Ill. Admin. Code tit. 80 § 1110.105

Current through Register Vol. 48, No. 43, October 25, 2024

Section 1110.105 - Processing of Majority Interest Petitions

a) Majority interest procedures may not be used when another employee organization has lawfully attained representation rights as the exclusive representative of the employees in the bargaining unit.

b) The employer shall provide to the Board and the employee organization a list of employees, as of the date of the petition, within 21 days after receipt of the petition, unless more time, not to exceed 21 days, is granted by the Board due to the size of the unit.

c) The employer shall provide to the Board and to the employee organization examples of the employees' signatures within 21 days after receipt of the petition, unless more time, not to exceed 21 days, is granted by the Board due to the size of the unit. If the employer does not provide the list of employees or the signature examples within the allotted time, the Board shall administratively determine the adequacy of the showing of interest, based upon the evidence submitted by the employee organization. A grant of more time to provide a list of employees or signature examples shall, if necessary, extend the time limitation for certifying an employee organization as exclusive representative.

d) Within 21 days after receipt of the petition, parties served with the petition may file a written response to the petition. The response shall set forth the party's position with respect to the appropriateness of the unit, any proposed exclusions from the unit, any allegations of fraud or coercion in obtaining the showing of interest, and any other issues raised by the petition. A party that fails to file a timely response without good cause shall be deemed to have waived its right to a hearing. Good cause will include when there is no prejudice to another party or the other parties have consented to a hearing without the filing of a timely response.

e) Upon receipt of the petition, the Board or its agent shall investigate the petition. The Board shall certify the employee organization as the exclusive representative if:

1) the Board concludes that the employee organization represents a majority of the employees in the bargaining unit;

2) there are no issues of fraud or coercion in obtaining the showing of interest;

3) the petition is otherwise consistent with the Act and with this Part; and

4) either there are no unit appropriateness or exclusion issues or the number of contested positions or employees is not sufficient to affect the determination of majority status.

f) Where fraud or coercion in obtaining the showing of interest is alleged, the party or employee alleging fraud or coercion must provide its evidence of fraud or coercion to the Board and to the other parties, including a synopsis of any affidavits submitted to the Board, within 21 days after receipt of the petition or the posting of notice, unless additional time is granted by the Executive Director for good cause shown, such as a joint request, an emergency or whenever the Executive Director believes that it would further the purposes of the Act. The petitioner may file a response no later than seven days following the receipt of that evidence, unless additional time is granted by the Executive Director for good cause shown. The Executive Director shall issue a decision within 21 days following the receipt of the petitioner's response.

g) The employee who alleges fraud or coercion or the parties may file exceptions to the Executive Director's decision and briefs supporting those exceptions no later than seven days after receipt of that decision, and a response to those exceptions may be filed no later than seven days after receipt of the exceptions and briefs. If no exceptions are filed within the seven-day period, the parties and any employee who alleges fraud or coercion will be deemed to have waived their exceptions. The filing of exceptions shall not stay the certification if the alleged fraud or coercion is not sufficient to affect the majority status of the petition.

h) If the Executive Director determines that there is clear and convincing evidence of fraud or coercion sufficient to affect the majority status of the petition and no exceptions are filed to that determination, or if the Board makes such a determination, an election will be conducted according to the procedures set forth in this Part. The election shall be conducted within 45 days after the Executive Director's or the Board's determination, unless proceedings concerning the appropriateness of the unit, exclusions from the unit sufficient to affect majority status, or the timeliness of the petition are pending.

i) If the Executive Director determines that there is not clear and convincing evidence of fraud or coercion sufficient to affect the majority status of the petition and no exceptions are filed to that determination, or if the Board makes such a determination, the Board shall certify the employee organization as the exclusive representative immediately after the Board's determination or within 10 days after service of an unappealed Executive Director's decision if:

1) the Board concludes that the employee organization represents a majority of the employees in the bargaining unit;

2) the petition is otherwise consistent with the Act and with this Part; and

3) there are no unit appropriateness or exclusion issues, those issues have been resolved, or the number of contested positions or employees is not sufficient to affect the determination of majority status.

j) If there are unit appropriateness or exclusion issues, but the number of contested positions or employees is not sufficient to affect the determination of majority status, a party may invoke the Board's unit clarification procedures with respect to the contested positions or employees. Invocation of the Board's unit clarification procedures shall not stay the issuance of a certification.

k) If there are unit appropriateness or exclusion issues, and the number of contested positions or employees is sufficient to affect the determination of majority status, a hearing shall be conducted to resolve these issues. However, no hearing shall be conducted if no issues of material fact are raised, and the employee organization shall be certified as the exclusive representative if otherwise proper. A hearing shall also be conducted when there are issues of material fact concerning the timeliness of the petition under Section 1110.70. The Board shall proceed in accordance with 80 Ill. Adm. Code 1105.10 through 1105.70, except that:

1) The hearing officer's recommended decision shall be issued not later than 21 days after the conclusion of the presentation of evidence, the receipt of the transcript, and the receipt of any post-hearing briefs, unless additional time (not to exceed 21 days) is required due to the length of the record or the complexity of the issues involved. Any findings of fact in this decision must be based exclusively upon the evidence in the record and on matters of which official notice has been taken.

