rep. (Ill.) par. 3026, No. L-RC-

87-04 (ILLRB July 21, 1987); City of Chicago, 2 Pub. Employee Rep. (Ill.) par. 3014, Nos. L-

RC-86-02, L-UC-86-03, L-UC-86-13 (ILLRB June 2, 1986) (Detention Aides); City of Chicago,

2 Pub. Employee Rep. (Ill.) par. 3009, No. L-RD-85-08 (ILLRB April 17, 1986) (Animal Control

Officers). The City and SEIU argue that the Board disregarded this preference and failed to

provide an adequate explanation for certifying the small unit of PHN IIIs and IVs, where the

petitioned-for unit would unduly fragment the City’s bargaining structure and the only appropriate

unit for PHN IIIs and IVs is the existing unit of City employees in the titles of PHN I, II, and NPs,

represented by INA.

       Recently, the Board has issued decisions in which it reconsidered its preference for large,


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functionally based units. In this case, the Executive Director relied on the Board’s decision in

SPCOs, 23 Pub. Employee Rep. (Ill.) par. 172. In SPCOs, the Board noted:

               “In its exceptions, the Employer contends that the ALJ misapplied the law, arguing

       that the unit found appropriate by the ALJ is contrary to the Board’s long established

       preference for large, functionally-based bargaining units. In support of its position, the

       City cites a long list of previous Board decisions standing for precisely that proposition.

       [Citations.]

               Nonetheless, as the ALJ noted, this case pits large functionally-based units and the

       City’s administrative efficiency against the right of the petitioned-for employees to engage

       in collective bargaining. As noted above, for the past two decades, the Board’s standard

       solution in these situations has been to favor the large, functionally-based units, and we

       think that for most of that time, this was the proper course, as to do otherwise would have

       led to a proliferation of bargaining units, balkanizing the City’s workforce, ultimately

       resulting in the undermining of collective bargaining. We regularly reexamine this policy,

       however, as it must be harmonized with the rights created by the Act. For example, in this

       case, dismissal of the [Teamster’s] petition will result in the petitioned-for employees’

       rights under the Act continuing to be dependent, as they have been for the approximately

       twelve years the SPCO title has existed, on the Unit II coalition seeking to represent it.

       The Board’s preference for large, functionally-based units when most of the City’s

       workforce was unorganized, was in keeping with the judicious administration of the Act,

       however, over time, as the Board has often noted, and the record reflects, most of the


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       City’s workforce eligible to be organized is in fact, organized. Yet, small pockets of

       employees, like those petitioned-for herein, continue to exist, and their right to organize

       should not remain entirely under the control of a third party, in this case the Unit II

       coalition, when the circumstances that originally dictated such a policy have changed with

       time.” SPCOs, 23 Pub. Employee Rep. (Ill.) par. 172, at 734.

Relying on this reasoning, the Executive Director found that, as in SPCOs, the issue in this case

was “whether the petitioned-for unit is an appropriate unit.” The Executive Director noted that

while the unit represented by INA would be an appropriate placement for the nurse titles

petitioned for, the INA have failed to seek to represent the petitioned-for nurse titles, and that

issue was irrelevant. The Executive Director concluded that, pursuant to the reasoning set forth

in SPCOs and under section 9(b) of the Act, the fragmentation factor by itself was insufficient to

deny the petition.

       More recently, this court affirmed an order by the Board certifying a union to be the

exclusive bargaining representative of the six staff attorneys employed with the Bureau of

Administrative Litigation. State v. State, 388 Ill. App. 3d 319 (2009)(Department of Healthcare

& Family Services). In Department of Healthcare & Family Services, the Board declined to

accept the ALJ’s recommendation that the union’s petition be dismissed on the grounds that, inter

alia, the petition carved a subset of employees out of a larger, centralized classification.



The Board explained:

               “ 'The preference for large, functionally-based [sic] units was, and continues to be,


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       an important consideration, yet[,] [in some of our previous decisions,] excessive concern

       with avoiding fragmentation and promoting economy and efficiency in public bargaining

       and contract administration consumed not only the employees’ right to organize, but also

       the criteria set forth in [s]ection 9(b) [(5 ILCS 315/9(b) (West Supp. 2007))]. The Act

       demands that we balance between these extremes so as to avoid regularly and completely

       depriving public employees of their right granted therein. After reviewing the petitioned-

       for unit in light of the considerations set forth in [s]ection 9(b), [we find that] only the

       fragmentation factor favors dismissal, and by itself, it is insufficient to deny the [union’s]

       petition.' ” Department of Healthcare & Family Services, 388 Ill. App. 3d at 328-29.

