the career service," and "career service" employees, defined as all employees not falling within one of the other twelve categories. Chicago Mun. Code § 2-74-030(12)-(13). The Rules track this scheme, distinguishing in Rule III between career service and exempt positions. One type of exempt classification is "exempt program" status, which applies to employees in "such programs as student work experience programs, trainee programs, federal public service employment programs, and any other programs, which, because of the program requirements, cannot be subject to Career Service requirements." Rule III, § 3-3. Authority to classify all exempt positions is reposed in the Commissioner of Personnel, following an elaborate procedure that begins with a department head recommending the exemption in writing, continues through mayoral approval, and ends with the Commissioner relaying the ultimate decision to the department head. Rule I, § 11; Rule III, § 3-4. It is undisputed that the City did not invoke these procedures with regard to EMA employees.
Just as the Rules subdivide exempt positions, they create subcategories of career service positions, one of which is "probationary appointment." Rule III, § 1-2. A probationary career service appointment is bestowed upon new employees for the first six months of their employment; the Rules provide that "probationary employees continuing in the service of the employer beyond their probationary period shall be Career Service employees." Rule IX, §§ 1, 3; Rule III, § 4. Employees achieving career service status through this method must undergo a sixty-day evaluation period. Rule III, § 4; Rule IX, § 1. Career service employees differ from non-career service employees (such as exempt program workers) in a critical respect: they are entitled to a post-termination hearing before the Personnel Board and a written statement of the charges against them, whereas non-career service employees are employed at-will and may be "discharged at any time for any reason or no reason and have no expectation or continued employment." Rule XVIII, § 5; Rule XVIII-A.
From these provisions, Brownlee devises a three-part syllogism. Brownlee cannot be an exempt program employee because the City never used the Personnel Rules' elaborate procedures to exempt EMAs from career service. Since the EMA job does not fall under the exempt program or any other specific classification in section 2-74-030 of the Municipal Code, Brownlee's job became a career service track position by "default." Having worked for the City for almost four years, there is no question that Brownlee completed the six-month probationary period that, under the Rules, ends in an automatic career service appointment.
B. The City's Position -- The CBA and AA Preempt These Rules and Make EMAs Employees At-Will
The City responds that these Code and Rule provisions conflict with the CBA and AA's conditions for EMA career service status, which undisputedly apply to Brownlee through his Union membership. According to the City, the AA supplants the Code and Rules' default six-month probationary career service track with a four-year apprenticeship period for EMAs. Only after completing this period may the EMAs "be appointed as Journeyman. Electrical Mechanics with full Career Service status," and then only if "funds and vacancies permit." AA P 11. By implication, this language withholds career service from EMAs until graduation. The City maintains that this interpretation is supported by the AA's bargaining history and by the arbitrator's decision.
Because Illinois law declares that a collective bargaining agreement supersedes any contrary statutes, ordinances, rules, or regulations relating to conditions of employment, see Illinois Public Labor Relations Act, 5 ILCS 315/15(b) (1993), the City argues that this conflict must be resolved in favor of the CBA and AA. The AA was made an addendum to the CBA and, just as the CBA preempts conflicting Code and Rule provisions, so does the AA. The AA overrides contrary CBA provisions as well. AA at 1.
A. The CBA and AA Preempt the Code and Rules By Imposing Non-Career Service Status on EMAs
After considering the parties' arguments and proffered sources, we conclude that Brownlee was subject to the AA's four-year career service track for EMA employees. The Code and Rules set forth general categories of employment, which include "probationary career service" and "exempt program" positions. To the extent the CBA and AA's terms do not conflict with these general classifications, the CBA and AA are consistent with the Code and Rules.
Where the contractual and regulatory sources diverge is on the employment status assigned specifically to the EMA position. We cannot reconcile the Rules' six-month probationary period for all "new employees" with the AA's four-year apprenticeship track to career service for EMAs. As between the two, the four-year AA scheme covers Brownlee because EMA employment status is a "condition of employment" on which the CBA and its incorporated AA have the last word under Illinois law.
See 5 ILCS 315/15(b) ("Any collective bargaining contract between a public employer and a labor organization executed pursuant to this Act shall supersede any contrary statutes, charters, ordinances, rules or regulations relating to wages, hours and conditions of employment and employment relations adopted by the public employer or its agents.").
