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Third Division
June 30, 2003

No. 1-01-3583

JUSTICE HALL delivered the opinion of the court:

Plaintiff-appellant, Carlos Casanova, a former firefighter with theChicago fire department appeals from the circuit court's order dismissing hissecond amended petition to vacate the arbitrator's award. In the arbitrationaward, the arbitrator found that the City of Chicago (City) had demonstratedjust cause for discharging Casanova after he tested positive for alcohol inviolation of his "Last Chance Agreement" (LCA). The circuit court dismissedCasanova's second amended petition to vacate the arbitral award on the groundthat he had no standing to contest the award. The circuit court also foundthat the arbitrator did not exceed his authority or violate public policy byfinding that the City was not required to give Casanova a urine test to confirmthe results of his breathalyzer tests.

On appeal, Casanova contends that: (1) the LCA is a separate agreementfrom the collective bargaining agreement (CBA), and therefore the LCA gives himstanding, independent of his union, to bring suit to vacate the arbitrator'saward; and (2) the arbitrator's finding that the City was not required toperform a urine test to confirm the breathalyzer test results amounted to ataking of his property interest without due process of law in violation ofpublic policy. For the reasons that follow, we affirm.

FACTUAL BACKGROUND

On December 29, 1994, Casanova and a codefendant were arrested by theChicago police department for possession of cocaine. At the time of hisarrest, Casanova was employed as a firefighter with the Chicago fire department(CFD) and was a member of the Chicago Fire Fighters Union, Local #2 (Union). As a result of the arrest, the CFD brought disciplinary charges againstCasanova seeking his termination. Casanova filed a grievance protesting thethreatened discharge. No disciplinary action was taken, however, as the CFDawaited the outcome of the underlying criminal charge.⁽¹⁾

On September 10, 1997, Casanova, in the presence of a Unionrepresentative, signed what is commonly referred to as a "Last ChanceAgreement" or "LCA."⁽²⁾ The LCA provided that the recommended discipline oftermination pursuant to General Order 87-008 would be held in abeyance providedCasanova complied with the specific terms set forth in the employee assistanceprogram and subjected himself to random testing for drugs and/or alcohol for aperiod of one year. Under his LCA, if Casanova tested positive for drugs oralcohol during this one-year period, either on or off duty, he would be subjectto immediate discharge. The LCA also provided that Casanova waived any rightshe may have had "to contest or challenge any matters arising out of the drugand alcohol screening conducted in this case." The grievance as to theoriginally sought termination was withdrawn at or about the same time the LCAwas executed.

Thereafter, on the morning of September 30, 1997, 20 days after signingthe LCA, Casanova underwent a randomly scheduled drug and alcohol test inaccordance with the terms of his LCA. In answer to the question as to whetherhe had taken any medication within the past six hours, Casanova stated that hehad taken Tylenol Robitussin cough syrup at about 6 a.m. The CFD thenadministered two breathalyzer tests for alcohol. The first test occurred at9:46 a.m., and the second at 9:59 a.m. Both tests yielded a .04% positivealcohol level.

The CFD discharged Casanova by letter dated November 25, 1997, on theground that his positive test results for alcohol constituted a violation ofhis LCA. In response, the Union filed a grievance challenging Casanova'sdischarge and, in accordance with the provisions of the collective bargainingagreement, submitted the matter to arbitration.

Hearings before arbitrator Edwin H. Benn were held on September 29, 1998,and October 6, 1998. The sole issue at arbitration concerned whether the CFDhad just cause for discharging Casanova based on the positive test results foralcohol. The Union argued that the accuracy of the breathalyzer tests couldhave been compromised due to Casanova ingesting cough syrup containing alcoholjust before the tests were administered. The Union asserted that the positivetest results could have been caused by Casanova burping and regurgitating thecough syrup. The Union maintained that the cough syrup could have left traceamounts of alcohol in Casanova's teeth and mouth. The Union also argued thatsince Casanova's absorption of alcohol was slowed by hepatitis, the threetablespoons of cough syrup he had been taking every three to four hours beforeand on the date the breathalyzer tests were administered could have caused thepositive test results.

In response, counsel for the City maintained that before Casanova tookthe breathalyzer tests there was no evidence that he was burping to any extentthat would have caused regurgitation of the cough syrup. The City alsopresented evidence that pursuant to department protocol, the breathalyzer testswere given in such staggered time periods that any trace amounts of alcohol inCasanova's teeth and mouth would have dissipated by the time the tests wereadministered.

