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06/08/95 AMERICAN FEDERATION STATE v. ILLINOIS

June 8, 1995

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES (AFSCME), AFL-CIO, PLAINTIFF-APPELLANT,
v.
THE ILLINOIS DEPARTMENT OF CENTRAL MANAGEMENT SERVICES AND THE ILLINOIS DEPARTMENT OF CHILDREN AND FAMILY SERVICES, DEFENDANTS-APPELLEES.



Appeal from Circuit Court of Sangamon County. No. 93CH0075. Honorable Richard J. Cadagin, Judge Presiding.

Honorable Frederick S. Green, J., Honorable Robert W. Cook, J., Concurring, Honorable Robert J. Steigmann, J., Dissenting

The opinion of the court was delivered by: Green

JUSTICE GREEN delivered the opinion of the court:

On September 11, 1991, plaintiff American Federation of State, County and Municipal Employees (AFSCME) filed a grievance from a decision by defendants Illinois Department of Children and Family Services (DCFS) and Illinois Department of Central Management Services (CMS). The decision placed Vera DuBose (grievant), an AFSCME member and a child welfare specialist II, on 30 days' suspension pending discharge for allegedly falsifying a uniform progress report and failing to prepare service plans for a family under DCFS care. Apparently, DuBose falsely stated she had seen three minors in February 1990 and they were "doing fine" when, in fact, those children had died in a fire earlier.

After defendants discharged grievant on October 1, 1991, the grievance was submitted to arbitration pursuant to the parties' collective-bargaining agreement. On February 23, 1992, following a hearing, the arbitrator sustained the grievance and reinstated her to employment. The decision was based upon the failure of defendants to proceed with disciplining grievant within the time frame contained in the collective-bargaining agreement for such action.

The parties are subject to the Illinois Public Labor Relations Act (5 ILCS 315/1 et seq. (West 1992)), section 8 of which requires that arbitration provided for in a collective-bargaining agreement be conducted pursuant to the Uniform Arbitration Act (Act) (710 ILCS5/1 et seq. (West 1992)). (5 ILCS 315/8 (West 1992).) Sections 11 and 12 of the Act provide for circuit court proceedings to confirm and vacate, respectively, awards rendered by arbitration under the Act. (710 ILCS 5/11, 12 (West 1992).) On May 21, 1992, defendants filed an application in the circuit court of Sangamon County to vacate the arbitrator's award of February 23, 1992, on the ground that reinstating grievant was contrary to public policy. After a hearing, the circuit court agreed with defendants and entered an order on September 23, 1992, vacating the award and remanding to the arbitrator to decide the merits of the discharge. The question of the propriety of this order is the heart of the case. We conclude that the court erred in entering the order and that order vitiated the rest of the proceedings.

Subsequent procedures require only brief mention. On remand to the arbitrator, AFSCME made a "demur," electing to stand on the arbitrator's decision which was based on the untimeliness of defendants' disciplinary action against grievant. The arbitrator, Edwin H. Benn, correctly concluded that the circuit court order required him to hear the merits and, in the face of plaintiff's "demur," he was required to decide the issue in favor of defendants. On November 12, 1992, AFSCME filed a petition in the circuit court of Cook County under sections 11 and 12 of the Act asking the court to confirm the first order of the arbitrator and to vacate the last award which favored defendants. The venue was transferred to the circuit court of Sangamon County and that court entered an order on May 11, 1994, denying all of the relief requested.

AFSCME has appealed. The appeal inherently encompasses the propriety of the interlocutory order of February 23, 1992. That order was neither final nor otherwise appealable and is reached now for the first time. The fact that the circuit clerk gave a different number to the petition of AFSCME to the proceedings after the second order of the arbitrator does not preclude review of the propriety of the February 23, 1992, order. See Grames v. Illinois State Police (1993), 254 Ill. App. 3d 191, 198-99, 625 N.E.2d 945, 952, 192 Ill. Dec. 790.

The court's review of an arbitration award is very limited and a labor arbitration award must usually be enforced if "the arbitrator acts within the scope of his authority." ( American Federation of State, County & Municipal Employees v. State of Illinois (1988), 124 Ill. 2d 246, 254, 529 N.E.2d 534, 537, 124 Ill. Dec. 553.) The Supreme Court of Illinois has stated that a "narrow" exception to that rule exists when an award violates public policy. ( American Federation, 124 Ill. 2d at 261, 529 N.E.2d at 540.) However, that court has never upheld such an exception in regard to discharge of public employees covered by a collective-bargaining agreement.

The time schedule for bringing disciplinary actions against employees, which was the basis of the arbitrator's original decision, was contained in article IX, section 1, of that agreement and stated:

"Disciplinary action may be imposed upon an employee only for just cause. An employee shall not be demoted for disciplinary reasons. Discipline shall be imposed as soon as possible after the employer is aware of the event or action giving rise to the discipline and has a reasonable period of time to investigate the matter.

In any event, the actual date upon which discipline commences may not exceed forty-five (45) days after completion of the predisciplinary meeting. " (Emphasis added.)

DCFS and CMS do not dispute the determination of the arbitrator that the procedure against the grievant here was not brought within that time frame.

DCFS and CMS maintain that the situation in this case is substantially the same as that before this court in Department of Central Management Services v. American Federation of State, County & Municipal Employees (AFSCME) (1993), 245 Ill. App. 3d 87, 614 N.E.2d 513, 185 Ill. Dec. 379, appeal denied (1993), 152 Ill. 2d 556, 622 N.E.2d 1203, 190 Ill. Dec. 886. There, this court affirmed a judgment of the circuit court of Sangamon County rejecting an arbitrator's award which set aside the discharge of an employee when the charges had been timely instituted. There, procedures were the same as those here and the two grievants had similar jobs and were found to have falsified reports ...


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