AFSCME v. Dept. of Central Management Services
State: Illinois
Court: Supreme Court
Docket No: 79376
NOTICE: Under Supreme Court Rule 367 a party has 21 days after
the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.
Docket No. 79376--Agenda 10--March 1996.
AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES,
AFL-CIO, Appellee, v. THE DEPARTMENT OF CENTRAL MANAGEMENT
SERVICES et al., Appellants.
Opinion filed September 19, 1996.
JUSTICE FREEMAN delivered the opinion of the court:
Plaintiff, the American Federation of State, County and
Municipal Employees, AFL-CIO (AFSCME), brought this action against
defendants, the Department of Central Management Services and the
Department of Children and Family Services (collectively, DCFS),
seeking to confirm an arbitration award and to vacate a
supplemental arbitration award. 710 ILCS 5/11, 12 (West 1992). The
circuit court of Sangamon County denied the requested relief, and
the appellate court reversed, with one justice dissenting. 272 Ill.
App. 3d 814 (1995). We granted leave to appeal (155 Ill. 2d R. 315)
and now reverse the judgment of appellate court.
BACKGROUND
In December 1985, DCFS Child Welfare Specialist II Vera DuBose
was assigned the case file of three minor children in DCFS's
custody. In February 1990, DuBose stated in a written "uniform
progress report" that she had seen the three children in February
1990 and that they were "doing fine." Unfortunately, the children
had, in fact, perished in an accidental fire at their home on
January 16, 1990. DuBose thereafter transferred from her DCFS
regional office to another for unrelated reasons.
When DuBose's replacement conducted a "follow-up" on the
children in August 1990, he learned of the children's deaths in the
fire. The matter was then assigned to an internal DCFS investigator
on August 22, 1990. During the internal investigation, DCFS also
discovered that DuBose had failed to submit case plans for the
family for the years 1988, 1989, and 1990.
The investigator completed his inquiries and submitted a
written report to his superiors on December 13, 1990. No further
action was taken in the matter until June 20, 1991, when DCFS
informed DuBose that a "predisciplinary" meeting was scheduled for
June 24, 1991. Pursuant to the terms of the collective-bargaining
agreement, AFSCME was given an opportunity to rebut DCFS's
presentation. In the rebuttal, AFSCME maintained that a complete
and detailed statement was not possible without certain requested
documentation. Moreover, AFSCME argued that disciplinary action
could not be taken against DuBose in view of the "extreme time
delay." After submission of the rebuttal, AFSCME received a copy of
the investigator's summary report. AFSCME thereafter filed an
addendum to its rebuttal, reiterating its position that any
disciplinary action taken against DuBose would be untimely. On
September 2, 1991, a predisciplinary report was issued, containing
a recommendation that DuBose receive a 60-day suspension.
Contrary to the recommendation, DCFS notified DuBose nine days
later that she was being placed on a 30-day suspension, pending a
final determination of discharge. AFSCME then filed a grievance on
DuBose's behalf. On October 1, 1991, DCFS notified DuBose that she
was being discharged within three days for falsification of the
uniform progress report and failure to prepare service plans for
the children for three years as required by DCFS's internal rules.
The matter then proceeded to arbitration.
At arbitration, AFSCME argued that DCFS failed to impose
discipline in a timely manner, and that even if it did, DCFS did
not have just cause to discharge the employee. After conducting a
hearing, the arbitrator sustained the grievance and reinstated
DuBose. The arbitrator ruled that DCFS had breached the parties'
collective-bargaining agreement by failing to timely discipline
DuBose. Moreover, the arbitrator concluded that the failure to
impose discipline in a timely fashion prevented him from
"address[ing] the merits of this dispute."
Rather than reinstating DuBose, DCFS applied to the circuit
court of Sangamon County, seeking vacatur of the arbitrator's
reinstatement award. In granting the relief, the circuit court
agreed with DCFS that the reinstatement violated public policy
established in the Abused and Neglected Child Reporting Act (325
ILCS 5/1 et seq. (West 1994)). The court remanded the matter to the
arbitrator for a decision on the merits. The circuit court also
denied AFSCME's request for certification of the issue for appeal.
See 134 Ill. 2d R. 308.
On remand, AFSCME "demurred," electing to stand on the
arbitrator's initial decision that the disciplinary action was
untimely. As a result, the arbitrator denied the grievance, noting
that AFSCME's "demurral" prevented him from hearing the merits of
the case as directed by the circuit court.
AFSCME then filed a petition in the circuit court of Cook
County, seeking to vacate the subsequent arbitration order and to
confirm the arbitrator's initial award. Venue was subsequently
transferred to the circuit court of Sangamon County, which, as
noted, denied AFSCME's petition.
On appeal, the appellate court reversed the judgment of the
circuit court, holding that the time provisions contained in the
collective-bargaining agreement could not be relaxed in favor of
public policy. The court noted the well-recognized policy of
establishing time frames within which various types of actions must
be commenced. The effects of such policy, the court reasoned, often
produced harsh consequences--the "guilty" may go free or those
tortiously injured may be uncompensated. 272 Ill. App. 3d at 818.
The court concluded that the initial arbitral award, DuBose's
reinstatement, merely upheld the "essence" of the collective-
bargaining agreement and, as such, could not be vacated in favor of
public policy.
The dissent, although acknowledging the collective-bargaining
agreement's express language regarding time limits, questioned the
majority's disregard of the paramount considerations of public
policy. Specifically, the dissent focused upon the result created
by the majority's analysis, i.e., that "DCFS must be forced to hire
back some social worker no matter how egregious" the conduct. 272
Ill. App. 3d at 821 (Steigmann, J., dissenting).
For reasons that follow, we reverse the judgment of the
appellate court.
DISCUSSION
Resolution of this appeal requires that we consider whether
public policy concerns may be used to override an arbitral award.
DCFS argues that public policy dictates that the arbitrator's award
of reinstatement be vacated because of the severity of DuBose's
alleged conduct. AFSCME responds that the arbitrator's award
reflects a proper interpretation of the collective-bargaining
agreement, an agreement which contains certain procedures which
must be followed in order for discipline to be imposed.