2) Exceptions and Responses

A) The parties may file exceptions to the recommended decision and briefs in support of those exceptions no later than seven days after receipt of the decision. Any party to the proceeding may file a response to any exceptions and supporting briefs within seven days from receipt of a party's exceptions and supporting brief. Exceptions and briefs shall be simultaneously filed with the General Counsel, 160 N. LaSalle Street, Suite N-400, Chicago, Illinois 60601 or elrb.mail@illinois.gov, and served on the parties, and a certificate of service shall be attached.

B) A party may also file cross-exceptions and a supporting brief within seven days from receipt of another party's exceptions and supporting brief. Any other party may file a response to the cross-exceptions and supporting brief within seven days from receipt of the cross-exceptions and supporting brief. Cross-exceptions and briefs shall be simultaneously filed with the General Counsel and served on the parties, and a certificate of service shall be attached.

C) If no exceptions have been filed within seven days after service of the hearing officer's recommended decision, the parties will be deemed to have waived their exceptions. If no cross-exceptions have been filed within seven days after receipt of another party's exceptions and supporting brief, the parties will be deemed to have waived their cross-exceptions.

3) The Board will review the hearing officer's recommendation upon request by a party or on its own motion. The Board will issue and serve upon all parties a written decision giving the reasons for its decision.

l) Interested persons who wish to participate in the hearing shall direct those requests to the hearing officer. The request shall be in writing and shall state the grounds for participation. In determining whether to grant the request, the hearing officer shall base the decision on the timeliness of the request, the degree to which the person requesting participation has a real interest at stake, the ability of the parties to represent the interests of the person requesting participation and the complexity of the proceeding.

m) The hearing officer shall obtain a full and complete record by inquiring into all matters in dispute. The record shall be obtained either by evidentiary hearing or stipulation. Immediately prior to the close of the record, one or more parties may file motions to remove the case to the Board for decision. Responses to these motions may be filed as directed by the hearing officer. Within seven days after the close of the record, the hearing officer shall rule on the motions. The hearing officer may also order the case removed to the Board on the hearing officer's own motion within seven days after the close of the record. If the hearing officer orders a case removed, the hearing officer shall certify that there are no determinative issues of fact that require a hearing officer's recommended decision.

n) Within seven days after removal, a party may move the Board to remand the case to the hearing officer, identifying in detail the material factual issues in dispute. If the Board fails to rule on the motion within 14 days, the motion will be deemed denied; the General Counsel will set a briefing schedule for briefs to be submitted to the Board. In cases removed to the Board, the Board shall remand the case if, at any time, it determines that the case presents issues of material fact requiring a hearing officer's recommended decision. Unless the Board remands the case, it shall issue and serve upon all parties a written decision giving the Board's reasons for its decision.

o) The Board shall certify the employee organization as exclusive representative immediately upon issuance of the Board's opinion and order, or upon expiration of the time for filing exceptions to the hearing officer's recommended decision, if:

1) the bargaining unit found to be appropriate by the Board is sufficiently similar to the petitioned for bargaining unit that the showing of majority interest remains sufficient;

2) the employee organization agrees to represent the bargaining unit found to be appropriate;

3) the Board concludes that the employee organization represents a majority of the employees in the bargaining unit;

4) there is not clear and convincing evidence of fraud or coercion in obtaining the showing of interest; and

5) the petition is otherwise consistent with the Act and this Part.

p) If the bargaining unit approved by the Board is not sufficiently similar to the petitioned for bargaining unit that the showing of majority interest remains sufficient, the petitioner may submit a supplemental showing of interest within seven days after receipt of the Board's ruling, may participate in an election according to subsection (r), or may withdraw the petition.

q) Petitions to intervene may be filed no later than 14 days after the notice is posted. Intervention shall only be allowed when, as a result of the evidence submitted by the intervenor in support of its showing of interest, the original petitioner no longer has a valid showing of majority interest.

r) If the valid evidence presented by the employee organization to support its claim of majority status does not constitute a majority showing of interest, but demonstrates that at least 30 percent of the employees in the unit found appropriate desire to be represented for collective bargaining by the employee organization, the Board shall conduct an election in the unit found appropriate if the petition is otherwise consistent with the Act and this Part.