The City also presented the testimony of Doctor Arthur Prancan, anassociate professor of pharmacology at Rush Medical College. Dr. Prancantestified that if Casanova had ingested three tablespoons of cough syrupcontaining alcohol between 6 a.m. and 8 a.m., this would not have resulted in ameasurable concentration of alcohol at the time he underwent the breathalyzertests, even taking into account his slowed absorption of alcohol due tohepatitis. Dr. Prancan opined that in order for a person of Casanova's weight(205 pounds) to produce a .04% test result at 9:46 a.m., he would either haveto consume 17.75 ounces (2.2 eight-ounce bottles) of cough syrup containing 5%alcohol 20 minutes prior to the test, or consume 55.8 tablespoons (3.5 eight-ounce bottles) of cough syrup at 8 a.m.

The Union countered that in addition to the breathalyzer tests, the Cityshould have performed a confirmatory test for alcohol on Casanova's urinespecimen since he ingested cough syrup containing alcohol before taking thebreathalyzer tests. The City responded that General Order 87-008 did notrequire urine tests for alcohol but, rather, permitted the use of abreathalyzer test to detect alcohol.

On January 3, 1999, the arbitrator handed down his award. The arbitratorstated that Casanova had failed to raise the hepatitis matter until the hearingand noted that after Casanova was diagnosed with hepatitis in 1988, he ignoredhis physician's instructions to abstain from all alcoholic beverages. Thearbitrator determined that even accounting for Casanova's impaired absorptionof alcohol due to hepatitis, the small dosages of cough syrup he claimed heconsumed before taking the breathalyzer tests did not account for the .04%positive test results. The arbitrator also determined that pursuant to GeneralOrder 87-008, the City was not required to perform a confirmatory test foralcohol on Casanova's urine specimen. Accordingly, the arbitrator denied theUnion's grievance, finding that the City had met its burden of proving justcause for discharging Casanova where he tested positive for alcohol inviolation of his LCA. The Union did not challenge the arbitrator's decision.

On April 5, 1999, Casanova, represented by private counsel, filed apetition in circuit court to vacate the arbitral award. In the petition,counsel argued that the arbitrator exceeded his authority by finding that aconfirmatory urine test for alcohol was not required before Casanova could bedischarged. Counsel asserted that Casanova had a property interest in hisemployment, and that the arbitrator's denial of Casanova's grievance withoutrequiring the City to perform a urine test to confirm the breathalyzer testsamounted to a taking of this property interest without due process of law inviolation of public policy. Counsel also argued that the Union breached itsduty of fair representation by failing to file a petition to vacate thearbitral award.

On May 7, 1999, pursuant to section 2-615 and section 2-619 of the Codeof Civil Procedure (Code) (735 ILCS 5/2-615, 619 (West 1994)), the City filedits motion to dismiss Casanova's petition to vacate the arbitral award. TheCity argued that Casanova's petition should be dismissed because it wasuntimely filed. The City also argued that Casanova lacked standing to bring apetition to vacate the arbitral award unless he alleged and proved that hisUnion breached its duty of fair representation. In addition, the City claimedthat even if Casanova had standing to contest the award, he failed to allegefacts sufficient to state a claim that the Union committed any unfair laborpractice. The City further argued that the arbitrator did not exceed hisauthority because there is no public policy requiring the use of a confirmatoryurine test rather than a breathalyzer test to establish the presence ofalcohol.

On September 8, 1999, while Casanova's petition to vacate the arbitralaward was pending in the circuit court, counsel for Casanova filed an unfairlabor practice charge with the Illinois Labor Relations Board (Labor Board),alleging that the Union had breached its statutory duty of fair representationowed Casanova under the Illinois Public Labor Relations Act (Labor Act) (5 ILCS315/1 et seq. (West 1996)). In the charge, counsel maintained that in light ofthe 90-day limitations period for filing a petition to vacate an arbitralaward, the Union's conduct in waiting until May 10, 1999, to inform Casanovathat the Union would not be filing a petition to vacate on his behalf amountedto unfair representation. Counsel sought a declaration requiring the Union toproceed with a petition to vacate the arbitration award, reinstatement ofCasanova and any other relief provided by the Labor Act.

