City of Harvey v. American Federation of State, County & Municipal Employees

Case Date: 08/16/2002
Court: 1st District Appellate
Docket No: 1-01-1354 Rel

No. 1-01-1354

 

THE CITY OF HARVEY,

                      Plaintiff-Appellant, 

         v.

AMERICAN FEDERATION OF STATE, 
COUNTY AND MUNICIPAL EMPLOYEES
(AFSCME), COUNCIL 31, LOCAL 2404,

                      Defendant-Appellee. 

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Appeal from the
Circuit Court of
Cook County.


No. 00 CH 15907


Honorable
Richard A. Siebel,
Judge Presiding.


JUSTICE REID delivered the opinion of the court:

The appellant, the City of Harvey (Harvey), appeals thetrial court's order which granted the defendant's, AmericanFederation of State, County and Municipal Employees (AFSCME),Council 31, Local 2404 (Union), motion to confirm an arbitrationaward. On appeal, Harvey maintains the trial court erred becausethe arbitration award: (1) should be vacated on the grounds thatthe arbitrator did not have proper jurisdiction over the matter,and (2) violated public policy which mandates that an employerprovide a safe workplace for its employees and eliminate knowndangers. For the reasons that follow, we affirm the decision ofthe trial court.

BACKGROUND

This matter involves a Harvey employee who was terminatedfollowing an incident in which he allegedly made threateningremarks to his supervisor. The employee was a member of theUnion. The Union and Harvey were parties to a collective bargainagreement which governed the employee's employment. An expeditedgrievance was filed on the employee's behalf protesting thedischarge, and the dispute was arbitrated pursuant to thecollective-bargaining agreement. At the arbitration hearing,Harvey raised a procedural and substantive issue regarding theform and content of the grievance. After hearing the dispute,the arbitrator found that the employee was removed without justcause. Harvey subsequently filed suit in the circuit court ofCook County and moved to have the arbitrator's award vacated. The Union responded to the suit and moved to confirm thearbitrator's award. The trial court denied Harvey's motion andconfirmed the arbitration award. Harvey now appeals the trialcourt's decision confirming the arbitration award.

THE FACTS

The grievant, Dale Stokes, was employed by Harvey, which isa municipality in southern Cook County, Illinois. Stokes wasfirst employed as a laborer for Harvey's street department in1986. During his employment and at the time of his discharge,Stokes was a member of the Union. Harvey and the Union wereparties to a collective-bargaining agreement (CBA) that governedthe terms and conditions of employment for certain Harveyemployees, such as Stokes.

On September 30, 1999, while Stokes was at work, afluorescent lightbulb burst, releasing filaments thatprecipitated him having an asthma attack. Stokes informed hissupervisor, Russell Knaack, of the situation and requestedpermission to go to nearby Ingalls Memorial Hospital (IngallsHospital) because he was having trouble breathing. Knaackgranted Stokes permission and asked him if he needed a ride tothe hospital. Stokes told Knaack that he did not because hismother was coming to pick him up.

Later while at Ingalls Hospital, Stokes, who was concernedabout whether worker's compensation would cover his medicalexpenses, requested that hospital staff members telephone Knaackto seek approval for the hospital visit under worker'scompensation. The hospital staff made two telephone calls toKnaack, and each time, Knaack informed the hospital staff membersthat he would not give such approval, instead telling thehospital staff members that they should call Harvey's city hallto seek such approval.

Consequently, Stokes asked his mother, Pauline Stokes (Mrs.Stokes), to go and speak with Knaack personally to clear up thematter. Mrs. Stokes went to the street department facility andhad a discussion with Knaack. There are two rather differentversions of the content of this conversation that came out at thearbitration hearing.

Mrs. Stokes testified that during the meeting she askedKnaack why her son's visit to the hospital was not covered byworker's compensation. Mrs. Stokes said that Knaack responded inan outburst by saying, "It's not job related and I'm not gonnaokay it. If you want to get it okayed, call the mayor." Whenasked, "What do you mean in an outburst?" Mrs. Stokes replied,"He just screamed out. You know, hollered out and says, 'I'm notgonna do it, I'm not gonna do it. If you want to, call themayor. I'm not going to do it.' And he said, 'It's dust allover the world.'"

Knaack denied making these comments to Mrs. Stokes. Knaacktestified that he simply replied that the hospital visit was notcovered under worker's compensation and then turned and walkedaway from Mrs. Stokes.

Mrs. Stokes' testimony concerning what occurred nextfollows: "I says, 'well, I'm not a child.' And I walked away. Isaid, 'I'm 73 years old. And I stood there for a minute becauseI was upset. And then I said, 'Well, what do you have to do, dieon this darn job?' And I walked out. That was it."