Even if the Rules and Code did not conflict with the CBA and AA, Brownlee is not permitted to claim separate rights based on state-law provisions whose subject matter overlaps the CBA and AA's terms. In Bartoszewski v. Village of Fox Lake, 269 Ill. App. 3d 978, 986, 647 N.E.2d 591, 597, 207 Ill. Dec. 360 (2d Dist. 1995), the court held that the union member plaintiffs could not sue for overtime compensation based on a Village ordinance when the CBA "plainly covers the matter of preshift overtime work." As the court explained, "that the plaintiffs would have had another legal theory on which to proceed did not remove the dispute from the ambit of section 7.3 [of the CBA]." Id. at 987, 647 N.E.2d at 597. Similarly, Quist v. Board of Trustees, 258 Ill. App. 3d 814, 818-19, 629 N.E.2d 807, 810, 196 Ill. Dec. 262 (3d Dist. 1994), held that the plaintiffs could not advance claims based on state statutory provisions for reviewing non-tenured faculty when the CBA already set forth procedures for such review. In both cases, the plaintiffs waived their claims because they failed to take advantage of CBA provisions through the grievance and arbitration process. Although our case is different in that Brownlee did exhaust administrative remedies, it does not change the governing principle in these cases: union-member employees such as Brownlee cannot eschew CBA provisions in favor of other state-law sources that cover the same subject -- here, employment status.
While we write on a blank slate with our determination that the AA is the operative employment status source for EMAs, our conclusion that the AA subjects EMAs to a four-year career service track finds support in the arbitrator's decision. See McDonald v. City of West Branch, 466 U.S. 284, 292 n.13, 80 L. Ed. 2d 302, 104 S. Ct. 1799 (1984) ("An arbitral decision may be admitted as evidence in a § 1983 action."); Alexander v. Gardner-Denver Co., 415 U.S. 36, 60, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974) (district court has discretion to "admit an arbitration decision into evidence [and] accord it such weight as is deemed appropriate."); Jackson v. Bunge Corp., 40 F.3d 239, 245 (7th Cir. 1994) (same). The arbitrator ruled that Brownlee was a non-career service employee based on City and Union documentation calling Brownlee an exempt program employee, the fact that Brownlee was not compensated as a probationary career service employee, and the AA's provisions. Def.'s Ex. E, at 12-15. He construed the AA's pronouncement that EMAs "will be appointed as Journeyman Electrical Mechanics with full Career Service status" after four years to mean that an EMA like Brownlee is in an "exempt classification and . . . not accorded Career Service status until he completes his apprenticeship training." Id. at 13. This interpretation was based on the AA's bargaining history, adduced during the arbitration hearing, which revealed the Union's acceptance that EMAs would be classified as non-career service employees. Id. at 13-15.
We accord this interpretation great weight, if not complete deference. Pollard v. Azcon Corp., 1995 U.S. Dist. LEXIS, at *7 n.3 (N.D. Ill. July 21, 1995) ("'The court should defer to the arbitrator's construction of the contract."). The arbitrator is the ultimate authority on the meaning of labor agreement provisions, see Jasper Cabinet Co. v. United Steelworkers, 77 F.3d 1025, 1028 (7th Cir. 1996), and his interpretation of the AA's bargaining history is an arguable, if not eminently reasonable, construction of the AA, see United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 38, 98 L. Ed. 2d 286, 108 S. Ct. 364 (1987). Deference is especially appropriate in this case because the CBA declares that the arbitrator's decision on its meaning "shall be final and binding on all parties to the dispute, including the employee or employees involved." CBA art. 11, § 11.3. Having determined that the CBA and AA govern Brownlee's employment status, we see no reason to second-guess the arbitrator's conclusion on what those sources say about his status,
a determination contractually committed to his judgment and squarely within his expertise. See United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599, 4 L. Ed. 2d 1424, 80 S. Ct. 1358 (1960) ("The question of interpretation of the collective bargaining agreement is a question for the arbitrator. It is the arbitrator's construction which was bargained for . . . .").
Brownlee counters with two points in an effort to undermine the relevance of the CBA and the arbitrator's decision. First, he contends that the CBA and AA cede authority to the Code and Rules on the issue before us because the CBA states that "discharges shall be governed exclusively by the City of Chicago's Personnel or Police Board Rules . . . ." CBA art. 11, § 11.1(a). Second, Brownlee argues that he must be a career service employee because the City never went through the exemption procedures for EMAs and because the CBA and AA do not explicitly classify EMAs as exempt. Neither contention has merit.
Brownlee's first argument fundamentally misconceives the issue in this case. We are not at this point concerned with the procedural or substantive propriety of Brownlee's discharge. Rather, the threshold question we must ask is whether Brownlee had a property interest in his job. That question is answered by determining Brownlee's employment status -- career service or non-career service -- not by examining the City's requirements or processes for discharge. See Kim Constr. Co. v. Board of Trustees, 14 F.3d 1243, 1244 (7th Cir. 1994) ("Although [a] State may choose to require procedures against deprivation of substantive rights, . . . in making that choice, the State does not create an independent substantive right."). CBA Article 11 simply excludes "disciplinary action, including discharge . . . from this grievance procedure" and hands it over to the City's "Personnel or Police Board Rules, whichever may be applicable." Nothing in this language relinquishes the CBA or AA's authority to determine employment status.