On September 10, 1999, the circuit court heard oral arguments onCasanova's petition to vacate the arbitral award. The record shows that thishearing was the first time the circuit court was informed that counsel forCasanova had filed a charge with the Labor Board. The circuit court was alsoinformed that the Labor Board had not yet made a determination. Upon receivingthis information, the circuit court stated that these revelations altered itsview on the standing issue.

At the court hearing, the City argued that in order for Casanova to havestanding to contest the arbitration award he would have to submit his claim inthe form of an unfair labor charge with the Labor Board, which the City claimedhad exclusive jurisdiction. In addition, the City argued that the arbitrator'sfinding that a confirmatory urine test for alcohol was not required did notoffend public policy, since breathalyzer tests were commonly used in criminalproceedings such as driving under the influence (DUI) of alcohol. The Cityfurther argued that a breathalyzer test was noninvasive and it was reasonablyrelated to the governmental interest of insuring that firefighters were notintoxicated while on duty.

After arguments were concluded, the circuit court denied the City'smotion to dismiss on the ground of standing, and instead held proceedings overuntil completion of the Labor Board's investigation of Casanova's chargeagainst the Union. On the issue of public policy, the circuit court concludedthat it could not, at that time, determine whether the arbitrator's awardviolated a defined and dominant public policy. The circuit court, therefore,gave Casanova permission to file an amended petition containing factssufficient to establish that the arbitrator's award violated a well-defined anddominant public policy.

Casanova filed an amended petition with the circuit court on May 8, 2000. On October 6, 2000, the Labor Board issued its decision dismissing Casanova'sunfair labor charge against the Union. Casanova appealed the Labor Board'sdecision directly to this court. Casanova v. Illinois Labor Relations BoardLocal Panel, No. 1-01-0313 (2001) (unpublished order under Supreme Court Rule23).

On December 13, 2000, Casanova filed a second amended petition to vacatethe arbitral award in the circuit court. The circuit court dismissedCasanova's second amended petition on September 6, 2001. The circuit courtdetermined that the CBA did not give Casanova standing to contest the arbitralaward and since the LCA was not an independent agreement, but instead wassubject to the CBA, the LCA also did not give him standing to contest theaward. The circuit court also concluded that there was no public policyguaranteeing a confirmatory urine test and, therefore, the arbitrator did notexceed his authority by finding that a confirmatory urine test for alcohol wasnot required before Casanova could be discharged. Casanova filed his noticeappealing the circuit court's order on September 25, 2001.

Meanwhile, on December 31, 2001, this court entered a Rule 23 orderrejecting Casanova's claim that the Labor Board erred by dismissing his unfairrepresentation charge against the Union. Casanova v. Illinois Labor RelationsBoard Local Panel, No. 1-01-0313 (2001) (unpublished order under Supreme CourtRule 23). On May 30, 2002, our supreme court denied Casanova's petition forleave to appeal the Rule 23 order.

ANALYSIS

Standard of Review

The circuit court's order dismissing Casanova's second amended petitionunder section 2-615 and section 2-169 involves questions of law and istherefore reviewed de novo. R-Five, Inc. v. Shadeco, Inc., 305 Ill. App. 3d635, 639, 712 N.E.2d 913 (1999).

I. Last Chance Agreement

Casanova first contends that the LCA gives him a right, independent ofhis Union, to contest the arbitral award. He asserts that the LCA is aseparate agreement from the CBA and therefore, the LCA gives him standing tobring suit to vacate the arbitrator's award.

The City responds that the LCA does not give Casanova standing to contestthe arbitrator's award because the LCA is not an independent agreement but,rather, is subject to the CBA between the City and the Union. The Citymaintains that the underlying arbitration was authorized by the CBA and not theLCA, which contains no arbitration clause. The City argues that thearbitration clause giving rise to the arbitral proceedings is found only in theCBA, and therefore, only parties to the CBA have standing to challenge anarbitration award. The City contends that since Casanova is not a party to theCBA he has no standing to bring suit to vacate the arbitration award. We agreewith the City.

