Illinois Council of Police v. Illinois Labor Relations Board (387 Ill. App. 3d 641, 2008)

JUSTICE JOSEPH GORDON

delivered the opinion of the court:

This is a direct appeal from a final order of the Illinois Labor Relations Board (the Board) dismissing a representation petition filed by the plaintiff, a labor union, the Illinois Council of Police (the ICOP). The case involves a dispute between two competing labor unions, the ICOF| and the Firemen and Oilers Union, Local 7 (Local 7), who both seek to exclusively represent the “police officers” employed by the Metropolitan Water Reclamation District of Greater Chicago (the Water District).

The ICOP filed a representation petition with the Board pursuant to section 9(a) of the Illinois Public Labor Relations Act (Act) (5 ILCS 315/9(a) (West 2006)) asking the Board to sever a group of police officers from the existing bargaining unit made up of both police and non-police employees working at the Water District. Prior to this petition, Local 7 exclusively represented the entire bargaining unit, including the police officers. The Board dismissed the ICOP’s petition, finding that there was no “reasonable cause to believe” a question of representation existed under the Act and, therefore, no reason to hold an evidentiary hearing. The ICOP appeals the decision of the Board contending that: (1) pursuant to section 9(a) of the Act (5 ILCS 315/ 9(a) (West 2006)) the Board had no authority to dismiss its petition without first conducting a hearing; and (2) the Board erred when it refused to use the less stringent severance standard proposed by the ICOP in evaluating whether severance of the police officers from the existing bargaining unit was appropriate. For the reasons that follow, we affirm.

I. BACKGROUND

1. Proceedings Before the Board

On April 7, 2005, the ICOP filed a timely petition for representation/certification with the Board, seeking to sever those employees designated as “police officers” from the bargaining unit represented by Local 7, so as to comprise a separate bargaining unit requiring separate representation by the ICOP The petition alleged that it was being brought on behalf of 51 employees of the Water District designated as “police officers below the rank of sergeant.” The petition further alleged that at least 30% of the 51 employees in the proposed unit requested a secret ballot election to determine whether the ICOP should be certified as the exclusive collective bargaining agent for the employees in that unit. The petition acknowledged that at the present moment, Local 7 was the exclusive bargaining agent for these employees, under an existing collective bargaining agreement between Local 7 and the Water District, which was set to expire on June 30, 2005. A copy of that collective bargaining agreement was attached to the petition.

On April 12, 2005, the clerk for the Board sent a letter to the Water District notifying it of the ICOP’s petition and directing the Water District to: (1) submit a list of names and job classifications of the employees that are police officers in Local 7, and (2) to post a notice to the Water District’s employees informing them that a representation petition had been filed. A copy of a tentative hearing notice was attached to the letter, indicating that unless the parties both signed the attached waiver form, a hearing was scheduled for May 23, and May 24, 2005.

On April 15, 2005, the Water District sent a letter to the Board certifying that it had posted the required notice to its employees and providing the Board with a list of its employees in the police officer classification. That list included 41 names.

On April 22, 2005, Sharon B. Wells, an agent for the Board, informed the parties (the Water District, the ICOP and the Local 7) by letter that there had been a sufficient showing of employee interest to further entertain the ICOP’s petition, and she asked the parties to advise her in writing whether there were any issues of law or fact that warranted the hearing scheduled for May 23-24, 2005.

In a letter dated April 27, 2005, the Water District informed the Board that there were no issues that would warrant a hearing in the matter. Similarly, in a letter dated April 25, 2005, Local 7 agreed with the Water District stating that there were no issues warranting a hearing, and on April 29, 2006, it requested that the Board dismiss the ICOP’s petition.

In its April 29, 2006, letter Local 7 argued that pursuant to the Board’s long-standing precedent, including the decision in International Brotherhood of Teamsters, Local 714 v. City of Chicago, 2 Pub. Employee Rep. (Ill.) par. 3015, No. L — RC—85—17 (ILLRB June 2, 1986) (hereinafter City of Chicago, 2 Pub. Employee Rep. (Ill.) par. 3015), in order to sever the “police officers” from the existing mixed bargaining unit, the ICOP was required to meet the “traditional severance standard” by demonstrating that the employees it sought to sever from the existing unit both: (1) shared a significant and distinct community of interest, and (2) had conflicts with other segments of the exiting bargaining unit or a record of ineffective and unresponsive representation of their peculiar interests.

The letter asserted that the police officers at issue had been historically represented by Local 7 dating back to 1967, when they were referred to as “security officers.” The letter explained that in January 1987, under an amendment of the collective bargaining agreement between Local 7 and the Water District, the “security officer” title was first changed, apparently in name only, to that of “police officer,” and that it has remained “police officer” ever since. As such, Local 7 argued that because the Act was never intended to displace historical bargaining units, like the mixed unit represented by Local 7, the existing unit was “presumptively valid” under section 9 of the Act (5 ILCS 315/9 (West 2006)) unless and until a majority of all the unit members voted otherwise.

In addition, Local 7 asserted that the most recent collective bargaining agreement between Local 7 and the Water District was effective from July 1, 2003, to June 30, 2005, and governed the terms and conditions of employment of all of the employees in the bargaining unit, including police officers. *Local 7’s letter urged that under this bargaining agreement, the 51 police officers “enjoy identical or similar terms and conditions of employment as the other employees in the bargaining unit.” In addition, according to Local 7, they have significant daily interaction with other employees in the bargaining unit, and there is no evidence that Local 7 has ever been ineffective or unresponsive in its representation of them.

On May 2, 2005, John Clifford, a Board agent, informed the parties that as of that date he was to act as the administrative law judge (ALJ). The ALJ explained that the hearing dates would remain set for May 23-24, 2005, but informed the parties that their respective positions as to what standard should be applied to determine the right of the ICOP to sever the subgroup of 51 police officers from the existing bargaining unit were unclear. The ALJ specifically referenced the Board’s decision in County of St. Clair v. Illinois Fraternal Order of Police Labor Council, 18 Pub. Employee Rep. (Ill.) par. 2015, No. S — UC—99—018 (ISLRB February 19, 2002) (hereinafter County of St. Clair, 18 Pub. Employee Rep. (Ill.) par. 2015), where the Board held that a union representing an entire bargaining unit containing both peace officers and nonpeace officers could upon request sever the peace officers from the unit and continue to represent both.