The Standard of Review
This court has consistently recognized that the judicial
review of an arbitral award is extremely limited. American
Federation of State, County & Municipal Employees v. State of
Illinois, 124 Ill. 2d 246, 254 (1988); Board of Trustees of
Community College District No. 508 v. Cook County College Teachers
Union, Local 1600, 74 Ill. 2d 412, 418 (1979). This standard
reflects the legislature's intent in enacting the Illinois Uniform
Arbitration Act--to provide finality for labor disputes submitted
to arbitration. See 710 ILCS 5/12 (West 1994) (denying judicial
authority to vacate arbitral awards except on grounds recognized at
common law). The Act contemplates judicial disturbance of an award
only in instances of fraud, corruption, partiality, misconduct,
mistake, or failure to submit the question to arbitration. Board of
Education v. Chicago Teachers Union, Local No. 1, 86 Ill. 2d 469,
474 (1981). Thus, a court is duty bound to enforce a labor-
arbitration award if the arbitrator acts within the scope of his or
her authority and the award draws its essence from the parties'
collective-bargaining agreement. Board of Trustees, 74 Ill. 2d at
421.
To this end, any question regarding the interpretation of a
collective-bargaining agreement is to be answered by the
arbitrator. Because the parties have contracted to have their
disputes settled by an arbitrator, rather than by a judge, it is
the arbitrator's view of the meaning of the contract that the
parties have agreed to accept. We will not overrule that
construction merely because our own interpretation differs from
that of the arbitrator. American Federation of State, County &
Municipal Employees, 124 Ill. 2d at 254.
Application of the Standard of Review
In this case, the arbitrator based his award of reinstatement
upon the fact that DCFS breached the collective-bargaining
agreement by failing to discharge DuBose seasonably. Article IX,
section 1, of the parties' collective-bargaining agreement, which
governs discipline, states in pertinent part:
"Discipline shall be imposed AS SOON AS POSSIBLE
AFTER THE EMPLOYER IS AWARE OF THE EVENT OR ACTION GIVING
RISE TO THE DISCIPLINE AND HAS A REASONABLE PERIOD OR
TIME TO INVESTIGATE THE MATTER.
In any event, the actual date upon which discipline
commences may not exceed forty five (45) days after the
completion of the predisciplinary meeting." (Emphasis
added.)
In the present case, DCFS offered no explanation to the
arbitrator for the seven-month interval between the conclusion of
the investigation and the commencement of disciplinary proceedings.
As a result, the arbitrator concluded that the delay was
unreasonable and that DCFS had violated the contractual time
provision. The arbitrator further ruled that the entire
disciplinary proceeding was "procedurally defective" and that the
only remedy appropriate under the circumstances would be
reinstatement. The arbitrator rejected DCFS's argument that DuBose
suffered no prejudice from the delay because the contract made
timeliness a condition precedent to the imposition of discipline.
As noted, we will disturb an arbitral award only if it fails
to derive its essence from the collective-bargaining agreement at
issue. Significantly, the parties' agreement here does not
delineate the precise time frames within which disciplinary action
must be commenced. Similarly, the agreement is silent as to what
remedies are available once an infraction is found. Thus, these
matters were left for the determination of the arbitrator. In
addition, when an agreement contemplates that the arbitrator will
determine remedies for the contractual violations, courts have no
authority to disagree with his honest judgment in that respect. See
United Paperworkers International Union v. Misco, Inc., 484 U.S.
29, 38, 98 L. Ed. 2d 286, 299, 108 S. Ct. 364, 371 (1987). Given
the limited nature of our review, we simply may not substitute our
interpretation of the time provision clause for that of the
arbitrator when the arbitrator's interpretation is clearly drawn
from the essence of the collective-bargaining agreement. Indeed,
DCFS does not dispute the arbitrator's contractual interpretation
and even concedes that it violated the agreement's time provision.
What DCFS does urge, however, is that public policy dictates
that the award of reinstatement be vacated in light of the
circumstances of this case. AFSCME counters that public policy is
not violated in this instance because the enforcement of the
contract's time provisions do not violate any express public
policy.
The Public Policy Exception
Courts have crafted a public policy exception to vacate
arbitral awards which otherwise derive their essence from a
collective-bargaining agreement. The historical context of the
exception is grounded in the common law. As with any contract, a
court will not enforce a collective-bargaining agreement that is
repugnant to established norms of public policy. Likewise, we may
not ignore the same public policy concerns when they are undermined
through the process of arbitration. Board of Trustees, 74 Ill. 2d
at 424.
However, in order to vacate an arbitral award upon these
grounds, the contract, as interpreted by the arbitrator, must
violate some explicit public policy. American Federation of State,
County & Municipal Employees, 124 Ill. 2d at 261; W.R. Grace & Co.
v. Local Union No. 759, 461 U.S. 757, 766, 76 L. Ed. 2d 298, 307,
103 S. Ct. 2177, 2183 (1983). In this respect, the exception is a
narrow one and is invoked only when a contravention of public
policy is clearly shown. American Federation of State, County &
Municipal Employees, 124 Ill. 2d at 261, citing United Paperworkers
International Union v. Misco, Inc., 484 U.S. 29, 43, 98 L. Ed. 2d
286, 302, 108 S. Ct. 364, 373-74 (1987). Moreover, the public
policy must be "well-defined and dominant" and ascertainable "by
reference to the laws and legal precedents and not from generalized
considerations of supposed public interests." W.R. Grace, 461 U.S.
at 766, 76 L. Ed. 2d at 307, 103 S. Ct. at 2183. This court has
stated that it will look to our "constitution and *** statutes, and
when cases arise concerning matters upon which they are silent,
then in its judicial decisions and the constant practice of the
government officials" when determining questions regarding public
policy. Zeigler v. Illinois Trust & Savings Bank, 245 Ill. 180, 193
(1910).
Thus, application of the public policy exception requires a
two-step analysis. The threshold question is whether a well-defined
and dominant public policy can be identified. If so, the court must
determine whether the arbitrator's award, as reflected in his
interpretation of the agreement, violated the public policy.
Applying these two steps, we find there is a well-defined public
policy in favor of truthful and accurate DCFS reporting and that
the arbitral award in this case violates that policy.
Review of Cases Applying the Public Policy Exception
The seminal case involving the exception is United
Paperworkers International Union v. Misco, Inc., 484 U.S. 29, 98 L.
Ed. 2d 286, 108 S. Ct. 364 (1987). There, the United States Supreme
Court examined the role of public policy in vacating an arbitral
award which reinstated an employee discharged for violation of the
employer's drug policy. The employee had been arrested on company
premises in another's car that was filled with marijuana smoke, and
traces of marijuana were found in his own car on the company lot.
The arbitrator found that there was no evidence that the employee
had used drugs during working hours. The district court vacated the
award on public policy grounds, and the circuit court of appeals
affirmed. The Supreme Court held the reversal of the arbitral award
improper because the award did not contravene public policy.