This court found that the record contained sufficient evidence to support the Board’s finding that

a bargaining unit consisting of the six staff attorneys in the Bureau of Administrative Litigation

was an appropriate unit. Department of Healthcare & Family Services, 388 Ill. App. 3d at 337.

This court declined to hold that all of the employees that were in the subclassification of public

service administrator “option 8L,” including the six staff attorneys, belong in the same bargaining

unit simply because they are attorneys. Department of Healthcare & Family Services, 388 Ill.

App. 3d at 337. This court noted that publicly employed attorneys do not have the same job

description, and they are not interchangeable. Department of Healthcare & Family Services, 388

Ill. App. 3d at 337. While this court noted that earlier Board decisions held that fragmentation of

a classification raised a “presumption of inappropriateness,” this court explained that “the Board

seems to recognize in its decision in the present case, the ‘presumption of inappropriateness’ is

difficult to square with section 9(b), which says: ‘[F]ragmentation shall not be the sole or


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predominant factor used by the Board in determining an appropriate bargaining unit.’ ”

Department of Healthcare & Family Services, 388 Ill. App. 3d at 335, quoting 5 ILCS 315/9(b)

(West Supp. 2007).

       Applying the section 9(b) factors, this court found that the six staff attorneys in the

Bureau of Administrative Litigation have the same skills and serve the same functions; that they

are functionally integrated; that they are interchangeable and have regular contact with each other;

and that they have the same supervisor, hours, and working conditions. This court noted that

section 9(b) “forbids us to make fragmentation a predominant factor.” Department of Healthcare

& Family Services, 388 Ill. App. 3d at 337. Accordingly, this court concluded that the Board’s

finding that the petitioned-for unit was appropriate was not clearly erroneous. Department of

Healthcare & Family Services, 388 Ill. App. 3d at 337.

       Consistent with section 9(b), here, the Executive Director recognized that while the

fragmentation factor favored the City’s position, it is not the sole factor in determining whether a

unit is appropriate. In light of the above discussion, we consider whether other factors set out in

section 9(b) support the Executive Director’s finding of appropriateness.

       In this case, it is undisputed that PHN IIIs and IVs have never been represented by a

union. Therefore, there is no historical pattern of recognition of PHN IIIs and IVs. See Will

County State’s Attorney v. Illinois State Labor Relations Board, 229 Ill. App. 3d 895, 900 (1992)

(“historical recognition” depended upon past State’s Attorneys’ ratification of contracts

negotiated on behalf of their employees in the years prior to the enactment of the Act, i.e., before

July 1, 1984).


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         PHN IIIs and IVs share a community of interest including employee skills and functions.

They work in the same facilities, have contact with each other and share similar supervision,

wages, hours and other working conditions. It is also their desire to have their own bargaining

unit as reflected in the tally of majority interest attached to the Executive Director’s certification

order.

         The City and SEIU contend that the petitioned-for unit is not appropriate where PHN IIIs

and IVs share a community of interest with the other City nursing titles represented by INA.

SEIU argues that the Executive Director ignored this factor in certifying the petitioned-for unit.

However, the record shows that the Executive Director noted: “[N]o one disputes that the unit

represented by INA would be an appropriate placement for the nurse titles petitioned-for herein,

but that particular issue is irrelevant. As in [SPCOs, 23 Pub. Employee Rep. (Ill.) par. 72], the

issue is whether the petitioned-for unit is an appropriate unit.” We cannot say that the Executive

Director’s decision was clearly erroneous in this regard. As previously noted, section 9(b) of the

Act does not require that a proposed unit be the most appropriate or the only appropriate unit.

County of Cook (Provident Hospital), 369 Ill. App. 3d at 118 (affirming the certification of a

bargaining unit made up of upper level administrative assistants (AAIIIs and IVs) at one hospital

in the county hospital system).

         We note that PHN IIIs and IVs share some of the same skills, uniforms, and are covered

by the same City Personnel Rules as the other City nurse titles. Nonetheless, the issue before the

Executive Director was not whether the placement of PHN IIIs and IVs in the bargaining unit of

nursing titles represented by INA, which did not seek to represent PHN IIIs and IVs. Rather, the


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Executive Director was charged with determining the appropriateness of the petitioned-for unit of

PHN IIIs and IVs. Further, to accept the City and SEIU’s argument that the existing bargaining

unit represented by INA is the only appropriate unit would be to deny the PHN IIIs and IVs their

rights under section 2 of the Act to "full freedom of association, self-organization, and designation

of representatives of their own choosing for the purpose of negotiating wages, hours and other

conditions of employment or other mutual aid or protection." 5 ILCS 315/2 (West 2006).