Accordingly, the ALJ asked the parties to address two specific issues. First, he asked the Water District if its letter indicating that there was no need for a hearing meant that it had no objection to the newly proposed unit, and he also asked the ICOP to explain what facts it wished to prove up, if any, showing that the Water District had not maintained a “continuous assent” to the current unit. Second, he asked the parties to explain what standard for judging severance should govern given that the existing unit was a “historical mixed unit.”

On May 4, 2006, Local 7 responded in a letter to the ALJ, explaining that it believed that County of St. Clair, 18 Pub. Employee Rep. (Ill.) par. 2015, did not provide a lower standard for severance to be applied to the ICOP’s petition than had been traditionally applied by the Board. Local 7 explained that County of St. Clair was a unique case, which dealt solely with the issue of whether the same union, which represented a combined unit of peace officers and nonpeace officers, could sever its own unit, but still represent both the peace officers and nonpeace officers in separate units. As such, according to Local 7, County of St. Clair stood only for the right of a party to a collective bargaining relationship to seek severance of a mixed unit. However, according to Local 7, because in the present case neither Local 7 nor the Water District had filed a petition to change the composition of the unit, and because the ICOP was not a party to the underlying collective bargaining agreement with the Water District, County of St. Clair did not apply and there was no basis upon which to base the ICOP’s severance argument.

As such, according to Local 7, severance could be obtained only if the ICOP met the requirements of the “traditional severance standard,” as enunciated in City of Chicago, 2 Pub. Employee Rep. (Ill.) par. 3015. Local 7 reiterated its contention that under this standard, the ICOP’s petition had to be dismissed because the collective bargaining agreement established the employees at issue shared the same terms and conditions of employment, the police officers had “significant daily interaction” with other employees, and there was no evidence that Local 7 had engaged in the type of “ineffective or unresponsive representation” that would warrant severance.

On May 4, 2005, the Water District responded to the ALJ explaining that its prior letter was merely an “attempt to remain neutral” in the labor dispute between the ICOP and Local 7. The Water District further added that it had not withdrawn its consent to Local 7’s representation of the existing unit. In addition, the Water District agreed with Local 7 that the less stringent severance standard articulated in County of St. Clair did not apply in the cause at bar, because unlike that case, here neither of the parties to the existing collective bargaining agreement (the Water District and the Local 7) had withdrawn consent to the current mixed bargaining unit.

On May 5, 2005, the ALJ wrote to the parties with new proposed hearing dates. However, he suggested that he might elect to dismiss the petition instead of conducting a hearing because it appeared that the ICOP could not make out the “traditional standard” for severance under the Board’s precedent. The ALJ concluded that the only real question was whether a different standard similar to the one adopted in County of St. Clair for employers and the current bargaining units should be extended to a third party seeking severance or separation of a mixed unit. The ALJ stated that having the parties build a record where the controlling standards were unclear and disputed would be a “risky and expensive proposition.” Therefore he suggested the “cleaner and better result” for the parties would be a straight dismissal, which would allow a direct appeal to the Board on the issue.

On May 9, 2005, the Water District wrote a letter to the ALJ stating that it believed that the traditional severance standard should govern the ICOP’s petition. The Water District further asserted that the ICOP could not meet that standard because all the employees shared a community of interest with one another, and there was no “record of unresponsive or ineffective representation” by the incumbent union, Local 7. The Water District explained that there was a 21-year bargaining history between Local 7 and the Water District, dating back to the parties’ first collective bargaining agreement in 1984.

On May 9, 2005, the ICOP sent a letter to the ALJ indicating that its position did not change, even though the Water District had not withdrawn its consent to bargain with Local 7. In that letter the ICOP urged the application of a “less stringent standard” for severance than the traditional one.

On May 10, 2006, Local 7 sent a letter to the ALJ again urging the dismissal of the ICOP’s petition and reasserting all of its previously raised arguments.

On May 11, 2006, the ALJ wrote to the parties informing them that a hearing, if it were to occur, would be scheduled for June 21, 26, and 27, 2005. The ALJ, however, reiterated his belief that dismissing the petition for immediate review by the Board “may be the best course of action.” He further invited the ICOP to set out in detail the standard it proposed to replace the standard enunciated in County of St. Clair to be applied to third-party petitions for severance of existing mixed bargaining units.

In addition, on June 14, 2005, the ALJ invited the parties, if they wished to do so, to “amplify” their respective positions and make an offer of proof, along with their respective positions. The letter specifically stated:

“This is in no way a reproach to any statement previously filed; I merely want to make sure that we afford all parties the fullest opportunity to tell the Board what standard they think important [and] the facts they would rely upon.”

The ALJ further invited counsel for the Water District and Local 7 to work together to “create the stipulations necessary” to establish that the employees at issue are, in fact, “peace officers” under the Act.

On June 22, 2005, counsel for the ICOP wrote to the ALJ asserting that there was no dispute among the parties as to whether the police officers were “peace officers” pursuant to section 14(k) of the Act (5 ILCS 315/14(k) (West 2006)). In support of this statement, the ICOP attached a letter written by the ICOP to the Water District, dated September 28, 2004, in which the ICOP urged the Water District to permit the officers to carry concealed firearms when off duty pursuant to the Law Enforcement Officers Safety Act of 2004 (Pub. L. 108— 277, eff. July 22, 2004), and which revealed that the parties agreed that the police officers employed by the Water District were “peace officers” within the meaning of the Act.

