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Chicago Fire Fighters Union Local No. 2 v. City of Chicago

August 11, 2000

CHICAGO FIRE FIGHTERS UNION LOCAL NO 2, PLAINTIFF-APPELLEE,
V.
CITY OF CHICAGO, DEFENDANT-APPELLANT



The opinion of the court was delivered by: Justice Campbell

APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE THOMAS A. HETT, JUDGE PRESIDING.

This appeal arises out of the discharge or suspension of 28 employees of the Chicago Fire Department (CFD), by respondent, the City of Chicago, (the City), as a result of their participation in an unauthorized retirement party at a Chicago firehouse. Petitioners, the Chicago Fire Fighters Union Local No. 2 (the Union) grieved the discipline, and an arbitrator held the discharges and disciplinary suspensions untimely, thereby reinstating the employees to their respective positions and vacating the disciplinary actions. The Union then initiated an action to enforce an arbitration award issued pursuant to Section 11 of the Uniform Arbitration Act. 710 ILCS 5/11 (West 1998). The City filed a counter petition to vacate the arbitration award. After considering cross motions for summary judgment, the circuit court of Cook County entered an order granting the Union's motion and denying that of the City. On appeal, the City contends that the arbitration award should be vacated as against public policy. For the following reasons, we vacate the order entered below, and reverse and remand this matter for further proceedings consistent with this opinion.

BACKGROUND

The following facts are relevant to this appeal. In May 1997, CFD Internal Affairs Division ("IAD") Executive Assistant Mark Edingburg learned of the existence of a videotape of an unauthorized retirement party held on April 12, 1990, at the CFD firehouse known as Engine 100. The videotape depicted firefighters drinking alcoholic beverages inside the firehouse; leaving the firehouse in fire trucks to respond to fire calls; some participants making offensive racial, gender and ethnic slurs; and some engaging in other conduct such as exposing their bare buttocks and genitals. Edinburg viewed the videotape on May 9, 1997. On May 13, 1997, Edinburg advised Edward F. Altman, the IAD Director, of the existence of the videotape via memorandum. Altman did not notify his superiors of the existence of the videotape until late November 1997, after Altman learned that a local television news reporter had obtained a copy of the videotape. At that time, the CFD and the City commenced the disciplinary investigation process.

In early December 1997, the City filed charges against the 28 employees who participated in the videotaped party. Following an investigation conducted by Inspector General Alexander Vroustouris, discipline was imposed on the employees in May 1998. The disciplinary actions consisted of the discharge of seven employees and suspensions ranging form 6 to 60 days for the remaining employees.

On February 10, 1998, Altman was also charged with misconduct for failing to open an investigation after learning of the videotape and failing to apprize his superiors of the existence of the videotape. By letter dated February 25, 1998, Altman was separated from his position as Director of IAD.

Pursuant to the collective bargaining agreement (Agreement) between the City and the Union, the Union filed grievances on behalf of the 28 disciplined CFD employees. An arbitration hearing commenced before Arbitrator Edwin H. Benn on October 2, 1998. The arbitration proceedings were limited to the threshold question as follows:

"Whether the investigation of the alleged April 12, 1990 incident at Engine 100's quarters and/or the discipline imposed regarding such incident was or were untimely, that the discipline cannot stand? If so, what is the appropriate remedy?"

The text of the opinion and award includes Benn's comment in a footnote that:

"The videotape was received in evidence over the Union's objection. By receipt to the tape in evidence, I do not find at this time that the named Grievants engaged in the conduct or to the degree attributed to them by the charges in this case. The videotape was received for the limited purpose of showing that it was the basis used by the City to impose discipline."

Arbitrator Benn issued his opinion and award on December 30, 1998, finding that the disciplinary action was invalid as untimely, pursuant to Section 16.2(E) of the Agreement. Section 16.2(E) provides in pertinent part as follows:

"The Employer shall conduct disciplinary investigations when it receives complaints or has reason to believe an employee has failed to fulfill his responsibilities as an employee and just cause for discipline exists."

Benn found that pursuant to section 16.2(E), the City was required to have begun a disciplinary investigation "at the time" it learned of the alleged misconduct, and that a six-and-one-half month delay in the commencement of the disciplinary investigative process "was far beyond any reasonable time period allowed."

Next, as stipulated by the parties, Benn determined the appropriate remedy pursuant to section 16.2C of the Agreement which provides that:

"Any employee found to be unjustly suspended or discharged shall be reinstated with full compensation for all lost time and with full restoration of all other right, benefits and conditions of employment, without prejudice, unless a lesser remedy is agreed upon as a grievance settlement or deemed appropriate by an arbitrator."

Benn concluded that the disciplinary actions shall be rescinded:

"[t]hose employees discharged shall be reinstated to their former positions without loss of seniority rights, benefits and conditions of employment, without prejudice. All affected employees shall have their records cleared of references to discipline stemming from the April, 1990 party. All affected employees shall be made whole for lost wages and benefits and in all other respects."

After setting forth the award, Benn noted that he was required by American Federation of State County and Municipal Employees v. Department of Central Management Services, 173 Ill. 2d 299, 671 N.E. 2d 668 (1996), to take precautionary steps to ensure the misconduct at issue would not be repeated and to take into consideration pertinent public policy concerns. Benn stated:

"As I view the evidence before me, I am satisfied, and I find, that the public can be assured that the alleged misconduct will not be repeated by Grievants and that steps have been or can be taken to ensure that result.

Taken at its worst, the alleged misconduct in this case shows that eight years before they were disciplined, Grievants, in varying degrees, consumed alcohol in a firehouse against regulations (and with the implication that the citizens of the community served by Engine 100 did not have at their disposal the services of a full complement of unencumbered firefighters); some made racial, gender and ethnic offensive comments; and some engaged in boorish exhibitionist conduct. Those are troubling and serious allegations and the implications of that conduct have ...


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