Equally infirm is Brownlee's argument that he is a career service employee by virtue of the City's failure to follow the Personnel Rules' exemption procedures. Just as the AA preempts conflicting Rules on the EMAs' path to career service, it trumps the Rules' detailed exemption procedures by classifying EMAs through the collective bargaining process. 5 ILCS 315/15(b).
The arbitration hearing testimony on the AA's negotiation supports this conclusion. Joan Cole, the City's primary negotiator, testified that granting career service status immediately after the EMAs' four-year apprenticeship was a concession to the Union that EMAs would not have to complete an additional six-month probationary period when they graduated and became Electrical Mechanics. Pl. Motion S.J. Ex. 2, at 81-82, 89. As such, the Union understood that the EMAs "were trainees, and as trainees they had no status . . . . they would be at-will employees and under the exempt program category because that is the category that covers trainees." Id. at 83-84. Relying on this testimony, the arbitrator found that the Union consented through the negotiation process to classify EMAs as non-career service employees until they finished their apprenticeship.
Def.'s Facts Ex. E, at 13-14. Grounded in evidence of the parties' intent, this contractual interpretation deserves our deference.
For the same reason, we give no weight to the fact that the CBA and AA do not explicitly designate EMAs as "exempt program employees." The AA's collective bargaining history as interpreted by the arbitrator reveals that the Union (and therefore Brownlee) accepted that EMAs would be non-career service employees; whether they were categorized as exempt or some other non-career service classification is beside the point. And there is no evidence that, under the CBA and AA, the only two available statuses are exempt program and career service.
We stress that it is Brownlee's burden to prove that he attained career service status, not the City's responsibility to establish that Brownlee fell within some particular sub-classification of non-career service.
B. Brownlee Cannot Divorce His Constitutional Claim From His Employment Status Under the CBA and AA
The fact that Brownlee never achieved career service status defeats his section 1983 claim. When a constitutional claim is premised on an issue that was resolved against the plaintiff's union as a matter of CBA interpretation during grievance and arbitration proceedings, the claim fails as a matter of law because the court "'must defer to this interpretation of the agreement unless the employee can show that the union has breached its duty of fair representation . . . ." Dykes v. Southeastern Pennsylvania Transp. Auth., 68 F.3d 1564, 1570 (3d Cir. 1995) (quoting Bolden v. SEPTA, 953 F.2d 807, 829 (3d Cir. 1991)), cert. denied, 116 S. Ct. 1434, 134 L. Ed. 2d 556 (1996).
Dykes was a bus driver who got fired for refusing to submit to his employer's urinalysis test. His union pursued the matter through a three-step grievance procedure, contending that the employer had violated a CBA provision permitting drug testing only upon reasonable suspicion. At each step, the union lost, based on the determination that the employer had satisfied the CBA's reasonable suspicion criterion. Id. at 1566. Dykes subsequently filed a section 1983 suit in federal court, alleging that his employer's insistence on the drug test on pain of job loss violated his Fourth Amendment right against unreasonable search and seizure. Id.
Relying heavily on its 1991 decision in Bolden v. SEPTA,17 the Dykes court affirmed the district court's decision to dismiss the 1983 claim because it turned on a fact issue resolved during the grievance process. Dykes' Fourth Amendment claim asserted that the employer lacked a reasonable suspicion to subject him to drug testing. Id. at 1568. Because the CBA defined reasonable suspicion, this was a question "of fact to be determined during the course of the grievance process and . . . the finding reached during this process is binding upon the reviewing court." Id. Dykes could not subvert this unfavorable administrative resolution by relitigating reasonable suspicion through constitutional avenues. Id. The court explained that what stood between Dykes and his Fourth Amendment claim was not res judicata or collateral estoppel, but the simple fact that Dykes' union had authority as his exclusive bargaining representative to "'validly consent to terms and conditions of employment, such as submission to drug testing, that implicate employees' Fourth Amendment rights.'" Id. at 1569 (quoting Bolden, 953 F.2d 807 at 826). A separate constitutional claim was possible only if the union had breached its duty of fair representation during the grievance proceedings. Id. at 1570.