On June 29, 2005, the ICOP filed its official position statement with the Board, arguing first that the employees could meet the traditional standard for severance and adopting the arguments set out in its earlier letters. The ICOP argued that because County of St. Clair held that mixed units of police/nonpolice were “presumptively invalid” under the Act, the ICOP had met the first criterion of traditional severance, namely, that the officers and employees “shared a significant and distinct community of interest.”

With respect to the second criterion of traditional severance, i.e., Local 7’s alleged ineffectiveness in representing the police officers employed by the Water District, the ICOP argued that a review of the current collective bargaining agreement revealed that Local 7 had failed to secure basic contractual provisions that are “included in nearly every other police officer collective bargaining agreement.” Some of the missing provisions that the ICOP complained about included provisions governing: investigations, police discipline, court-appearance compensation, reimbursement for uniforms and body armor, 24-hour/3-shift work, and specialty pay. The ICOP asserted that these were “standard” provisions in police agreements and that the Board could confirm this assertion by examining any of the “myriad of collective bargaining agreements” that had been filed with the Board in other units involving police employees. The ICOP also pointed out that the sole provision in the current collective bargaining agreement between the Water District and Local 7 dealing specifically with police officers is a provision requiring random drug testing only of police officers, and not of any other employee of the Water District. According to the ICOÍJ this provision was detrimental rather than beneficial to the police officers. The ICOP finally argued that, unlike itself, Local 7 had failed to support the police officers’ right to carry concealed weapons when off duty.

As an alternative argument, the ICOP argued that the traditional standard for severance should be modified. The ICOP reiterated that according to County of St. Clair a mixed unit of police/nonpolice employees is presumptively invalid. It further argued that continuing to allow Local 7 to be the exclusive representative of the mixed bargaining unit “indefinitely” represented poor public policy. Specifically, the ICOP asserted that although police are traditionally represented by specialty “police unions,” such police unions could never seek to represent a mixed unit because charters of police unions typically do not permit representation of nonpolice officers. As such, according to the ICOR the traditional severance requirement has the effect of unfairly “trapping the Water District officers in their existing representation. ”

Instead of the traditional severance standard, the ICOP proposed the following less stringent standard. It contended that when police employees petition to sever themselves from a mixed unit containing nonpolice employees, even without the consent of the current bargaining representative, an election should be ordered if: (1) the third-party union petitioning on their behalf can show that 30% of the proposed unit desires severance, and (2) there is, at the time of the petition, no contract or certification bar. The ICOP asserted that it met the criteria for this standard.

In response, on July 14, 2005, Local 7 filed its position statement. In that statement, Local 7 first asserted that the mere fact that the existing unit contained both police and nonpolice employees was not a sufficient reason under section 3(s)(l) of the Act (5 ILCS 315/3(s)(l) (West 2006)) to grant a rival union “automatic” severance. Local 7 cited three prior decisions by the Board, in which the Board had upheld a mixed unit of police/nonpolice employees and denied severance petitions.

In addition, Local 7 argued that the ICOP had failed to present any evidence that it had met the traditional severance standard and that therefore the ICOP had failed to raise a question of law or fact that would necessitate a hearing in the instant matter. With respect to the first prong, although Local 7 admitted that police officers were unique in that they provide a different service to the Water District and enjoy a different set of rights under the Act and under many state laws, it asserted that this fact alone is not determinative of the community of interest question. Rather, Local 7 argued the appropriate inquiry is whether those officers share a community of interest with other employees in the existing bargaining unit as opposed to a separate, distinct and singular community of interest apart from the larger unit. Local 7 reiterated that a review of the existing collective bargaining agreement revealed that the terms and conditions of employment for police officers were similar if not identical to the terms and conditions for other employees in the bargaining unit and that police officers have significant daily interaction with other employees in the bargaining unit.

With respect to the second prong, Local 7 asserted that the ICOP failed to provide any evidence indicating a conflict between the police officers and the remainder of the unit that would necessitate a hearing. Specifically, Local 7 argued that the ICOP presented no evidence to even suggest that Local 7 had, inter alia, abandoned the police officers, separated them from the rest of the unit, failed to seek a comparable wage increase for the police officers, refused to give the officers full membership status in the union, failed to offer bargaining proposals on behalf of the officers, failed to represent police officers in their grievances, or failed to meet with them for the purpose of discussing bargaining proposals.

On July 14, 2005, the ICOP supplemented its position statement with a letter in which it cited to two more instances of Local 7’s alleged ineffective representation of the police officers. First, the ICOP apparently contended that Local 7 sent an inappropriate bargaining representative to a bargaining session to negotiate on behalf of the officers. Second, the ICOP asserted that Local 7 had allowed two grievances filed by the police officers to be postponed for more than nine months. The ICOP further amended its proposed less stringent severance standard, asserting that the standard should also require that the petitioning union be, as it is, a police union “by charter.”

On August 17, 2005, the ICOP sought to further amend its original position statement and filed an addendum to that position statement with the Board. In this addendum, the ICOP argued that in order to prove that it met the first prong of the traditional severance standard, it would call two witnesses, “the Chief of Police,” and “a police officer employed by the Water District,” to establish, inter alia, that the “police officers” employed by the Water District are “peace officers” under section 3(k) of the Act (5 ILCS 315/3(k) (West 2006)) and that the members of that police force do not “commingle” with other employees of the Water District, especially because the police force is responsible for investigating any unlawful behavior by other Water District employees.

With respect to the second prong of the traditional severance standard, the ICOP asserted that it would call Timothy P. Healy, president of Local 7, and Thomas Longini, Local 7’s assigned representative for the police officers of the Water District, to testify that: (1) the police officers had no representative present at the negotiation of the current collective bargaining agreement; (2) the existing collective bargaining agreement contains no clause that in any way reflects the needs of police officers under a standard collective bargaining agreement for police; and (3) Local 7 had not advanced the officers’ interests in carrying concealed weapons off duty by seeking a declaratory judgment from the circuit court to define the status of Water District police officers pursuant to the then newly enacted federal Law Enforcement Officers Safety Act of 2004 (Pub. L. 108— 277, eff. July 22, 2004), which permitted “qualified law enforcement officers” and “qualified retired law enforcement officers” to carry concealed firearms.