Specifically, the Court faulted the circuit court of appeals for
making "no attempt to review existing laws and legal precedents in
order to demonstrate that they establish a `well-defined and
dominant' policy." Misco, 484 U.S. at 44, 98 L. Ed. 2d at 302, 108
S. Ct. at 374. Moreover, the court of appeals inappropriately drew
factual inferences from evidence which had been rejected by the
arbitrator. Misco, 484 U.S. at 44, 98 L. Ed. 2d at 303, 108 S. Ct.
at 374.
In Delta Airlines, Inc. v. Air Line Pilots Ass'n
International, 861 F.2d 665 (11th Cir. 1988), a pilot, while
intoxicated, flew a commercial airliner on its scheduled flight.
His employer discharged him after discovering the misconduct.
Pursuant to a collective-bargaining agreement, the pilot complained
that his conduct was insufficient to establish just cause for
discharge. The arbitrators in that case agreed and ordered his
reinstatement. A federal district court overturned the award as
violative of public policy. In affirming the decision, the court of
appeals noted:
"[When a] person performs his employment duties and, IN
DOING SO, violates standards, restraints and restrictions
on conduct, clearly and explicitly established by the
people in their laws, a requirement that the employer
suffer that malperformance and not discharge the offender
does itself violate the same well established public
policy." (Emphasis in original.) Delta, 861 F.2d at 674.
The court of appeals stressed that the employer, Delta, was under
a duty to prevent the wrongdoing of which the employee was guilty
and it could not agree to arbitrate that issue. Thus, the
collective-bargaining agreement, as interpreted by the arbitrator,
violated public policy.
Similarly, in Iowa Electric Light & Power Co. v. Local Union
204, 834 F.2d 1424 (8th Cir. 1987), a nuclear power plant employee-
-in a hurry to leave his work area to go to lunch--ordered a
foreman to disconnect a safety device on a doorway designed to
protect the public from harmful radiation. After being discharged
for this misconduct, an arbitrator ordered his reinstatement. The
district court overturned the award as incompatible with public
safety concerns. The court of appeals affirmed, noting that
Congress had established a strict nuclear regulatory scheme which
the worker willingly contravened. The court concluded that the
worker could "no longer *** be trusted to work in such a critical
environment when he shows no respect for the safety implications of
his actions and when he is willing to jeopardize the safety of the
public." Iowa Electric, 834 F.2d at 1429. See also United States
Postal Service v. American Postal Workers Union, 736 F.2d 822, 825
(1st Cir. 1984) (vacating, on public policy grounds, an award
reinstating postal worker convicted of embezzling postal funds
because the offense "went to the heart of the worker's
responsibilities," and because the employee "represented a branch
of the federal government and was imbued with the public trust. His
actions directed violated that trust").
We have previously considered whether the public policy
exception may be used to vacate an arbitral award in American
Federation of State, County & Municipal Employees v. State of
Illinois. There, this court was presented with the case of two
mental health technicians who were away from their workplace, a
facility for the mentally disabled, for an unauthorized time. While
they were away, an unattended patient at the facility died. The
patient, however, was not assigned to the ward where the
technicians should have been on duty. For this reason, among
others, the arbitrator reduced their subsequent discharges for
conduct constituting mistreatment of a mental health recipient to
mere suspensions.
In upholding the award, this court rejected the Department of
Mental Health's public policy argument, mainly because it could not
identify a well-defined and dominant public policy: "Ther
e is
simpl
y no
polic
y
that
manda
tes
the
disch
arge
of
all
emplo
yees
found
guilt
y of
mistr
eatme
nt of
a
servi
ce
recip
ient
when
the
arbit
rator
expre
ssly
finds
that
the
griev
ants
were
exemp
lary
menta
l
healt
h
emplo
yees,
when
punis
hment
has
been
impos
ed,
and
where
no
nexis
[sic]
exist
s
betwe
en
the
infra
ction
and
the
patie
nt's
tragi
c
death
."
Ameri
can
Feder
ation
of
State
,
Count
y &
Munic
ipal
Emplo
yees,
124
Ill.
2d at
262-
63.
In contrast, our appellate court has invoked the public policy
exception to vacate an arbitral award which reinstated a school bus
driver whose unsafe driving had caused her discharge. The court
identified a dominant and well-defined public policy favoring the
safe transportation of school children and held that the
reinstatement of an unsafe driver would contravene that policy.
Board of Education of School District U-46 v. Illinois Educational
Labor Relations Board, 216 Ill. App. 3d 990 (1991).
Finally, the appellate court has vacated an arbitral award in
which a DCFS worker was discharged from and then reinstated to her
position after falsifying a case report concerning the veracity of
a report of child abuse, a factual situation somewhat akin to that
presented here for review. The arbitrator found that discharge
violated the collective-bargaining agreement's "progressive
discipline" provision. Finding that the safety and well-being of
children required "zealous" investigation and "honest" reporting,
the appellate court held that the worker's reinstatement to her
former position violated that explicit public policy. See
Department of Central Management Services v. American Federation of
State, County & Municipal Employees, 245 Ill. App. 3d 87, 98
(1993).
The above cases demonstrate that although a rote recitation of
the exception's two-prong test can be easily made, the exception's
ultimate applicability to a case is necessarily fact dependant.
With these principles in mind, we turn to the facts of the present
case.
Statutes and Legal Precedents
To be sure, the welfare and protection of minors has always
been considered one of the State's most fundamental interests. This
court long ago acknowledged the right and duty of the General
Assembly to legislate for the protection and welfare of its minors:
"[I]t would be a sad commentary on our State government,
if it is true, as is contended, there is no
constitutional power in the legislature to provide, by
suitable legislation, for [minors'] education, control
and protection. It is the unquestioned right and
imperative duty of every enlightened government, in its
character of parens patriae, to protect and provide for
the comfort and well-being of such of its citizens as, by
reason of infancy, defective understanding, or other
misfortune or infirmity, are unable to take care of
themselves. The performance of this duty is justly
regarded as one of the most important of governmental
functions, and all constitutional limitations must be so
understood and construed as not to interfere with its
proper and legitimate exercise." County of McLean v.
Humphreys, 104 Ill. 378, 383 (1882).
This public policy has led our courts to recognize that even
parents' rights are secondary to the State's strong interest in
protecting children when the potential for abuse or neglect exists.
See, e.g., Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92
S. Ct. 1208 (1972); In re Wheat, 68 Ill. App. 3d 471, 477 (1979).
Moreover, the legislature has the right to provide the "necessary
instrumentalities or agencies" for the accomplishment of its goals
in preventing abuse and neglect. Humphreys, 104 Ill. at 384.