s) Upon the filing of a petition or at any time thereafter that the case is pending, a party may allege that the dues deduction authorizations and other evidence submitted in support of a designation of representative without an election were subsequently changed, altered, withdrawn, or withheld as a result of employer fraud, coercion, or any other unfair labor practice by the employer (Section 7(c-5) of the Act). The party must submit its evidence in support of the allegation at the time that it makes the allegation, unless additional time is granted by the Executive Director for good cause shown. Any other party may submit its response to the allegation no later than seven days from receipt of the submission of the party making the allegation, unless additional time is granted by the Executive Director for good cause shown. The Board or its agent shall investigate the allegation. If the Executive Director finds that there is an issue of law or fact that such conduct occurred, the matter shall be set for hearing. The hearing shall be conducted according to the Board's procedures for contested case hearings (80 Ill. Adm. Code 1105.90 through 1105.210), except that:

1) The hearing officer's recommended decision shall be issued no later than 21 days after the conclusion of the presentation of evidence, the receipt of the transcript, and the receipt of any post-hearing briefs, unless additional time (not to exceed 21 days) is required due to the length of the record or the complexity of the issues involved.

2) Exceptions and Responses

A) The parties may file exceptions to the recommended decision and briefs in support of those exceptions no later than seven days after receipt of the decision. Any other party may file a response to the exceptions and briefs no later than seven days after receipt of those exceptions and briefs. Exceptions and briefs shall be simultaneously filed with the General Counsel and served on the parties, and a certificate of service shall be attached.

B) A party may also file cross-exceptions and a supporting brief within seven days from receipt of another party's exceptions and supporting brief. Any other party may file a response to the cross-exceptions and supporting brief no later than seven days from receipt of the cross-exceptions and supporting brief. Cross-exceptions and briefs shall be simultaneously filed with the General Counsel and served on the parties, and a certificate of service shall be attached.

t) If the hearing officer, or the Board on review, determines that a labor organization would have had a majority interest but for an employer's fraud, coercion, or unfair labor practice, it shall designate the labor organization as an exclusive representative without conducting an election (Section 7(c-5) of the Act).

u) In order for an employee's dues deduction authorization, authorization card, signature on a petition or other evidence to be counted in determining whether an employee organization has demonstrated a majority interest, the employee must be in the bargaining unit on the date the petition was filed.

v) In cases in which the proposed unit includes professional and nonprofessional employees, authorization cards or other documents evidencing majority support must indicate that the employee desires to be represented by the employee organization in a combined professional-nonprofessional unit.

w) In cases in which the proposed unit includes craft and non-craft employees, authorization cards or other documents evidencing majority support must indicate that the employee desires to be represented by the employee organization in a combined craft and non-craft unit.

x) If a majority interest self-determination petition seeks to accrete employees into an existing unit, the employee organization must demonstrate majority status only among the petitioned-for employees (the employees sought to be added to the existing unit). The petitioner may also present evidence that a majority of employees in each group of the proposed combined bargaining unit desires representation in a single unit, otherwise the Board will conduct an independent poll of the proposed combined bargaining unit to determine whether a majority of the petitioned-for employees and a majority of the existing bargaining unit desire a unit combining professional and nonprofessional employees if the existing unit contains only professional employees and the petitioned-for employees include, in whole or part, nonprofessional employees, or if the existing unit contains only nonprofessional employees and the petitioned-for employees include, in whole or part, professional employees. If a majority of both groups do not vote for a unit combining professional and nonprofessional employees, the Board will issue a separate certification for a stand-alone unit or units of the petitioned-for employees, ensuring that no certification is issued for a unit when the employee organization has not demonstrated majority status. Where a labor organization is the bargaining representative of employees in a unit that has historically combined professional employees, that historical representation shall constitute evidence that a majority of the existing bargaining unit desires a unit combining professional and nonprofessional employees.

y) When an independent poll on whether there should be a combined unit is conducted pursuant to subsection (x), the Board shall not be required to certify the employee organization as the exclusive representative within 30 days after service of the petition.

z) When a hearing is necessary, the Board shall conclude the hearing process and issue a certification of the entire appropriate unit, if the employee organization has demonstrated majority status in that unit, no later than 120 days after the petition was filed. However, this 120-day period may be extended one or more times by agreement of all the parties to a date certain. In other cases, the Board shall ascertain the employees' choice within 120 days after the petition was filed. However, the Board may extend this 120-day period by 60 days on its own motion or on the motion of a party to the proceeding.

Ill. Admin. Code tit. 80, § 1110.105

Amended at 35 Ill. Reg. 14447, effective August 12, 2011

Amended at 41 Ill. Reg. 10587, effective 8/1/2017

Amended at 47 Ill. Reg. 19307, effective 12/21/2023