On August 24, 2005, in response to the ICOP’s contention that the police officers had no representative at the negotiation of the collective bargaining agreement, Local 7 submitted copies of letters sent to all of its stewards concerning the collective bargaining agreement negotiations, in which every steward, including Thomas Longini, the police officer’s steward, was invited to discuss the pending contract negotiations and demands.

On September 8, 2005, the ICOP filed a “surrebuttal” in which it argued that Local 7 had waived two arguments by failing to deny them or respond to them in any manner in any of its pleadings: (1) the ICOP’s argument that Local 7 had failed to represent the interests of the Water District’s police officers in carrying concealed weapons off duty and (2) the ICOP’s proposed less stringent standard for severing peace officers from a historically mixed bargaining unit.

On September 21, 2005, the ALJ sent the parties a letter asking for a clarification as to whether the existing bargaining unit was a pre-Act “election unit,” formed in 1984 just before the Act became effective, or a true “historical unit.” The ALJ further stated that after his review of several labor contracts between the parties, he wanted an explanation of whether there were ever two distinct bargaining units of “police officers” and “watchmen” and, if so, when the two units merged. Finally, he asked the Water District to explain why it had changed the original job title of “security officer” to “police officer,” and whether that title change was intended to signify a “real change” in the duties of the security-officer designation.

On October 13, 2005, the ICOP sent a letter to the ALJ responding to Local 7’s assertion that the police officers were part of a “historical unit.” The ICOP asserted that because the police officers were not part of the bargaining unit at the time of the adoption of the Act on July 1, 1984, the existing unit was not a “historical unit” under the Act.

On November 8, 2005, the ICOP wrote an additional letter to the ALJ explaining that until 1987 the police officers were classified as “security officers” and that, therefore, there was no “historical bargaining unit of police officers prior to the effective date of the [Act],” which was in 1984. The ICOP asserted that it would call on “reputable witnesses” to testify to this fact.

In that same letter, the ICOP also complained that while it had been told it needed to produce an affidavit in support of its offers of proof, Local 7 was allowed to make factual representations to the ALJ without such formal support. The ICOP suggested that it would not tender any affidavit in support of its factual assertions unless Local 7 was directed to do the same in support of its statements.

The ICOP further “emphatically disputed” Local 7’s statement that in the past it had gathered input from police officers of the bargaining unit before proceeding to negotiate with the employer. In support of this contention, the ICOP asserted that it would produce three police officers who would testify as witnesses at a hearing that: (1) police officers are not contacted for their input as to contract negotiations; (2) no meetings are held as to the police officers for such input; and (3) there were never any police officers involved in the development of proposals for the most recent negotiations. In addition, the ICOP stated that it would produce a list of contract clauses that it believes should have been, but were not, included in the collective bargaining agreement.

On December 26, 2005, the ICOP sent yet another addendum to its previous letter. In that addendum, the ICOP alleged the following facts: that none of the 51 police officers set out in the ICOP’s petition had seen the proposals for the most recent collective bargaining agreement, that none were present for its ratification and that none of them voted for its passage. The ICOP asserted that it would produce witnesses at the hearing before the Board to corroborate these facts.

2. The ALJ’s Recommended Decision and Order

On January 5, 2006, the ALJ filed his recommended decision and order, recommending that the petition be dismissed. In doing so, the ALJ made the following relevant and undisputed findings of fact.

Since 1967, prior to the effective date of the Act, Local 7 has represented a bargaining unit composed of the Water District’s employees. At the time the instant petition was filed, there were approximately 400 employees in the unit, of which 51 were peace officers. There was sufficient evidence to show that the majority of these peace officers supported the position of the ICOP and sought severance from the existing mixed bargaining unit.

The current collective bargaining agreement between Local 7 and the Water District covers all of the employees of the Water District, including the peace officers. A review of that collective bargaining agreement reveals that many terms and conditions of the peace officers’ employment are similar, if not identical, to those applicable to nonpeace officers. According to the ALJ:

“[T]he peace officers have *** a given wage rate and in the second year of that agreement receive a wage increase. Too, peace officer shift rotations are set out specifically, but similar shift concepts are also set out for other classification involved in the [Water] District’s 24 hour, seven day a week operations. Peace officers are specifically mentioned as being subject to random drug testing, whereas other employees are subject to testing upon reasonable suspicion of drug use. The same vacation, sick pay, personal leave, overtime compensatory time and holiday pay provisions apply to peace officers as to the non-peace officers in the unit. Health, dental and life insurance *** are applicable to peace officers on the same broad basis they are available to all other employees in the unit.”

The ALJ next commented on the factual allegations and offers of proof made by the ICOP in its communications with the Board. The ALJ first found that the ICOP nowhere disputed that peace officers have “significant daily interaction with other employees in the unit.”

The ALJ next commented on the ICOP’s assertions with respect to Local 7’s alleged “ineffective and inadequate” representation of police officers. The ALJ first found no factual basis for ICOP’s assertion that the current collective bargaining agreement contains no provisions commonly found in labor agreements covering peace officer units. In that respect, the ALJ found that although the ICOP contends that the current collective bargaining agreement should, but does not, contain provisions for “court time compensation” of police officers, for police uniforms, and body armor, the ICOP provides no evidence that in practice officers are not in fact paid for their court time, that they have no uniforms, or that they are not provided body armor. Similarly, the ALJ found that in the ICOP’s assertion that the collective bargaining agreement does not provide for a “pay differential for those [officers] serving in investigations rather than patrol,” the ICOP failed to even allege that such assignments are common in the Water District’s police force.

The ALJ further found that the ICOP does not dispute the following facts regarding negotiations conducted by Local 7:

“First, historically Local 7 has bargaining committees which consist only of the president of Local 7 and its business representative. Hence, no employees in the unit are actually on the bargaining committee. Second, Local 7 sends a letter to each employee represented prior to commencing bargaining requesting that they submit proposals to the union which they wish presented in bargaining. Local 7 also conducts membership meetings and steward meetings for development of proposals, and such meetings are open to police officers on the same basis as other employees. The peace officers have a steward who is a peace officer, and that steward is invited to stewards’ meetings conducted by Local 7 and, in addition, has the same right to attend membership meetings as any other member.”