DCFS is one such created agency, and it plays a central role
in implementing this compelling state interest. The General
Assembly specifically charged it to protect and promote the welfare
of the children of this state. 20 ILCS 505/1 (West 1992); In re
C.J., 166 Ill. 2d 264, 270 (1995). Recognizing such protection and
promotion necessitates both investigation of and contact with those
children and families who need assistance, the legislature
empowered the agency to make any investigations it deems necessary
to perform its duties. 20 ILCS 505/21 (West 1992). To that end, the
agency employs "child welfare specialists" who are trained in (i)
detection of symptoms of child neglect and drug abuse; (ii) dealing
with families and children of drug abusers, and (iii) child
development, family dynamics and interview techniques. 20 ILCS
505/21 (West 1992). The legislature also gave the agency the power
to make any rules "necessary for the execution of its powers" and
expressly adopted the regulations it promulgates under the Illinois
Administrative Procedure Act as part of the Children and Family
Services Act. 20 ILCS 505/4 (West 1992).
In order to identify the "well-defined and dominant" public
policy implicated in the present case, we must examine DCFS's
specific duties as they related to the three children assigned to
DuBose at the time of the incident. DCFS became involved with the
family as a result of a report of abuse in the children's home made
under the Abused and Neglected Child Reporting Act (325 ILCS 5/1 et
seq. (West 1992)). The Abused and Neglected Child Reporting Act
contemplates that once grounds for temporary removal from the home
are indicated, all subsequent proceedings are to be made pursuant
to article II of the Juvenile Court Act. See 325 ILCS 5/7.14 (West
1992). Accordingly, DCFS is required by legislative fiat to "assist
a Circuit Court during all stages of the court proceedings in
accordance with the purposes of this Act and the Juvenile Court Act
of 1987." 325 ILCS 5/8.3 (West 1992). We note that the General
Assembly has amended this statute during the pendency of these
proceedings. See Pub. Act 88--310, 5, eff. January 1, 1994. The
section currently provides that DCFS assist the circuit court by
"providing FULL, COMPLETE, AND ACCURATE INFORMATION to the court"
and that the "[f]ailure to provide assistance requested by a court
shall be enforceable through proceedings for contempt of court."
(Emphasis added.) See 325 ILCS 5/8.3 (West 1994).
DCFS subsequently classified the report of abuse initially
made in this case as "indicated" (see 325 ILCS 5/7.14 (West 1992)),
and pursuant to the Juvenile Court Act, the circuit court placed
the children in the agency's custody. 705 ILCS 405/2--10 (West
1992). In such circumstances, DCFS is then required to develop an
appropriate service plan for the family. 325 ILCS 5/8.2 (West
1992). Thereafter, the children's custody may be modified in a
number of ways, one of which includes placement with a relative.
705 ILCS 405/2--10 (West 1992). Here, custody of the children was
transferred to their maternal grandmother in accordance with their
mother's wishes. See 705 ILCS 405/2--27 (West 1992) (allowing
juvenile court to place a ward of the court with relative if
parents are unable to care for, protect, train, or discipline the
minor and family preservations services are unsuccessful). That
transfer resulted in the grandmother's being made the "legal
guardian" of the children. 705 ILCS 405/2--27(3) (West 1992).
The creation of such a legal guardianship in this case,
however, ended neither the juvenile court's involvement with the
children nor that of DCFS. That is because the guardianship at this
stage is not considered permanent--it is always subject to
modification and review of the court. 705 ILCS 405/2--27(6), 2--28
(West 1992). In fact, DCFS is still required by law to "provide
appropriate services to, any family whose child has been placed in
substitute care." 20 ILCS 505/5(l) (West 1992). In response to the
General Assembly's requirement that DCFS "establish rules and
regulations concerning its operation of programs" with regard to
placement under section 2--27 of Juvenile Court Act (20 ILCS
505/5(g)(9) (West 1992)), the agency promulgated rules which
require service plans be made at least every six months for the
child and the family regardless of whether they are served directly
by DCFS. See 89 Ill. Adm. Code 305.5 (1989). In the context of
placement of abused or neglected children under the Juvenile Court
Act, the obligation to develop such case plans serves to fulfill
the legislative goal of moving the child "toward the most permanent
living arrangement and permanent legal status." 20 ILCS 505/6a
(West 1992). Thus, the plans are to be reviewed and updated every
six months. 20 ILCS 505/6a (West 1992).
Moreover, to facilitate the juvenile court's review, the legal
guardian is also required by law to file case plans with the court
every six months. 705 ILCS 405/2--28(2) (West 1992). Specifically,
the General Assembly has mandated that DCFS:
"shall review the forms *** returned by each ***
guardian and supplement the information provided therein,
where required, by such additional consultations with the
*** guardian and such other INVESTIGATIONS as may be
necessary and, applying the standard and regulations
established by the Department, shall determine whether
and the extent to which, the parent or guardian or
together in any combination, are reasonably able to
provide parental payment for care and training of their
children." (Emphasis added.) 20 ILCS 505/9.4 (West 1992).
Once the child has been placed pursuant to section 2--27 of the
Juvenile Court Act, the next step in the proceedings is either a
termination of the parental rights with adoption to follow, or a
reunification with the biological parents. See 705 ILCS 405/2--
28(1) (West 1992). The court, however, will not discharge a minor
or officially "close" the case until it specifically finds that it
is in the best interests of the minor to do so and that the public
no longer has an interest in keeping the case in the system. 705
ILCS 405/2--30 (West 1992).
It is worth pointing out at this point in our discussion that
these placement proceedings represent just a portion of the
comprehensive legislative scheme designed for the welfare and
protection of children found to be abused or neglected. We focus on
this stage only because it was in this context that DuBose reported
that she had seen the children and that they were "doing fine." Her
uniform progress report, intended for submission to the juvenile
court, also contained her statement that one of the minor children
had told her that she "liked" living with her grandmother and other
siblings. Although we recognize that there is less likelihood that
the child is still threatened with abuse or neglect because the
child has been removed from the harmful environment, the court's
concentration remains fixed upon that child's safety and welfare.
This is because the placement is only temporary in nature. The
decisions which the juvenile court is mandated by statute to render
in this area require accurate reporting, honest evaluation, and
personal observation of both child and guardian on the part of the
trained child welfare specialist assigned to the case. Indeed,
DCFS's continued involvement with the placed child at these
proceedings reveals the General Assembly's recognition of reality:
it is the specialist, not the trial judge, who is versed in the
areas of child development and family dynamics. Honesty and
zealousness are essential in order to guarantee that the permanent
placement with the guardian or the restoration of parental rights
is indeed in the best interests of a child whose life has already
been disrupted by abuse and/or neglect.