       Accordingly, we find that the record contains evidence to support the Executive

Director’s finding that a bargaining unit consisting of PHN IIIs and IVs is an appropriate unit.

Considering that section 9(b) forbids the consideration of fragmentation as a predominant factor,

we conclude that the Executive Director’s finding was not clearly erroneous.

                              B. Right to a Hearing Before the Board

       The City also argues that the Board improperly certified the petitioned-for unit without

first conducting a hearing where there was reasonable cause to believe that there were unresolved

issues relating to the question concerning representation.

       Section 9(a) of the Act provides that when a representation petition is filed “the Board

shall investigate such petition, and if it has reasonable cause to believe that a question of

representation exists, shall provide for an appropriate hearing upon due notice.” 5 ILCS 315/9(a)

(West Supp. 2007). Accordingly, the Act “on its face provides for the evaluation of the evidence

gathered and a determination of its sufficiency before an appropriate hearing must be held.”

Illinois Council of Police v. Illinois Labor Relations Board, Local Panel, 387 Ill. App. 3d 641, 659

(2008). “This interpretation is fully consistent with and borne out by the Board’s own regulations


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promulgated to implement section 9(a) of the Act.” Illinois Council of Police, 387 Ill. App. 3d at

659, citing 80 Ill. Adm. Code §1210.100(a), as amended by 28 Ill. Reg. 4187, eff. February 19,

2004. These regulations provide a procedure under which a petition may be either dismissed or

certified without a hearing. Section 1210.100(b)(7) of Title 80 of the Illinois Administrative Code

provides, in relevant part:

               “(A) After the investigation, the Executive Director shall dismiss a petition, or the

       Administrative Law Judge shall recommend to the Board that a petition be dismissed,

       when a petition has been filed untimely; when the bargaining unit is clearly inappropriate;

       when the showing of interest is not adequate; when the employer is not covered by the

       Act; when the employees are not covered by the Act; or for any other reason there is no

       reasonable cause to believe that a question of representation exists. ***

               (B) Where there are no unit appropriateness or exclusion issues, or any other

       issues necessitating a hearing, the Executive Director will prepare a tally of the finding of

       majority support and certify the petitioner as the unit's exclusive representative within 20

       days after the service of the petition. ***.

               (C) If the investigation discloses that there is reasonable cause to believe that there

       are unresolved issues relating to the question concerning representation, the Board shall

       set the matter for hearing before an Administrative Law Judge. ***” 80 Ill. Adm. Code

       §1210.100(b)(7), as amended by 28 Ill. Reg. 4192, eff. February 19, 2004.

While the test to determine whether a hearing is required under the Act is a legal one, involving

whether the Board had “no reasonable cause” to believe that a question of representation existed


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(see 5 ILCS 315/9 (West 2006)), that test must be applied to and depends upon the sufficiency of

facts presented to the Board during its investigation of the representation petition. See 5 ILCS

315/9 (West Supp. 2007); 80 Ill. Adm. Code §1210.100(b)(7), as amended by 28 Ill. Reg. 4192,

eff. February 19, 2004. As such, this court reviews the Board’s finding that a hearing was not

required under the clearly erroneous standard. See Illinois Council of Police, 387 Ill. App. 3d at

657-58. Under this standard, an agency’s decision will not be upheld only where " 'the reviewing

court, on the entire record, is "left with the definite and firm conviction that a mistake has been

committed." ' " Illinois Council of Police, 387 Ill. App. 3d at 658, quoting AFM Messenger

Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 395 (2001), quoting United

States v. United States Gypsum Co., 333 U.S. 364, 365, 92 L. Ed. 746, 766, 68 S. Ct. 525, 542

(1948).

          Here, since the Executive Director determined that only the fragmentation factor favored

the City’s position, which by itself was insufficient to deny the petition, there remained no further

appropriateness issues to necessitate a hearing. As the City notes on appeal, “most of what we

assert about the City’s nursing titles is readily apparent from the documentation we submitted.”

Since this documentation was insufficient to raise an issue of appropriateness, it is unclear what

further evidence the City would have provided to support its position during a hearing. As

previously discussed, we cannot say that the Executive Director’s determination regarding the

section 9(b) factors was clearly erroneous and, therefore, we find that the Executive Director’s

decision that no hearing was required was also not clearly erroneous in this case.

                 C. Certification by the Executive Director Rather than Local Panel


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       While the City acknowledges that the Board’s regulations authorize the Executive

Director to certify a petitioner as the unit’s exclusive representative where there “are no unit

appropriateness or exclusion issues, or any other issues necessitating a hearing” (80 Ill. Adm.