Federal courts addressing this issue have determined that last chanceagreements are not independent of the collective bargaining agreement, butinstead should be treated as supplements to the collective bargaining agreementfor preemption purposes because the last chance agreement can only be effectiveas part of the larger collective bargaining agreement⁽³⁾. See, e.g., Tootsie RollIndustries, Inc. v. Local Union No. 1, 832 F.2d 81, 83-85 (7th Cir. 1987)(treating last chance agreement as if it were a collective bargainingagreement); Bakers Union Factory No. 326 v. ITT Continental Baking Co., 749F.2d 350, 354, 356 (6th Cir. 1984) (concluding that the collective bargainingagreement provides the means by which the parties may negotiate a last chanceagreement); International Union of Operating Engineers, Local 351 v. CooperNatural Resources, Inc., 163 F.3d 916, 919 (5th Cir. 1999) (stating that whenthe company and union entered into the LCA reducing an employee's punishmentfor failing a drug test, the parties "formed a binding contract pursuant to theCBA" and that the "LCA must be thought of as a supplement to the CBA")⁽⁴⁾.

Similar to the federal courts' interpretation of the matter, the LCA inthis case is not a separate agreement from the CBA. The collective bargainingagreement provided the framework for Casanova's LCA. For example, under theLCA, in lieu of being terminated, Casanova was given the opportunity to addresshis alleged alcohol and/or drug dependency problems by participating in thefire department's employee assistance program referenced in section B1, articleVI, of the CBA. This section of the CBA states in relevant part that "[t]heDepartment has historically maintained an Employee Assistance Program to assistemployees who may suffer from alcoholism, drug dependency, or other illnesseswhich should be treated." This section also indicates that nonprobationaryemployees are entitled to enter into last chance agreements. Thus, it is clearthat the City's alcohol and substance abuse policy relating to firefighters wasthe result of collective bargaining between the City and the Union. Withoutthe protections contained in the CBA, Casanova would not have had theopportunity to enter into a last chance agreement to save his job.

Therefore, since Casanova's LCA is technically a supplement to thecollective bargaining agreement and the arbitration clause giving rise to thearbitral proceedings is found only in the CBA, the only way that Casanova wouldhave standing to contest the arbitral award would be if he were a party to thecollective bargaining agreement or he was able to show that the Union breachedits duty of fair representation.

Casanova is not a party to the CBA and accordingly he does not havestanding to bring suit to vacate the arbitral award on this basis. Our supremecourt has determined that under section 8 and section 16 of the Labor Act (5ILCS 315/8, 16 (West 1996)), only parties to a collective-bargaining agreement,such as bargaining representatives and employers may bring suit in a circuitcourt to vacate an arbitral award. Stahulak v. City of Chicago, 184 Ill. 2d176, 180, 703 N.E.2d 44 (1998). Section 16 of the Labor Act provides:

"After the exhaustion of any arbitration mandated by this Act orany procedures mandated by a collective bargaining agreement, suits forviolation of agreements * * * between a public employer and a labororganization representing public employees may be brought by the partiesto such agreement in the circuit court in the county in which the publicemployer transacts business or has its principal office." 5 ILCS 315/16(West 1996).

Section 8 of the Labor Act provides in relevant part that "[t]hegrievance and arbitration provisions of any collective bargaining agreementshall be subject to the Illinois 'Uniform Arbitration Act.'" 5 ILCS 315/8 (West1996). And section 12(a) of the Uniform Arbitration Act provides that "[u]ponapplication of a party," the circuit court shall vacate an award under certainenumerated circumstances. 710 ILCS 5/12(a)(1) through (a)(5) (West 1994).

The supreme court has held that pursuant to sections 8 and 16 of theLabor Act, section 12(a) of the Uniform Arbitration Act permits arbitral awardsto be challenged only by the parties to the collective bargaining agreement andnot individual employees. Stahulak, 184 Ill. 2d at 180. In Stahulak, thesupreme court concluded that in exchange for the benefits provided by thecollective bargaining agreement, individual employees gave up their rights tobargain with the City. Stahulak, 184 Ill. 2d at 184. The supreme court went onto state that if an individual unionized employee was allowed to freely seekjudicial review of an arbitral award, "'the settlement machinery provided bythe contract would be substantially undermined, thus destroying the employer'sconfidence in the union's authority and returning the individual grievant tothe vagaries of independent and unsystematic negotiations.'" Stahulak, 184 Ill.2d at 184, quoting Vaca v. Sipes, 386 U.S. 171, 191, 17 L. Ed. 2d 842, 858, 87S. Ct. 903, 917 (1967). Consequently, the supreme court has held that"individual employees represented by a union should only be allowed to seekjudicial review of an arbitration award if they can show that their unionbreached its duty of fair representation." Stahulak, 184 Ill. 2d at 184.

