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07/10/87 American Federation of v. the State of Illinois Et

July 10, 1987

EMPLOYEES, AFL-CIO, PLAINTIFF-APPELLANT

v.

THE STATE OF ILLINOIS ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL

511 N.E.2d 749, 158 Ill. App. 3d 584, 110 Ill. Dec. 572 1987.IL.977

Appeal from the Circuit Court of Cook County; the Hon. Richard L. Curry, Judge, presiding.

APPELLATE Judges:

JUSTICE MURRAY delivered the opinion of the court. SULLIVAN, P.J., and PINCHAM, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

This is an appeal by plaintiff, the American Federation of State, County and Municipal Employees, AFL-CIO, from an order of the circuit court of Cook County granting summary judgment to defendants and vacating an arbitrator's award in the underlying labor dispute action. Defendants are the State of Illinois, Department of Mental Health and Michael A. Belletire, its director, and Department of Central Management and its director, Michael E. Tristano. For the reasons set forth below, we reverse.

The labor dispute in the instant matter arose as a result of the unauthorized absence of two technicians (the labor dispute grievants) who were employed by the Department of Mental Health at its Howe Developmental Center to provide day-to-day care and supervision of the developmentally disabled residents. The residents have an average I.Q. of 10 and function at the mental age of a one- or two-year-old child. It is undisputed that on April 28, 1985, the facility was "short staffed." Nonetheless, the grievants, shortly after serving breakfast to the residents, left the facility with a third employee to buy food for a barbecue to be held for the residents that afternoon. They went to a grocery store and shopped for approximately one-half hour, then proceeded to a flea market where they remained for one hour and 15 minutes; their grocery store stop was authorized, but their attendance at the flea market was not. During their absence, a male resident of the facility died after being left unattended and tied to a toilet in a wing of the unit other than the one to which the grievants were assigned. Based on these events, the grievants were discharged for mistreatment of service recipients pursuant to the rules and regulations of the Department of Mental Health and the policy of the Howe Developmental Center.

Plaintiff union filed a grievance on behalf of the two technicians challenging their discharges pursuant to a collective bargaining agreement in effect between plaintiff and defendants. Plaintiff alleged that the discharges were not for just cause, as required by the contract, and requested that the grievants be reinstated "and made whole for all wages and benefits lost." At a subsequent arbitration hearing, the arbitrator found that the defendants had proved their charges, but that the grievants were not directly responsible for the resident's death and, relying on several mitigating factors, reduced the grievants' discharges to four-month suspensions (the amount of time since their discharge) without pay or benefits and ordered that they be reinstated at the beginning of the next work week following entry of the award.

Thereafter, defendants refused to reinstate grievants and plaintiff union filed an action in the circuit court to enforce the award pursuant to the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1985, ch. 48, pars. 1608, 1616) and section 11 of the Illinois Uniform Arbitration Act (Ill. Rev. Stat. 1985, ch. 10, par. 111), defendants sought to vacate the award based on public policy considerations, and the parties filed cross-motions for summary judgment. The trial court, adopting defendants' view, held that the arbitrator's award was a departure from the public policy of Illinois (i.e., to protect, not to endanger, mental health patients left in the State's custody) and that the arbitrator exceeded his authority in reducing the discipline for the grievants' misconduct from discharge to suspension and reinstatement.

On appeal, plaintiff contends that the arbitration award was not reviewable on the merits and that the arbitrator's remedy of reinstatement does not offend public policy, whereas defendants argue to the contrary and further contend that the arbitrator exceeded his authority by considering mitigating factors on behalf of the grievants and, as a result thereof, in ordering their reinstatement.

In construing an arbitration award a court must, whenever possible, seek to uphold its validity. (Board of Education v. Chicago Teachers Union, Local No. 1 (1981), 86 Ill. 2d 469, 427 N.E.2d 1199.) Where a collective bargaining agreement provides that an arbitrator is to decide disputes involving the application and interpretation of the provisions of an agreement, such provision is the source and limit of the arbitrator's power. The scope of an arbitrator's power also generally depends upon what the parties agree to submit to him; an arbitrator exceeds his power when he decides any matters not submitted for his resolution. (Board of Trustees v. Cook County College Teachers Union, Local 1600 (1979), 74 Ill. 2d 412, 386 N.E.2d 47.) An arbitrator's award entered pursuant to a collective bargaining agreement between parties is not subject to review on the merits except for fraud, partiality, or some other misconduct. (See White Star Mining Co. v. Hultberg (1906), 220 Ill. 578, 77 N.E. 327; Sweet v. Steve's Cartage Co. (1977), 51 Ill. App. 3d 913, 365 N.E.2d 1110; Cohen v. Meyers (1969), 115 Ill. App. 2d 286, 253 N.E.2d 144; Ill. Rev. Stat. 1985, ch. 10. par. 112(e).) However, a court may "inquire into the merits of the arbitrator's interpretation in an effort to determine . . . if the arbitrator's award drew its essence from the agreement so as to prevent a manifest disregard of the agreement between the parties" (Board of Trustees v. Cook County College Teachers Union, Local 1600 (1979), 74 Ill. 2d 412, 421, 386 N.E.2d 47), notwithstanding our supreme court's recognition of the overriding interest in the finality which inheres in the submission of disputes to arbitration and its counseling against judicial review of the merits of arbitration awards (White Star Mining Co. v. Hultberg (1906), 220 Ill. 578, 77 N.E. 327).

We first observe that here, under the parties' collective bargaining agreement, disciplinary action may be imposed on an employee only for just cause. Disciplinary action or measures include an oral or written reprimand, suspension, or discharge. The arbitrator may neither amend, modify, nullify, ignore, add or subtract from the provisions of the agreement. The stipulated issue submitted by the parties for determination by the arbitrator was: Were the grievants discharged for cause? If not, what is the remedy?

The arbitrator subsequently found that defendants had proved their charges against the grievants, i.e., (1) that they were guilty of leaving their worksite while in pay status and while the facility was "short staffed," (2) they failed to notify their supervisor or receive permission to visit the flea market, and (3) they were guilty of mistreatment of service recipients as a result of their unauthorized absence. The arbitrator held, however, that the first two charges, standing alone, did not constitute just cause for discharge and the third charge, although serious, also did not constitute cause for discharge in light of certain mitigating factors which he deemed appropriate to take into consideration in order to determine whether cause for discharge existed. Specifically, the arbitrator took the following circumstances into consideration: (1) agreement by the parties that both grievants had been exemplary employees -- one employed for approximately eight years and the other for over 1 1/2 years; (2) the grievants had treated residents of the facility as though they were "family"; (3) the grievants admitted their wrongdoing and expressed remorse; and (4) at the arbitration hearing, the grievants were ...


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