Code §1210.100(b)(7)(B)), as amended at 28 Ill. Reg. 4192, eff. February 19, 2004, the City,

nonetheless, argues that the certification in this case is void because the Act required the Board’s

Local Panel, rather than the Executive Director, to issue a final decision.

       Administrative regulations have the force and effect of law, are presumed valid, and will

be construed under the same standards that apply in construing statutes. Granite City Division of

National Steel Co. v. Illinois Pollution Control Board, 155 Ill. 2d 149, 162 (1993). Regulations

adopted by an agency pursuant to its statutory authority will not be set aside unless they are

arbitrary and capricious. Granite City Division of National Steel Co., 155 Ill. 2d at 162. "Our

courts have repeatedly held that a reviewing court must give deference to an administrative

agency’s interpretation of the statute that it was created to enforce." Illinois Council of Police,

387 Ill. App. 3d at 660. “ ‘A significant reason for deferring to an agency’s interpretation of its

enabling statute is that the agency makes informed decisions based on its experience and

expertise.’ ” Illinois Council of Police, 387 Ill. App. 3d at 660, quoting County of Will v. Illinois

State Labor Relations Board, 219 Ill. App. 3d 183, 185 (1991). The Board’s interpretation of its

own standards and regulations is accorded deference as " 'courts appreciate that agencies can

make informed judgments upon the issues, based upon their experience and expertise' " and this

policy is consistent with the principle that administrative agencies must have wide latitude to

adopt regulations reasonably necessary to effectuate their statutory functions. Water Pipe


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Extension, Bureau of Engineering v. Illinois Local Labor Relations Board, 252 Ill. App. 3d 932,

936 (1993), quoting Illinois Consolidated Telephone Co. v. Illinois Commerce Comm'n, 95 Ill. 2d

142, 153 (1983).

       A previously discussed, section 9(a) of the Act provides for the evaluation of the evidence

gathered and a determination of its sufficiency before an appropriate hearing must be held on a

representation petition. See 5 ILCS 315/9(a) (West Supp. 2007). Section 5(g) of the Act

authorizes the two Board panels2 as follows: “Each panel may appoint or employ an executive

director, attorneys, hearing officers, mediators, fact-finders, arbitrators, and such other employees

as it may deem necessary to perform its functions. The governing boards shall prescribe the

duties and qualifications of such persons appointed ***.” 5 ILCS 315/5(a)(West 2006). Thus,

section 5(g) of the Act authorizes the Board’s panels to delegate functions to its Executive

Director. The regulations promulgated by the Board, pursuant to section 1210.100(b)(7) of title

80 of the Administrative Code (80 Ill. Adm. Code §1210.100(b)(7)(B), amended at 28 Ill. Reg.

4192, eff. February 19, 2004), authorized the Executive Director, as in the present case, to certify

a union as the petitioned-for unit’s exclusive representative without a hearing where there are “no


       2
           The two panels are the State Panel, which generally has jurisdiction over collective

bargaining matters involving employees of the State of Illinois and employees of units of local

government with a population not in excess of 2 million people, and the Local Panel, which has

jurisdiction over collective bargaining matters between employee organizations and units of local

government with a population over 2 million people, including the City. See 5 ILCS 315/5(a),(b)

(West 2006).

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unit appropriateness or exclusion issues, or any other issues necessitating a hearing.” We cannot

say that the regulations adopted by the Board are arbitrary and capricious such that they should be

set aside. See Granite City Division of National Steel Co., 155 Ill. 2d at 162.

       Recently, in Illinois Council of Police, 387 Ill. App. 3d at 661, this court determined that

the regulations promulgated by the Board, pursuant to section 1210.100 of the Administrative

Code (80 Ill. Adm. Code §1210.100(a)(6), amended at 28 Ill. Reg. 4188, eff. February 19, 2004),

vested the ALJ with express authority to dismiss a petition, or recommend that the petition be

dismissed, without a hearing if after his investigation, he found that “the petition was clearly

inappropriate” or there was “no reasonable cause” to believe that a question of representation

existed. In Illinois Council of Police, the Board adopted the ALJ’s recommendation and

dismissed a union’s petition to sever a group of peace officers from an existing bargaining unit

made up of both peace officers and nonpeace employees. This court determined that the Board’s

finding that the union failed to provide sufficient factual information to meet the requirements of

the traditional severance test was not clearly erroneous and affirmed the Board’s denial of the

petition without an evidentiary hearing. Illinois Council of Police, 387 Ill. App. 3d at 667-69

Similarly, in this case, section 1210.100(b)(7) of title 80 of the Administrative Code (80 Ill. Adm.