Mrs. Stokes returned to the hospital and told Stokes abouther meeting with Knaack. Stokes stayed at the hospital receivingtreatment and medication until 2 p.m., at which time Stokes leftand returned to work to fill out a report for worker'scompensation.

The arbitrator's recitation of Knaack's testimony concerningthe next sequence of events follows:

"At around 2:00 o'clock in the afternoon, Stokescame walking into the shop. He was walking ratherbriskly and hollered something which Knaack could notmake out. He walked toward Stokes and Stokes walkedtoward him. Knaack asked Stokes 'What did you say? Stokes said, 'After work, you and I are going out inthe salt bin.' (Upon being questioned further, Knaacksaid [the salt bin is] a place in the Street Departmentwhere employees go to physically settle theirdifferences, to fight.) With that Knaack said, 'Areyou threatening me?'

At that point, Knaack testified: 'He ran right upto me, he bumped into me, and he says "if you everdisrespect my mother again, I'm going to kill you." And he was right in my face and he bumped into me. Ikind of stepped -- or I went back a little, and I putmy left arm up for some separation between him and I. And at that point, another employee, Cleo Thurman,grabbed him and picked him up and apparently carriedhim back to the parts room.'

Knaack continued his testimony, saying he wentback to his office and asked a secretary to call thepolice and told her [of] the problem. As he walkedback to the bench, past the parts room, he saw thatThurman still had a hold of Stokes, had him up in theair. As he went by, he heard Stokes say, 'I'm going tokill that motherfucker.'"

Stokes denied ever threatening Knaack. Stokes did admit totelling Knaack that he didn't like Knaack disrespecting hismother. Stokes also testified that Knaack bumped into him, andhe responded by saying, "Russ, don't push me." After askingKnaack not to push him for the second time, Stokes said, it wasat that point that Cleo Thurman came and separated the two men. Stokes also testified that he remained in the parts room forapproximately 10 to 15 minutes until he calmed down.

On October 1, 1999, Knaack attempted to conduct apreliminary hearing with Stokes as required by the CBA. Stokesrefused to attend the meeting and also refused to sign apredisciplinary form. Knaack subsequently issued a 29-daysuspension to Stokes. On October 1, 1999, Knaack also wrote amemorandum to the mayor of Harvey, wherein he recommended thatStokes be discharged. On October 11, 1999, Harvey terminatedStoke's employment.

Stokes was later arrested and charged with battery, assaultand disorderly conduct as a result of the incident. A trial washeld on January 25, 2000, and Stokes was found not guilty on allcharges.

On October 15, 1999, Stokes and the Union filed a grievance. Harvey responded to the grievance, maintaining the document thatStokes submitted did not constitute a valid grievance. On June22, 2000, the parties participated in an arbitration hearingbefore George Squillacote. On August 30, 2000, Squillacoteissued his findings.

Initially, Squillacote decided that he had properjurisdiction over the matter. Squillacote's findings as tojurisdiction follow:

"A look at the grievance will show one omission--it does not specifically state what is being grieved. The city argues that this is a fatal flaw leading tothe lack or arbitrability. However, I would find thatunder the circumstances here, it was clear what thegrievance concerned. The grievance was filed by Stokesjust four days after his discharge. What else could itconcern but that discharge? And obviously, it relatesto the just cause provision of the CBA. Also, Stokesfiled the grievance at Step 3, pursuant to the'Expedited Procedures' article of the CBA and thegrievance specifically indicates it is being filed atStep 3. Thus, he did not have to use the form referredto in the CBA for Step 2 grievances. And that alsoshows the grievance concerned Stoke's discharge--asdischarges are permitted to be filed at Step 3.

Accordingly, I find that a proper grievance wasfiled here-and timely filed--and accordingly the matteris arbitrable."

Squillacote then went on to find that Stokes had beenterminated without just cause. Harvey was ordered to allowStokes to return to work. However, Stokes did not receive backpay and was ordered to serve a 60-day suspension.

On November 2, 2000, Harvey filed a complaint pursuant tothe Illinois Uniform Arbitration Act (710 ILCS 5/1 et seq. (West2000)) as authorized by section 8 of the Illinois Public LaborRelations Act (5 ILCS 315/8 (West 2000)) to vacate thearbitration award. The Union then filed a motion to confirm thearbitration award. On February 14, 2001, Harvey filed a motionto vacate the arbitration award in response to the Union'smotion. The Union filed a reply to Harvey's response. On March15, 2001, the trial court entered an order that granted theUnion's motion to confirm the arbitration award and deniedHarvey's motion to vacate the arbitration award. On April, 11,2001, Harvey timely filed a notice of appeal.