We, therefore, have little difficulty in concluding that there
exists a "well-defined and dominant" public policy against DCFS's
employment of individuals whose dishonesty and neglect could
seriously undermine the welfare, safety, and protection of minors.
The statutes we have cited cannot, in any way, be viewed as mere
"general considerations of supposed public policy" concerning the
proper placement of children whose lives have already been
disrupted by abuse and/or neglect. That no harm apparently resulted
to the children from this inaccurate representation and the
apparent three-year neglect is hardly comforting. Nor should it be
the yardstick by which application of the public policy exception
is measured. Our identification of this public policy also augments
the appellate court's conclusion in Department of Central
Management Services v. American Federation of State, County &
Municipal Employees, 245 Ill. App. 3d 87, 97 (1993), that there
exists a public policy of both timely contact with the children and
accurate documentation of investigations necessary for DCFS to
fulfill its legislative mandate of investigating claims of
suspected child abuse and neglect.
Conflict with Public Policy
Our inquiry must next focus upon whether the contract in this
case, as interpreted by the arbitrator, clearly violates that
policy. We are mindful of the fact that the foregoing public policy
conflicts with the policy inherent in providing for time limits
within which disciplinary charges or claims may be brought.
However, the State's interest in its children's welfare and
protection must override AFSCME's concerns for timeliness. In
certain cases, interpreting the time provisions as the arbitrator
did in this case and ordering reinstatement will not contravene the
public policy enunciated above. Mere charges of tardiness, standing
alone, would not contravene that public policy. However, the manner
in which the time provision was enforced in this case with respect
to the misconduct at issue cannot be upheld. As with any
limitation, the nature of the conduct at issue must be considered
before arbitrary time restrictions can be imposed.
The arbitrator's remedy for the violation of the contract's
time provision caused him to fully reinstate a DCFS child welfare
specialist--charged with both falsifying a uniform progress report
intended for submission to the Juvenile Court and neglecting to
compile required family service plans for three years--without any
determination that the welfare of the minors in the DCFS system
will not be compromised by such a reinstatement. Rather, he avoided
discussion of the charges against DuBose. He did not take any
precautionary steps to ensure the misconduct at issue here will not
be repeated, and he neither considered nor respected the pertinent
public policy concerns that arose from them Thus, the remedy in
this case violates public policy in that it totally ignores any
legitimate public policy concerns.
As with any contract, a court may not enforce a collective-
bargaining agreement in a manner that is contrary to public policy.
Accordingly, if an arbitrator construes such an agreement in a way
that violates public policy, an award based on that construction
may be vacated by a court. W.R. Grace, 461 U.S. at 766, 76 L. Ed.
2d at 307, 103 S. Ct. at 2183. Questions of public policy, of
course, are ultimately left for resolution by the courts. Board of
Trustees, 74 Ill. 2d at 424; see also W.R. Grace, 461 U.S. at 776,
76 L. Ed. 2d at 307, 103 S. Ct. at 2183. Even if the arbitrator had
considered issues of public policy, "we may not abdicate to him our
responsibility to protect the public interest at stake." Board of
Trustees, 74 Ill. 2d at 424. We believe the public policy
identified above is violated by the arbitral award in this case.
That award cannot be said to in any way promote the welfare and
protection of children. DCFS, in agreeing to a time provision that
does not allow for exigent disciplinary circumstances, has
compromised its ability to discharge its duties as expressed by the
General Assembly.
Thus, we believe the appellate court's likening of the
parties' contractual time provision to our criminal statutes of
limitation is flawed. Such statutes, as enacted by the legislature,
embody the public's regard of the seriousness of the conduct in
issue. Although certain crimes do carry statutes of limitation
within which prosecution must be commenced, some crimes such as
treason, arson, forgery, first and second degree murder,
involuntary manslaughter, and reckless homicide do not. 720 ILCS
5/3--5(a) (West 1992). Therefore, the people of this State, through
the General Assembly, have recognized that certain conduct is never
subject to time limitations and may be prosecuted at any time, no
matter the "staleness." We cannot compare such statutory provisions
with the time provision contained in the collective-bargaining
agreement at issue here, particularly where the agreement applies
to employees of a State agency charged with particular
responsibilities which represent the will of the public with
respect to the welfare and protection of children.
That said, we do not lightly disregard the right of the
parties to privately negotiate their contracts. Nor do we attempt
to restrain them in any way from so acting in the future. However,
where public employment is at issue and that employment concerns
the welfare and protection of minors, this court must balance these
competing, positive policies so that the two can co-exist
harmoniously and the public can reap the benefits from both.
Likewise, we find the analogy to the statutes of limitation
governing civil actions between citizens unpersuasive because we
are not dealing with private claims here, but claims arising from
employment with an agency which represents the State and derives
its duties from the General Assembly. Case law teaches us that in
matters concerning child abuse and neglect, even a parent's rights
yield to the State's interest in protecting its children. Although
the timeliness provision of the contract is laudatory and espouses
the concepts inherent in our government's disapproval of "stale
claims," it, too, must yield to the public's interest in the
welfare and protection of abused and neglected children.
Nevertheless, AFSCME contends that the award of reinstatement
here does not violate public policy because there is no positive
law which forbids DCFS from rehiring a worker in DuBose's
situation. We acknowledge that the United States Supreme Court left
unanswered the question of whether only a precise violation of a
positive law, caused by the award itself, is necessary before a
court may vacate the award on public policy grounds. As a result,
the federal circuit courts of appeals have taken different views on
the matter. Compare United States Postal Service v. National Ass'n
of Letter Carriers, 810 F.2d 1239 (D.C. Cir. 1987) (upholding
reinstatement of postal carrier convicted of unlawful delay of mail
because there was no legal proscription against reinstatement of
such employee), with United States Postal Service v. American
Postal Workers Union, 736 F.2d 822 (1st Cir. 1984) (vacating
reinstatement of postal employee who had been convicted of
embezzlement of postal funds on public policy grounds despite no
legal proscription against rehiring such employees). However, in
cases where the safety and welfare of third persons is compromised,
the results are more consistent. See Exxon Shipping Co. v. Exxon
Seamen's Union, 11 F.3d 1189 (3d Cir. 1993) (vacating arbitral
award which reinstated seaman discharged for intoxication while on
duty); Amalgamated Meat Cutters & Butcher Workmen of North America
AFL-CIO, Local Union 540 v. Great Western Food Co., 712 F.2d 122
(5th Cir. 1983) (vacating arbitral award which reinstated driver
who drove employer's truck while drunk). In this case, we need not
elaborate as to the potential tragedies which can result from even
one false DCFS case report.
