Corporate & Securities Law

Using ?Any? to Tame ?And?

By Ken Adams

Here’s a case of modest interest to you fans of and and or: County of Du Page v. Ill. Labor Rels. Bd., No. 105395, 2008 Ill. LEXIS 1835 (Ill. Dec. 18, 2008). It involves statutory construction, but the principles at issue apply equally to contracts.

The Illinois Labor Relations Board certified a chapter of the Metropolitan Alliance of Police (the “Union”) as the exclusive bargaining representative for a unit of deputy sheriffs employed by the County of Du Page (the “Employer”) . It did so in reliance on section 9(a-5) of the Illinois Public Labor Relations Act, which provides that as an alternative to an election, the Board may certify a union on the basis of evidence showing that a majority of the employees wish to be represented by the union for the purposes of collective bargaining. Section 9(a-5) provides in part as follows (emphasis added):

If the parties to a dispute are without agreement on the means to ascertain the choice, if any, of employee organization as their representative, the Board shall ascertain the employees’ choice of employee organization, on the basis of dues deduction authorization and other evidence, or, if necessary, by conducting an election.

The Employer objected to certification. Among other things, it argued that section 9(a-5) required the Union to submit both dues deduction authorization evidence and some other evidence of majority support. The Board rejected this argument, but the appellate court vacated the Board’s decision and remanded the matter to the Board for further proceedings.

On appeal, the Illinois Supreme chewed over the meaning of and and reversed, holding “that the word ‘and,’ as used in the phrase ‘dues deduction authorization and other evidence,’ was intended by the legislature to mean ‘or.’” In other words, the Union wasn’t required to submit evidence in addition to a dues checkoff card.

Court analysis of the meaning of and is never pretty or edifying, even when the court reaches the appropriate outcome, as in this case. Saying that and means or is like saying fish means bicycle. My explanation? The legislature screwed up, because and means and. It may well be that saying that and means or represented for the Illinois Supreme Court the path of least resistance.

The legislature could have fixed the sentence of section 9(a-5) at issue by inserting the word any after and. That would have made it clear that the Union wouldn’t be required to submit additional evidence but instead had the option to do so.

So drafters, bear in mind the power of and any.

Full post as published by AdamsDrafting on February 06, 2009 (boomark / email).