Appeal from the Circuit Court of the 10th Judicial Circuit Peoria County, Illinois No. 99-MR-384 Honorable Richard E. Grawey Judge, Presiding.
The opinion of the court was delivered by: Justice Lytton
The Department of Children and Family Services (DCFS) discharged Douglas Hayes, the grievant, as a child protective investigator. His discharge was submitted to arbitration in accordance with the applicable collective bargaining agreement. The arbitrator found him guilty of several of the charges but modified the discharge to a 30-day unpaid suspension. Hayes' union, the American Federation of State, County and Municipal Employees, Council 31, AFL-CIO (AFSCME) appealed to the circuit court, which vacated the arbitrator's award. We reverse the trial court and reinstate the arbitrator's award.
Hayes worked as a child protective investigator for DCFS from 1982 until he was discharged in May 1998 due to his failure to make timely contact with alleged victims or other subjects in a number of abuse and neglect cases. His discharge was submitted to arbitration pursuant to a collective bargaining agreement between DCFS and the Illinois Department of Central Management Services (together, the Department) and AFSCME. The arbitrator found Hayes guilty of most of the allegations against him and reduced the penalty from discharge to a 30-day unpaid suspension under the principles of progressive and corrective discipline. In addition, the Department could require Hayes to undergo retraining before he undertook an active caseload again.
The trial court vacated the arbitration award and reinstated the Department's discharge of Hayes. AFSCME appeals.
The trial court adopted the Department's argument that the arbitrator exceeded his authority by reducing Hayes' penalty from discharge to a 30-day unpaid suspension. On appeal, AFSCME argues that the arbitrator did not exceed his authority and properly relied on principles of progressive discipline and just cause.
Judicial review of an arbitration award is extremely limited. AFSCME v. Department of Central Management Services (DuBose), 173 Ill. 2d 299, 304, 671 N.E.2d 668, 672 (1996). This court may not reverse an arbitrator's award unless there is (1) fraud, corruption, partiality, misconduct, or failure to submit the question to arbitration (Board of Education v. Chicago Teachers Union, Local No. 1, 86 Ill. 2d 469, 474, 427 N.E.2d 1199, 1201 (1981)) or (2) gross errors of law or mistakes of fact are apparent on the face of the award (Tim Huey Corp. v. Global Boiler & Mechanical, 272 Ill. App. 3d 100, 106, 649 N.E.2d 1358, 1363 (1995)).
Since there are no allegations of fraud, corruption, partiality, or misconduct in this case, we need only consider whether the face of the award contains gross errors of law or fact. See Tim Huey Corp., 272 Ill. App. 3d at 106, 649 N.E.2d at 1363. The Department claims that the arbitrator made a gross error of law in finding that the absence of a "zero-tolerance" policy for untimely investigations precluded Hayes' discharge, citing DuBose, 173 Ill. 2d 299, 671 N.E.2d 668.
In DuBose, 173 Ill. 2d at 320-21, 671 N.E.2d at 679-80, our supreme court rejected a similar notion when it held that a discharged employee could be reinstated unless reinstatement would violate an explicit law or policy prohibiting the employee's conduct. In this case, the arbitrator found that, in a given circumstance, some conduct may be "so obviously wrong and so completely inconsistent with continued employment that the Employer need not tolerate even one offense", citing as examples the assault of a supervisor and the physical abuse of a resident in a State care facility. The arbitrator did not find that discharge was impermissible in any case involving principles of progressive discipline. The arbitrator reasoned that because DCFS did not have such a zero-tolerance policy regarding tardy investigations,
"if discharge is the appropriate penalty, it must be because something in the grievant's work history justifies it, or because the specific charges against the grievant make this case more serious than other cases of tardy investigations."
The arbitrator found that Hayes had a clean disciplinary record, but had been repeatedly counseled regarding his failure to conduct timely investigations. Since Hayes had never been subject to progressive corrective discipline, the arbitrator concluded that summary discharge was inappropriate. As support for this conclusion, he noted that DCFS initially did not believe that discharge was necessary. Because we can find no gross error of law or fact apparent on the face of the arbitration award, we may not vacate it on that basis. See Tim Huey Corp., 272 Ill. App. 3d at 106, 649 N.E.2d at 1363.
The trial court also found that enforcement of the arbitration award violated established public policy against DCFS employing persons whose neglect and dishonesty could seriously reduce the safety, welfare, and protection of minors. See DuBose, 173 Ill. 2d at 316, 671 N.E.2d at 678. AFSCME contends that the arbitrator's award should not have been vacated because it is rational and not contrary to public policy.
An arbitrator's findings relating to an employee's rehabilitative potential and the risk imposed on third parties by his reinstatement will be upheld if they are rational. DuBose, 173 Ill. 2d at 322-23, 671 N.E.2d at 680. Courts lack the authority to overturn an arbitrator's factual finding of an employee's potential for rehabilitation. United Paperworkers International Union v. Misco, Inc. (Misco), 484 U.S. 29, 44-45, 98 L. Ed. 2d 286, 303, 108 S. Ct. 364, 374 (1987); DuBose, 173 Ill. 2d at 332, 671 N.E.2d at 685. If an arbitrator has made an express or implicit finding that an employee is subject to rehabilitation and is unlikely to repeat the misconduct, "a court would be hard-pressed to find a public policy barring reinstatement." Stead Motors v. Automotive Machinists Lodge No. 1173, 886 F. 2d 1200, 1213 (9th Cir. 1989). This is particularly true ...