Dykes makes clear that when a constitutional claim depends on a fact question decided through labor grievance and arbitration procedures, the court is in no position to alter that resolution through constitutional analysis. Yet that is exactly what Brownlee would like us to do. His due process claim is dependent on our finding, contrary to the arbitrator, that he possessed a property interest in his position as EMA entitling him to a post-termination hearing before the Personnel Board. But the arbitrator concluded, based on the CBA and AA, that the Union and City agreed that EMAs would not become career service employees entitled to procedural protections against discharge until completing a four-year apprenticeship, and that Brownlee lacked career service status because he never satisfied this requirement. Having held that the CBA and AA govern Brownlee's employment status, we cannot furnish an answer inimical to the arbitrator's simply because it comes clothed in constitutional garb. Instead, we must defer to his construction of the CBA in the absence of any allegation that Brownlee's union breached its duty of fair representation.
This result follows from the fact that Brownlee's Union serves as his exclusive bargaining representative. See CBA art. 1, § 1.1. As such, it has the power to consent to conditions of employment on its members' behalf, even if those conditions "entail some restrictions on constitutional rights that individual employees would otherwise enjoy." Dykes, 68 F.3d at 1569 (citations and internal quotations omitted). The right implicated in Brownlee's case is his property interest in employment, which the union relinquished during AA negotiations by agreeing that EMAs would have a four-year track to career service status. Likewise, Brownlee's union agreed that the arbitrator's resolution of disputes based on CBA interpretation "shall be final and binding on all parties to the dispute, including the employee or employees involved." CBA art. 11, § 11.3. To permit individual employees to escape the concessions of their exclusive bargaining representatives would defeat the utility of union representation and undermine the collective bargaining process.
Brownlee relies on McDonald v. City of West Branch, 466 U.S. 284, 80 L. Ed. 2d 302, 104 S. Ct. 1799 (1984), in asserting that his section 1983 claim should be allowed to proceed notwithstanding the arbitrator's adverse decision on his employment status. Brownlee directs us to the Court's pronouncement that "in a § 1983 action, a federal court should not afford res judicata or collateral-estoppel effect to an award in an arbitration proceeding brought pursuant to the terms of a collective-bargaining agreement." Id. at 292.
First, we note that we are not applying the concepts of res judicata or collateral estoppel in deferring to the arbitrator's CBA and AA interpretation. But more importantly, McDonald does not apply here because the 1983 claim in that case was not dependent on any term in the collective bargaining agreement. The issue there was whether the arbitrator's determination that McDonald had been fired for just cause precluded a section 1983 claim alleging that McDonald was fired for exercising his First Amendment free speech rights. Id. at 286. In contrast to Dykes and this case, where the CBA and the constitutional provision turned on the same issue, the CBA in McDonald was not alleged to contain any provisions that intertwined with the First Amendment claim. See Papapetropoulous v. Milwaukee Transport Servs., Inc., 795 F.2d 591, 597 (7th Cir. 1986) (McDonald plaintiff "had a viable cause of action against [his] employer for conduct independent of the arbitrator's arbitration proceeding."); McNair v. United States Postal Serv., 768 F.2d 730, 736-37 (5th Cir. 1985) (McDonald "involved a claim of employer action that, without regard to the terms of the collective bargaining agreement, violates a federal statute. The claims did not derive in any way from contractual rights and the employee, therefore, [was] not attacking the arbitrators' decisions or the arbitration process."). McDonald simply stands for the proposition that a section 1983 action is not barred by arbitration proceedings dealing with the same events.
McDonald is therefore distinguishable based on the independence of the issues presented to the arbitrator and the Court. In Brownlee's case, the arbitral determination and the property interest issue turned on the very same question -- whether Brownlee attained career service status. Under these circumstances, giving credence to Brownlee's section 1983 claim would condone circumventing the required mechanism for reviewing an arbitrator's decision -- an action in Illinois Circuit Court to vacate the arbitration award. See 5 ILCS 315/8, 315/16; 710 ILCS 5/12. The Seventh Circuit has held that McDonald does not permit such roundabout attempts to challenge arbitral determinations:
The theory of McDonald. . . is that in instituting an action under [the statutes], the employee is not seeking review of the arbitrator's decision. Rather, he is asserting a statutory right independent of the arbitration process. In the action before us Papapetropoulous has failed to assert any statutory right independent of the arbitration process; rather, he seeks nothing but a review of the arbitrator's decision under the guise of a section 1983 action.
Id. (internal quotations and citations omitted). We will not permit Brownlee to use section 1983 as a means of avoiding the tight constraints of judicial review:
The Court made clear almost 30 years ago that the courts play only a limited role when asked to review the decision of an arbitrator. The courts are not authorized to reconsider the merits of an award even though the parties may allege that the award rests on errors of fact or on misinterpretation of the contract. "The refusal of courts to review the merits of an arbitration award is the proper approach to arbitration under collective bargaining agreements. The federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards." Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596, 4 L. Ed. 2d 1424, 80 S. Ct. 1358 (1960).