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May 11, 2001

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JUSTICE LYTTON delivered the opinion of the court:

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The Department of Children and Family Services (DCFS)discharged Douglas Hayes, the grievant, as a child protectiveinvestigator. His discharge was submitted to arbitration inaccordance with the applicable collective bargaining agreement. The arbitrator found him guilty of several of the charges butmodified the discharge to a 30-day unpaid suspension. Hayes'union, the American Federation of State, County and MunicipalEmployees, Council 31, AFL-CIO (AFSCME) appealed to the circuitcourt, which vacated the arbitrator's award. We reverse the trialcourt and reinstate the arbitrator's award.

Hayes worked as a child protective investigator for DCFS from1982 until he was discharged in May 1998 due to his failure to maketimely contact with alleged victims or other subjects in a numberof abuse and neglect cases. His discharge was submitted toarbitration pursuant to a collective bargaining agreement betweenDCFS and the Illinois Department of Central Management Services(together, the Department) and AFSCME. The arbitrator found Hayesguilty of most of the allegations against him and reduced thepenalty from discharge to a 30-day unpaid suspension under theprinciples of progressive and corrective discipline. In addition,the Department could require Hayes to undergo retraining before heundertook an active caseload again.

The trial court vacated the arbitration award and reinstatedthe Department's discharge of Hayes. AFSCME appeals.

The trial court adopted the Department's argument that thearbitrator exceeded his authority by reducing Hayes' penalty fromdischarge to a 30-day unpaid suspension. On appeal, AFSCME arguesthat the arbitrator did not exceed his authority and properlyrelied 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), 173Ill. 2d 299, 304, 671 N.E.2d 668, 672 (1996). This court may notreverse an arbitrator's award unless there is (1) fraud,corruption, partiality, misconduct, or failure to submit thequestion to arbitration (Board of Education v. Chicago TeachersUnion, 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 apparenton 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 considerwhether 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 lawin finding that the absence of a "zero-tolerance" policy foruntimely 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, oursupreme court rejected a similar notion when it held that adischarged employee could be reinstated unless reinstatement wouldviolate an explicit law or policy prohibiting the employee'sconduct. In this case, the arbitrator found that, in a givencircumstance, some conduct may be "so obviously wrong and socompletely inconsistent with continued employment that the Employerneed not tolerate even one offense", citing as examples the assaultof a supervisor and the physical abuse of a resident in a Statecare facility. The arbitrator did not find that discharge wasimpermissible in any case involving principles of progressivediscipline. The arbitrator reasoned that because DCFS did not havesuch a zero-tolerance policy regarding tardy investigations,

"if discharge is the appropriate penalty, it must bebecause something in the grievant's work historyjustifies it, or because the specific charges against thegrievant make this case more serious than other cases oftardy investigations."

The arbitrator found that Hayes had a clean disciplinaryrecord, but had been repeatedly counseled regarding his failure toconduct timely investigations. Since Hayes had never been subjectto progressive corrective discipline, the arbitrator concluded thatsummary discharge was inappropriate. As support for thisconclusion, he noted that DCFS initially did not believe thatdischarge was necessary. Because we can find no gross error of lawor fact apparent on the face of the arbitration award, we may notvacate it on that basis. See Tim Huey Corp., 272 Ill. App. 3d at106, 649 N.E.2d at 1363.

The trial court also found that enforcement of the arbitrationaward violated established public policy against DCFS employingpersons whose neglect and dishonesty could seriously reduce thesafety, welfare, and protection of minors. See DuBose, 173 Ill. 2dat 316, 671 N.E.2d at 678. AFSCME contends that the arbitrator'saward should not have been vacated because it is rational and notcontrary to public policy.