The ALJ noted that although the ICOP contended that the police officers in the unit had filed grievances that were resolved only after long delays, it never alleged that nonpeace officers’ grievances are treated differently.

The ALJ then made the following analysis and conclusions of law. The ALJ first found that the ICOP had failed to make factual allegations sufficient to meet the Board’s “traditional” severance test. Specifically, the ALJ concluded that the ICOP had not made any suggestion that it could meet its burden to show that the group to be severed was a “particularly distinct and homogenous one that has suffered unresponsive or disparately poor representation in the existing unit.” The ALJ specifically found that there could be no “inherent” significant and distinct community of interest between the police officers and the other employees of the Water District because the Act specifically permits for mixed peace officer/nonpeace officer units. The ALJ further noted that in the entire history of the Board, a group of employees had successfully been severed under the traditional standard only once (see Independent Bridge Tenders Organization, 2 Pub. Employee Rep. (Ill.) par. 3022, No. L — RC—85—15 (ILLRB September 17, 1986) (hereinafter Independent Bridge Tenders, 2 Pub. Employee Rep. (Ill.) par. 3022) where over a period of 20 years the bargaining representative had essentially abandoned the group of employees seeking severance. The ALJ finally found that many of the deficiencies alleged by the ICOP in the collective bargaining agreement had not been shown to be material.

The ALJ next rejected the ICOP’s alternative contention that some lesser standard other than the “traditional” standard should be applied.

The ALJ further informed the parties that pursuant to the Board’s rules they could file exceptions to his recommended decision and order. On February 15, 2006, not having received any exceptions from the parties, the Board declared the ALJ’s recommended decision and order to be “final and binding,” but “non-precedential.”

However, on February 21, 2006, the ICOP filed a motion for extension of time to file its exceptions, and on March 22, 2006, the Board granted that motion. In its exceptions to the ALJ’s recommended decision and order, the ICOP essentially raised every argument that it had raised before the ALJ since its initial filing of the petition for representation. In support of its arguments, the ICOP included as attached exhibits every previous correspondence it had filed with the Board with respect to its petition. On April 6, 2006, Local 7 filed its response to ICOP’s exceptions.

On May 19, 2006, the Board issued its decision and order upholding the ALJ’s recommended decision and order and adopting it as the Board’s final administrative decision. In doing so, the Board noted that it had reviewed the record, the exceptions and the responses, and that it agreed with the recommendations of the ALJ to dismiss the ICOP’s petition. The ICOP now appeals.

II. ARGUMENT

On appeal, the ICOP contends that the Board improperly dismissed its petition under the traditional severance standard without first conducting a hearing pursuant to section 9(a) of the Illinois Labor Relations Act (Act) (5 ILCS 315/9(a) (West 2006)). The ICOP contends that there was sufficient evidence presented to the Board in the course of the investigation to warrant a hearing and that the Board therefore erred when it found that the ICOP had failed to present such evidence. The ICOP further argues that the Board erred when it refused to use the ICOP’s proposed less stringent standard for severing police employees from an existing unit of both peace officers and nonpeaceofficer employees. For the reasons that follow, we disagree.

1. Dismissal Under the Traditional Test

We first address the ICOP’s contention that the Board erred when it dismissed its petition for representation under the traditional severance standard without first conducting an evidentiary hearing. The ICOP specifically contends that the Board erred when it found that there was no “reasonable cause” to believe a question of representation existed under the traditional severance standard, so as to require a hearing pursuant to section 9 of the Act (5 ILCS 315/9 (West 2006)). For the reasons that follow, we disagree.

Before addressing the merits of this issue, we first address the applicable standard of review. Our supreme court has held that “the standard of review applicable to the agency’s decision depends upon whether the question presented is one of fact or law.” City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 204, 692 N.E.2d 295, 302 (1998). An administrative agency’s findings on questions of fact are deemed to be prima facie true (735 ILCS 5/3 — 110 (West 2006)), and a reviewing court will reverse the Board’s factual determinations only if it concludes that they were contrary to the manifest weight of the evidence. Illinois Fraternal Order of Police Labor Council v. Illinois Local Labor Relations Board, 319 Ill. App. 3d 729, 736, 745 N.E.2d 647, 653 (2001) (“[T]he decision is against the manifest weight of the evidence only if the opposite conclusion is clearly evident”). The Board’s conclusions of law, however, are not entitled to the same deference, and we review them de novo. Illinois Fraternal Order of Police Labor Council, 319 Ill. App. 3d at 736, 745 N.E.2d at 653. If the question presented for review is one of mixed law and fact, then yet a third standard applies, and we review the Board’s decision to determine if it was clearly erroneous. City of Belvidere, 181 Ill. 2d at 204, 692 N.E.2d at 302; see also Illinois Fraternal Order of Police Labor Council, 319 Ill. App. 3d at 736, 745 N.E.2d at 654.

In the present case, the ICOP contends that review should be de novo, while the Board and Local 7 contend that a clearly erroneous standard applies. We find that as between the two, the clearly erroneous standard is more appropriate. While the ICOP may be correct that 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 (see 5 ILCS 315/9 (West 2006)), as shall be more fully explained below, that test must be applied to and depend upon the sufficiency of facts presented to the Board during its investigation of the representation/election petition. See 5 ILCS 315/9 (West 2006); see 80 Ill. Adm. Code §1210.100(a), as amended by 28 Ill. Reg. 4172, eff. February 19, 2004. As such, our review of the Board’s finding would not be de novo; rather, the “clearly erroneous” standard of review applies. See City of Belvidere, 181 Ill. 2d at 205, 692 N.E.2d at 302; see also Illinois Fraternal Order of Police Labor Council, 319 Ill. App. 3d at 736, 745 N.E.2d at 654; Elementary School District 159 v. Schiller, 221 Ill. 2d 130, 143, 849 N.E.2d 349, 358 (2006).