ANALYSIS

I

Harvey contends the trial court erred when it granted theUnion's motion to confirm the arbitration award. Harveymaintains the arbitrator did not have proper jurisdiction to ruleon the matter because Stokes failed to follow the properprocedures when he filed his grievance form. Specifically,Harvey argues that Stoke's grievance failed to set forth thereason for the grievance as required by the CBA, andconsequently, the trial court should have vacated thearbitrator's decision.

The section of the CBA that details what a grievance shouldcontain follows:

"Step 3

If the grievance is not settled at Step 2, and thegrievant or the Union wishes to appeal the decision toStep 3, it shall be submitted to the Mayor and/or hisdesignee with ten (10) business days after receipt ofthe response at Step 2, or when a response should havebeen received at Step 2. The grievance shall set forththe facts and circumstances and shall state the reasonfor believing that the grievance was improperly deniedat Step 2. The Mayor and/or his designee shall theninvestigate the grievance, and may hold a meeting withthe parties involved in the grievance at a reasonablyconvenient time within ten (10) business day afterreceiving the grievance. The Mayor and/or his designeeshall then respond to the grievance, in writing, withinten (10) business days after conducting such meeting. If the grievance is denied, or if no response isreceived, the Union may proceed to arbitration."(Emphasis added.)

Initially, the Union argues that Stokes filed his grievanceunder the expedited procedures provision of the CBA and, as such,was not required to state the nature of the grievance as requiredunder step 2 of the CBA. In support of its argument, the Unioncites section B of the CBA, which follows:

"Section B. Expedited Procedures. The Union mayinitiate grievances concerning discharges, suspensionsof more than five (5) days and denial of promotions atthe third step of the grievance procedure. Wheneverpracticable, such grievances unresolved at the thirdstep meeting shall be scheduled for arbitration withinsixty (60) days of the third step meeting."

Also, the Union argues that there are no provisions in theCBA which provide that a grievance which fails to state thatwhich is being grieved is defective and hence deprives thearbitrator of jurisdiction. The Union points to the fact thatthe CBA does not specify the effect or remedy for a proceduraldefect in a grievance. In support of its argument, the Unionquotes language from Article VII of section D of the CBA toillustrate the CBA's silence with respect to the effect of aprocedural defect in a grievance. Article VII, section D of theCBA states:

"Section D. Limitations. Nothing in thisAgreement shall be construed as requiring the Union toprocess an unmeritorious grievance. The term 'businessdays' shall mean weekdays, Monday through Friday,exclusive of holidays. The parties may agree to anextension of any time limits provided that suchagreement is in writing and signed by a representativeof each party. If the Union fails to process agrievance within the required time limits, thegrievance shall be considered withdrawn. If the Cityfails to respond to a grievance within the requiredtime limit, the Union may regard the grievance as beingdenied and proceed to the next step. An arbitratorshall have no authority to: amend, modify, nullify,ignore, add to or subtract from this Agreement; ordecide cases subject to Civil Service Commissionjurisdiction except as set forth in Section D. Casesinvolving oral reprimands may be processed through thegrievance procedure but shall not be taken toarbitration."

Lastly, the Union asserts that this type of procedural issueis not jurisdictional but is rather within the exclusive andunreviewable authority of the arbitrator.

"This court has consistently recognized that the judicialreview of an arbitral award is extremely limited. [Citations.]This standard reflects the legislature's intent in enacting theIllinois Uniform Arbitration Act--to provide finality for labordisputes submitted to arbitration. See 710 ILCS 5/12 (West 1994)(denying judicial authority to vacate arbitral awards except ongrounds recognized at common law). The Act contemplates judicialdisturbance of an award only in instances of fraud, corruption,partiality, misconduct, mistake, or failure to submit thequestion to arbitration. [Citation.] Thus, a court is dutybound to enforce a labor-arbitration award if the arbitrator actswithin the scope of his or her authority and the award draws itsessence from the parties' collective-bargaining agreement.[Citation.]

To this end, any question regarding the interpretation of acollective-bargaining agreement is to be answered by thearbitrator. Because the parties have contracted to have theirdisputes settled by an arbitrator, rather than by a judge, it isthe arbitrator's view of the meaning of the contract that theparties have agreed to accept. We will not overrule thatconstruction merely because our own interpretation differs fromthat of the arbitrator. [Citation.]" American Federation ofState, County & Municipal Employees v. Department of CentralManagement Services, 173 Ill. 2d 299, 304-05 (1996).

In Board of Education of Posen-Robbins School District No.143