An arbitrator's findings relating to an employee'srehabilitative potential and the risk imposed on third parties byhis reinstatement will be upheld if they are rational. DuBose, 173Ill. 2d at 322-23, 671 N.E.2d at 680. Courts lack the authority tooverturn an arbitrator's factual finding of an employee's potentialfor rehabilitation. United Paperworkers International Union v.Misco, Inc. (Misco), 484 U.S. 29, 44-45, 98 L. Ed. 2d 286, 303, 108S. Ct. 364, 374 (1987); DuBose, 173 Ill. 2d at 332, 671 N.E.2d at685. If an arbitrator has made an express or implicit finding thatan employee is subject to rehabilitation and is unlikely to repeatthe misconduct, "a court would be hard-pressed to find a publicpolicy barring reinstatement." Stead Motors v. AutomotiveMachinists Lodge No. 1173, 886 F. 2d 1200, 1213 (9th Cir. 1989). This is particularly true where the employer has agreed to followthe principles of progressive and corrective discipline, as in theinstant case. See AFSCME v. State of Illinois (Blasingame), 124Ill. 2d 246, 264, 529 N.E.2d 534, 542 (1988).

Here, the arbitrator carefully considered Hayes'rehabilitation potential and his amenability to discipline. Hefirst considered the specific charges against Hayes and found thatsome were unwarranted. He then acknowledged the seriousness of theremaining incidents and squarely placed responsibility for them onHayes. He also considered evidence of Hayes' competence andamenability to retraining as shown by his disciplinary record andwork history to determine whether discharge was appropriate. Hefound that there was little proof that Hayes, a longtime employee,was incompetent. He noted that Hayes' disciplinary record wasclean, containing only a "stale" oral reprimand from 1995. Hayes'work history showed that although he had been repeatedly counseledconcerning his tardy investigations, he had never been subjected toprogressive and corrective discipline.

Our review of the record indicates that DCFS did not act withsufficient clarity to correct the problem. Although DCFSrepeatedly told Hayes of his misfeasance, it failed to put anyteeth behind its reprimands pursuant to its policy of progressiveand corrective discipline until it finally sought to discharge him. As the arbitration award stated, "[t]he failure of supervision inthis case is a failure to give the grievant the necessarycorrective warnings, in the form of progressive discipline."

The arbitrator concluded that there was no evidence that Hayeswould not be amenable to progressive and corrective discipline ifit were properly applied. He noted that even Hayes' manager hadintended to retrain rather than discharge him until Hayes made anintemperate remark in his grievance answer. The arbitrator did notbelieve that, taken in context, this incident was sufficient tosummarily discharge Hayes in light of his 16 years of service. Wecannot say that these findings and conclusions were irrational (seeDuBose, 173 Ill. 2d at 322, 671 N.E.2d at 680) nor do we have theauthority to overturn them on judicial review (see Misco, 484 U.S.at 44-45, 98 L. Ed. 2d at 303, 108 S. Ct. at 374; DuBose, 173 Ill.2d at 332, 671 N.E.2d at 685).

Finally, in determining whether an arbitration award violatedpublic policy, the courts in DuBose and Blasingame also looked at:(1) the nexus between the grievant's misconduct and harm to others;(2) the suitability of the punishment; and (3) whether the awardsanctioned a violation of the law. DuBose, 173 Ill. 2d at 332, 671N.E.2d at 685; Blasingame, 124 Ill. 2d at 263, 529 N.E.2d at 541-42.

Fortunately, in this case Hayes' misconduct did not result inharm to any minors. However, the arbitrator found that Hayes'repeated failure to conduct timely investigations constituted aserious breach of his duties. While the arbitrator did not findthat this misconduct necessitated immediate discharge, he did findthat it warranted the next most severe sanction, an unpaid 30-daysuspension. This punishment is sufficiently severe that it cannotbe said to sanction a violation of law.

After reviewing the award in this case, we cannot say that thearbitrator's findings and conclusions were irrational or failed totake into account the appropriate public policy considerations. DuBose, 173 Ill. 2d at 322, 671 N.E.2d at 680. Thus, we reversethe trial court's decision and reinstate the arbitrator's award.

The judgment of the circuit court of Peoria County isreversed, and the arbitrator's award is reinstated.

Reversed.

BRESLIN and McDADE, JJ., concur.