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City of Rockford v. Unit Six of the Policemen's Benevolent & Protective Ass'n

Case Date: 07/21/2004
Court: 2nd District Appellate
Docket No: 2-03-0774 Rel

No. 2--03--0774

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

THE CITY OF ROCKFORD, a Municipal
Corporation,

          Plaintiff-Appellant,

v.

UNIT SIX OF THE POLICEMEN'S
BENEVOLENT AND PROTECTIVE
ASSOCIATION OF ILLINOIS, JOHN
CABELLO and DAVID SWANSON,

          Defendants-Appellees.

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)		 Appeal from the Circuit Court
of Winnebago County.



No. 00--MR--73




Honorable
Gerald F. Grubb,
Judge, Presiding.

JUSTICE GROMETER delivered the opinion of the court:

This case involves the arbitrability of grievances filed by defendant Unit Six of the Policemen'sBenevolent and Protective Association of Illinois on behalf of defendants John Cabello and DavidSwanson. The circuit court of Winnebago County determined that the grievances were subject toarbitration. We reach the opposite conclusion. Accordingly, we reverse the judgment of the circuitcourt.

The following salient facts are gleaned from the record on appeal. Defendant Unit Six of thePolicemen's Benevolent and Protective Association of Illinois (Association) is the exclusive laborrepresentative for police officers employed by plaintiff, the City of Rockford (City). Defendants JohnCabello and David Swanson are police officers employed by the City and are members of theAssociation. Cabello and Swanson were injured in the line of duty. At the time of their injuries, bothCabello and Swanson held jobs outside of the Rockford police department. The City does not disputethat it was aware of the officers' outside employment. As a result of their injuries, both Cabello andSwanson sought workers' compensation benefits.

At all times relevant herein, the Association and the City were parties to a collectivebargaining agreement (CBA). The process for resolving grievances is set forth in the CBA. Notably,the CBA provides for the submission to binding arbitration of those disputes that cannot be resolvedthrough the grievance process. On May 21, 1999, the Association filed a labor grievance against theCity on Cabello's behalf. Although the grievance has not been made part of the record, it apparentlyalleged that the City did not provide Cabello with workers' compensation benefits for that portion ofearnings attributable to his off-duty employment. On August 6, 1999, the Association filed a similargrievance on Swanson's behalf. Cabello and Swanson were unable to resolve their grievances throughthe procedure set forth in the CBA, and arbitration was scheduled for March 31, 2000.

On March 29, 2000, the City filed a complaint for declaratory judgment and stay of arbitrationpursuant to section 2(b) of the Uniform Arbitration Act (710 ILCS 5/2(b) (West 2000)). In itscomplaint, the City argued that it was not required to arbitrate the grievances filed by Cabello andSwanson because the CBA is silent regarding entitlement to workers' compensation benefits for theloss of wages attributable to concurrent employment. In response, defendants filed an answer andaffirmative defense. Defendants asserted that the City violated an implied term of the CBA bydiscontinuing an "unequivocal, clearly enunciated and readily ascertainable past practice" of providingto Association members workers' compensation benefits for the loss of secondary employment wageswhen the member has been unable to work off duty as a result of an injury sustained while servingas a police officer. Defendants contended that whether the City could discontinue this past practicewas subject to arbitration. On August 3, 2000, the City filed a motion to strike and dismissdefendants' affirmative defense. The City alleged that defendants' affirmative defense was insufficientin law because, in deciding whether to stay the arbitration, it was not necessary for the court toconsider past practices.

On December 6, 2000, the trial court denied the City's motion to strike and dismissdefendants' affirmative defense. In its 1