Code §1210.100(b)(7)(B), amended at 28 Ill. Reg. 4192, eff. February 19, 2004 ) vested the

Executive Director with express authority to certify a union without a hearing where there were

“no unit appropriateness or exclusion issues, or any other issues necessitating a hearing.” The

City, nonetheless, argues that the Board’s procedure was improper because sections 5(f) and 5(h)

of the Act preclude the Board from delegating this decision to the Executive Director. We find


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the City’s argument unconvincing.

        Section 5(f) of the Act provides:

                “In order to accomplish the objectives and carry out the duties prescribed by this

        Act, a panel or its authorized designees may hold elections to determine whether a labor

        organization has majority status; investigate and attempt to resolve or settle charges of

        unfair labor practices; hold hearings in order to carry out its functions; develop and

        effectuate appropriate impasse resolution procedures for purposes of resolving labor

        disputes; require the appearance of witnesses and the production of evidence on any

        matter under inquiry; and administer oaths and affirmations. The panels shall sign and

        report in full an opinion in every case which they decide.” (Emphasis added.) 5 ILCS

        315/5(f) (West 2006).

        Section 5(h) of the Act provides:

                “Each panel shall exercise general supervision over all attorneys which it employs

        and over the other persons employed to provide necessary support services for such

        attorneys. The panels shall have final authority in respect to complaints brought pursuant

        to this Act.” 5 ILCS 315/5(h) (West Supp. 2007).

The City argues that under section 5(f), the Board was prohibited from allowing the Executive

Director to issue the certification order in this case because it is not one of the functions listed to

be carried out by “authorized designees.” However, section 5(g) specifically allows the Board to

“prescribe the duties and qualifications” of the Executive Director. 5 ILCS 315/5(g) (West Supp.

2007). Therefore, this court cannot find the list set forth in section 5(f) was intended as an


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exhaustive list where section 5(g) permits the Board to delegate other duties to the Executive

Director. See Weather-Tite, Inc. v. University of St. Francis, 233 Ill. 2d 385, 389 (2009) (statute

should be read as a whole and construed so that no part of it is rendered meaningless or

superfluous).

       The City lastly argues that the Board’s procedure allowing the Executive Director to

certify the Teamsters as the exclusive representative of the petitioned-for unit without a hearing

violated sections 10-45 and 10-50 of the Illinois Administrative Procedure Act (Procedure Act)

(5 ILCS 100/10-45, 10-50 (West 2006)). Section 10-45 provides:

                “Except where otherwise expressly provided by law, when in a contested case a

       majority of the officials of the agency who are to render the final decision has not heard

       the case or read the record, the decision, if adverse to a party to the proceeding other than

       the agency, shall not be made until a proposal for decision is served upon the parties and

       an opportunity is afforded to each party adversely affected to file exceptions and to

       present a brief and, if the agency so permits, oral argument to the agency officials who are

       to render the decision. The proposal for decision shall contain a statement of the reasons

       therefor and of each issue or fact or law necessary to the proposed decision and shall be

       prepared by the persons who conducted the hearing or one who has read the record.”

       (Emphasis added.) 5 ILCS 100/10-45 (West 2006).

Section 10-50 provides, in relevant part:

                “A final decision or order adverse to a party (other than the agency) in a contested

       case shall be in writing or stated in the record. A final decision shall include findings of


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       fact and conclusions of law, separately stated.” (Emphasis added.) 5 ILCS 100/10-50

       (West 2006).

       The City, relying on these provisions, maintains that because this was a contested case,

sections 10-45 and 10-50 of the Procedure Act required that a proposed decision be issued, along

with an opportunity to file exceptions with the Local Panel and a final decision containing findings

of fact and conclusions of law.

       Section 1-30 of the Procedure Act defines a “contested case” as “an adjudicatory

proceeding *** in which the individual legal rights, duties, or privileges of a party are required by

law to be determined by an agency only after an opportunity for a hearing.” 5 ILCS 100/1-30

(West 2006). As previously explained, the City was not entitled to a hearing on the present

representation petition where the Executive Director’s determination that there were no

appropriateness issues warranting a hearing was not clearly erroneous. As such, this was not a

“contested case” as defined by the Procedure Act, which would implicate the requirements of

sections 10-45 and 10-50 in this case.

                                         III. CONCLUSION

       For the above reasons, we affirm the Board’s decision and order.

       Affirmed.


       MURPHY, P.J. and COLEMAN, J., concur.




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