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.’ ” AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 395, 763 N.E.2d 272, 282 (2002), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 766, 68 S. Ct. 525, 542 (1948); see also Illinois Fraternal Order of Police Labor Council, 319 Ill. App. 3d at 736, 745 N.E.2d at 654 (“[w]hen mixed questions of law and fact are involved, requiring an examination of the legal effect of a given set of facts, the [Board’s] resolution of such questions will be upheld if ‘reasonable, consistent with labor law and based on findings supported by substantial evidence’ ”), quoting Northwest Mosquito Abatement District v. Illinois State Labor Relations Board, 303 Ill. App. 3d 735, 742, 708 N.E.2d 548 (1999).

We next turn to the merits of the parties’ contentions. In the present case, the ICOP first argues that the Board did not follow proper procedure in dismissing its petition. Specifically, the ICOP contends that summary judgment proceedings should have applied in this instance, and that the Board should not have been permitted to dismiss its petition without first conducting a hearing, where the ICOP’s pleadings provided sufficient evidence to show the existence of “[a] genuine issue of material fact.” 735 ILCS 5/2 — 1005 (West 2006). On the other hand, the Board and Local 7 contend that summary judgment proceedings do not apply to the cause at bar and that, instead, the Board followed proper investigatory and dismissal procedures as defined by the Act (5 ILCS 315/1 et seq. (West 2006)) and the Board’s own rules and regulations (80 Ill. Adm. Code §1210.100(a)(6), as amended by 28 Ill. Reg. 4172, eff. February 19, 2004). For the reasons that follow, we agree.

We first note that section 9(a) of the Act governs elections and states in pertinent part:

“Whenever in accordance with such regulations as may be prescribed by the Board a petition has been filed:

(1) by a public employee or group of public employees or any labor organization acting in their behalf demonstrating that 30% of the pubhc employees in an appropriate unit (A) wish to be represented for the purposes of collective bargaining by a labor organization as exclusive representative, or (B) asserting that the labor organization which has been certified or is currently recognized by the public employer as bargaining representative is no longer the representative of the majority of public employees in the unit; or

(2) by a public employer alleging that one or more labor organizations have presented to it a claim that they be recognized as the representative of a majority of the public employees in an appropriate unit,

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.” (Emphasis added.) 5 ILCS 315/9(a) (West 2006).

Therefore, unlike in summary judgment proceedings where evidence cannot be weighed, 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. See 5 ILCS 315/9(a) (West 2006).

This interpretation is fully consistent with and borne out by the Board’s own regulations promulgated to implement section 9(a) of the Act. See 80 Ill. Adm. Code §1210.100(a), as amended by 28 Ill. Reg. 4172, eff. February 19, 2004. These regulations provide for a procedure under which inappropriate petitions can be dismissed without the need for a hearing. As section 1210.100(a)(6) states in relevant part:

“Upon receipt of the [representation] 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.” 80 Ill. Adm. Code §1210.100(a)(6), as amended by 28 Ill. Reg. 4172, eff. February 19, 2004.

The regulations further provide:

“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.” (Emphasis added.) 80 Ill. Adm. Code §1210.100(a)(7), as amended by 28 Ill. Reg. 4172, eff. February 19, 2004.

Our courts have repeatedly held a reviewing court must give deference to the administrative agency’s interpretation of the statute it was created to enforce. County of Will v. Illinois State Labor Relations Board, 219 Ill. App. 3d 183, 185, 580 N.E.2d 884, 885 (1991). “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.” County of Will, 219 Ill. App. 3d at 185, 580 N.E.2d at 885; see also Water Pipe Extension, Bureau of Engineering v. Illinois Local Labor Relations Board, 252 Ill. App. 3d 932, 936, 625 N.E.2d 733, 735 (1993) (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”; this policy is consistent with the principle that “administrative agencies must have wide latitude to adopt regulations reasonably necessary to effectuate their statutory functions”); see also Decatur Federation of Teachers v. Illinois Educational Labor Relations Board, 199 Ill. App. 3d 190, 197, 556 N.E.2d 780, 784-85 (1990) (“[cjourts may not interfere with the discretionary authority vested in an administrative agency unless that authority is exercised in an arbitrary or capricious manner or is against the manifest weight of the evidence. [Citation.] *** [Considerable deference must be given the Board because of the Board’s expertise in *** labor matters. [Citation.] To do otherwise would, for practical purposes, transform appellate review into trial de novo. [Citation.] Indeed, such a result would appear to substitute our general knowledge for the expertise required of Board members by *** the Act [citation]”).

In addition, we agree with the Board that the language of section 9 of the Act permitting prehearing dismissals substantially parallels the language of section 9(c)(1)(A) of the National Labor Relations Act (NLRA) (29 U.S.C. § 159(c)(1)(A) (1982)), which has been construed as “ ‘an “administrative expedient! ] only, adopted to enable [the Board] to determine for itself whether or not further proceedings are warranted, and to avoid needless dissipation of the Government’s time, effort and funds” through investigation of frivolous petitions. [Citations.]’ ” County of Kane v. Illinois State Labor Relations Board, 165 Ill. App. 3d 614, 619, 518 N.E.2d 1339, 1342 (1988), quoting National Labor Relations Board v. Metro-Truck Body, Inc., 613 F.2d 746, 749 (9th Cir. 1979). In that regard, we note that even though we are not bound by a federal court’s interpretation of a federal statute, we find the aforementioned characterization of the dismissal procedures under the NLRA relevant to our understanding of the dismissal procedures under the Illinois Act. See County of Kane, 165 Ill. App. 3d at 620, 518 N.E.2d at 1342 (holding that “when the State legislature passes a State statute based upon a [flederal statute, the statute can presumably be interpreted in conformity with the decisions of the [flederal courts rendered prior to the adoption of the statute,” and it may be presumed that the legislature adopted the language with knowledge of the construction previously enunciated in the federal courts).