We believe that a bright-line test requiring that the award
itself violate an explicit law has the potential to swallow the
public policy exception. Indeed, this case illustrates why such a
narrow view is unworkable. None of the Acts enacted by the
legislature concerning DCFS contain any statute which explicitly
prohibits the agency from hiring "dishonest" workers or workers
previously disciplined for dishonesty. True, too, there is no
statute which expressly prohibits a DCFS worker from submitting a
false case report. Such prohibitions are absent because the very
essence of the Acts presupposes that only trustworthy workers will
be hired. The employment of any other type of worker defeats the
legislative purpose surrounding the entire statutory scheme. That
DCFS caseworkers be diligent and truthful is not a "general
consideration[ ] of supposed public interests." Given their
statutory mandates, truthfulness, diligence, and honesty are
implicit in their duties. For DCFS to employ an untrustworthy child
welfare specialist violates these implied mandates. For these
reasons, we decline AFSCME's invitation to adopt such a rigid rule
in cases where public policy is at issue.
We also disagree with AFSCME's contention that the contractual
time provision at issue here protects "industrial due process" and,
as such, must be upheld. Courts have defined "industrial due
process" as merely requiring employers to give employees advance
notice of and an opportunity to respond to the charges against them
before discipline is imposed. See Stroehmann Bakeries, Inc. v.
Local 776, 969 F.2d 1436 (3d Cir. 1992) (and cases cited therein).
DuBose received both notice and an opportunity to be heard;
therefore, industrial due process, as defined by our courts, has
been satisfied in this case. Moreover, some courts have recognized
that the "just cause" provisions found in many collective
bargaining agreements also trigger analyses in terms of industrial
due process. See, e.g., Chauffeurs Local Union No. 878 v. Coca Cola
Bottling Co., 613 F.2d 716, 718 (8th Cir. 1980). Indeed, "just
cause," like the time provision at issue here, is a "condition
precedent" to discipline. However, that has not prevented courts
from vacating, on public policy grounds, reinstatements based upon
the lack of "just cause." We stress that our decision should not be
interpreted as denigrating either the notion or importance of
industrial due process in the day-to-day administration of labor
contracts in the workplace. We simply fail to see any violation of
the concept in the present case.
Finally, AFSCME submits that if we were to overturn the
arbitral award, we would be encouraging employers to ignore the
bargained-for rights that employees have earned through the
collective-bargaining agreement. We disagree. Nothing in our
decision restrains an arbitrator from imposing sanctions against
employers who violate a contractual provision. The arbitrator
remains free to determine appropriate remedies within the confines
of the collective-bargaining agreement. As the Eighth Circuit Court
of Appeals has stated:
"As long as the arbitrator's remedy is `rationally
explainable as a logical means of furthering the aims of
the contract' [citation], the arbitrator may for example,
impose monetary penalties, order the [employer] to
reimburse the employee for rehabilitation programs, order
reinstatement of the employee to a position in which he
poses no danger to the public, or create its own unique
sanction to deter overreaching by the employer." Union
Pacific R.R. Co. v. United Transportation Union, 3 F.3d
255, 263 (8th Cir. 1993).
In fact, as long as the arbitrator makes a rational finding that
the employee can be trusted to refrain from the offending conduct,
the arbitrator may reinstate the employee to his or her former job,
and we would be obliged to affirm the award. See American
Federation of State, County & Municipal Employees, 124 Ill. 2d at
263 (upholding arbitrator's reinstatement despite public policy
arguments because arbitrator found employees were "exemplary," some
punishment had been imposed, and the conduct at issue did not
threaten patient safety). Accord Northwest Airlines v. Air Lines
Pilots Ass'n, International, 808 F.2d 76 (D.C. Cir. 1987)
(upholding reinstatement of pilot who flew commercial airliner
while drunk because reinstatement was conditioned upon the pilot's
recertification by the Federal Aviation Administration); E.I.
DuPont de Nemours & Co. v. Grasselli Employees Independent Ass'n of
East Chicago, Inc., 790 F.2d 611 (7th Cir. 1986) (upholding
reinstatement of employee discharged after mental breakdown at work
because arbitrator specifically found that recurrence of mental
illness was unlikely so that worker safety was not comprised).
However, the arbitrator's freedom in fashioning an appropriate
remedy is not without limitation, as this case amply demonstrates.
Where, as here, an arbitrator awards full reinstatement as a remedy
for the contractual violation without any findings that the worker
poses no risk to the welfare and protection of DCFS's children and
their families, the award simply cannot stand. For the reasons
stated earlier in this opinion, the full measure of the
arbitrator's discretion must always yield to public policy.
Accordingly, we must decide the proper disposition of this
case given our conclusions as to the public policy identified and
the arbitral award of reinstatement. AFSCME's demurrer at the
second arbitration hearing has complicated our review of the case
in that AFSCME contends throughout its brief that the employee has
never been found guilty of any of the conduct alleged by DCFS.
Specifically, AFSCME argues that "in the absence of a finding by
the[a]rbitrator that the employee was guilty of misconduct, there
is no basis for an argument predicated on public policy." Although
such an argument may be justified in the name of zealous advocacy,
we find it to be a perversion of the record. The procedural history
of this case reveals that AFSCME, by its own actions, prevented the
arbitrator from making any such findings.
The original circuit court order in this case stated the
following:
"Plaintiff's Petition to Vacate the Arbitrator's
Award and Remand to the Arbitrator for a HEARING ON THE
MERITS is granted as the Arbitrator's Award is contrary
to public policy of this State as set forth in the Abused
and Neglected Child Reporting Act." (Emphasis added.)
AFSCME then requested the circuit court to certify the issue
regarding public policy and the timeliness provision under Supreme
Court Rule 308 for purposes of an interlocutory appeal. The circuit
court denied the request. Thus, because the court found that the
case did not involve a question of law as to which there was a
substantial ground for difference of opinion and that an immediate
appeal would not materially advance the ultimate termination of the
litigation, AFSCME was obligated to return to the arbitrator for a
hearing on the merits, as ordered by the circuit court.
Notwithstanding the above order, AFSCME elected not to proceed
with a hearing on the merits. Rather, AFSCME submitted the
following to the arbitrator upon remand:
"The Union has decided to interpose a demurrer on
the basis of the time-limits provision in the contract as
interpreted and applied in your vacated award. Rather
than arguing the merits, we will stand on the first
award.