In the instant case, there are two reasons why Casanova cannot show thatthe Union breached its duty of fair representation. First, Casanova's petitionfails to allege that the Union breached its duty of fair representation. Andsecond and more important, this issue was decided adversely to Casanova by theLabor Board, which found that the Union did not breach its duty of fairrepresentation to Casanova when it declined to bring a challenge to thearbitral award in the circuit court. The Labor Board's decision was upheld bythis court in Casanova v. Illinois Labor Relations Board Local Panel, No. 1-01-0313 (2001) (unpublished under Supreme Court Rule 23), and thereafter,Casanova's petition for leave to appeal the Rule 23 order to the supreme courtwas denied.

Consequently, the City contends that under the doctrine of collateralestoppel, the Labor Board's decision bars Casanova from relitigating the unfairlabor claim in this appeal. We agree with the City. The doctrine ofcollateral estoppel, also known as issue preclusion, bars a claim when: (1) theissue decided in the first proceeding is identical with the one presented inthe current action; (2) there was a final judgment on the merits in the prioradjudication; and (3) the party against whom estoppel is asserted was a partyor in privity with a party to the prior adjudication. Terry v. Watts CopySystems, Inc., 329 Ill. App. 3d 382, 389, 768 N.E.2d 789 (2002). In this case,all the requirements for application of collateral estoppel have beensatisfied. First, the proceedings before the Labor Board were judicial innature resulting in a written decision. See Marco v. Doherty, 276 Ill. App. 3d121, 124-25, 657 N.E.2d 1165 (1995) (concluding that administrative decisionshave collateral estoppel effect where the department's determination is made inproceedings which are adjudicatory, judicial or quasi-judicial in nature). Second, the issue regarding the unfair labor claim decided before the LaborBoard is identical to the issue presented in this appeal. Third, the LaborBoard reached a final decision on the issue, which was subsequently affirmed bythis court. And fourth, Casanova, against whom collateral estoppel is beingasserted, was a party in the earlier adjudication and was represented bycounsel. Consequently, Casanova cannot now relitigate the unfair labor claimin this appeal and therefore he does not have standing to bring suit to vacatethe arbitral award.

Alternatively, the City contends that the doctrines of waiver andestoppel prevent Casanova from claiming that his LCA gave him contract rightsindependent of the CBA. Specifically, the City maintains that Casanova waivedany contract rights he may have had under the LCA, by failing to assert theserights before the Union took up his cause under the CBA's grievance procedureor during the arbitration. The City contends that if Casanova wanted to assertindependent contract rights under his LCA, he should have done so at thebeginning of the dispute by taking his grievance directly to the City and ifunsatisfied, filing an action alleging breach of contract in the circuit court. The City argues that Casanova's failure to take these measures gives rise toestoppel. We must reject the City's arguments on this issue.

Even though Casanova's LCA is technically a supplement to the collectivebargaining agreement, the two agreements should not be construed as onecontract for the purpose of determining whether Casanova waived his rightsunder the LCA or whether he should be estopped from arguing that the LCA is aseparate agreement from the CBA. The collective bargaining agreement governsthe employer-employee relationship and resulted from negotiations between theCity and the Union. In contrast, the LCA was the result of negotiationsbetween Casanova and personnel from the Chicago fire department such asemployee assistance counselors and disciplinary officers. In signing the LCA,Casanova entered into a new contractual relationship that significantly alteredhis rights under the existing collective bargaining agreement. Casanova wasdischarged for violating the terms of his LCA, not the collective bargainingagreement. Accordingly, the issues relative to Casanova's LCA cannot beprecluded by the doctrines of equitable estoppel or waiver.

Casanova next contends that he had a property interest in his employmentand that the arbitrator's denial of his grievance without requiring the City toperform a urine test to confirm the breathalyzer test results amounted to ataking of this property interest without due process in violation of publicpolicy. The due process clause of the fourteenth amendment forbids a statefrom depriving any person of life, liberty, or property without due process oflaw. U.S. Const. amend XIV,