Consequently, under the aforementioned principles, we find that in the present case, the regulations promulgated by the Board pursuant to section 1210.100 of title 80 of the Administrative Code (80 Ill. Adm. Code § 1210.100(a)(6), as amended by 28 Ill. Reg. 4172, eff. February 19, 2004) vested the ALJ with express authority to dismiss the ICOP 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.

The ICOP nevertheless cites to Cano v. Village of Dolton, 250 Ill. App. 3d 130, 620 N.E.2d 1200 (1993), contending that the Board’s administrative rule, allowing the Board to dismiss a petition if its investigation shows that the petition is inappropriate (80 Ill. Adm. Code §1210.100(a)(6), as amended by 28 Ill. Reg. 4172, eff. February 19, 2004), must necessarily invoke the same standards as would be applied in the circuit courts to resolve a motion for summary judgment under section 2 — 1005 of the Code of Civil Procedure (735 ILCS 5/2— 1005 (West 2006)). The ICOP therefore contends that the Board erred by not imposing a summary judgment standard on the parties and by not requiring both parties, as opposed to merely the ICOR to file affidavits or evidence in support of their positions. For the reasons that follow, we find that case inapposite.

Cano involved the proper standard for resolving a miscaptioned “summary judgment motion” brought before the Department of Human Rights in an age discrimination case pursuant to the Illinois Human Rights Act (Ill. Rev. Stat. 1991, ch. 68, par. 1 — 103). Cano, 250 Ill. App. 3d at 132, 620 N.E.2d at 1202. The court in Cano first found that since the motion was not brought before any circuit court, but rather before the Human Rights Commission (HRC), the rules of civil procedure governing summary judgment (see Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1005) were inapplicable. Cano, 250 Ill. App. 3d at 132 n.1, 620 N.E.2d at 1203 n.l. The court then stated that it would assume that in seeking “summary judgment,” the movant was in fact referring to the summary decision procedure available to the Human Rights Commission by the controlling statutory scheme, i.e., section 8 — 106.1 of the Illinois Human Rights Act (Ill. Rev. Stat. 1989, ch. 68, par. 8 — 106.1), which permitted an investigator to issue a recommended order without a hearing “if the pleadings and affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a recommended order as a matter of law.” Cano, 250 Ill. App. 3d at 137, citing Ill. Rev. Stat. 1989, ch. 68, par. 8 — 106.1.

The court then held that because the language of the Illinois Human Rights Act governing summary orders (Ill. Rev. Stat. 1989, ch. 68, par. 8 — 106.1) paralleled the language of the Code of Civil Procedure governing motions for summary judgment (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1005), the HRC had properly applied the rules of summary judgment in reaching its decision. Cano, 250 Ill. App. 3d at 138. In doing so, the court wrote:

“A summary decision is the administrative agency procedural analogue to the motion for summary judgment in the Code of Civil Procedure. (Ill. Rev. Stat. 1991, ch. 110, par. 2- — 1005.) Because of the similarities of the two, it would seem appropriate to employ the case law which has grown out of the summary judgment motion practice when reviewing the propriety of such an order on direct review, the only difference being that while this court reviews motions for summary judgment de novo (see Myers v. Health Specialists, S.C. (1992), 225 Ill. App. 3d 68, 72, 587 N.E.2d 494, 497, appeal denied (1992), 145 Ill. 2d 635, 596 N.E.2d 630), the Human Rights Act empowers this court to reverse a decision made by HRC only if it is against the manifest weight of the evidence. Ill. Rev. Stat. 1991, ch. 68, par. 8 — 111(A)(2).” Cano, 250 Ill. App. 3d at 138.

Unlike in Cano, in the present case, the language of section 9(a) of the Act (5 ILCS 315/9(a) (West 2006)), as well as the procedures outlined in section 1210.100 of Title 80 of the Administrative Code (80 Ill. Adm. Code §1210.100(a)(6), as amended by 28 Ill. Reg. 4172, eff. February 19, 2004) explaining how section 9(a) is to be applied, in no way parallels the rules of summary judgment articulated in section 2 — 1005 of the Code of Civil Procedure. See 5 ILCS 315/9(a) (West 2006) (“the Board shall investigate such a petition, and if it has reasonable cause to believe that a question of representation exists, shall provide for an appropriate hearing upon due notice” (emphasis added)); 80 Ill. Adm. Code §1210.100(a)(6), (a)(7) as amended by 28 Ill. Reg. 4172, eff. February 19, 2004 (“Upon receipt of the [representation] 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. *** 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” (emphasis added)); but see 735 ILCS 5/2 — 1005 (West 2006) (“if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law”). Moreover, unlike in a summary judgment proceeding, under the administrative regulations in the cause at bar, during his investigation of the petition, the ALJ was explicitly permitted to require only the petitioning party to provide the Board with sufficient evidence to overcome the ALJ’s finding that the petition was inappropriate and to dismiss the petition if the petitioner failed to provide such evidence. See 80 Ill. Adm. Code §1210.100(a)(6), as amended by 28 Ill. Reg. 4172, eff. February 19, 2004. As such we find Cano clearly inapplicable to the cause at bar and conclude that the Board could properly dismiss the ICOP’s petition without a hearing if, after its investigation, it found that there was “no reasonable cause to believe” a question of representation existed. See 80 Ill. Adm. Code §1210.100(a)(7), as amended by 28 Ill. Reg. 4172, eff. February 19, 2004.

Thus, we next consider whether such a finding by the Board in this case was clearly erroneous. The Board first found that because the ICOP wanted to represent 51 peace officers represented since 1967 by Local 7 within a bargaining unit of approximately 400 employees of the Water District, the ICOP petition essentially sought severance of “an existing recognized unit.” As such the Board applied the “traditional severance” standard as enunciated in City of Chicago, 2 Pub. Employee Rep. (Ill.) par. 3015. The Board next found that the ICOP failed to provide it with sufficient factual information to meet the requirements of the “traditional severance” test and that therefore there was no reasonable cause to believe a question of representation existed warranting a hearing. For the reasons that follow, we find that the Board’s conclusions were not clearly erroneous. City of Belvidere, 181 Ill. 2d at 205, 692 N.E.2d at 302.