The time-limits provision was predicated upon the
agreement of the parties that it would violate an
employee's due process rights to require the employee to
defend herself against State charges as in the present
case. [The circuit court] in effect has found either that
the State cannot agree to such a due process protection
or that it cannot be applied to the instant case. His
order fails to explicate his reasoning for applying the
public policy doctrine.
ACCORDINGLY, THE UNION WILL NOT OFFER A DEFENSE TO
THE STATE'S CHARGES AND ITS CLAIM THAT THEY WARRANT
DISCHARGE. It is our position that, to do so, would
severely prejudice Ms. DuBose's right to legally
challenge [the circuit court's] order vacating your
award.
Under these circumstances, [the Union] submits that
you have no authority under the Court order but to deny
the grievance, recognizing that the Union has elected to
stand on its rights under the earlier award." (Emphasis
added.)
In the arbitrator's supplemental arbitral order following the
remand from the circuit court, he reasoned that AFSCME, by way of
its "demurrer," had withdrawn all of its remaining arguments to the
discharge, including the issue of just cause. This is an apt
conclusion given the fact that the demurrer states that AFSCME
specifically stood on "the time-limits provision of the contract,
as INTERPRETED AND APPLIED in [the arbitrator's] vacated award."
(Emphasis added.) The arbitrator concluded that "there is no longer
anything before me to decide. If a party chooses to no longer press
a position, I cannot compel it to do so." Thereafter, the
arbitrator denied the grievance in the following language:
"Given [the circuit court's] order, the parties'
positions prompted by the procedural posture of this
matter, the Union's demurrer and notwithstanding my prior
award sustaining the grievance, and recognizing that the
Union has elected to stand on its rights under the
earlier award, the grievance is now denied based upon the
Union's demurrer."
The circuit court confirmed the supplemental arbitral order, and
AFSCME appealed to the appellate court, which reversed the court's
confirmation and reinstated the initial arbitral award.
Thus, the case comes to us in a somewhat unusual procedural
posture--the common law "demurrer," as such, no longer exists in
Illinois, the General Assembly having abolished it over 60 years
ago. See Ill. Ann. Stat., ch. 110, par. 2--615, Joint Committee
Comments [1955], at 407 (Smith-Hurd 1983). After the enactment of
the Civil Practice Act, the demurrer evolved into what is now
recognized as a motion to dismiss under section 2--615(e) of the
Code of Civil Procedure (735 ILCS 5/2--615(e) (West 1992)). Such a
motion raises the question of the sufficiency of the pleadings, as
a matter of law, and admits the pleadings solely for purposes of
deciding the legal question. However, once that legal question has
been answered and rejected, and a circuit court orders the case to
be heard on the merits, the time to demur on the pleadings has
passed. See generally 735 ILCS 5/2--1301(b) (West 1992).
Here, AFSCME requested the arbitrator, and later the circuit
court, to rule on DCFS's failure to impose discipline in a timely
fashion. Although the arbitrator agreed with AFSCME that the
discipline was not imposed "as soon as possible," the circuit court
rejected that contention and ordered the case to be heard on the
merits. Thus, in the absence of some other defensive pleading
attacking DCFS's allegations, the case was no longer at the
pleading stage, and AFSCME was not entitled to reiterate its
previously rejected position by way of a demurrer. In this context,
AFSCME's demurrer served only as a withdrawal of all of its other
challenges to the discharge. Put another way, those challenges were
abandoned.
We further note that AFSCME's contention that it had to
"preserve" its argument regarding the "as soon as possible"
language because the circuit court had denied its request for Rule
308 certification is disingenuous. Although, the circuit court's
order was nonfinal for purposes of appeal, an appeal from a
subsequent final judgment " `draws in question all prior non-final
orders and rulings which produced the judgment.' " Burtell v. First
Charter Service Corp., 76 Ill. 2d 427, 433 (1979), quoting Elfman
Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1253 (3d Cir. 1977).
The denial of Rule 308 certification does not render the issue
nonappealable after a subsequent entry of a final judgment.
Accordingly, there was no danger that the issue of timeliness would
not be preserved for later appellate review.
AFSCME's abandonment of its remaining challenges to the
discharge leaves this court with the sole issue of whether the
arbitrator's remedy for the violation of the "as soon as possible"
contractual language--a "blanket" reinstatement--violates public
policy. We have found that it does. Because AFSCME has stood on the
arbitrator's application of the "as soon as possible" language, all
of its remaining contentions have been waived, and a full hearing
as to those contentions is no longer appropriate. AFSCME had the
opportunity to make a record before the arbitrator on these
remaining contentions in order to preserve them, but willingly
chose not to do so. It cannot now change its stance. See Leffler v.
Browning, 14 Ill. 2d 225, 228 (1958).
AFSCME further maintains that this court must remand the case
to the arbitrator on a limited basis for reconsideration of a
remedy for DCFS's violation of the "as soon as possible" language.
In other words, if a remand for a hearing on the merits is not
possible, then this court should nevertheless remand the matter for
a redetermination of the appropriate remedy. We find this request
to be tenuous at best.
First, AFSCME is now asking this court for reconsideration of
the appropriate remedy despite the fact that it had previously
indicated to the arbitrator that it was prepared to "stand on the
[arbitrator's] first award." Second, nothing in this case
prohibited AFSCME from trying the case on the merits, and then,
once the arbitrator determined all of the factual questions,
requesting that an appropriate remedy be fashioned. Finally, the
possibility of a remand for redetermination of a different remedy
based solely on the failure to impose timely discipline has already
been precluded by the arbitrator's interpretation of the "as soon
as possible" language, an interpretation AFSCME specifically
"stood" on.
Indeed, in construing the contractual provision at issue,
i.e., "[d]iscipline shall be imposed as soon as possible after the
Employer is aware of the event or action giving rise to the
discipline and has a reasonable period or time to investigate the
matter," the arbitrator discussed various remedies which he could
utilize to give effect to the provision. The arbitrator reviewed
other arbitral decisions in which delay was found and discipline
nonetheless was imposed. He rejected, however, the notion that any
other remedy absent a blanket reinstatement was appropriate.
Specifically, the arbitrator stated at length:
"The answer to the remedy question in this case
comes from the parties' negotiated words. *** If
discipline is not imposed `as soon as possible', the
merits of the discipline cannot be addressed--no matter
how egregious the alleged misconduct may be. ***
***
*** The result of my conclusion is simple and
provides stability. Most importantly, my conclusion
follows the clear language of the Agreement and is what
the parties agreed to.
*** Given that the discipline has been found to be
invalid, THE ONLY REMEDY is that Grievant must be
reinstated to her former position without loss of
seniority and other rights and benefits and she shall be
made whole for all lost compensation." (Emphasis added.)