We first note that this court has previously made clear that a subgroup of a bargaining unit is not entitled to separate representation simply because it is a more appropriate bargaining unit, so long as the existing bargaining unit is itself appropriate. See Illinois Fraternal Order of Police Labor Council, 319 Ill. App. 3d at 744, 745 N.E.2d at 660. In Illinois Fraternal Order of Police, this court upheld the Board’s refusal to break up an existing larger bargaining unit and replace it with the incumbent union, holding:

“Section 9(b) [of the Act (5 ILCS 315/9(b) (West 2006))] does not require that a proposed unit be the most appropriate unit. Rather, it requires that the unit be appropriate.” (Emphasis added.) Illinois Fraternal Order of Police Labor Council, 319 Ill. App. 3d at 743, 745 N.E.2d at 659.

Under this principle it appears that to warrant severance from an existing bargaining unit, the petitioning group must not only establish that the proposed unit is appropriate, but also that the existing bargaining unit is not. See Illinois Fraternal Order of Police Labor Council, 319 Ill. App. 3d at 743, 745 N.E.2d at 659.

Consistent with this holding, in construing its duties under section 9 of the Act (5 ILCS 315/9 (West 2006)), the Board has traditionally disfavored severance of employees from existing bargaining units because of “the policy against disrupting existing stable bargaining relationships. ” See County of Peoria v. Illinois State Labor Relations Board, 305 Ill. App. 3d 827, 834-35, 713 N.E.2d 745, 749-50 (1999); see also, e.g., Lake County Sheriff’s Department, 6 Pub. Employee Rep. (Ill.) par. 2037; Watley, 2 Pub. Employee Rep. (Ill.) par. 3009, No. L — RD—85—08 (ILLRB April 17, 1986) (hereinafter Chicago Crossing Guards Ass’n, 2 Pub. Employee Rep. (Ill.) par. 3009, at ix — 33) (noting that “the fundamental objective of the Act [is] peace and stability in bargaining relationships”). As such, the Board has been very reluctant to find severance appropriate, in the absence of an incumbent union’s near-abandonment of the petitioned-for employees. See, e.g., Cook County Sheriff’s Enforcement Ass’n, 16 Pub. Employee Rep. (Ill.) par. 3003, No. L — RC—99—026 (ILLRB October 12, 1999) (hereinafter County of Cook, 16 Pub. Employee Rep. (Ill.) par. 3003); Rundle, 6 Pub. Employee Rep. (Ill.) par. 3006, No. L — RD—89—030 (ILLRB February 5, 1990) (hereinafter Chicago Park District, 6 Pub. Employee Rep. (Ill.) par. 3006); National Pharmacists Ass’n, 7 Pub. Employee Rep. (Ill.) par. 3028, No. L — RC—91—008 (ILLRB June 12, 1991); County of Macon, 17 Pub. Employee Rep. (Ill.) par. 2042, No. S — RD— 01 — 004 (ISLRB July 23, 2001), but see Independent Bridge Tenders, 2 Pub. Employee Rep. (Ill.) par. 3022 (the only case where the Board permitted severance of an existing historical bargaining unit).

Consequently, the Board has created a two-prong test to determine whether severance of a subgroup from an already existing larger bargaining unit is appropriate. Under this test, a petitioner seeking severance must meet a significant burden by demonstrating that the employees to be severed: (1) share a significant and distinct community of interest; and (2) have had conflicts with other segments of the existing bargaining unit or a record of ineffective and unresponsive representation of their peculiar interests by the existing unit’s bargaining agent. See Chicago Park District, 6 Pub. Employee Rep. (Ill.) par. 3006; Chicago Crossing Guards Ass’n, 2 Pub. Employee Rep. (Ill.) par. 3009; Independent Bridge Tenders, 2 Pub. Employee Rep. (Ill.) par. 3022. “The standard is in the conjunctive so that both parts must be met in order to allow the severance.” County of Cook, 16 Pub. Employee Rep. (Ill.) par. 3003, at xi — 5.

With respect to the first prong of that standard, the Board has long maintained that the appropriate inquiry is whether the group to be severed is so distinct, homogenous and singular so as to have a separate identity and community of interest from the employees in the already existing larger bargaining unit. See Chicago Park District, 6 Pub. Employee Rep. (Ill.) par. 3006 (under the first prong of the traditional severance standard, the petitioner “ ‘must show more than simply that [the group to be severed] could constitute an appropriate unit in the abstract, if no broader unit already existed.’ [Citation.] Rather, it must be shown that the unit to be severed has a ‘distinct, homogeneous and separate identity’ *** in comparison with *** the larger unit”). In applying this principle, the Board has repeatedly held that even where the members of the proposed unit share certain commonalities and traits, the first prong of the traditional severance standard is nevertheless not met where these same members “share a broad-based functional purpose and have common employment conditions and benefits” with the members of the already existing larger bargaining unit. See, e.g., County of Cook, 16 Pub. Employee Rep. (Ill.) par. 3003, at xi — 5; see also Chicago Crossing Guards Ass’n, 2 Pub. Employee Rep. (Ill.) par. 3009; National Pharmacists Ass’n, 7 Pub. Employee Rep. (Ill.) par. 3028.

While here argument can be made that because the members of the Water District’s police force provide a different service to the Water District from the other members of Local 7 (including, inter alia, firemen-oilers, principal storekeepers, laborers, patrol boat operators, material handlers, and pollution control technicians), they are more homogenous and inherently different from nonpeace officers so as to have a separate community of interest, we nevertheless must also consider that the peace officers and nonpeace officers in the bargaining unit essentially share common employment conditions and benefits, which may well establish sufficient commonalit