Thus, the arbitrator specifically adopted an "all or nothing"
approach as a remedy for a violation of the timeliness provision,
to the exclusion of all other remedies. This approach is analogous
to that taken by courts when ruling on motions to dismiss based
upon statutes of limitations. If an action is not timely filed, the
only remedy is dismissal of the entire cause of action without any
determination of the merits. Here, the arbitrator reasonably
interpreted the timeliness provision to admit of no other remedies
but a blanket reinstatement without reaching the merits of the
case. He, rightly or wrongly, explicitly rejected imposing any
other remedy.
Accordingly, we cannot order a remand even if we were to
disagree with the arbitrator's honest judgment as to the
unavailability of other remedies. See Misco, 484 U.S. at 38, 98 L.
Ed. 2d at 299, 108 S. Ct. at 371. Indeed, such action on our part
would severely undermine the role of judicial review in the
arbitral process. As the United States Supreme Court has stated:
"The question of interpretation of the collective
bargaining agreement is a question for the arbitrator. It
is the arbitrator's construction which was bargained for;
and so far as the arbitrator's decision concerns
construction of the contract, the courts have no business
overruling him because their interpretation of the
contract is different from his." United Steelworkers of
America v. Enterprise Wheel & Car Corp., 363 U.S. 593,
599, 4 L. Ed. 2d 1424, 1429, 80 S. Ct. 1358, 1362 (1960).
The Supreme Court has also advised courts not to be "suspicious" of
an arbitrator's interpretation merely because an arbitrator's
actions might not track those that courts would take when faced
with analogous situations. United Steelworkers of America v.
Warrior & Gulf Navigation Co., 363 U.S. 574, 580-81, 4 L. Ed. 2d
1409, 1416-17, 80 S. Ct. 1347, 1351-52 (1960). In Misco, the Court
again cautioned that the deference to an arbitrator's determination
is high "even though the parties may allege that the award rests on
errors of fact or on misinterpretation of the contract." Misco, 484
U.S. at 36, 98 L. Ed. 2d at 298, 108 S. Ct. at 370.
Therefore, even if we were to interpret the collective-
bargaining agreement to permit other remedies which would not
violate public policy in this case, our interpretation of the
contract is irrelevant in the face of the arbitrator's specific
conclusion that no other remedy existed. The arbitrator's factual
determinations and legal conclusions generally receive deferential
review as long as they derive their essence from the collective-
bargaining agreement, notwithstanding the error of those factual or
legal conclusions. Thus, we do not have the license to order a
remand for the imposition of some other remedy when the arbitrator
has specifically rejected the possibility of other remedies. We
simply lack the authority to so act.
We are mindful that the public policy exception has become "a
favorite pretext for those less than favorably disposed to the
awards of labor arbitrators." Stead Motors v. Automotive Machinists
Lodge No. 1173, 886 F.2d 1200, 1210 (9th Cir. 1989). We believe
that our opinion, however, strikes the proper balance between the
public's interest in protecting its children, the utilization of
arbitration as a means for settling labor disputes, and the proper
role of the judiciary in the arbitral process. Unfortunately, the
dissenting justices fail to appreciate this fact. We believe that
Justice Harrison's remarks have little to do with the legal issues
in this case. We further believe, with respect, the criticisms of
Justices Heiple and Nickels reflect a serious misunderstanding of
our opinion.
In arguing that the deaths of the three children in this case
were wholly unrelated to anything Vera DuBose may have done wrong,
Justice Harrison states that he "could not forget[ ] that dead
children figure into this case." Slip op. at 33. However, this case
is not about dead children. The case is about children who are
alive today and under DCFS protection. It is those children who
depend upon child welfare specialists like Vera DuBose to monitor
their cases and to speak for them in the court proceedings where
their neglect, abuse, and dependency are at issue and where their
futures are decided. The case illustrates what happens, or could
happen, if false reports are made by DCFS child welfare
specialists--reports which are submitted to our circuit judges in
difficult and emotional proceedings where child placement decisions
are made. Serious consequences may follow if Vera DuBose fails to
fulfil her statutory duty. In our view, it was DuBose's
falsification of the progress report and her failure to make
service plans which is the harm suffered in this case, not the fact
that three children have tragically died.
Justice Harrison also chides us for waiting until now to
"debut" our "compassion" for the children of this State. Slip op.
at 33. Even if he were correct in his assessment of our previous
decisions, which he is not, what would he have us do in this case?
Perpetuate our indifference? He then insists that the only
distinction between DuBose's case and that of the two mental health
technicians in AFSCME v. State of Illinois is "that the person who
died in [that case] was a profoundly mentally retarded patient ***
and not a child, as was the case here." Slip op. at 34. He suggests
that we view the life of a mental patient "as somehow less worthy
of our concern and protection than the life of a child" and hastens
to remind us that we "are duty bound to place such prejudices
behind [us] when acting as justices of this court [where we] are
obliged to follow the law, and under the law of Illinois, all
people are equal." Slip op. at 34. These accusations are not only
unfounded, but they have no place in a judicial opinion and do not
deserve the dignity of a response.
Returning to the legal issues in this case, we note that
although Justices Heiple and Nickels omit the rancor, they, too,
view AFSCME v. State of Illinois as analogous to the case before
us. However, DuBose's situation is not analogous to that of the two
mental health technicians. As we have explained, the arbitrator
there reinstated the workers by reducing their dismissals to
suspensions. We upheld the arbitral decision because the arbitrator
expressly found that the employees "were exemplary mental health
employees, *** punishment ha[s] been imposed, and *** no nexis
[sic] exist[ed] between the infraction and the *** death." AFSCME
v. State of Illinois, 124 Ill. 2d at 262-63. That holding
specifically recognized the long-standing principle that an
employee's amenability to discipline is a factual determination
which cannot be questioned or rejected by a reviewing court. See
Misco, 484 U.S. at 44-45, 98 L. Ed. 2d at 303, 108 S. Ct. at 374.
In other words, this court's decision then reflected the
understanding that
"[o]rdinarily, a court would be hard-pressed to find
a public policy barring reinstatement in a case in which
an arbitrator has, expressly or by implication,
determined that the employee is subject to rehabilitation
and therefore not likely to commit an act which violates
public policy in the future." Stead, 886 F.2d at 1213.
Of course, such an express or implied determination from the
arbitrator is totally lacking in this case. And that, of course, is
why AFSCME v. State of Illinois is of little assistance in
resolving the issues presented in this case.
In addition, Justice Heiple stresses that, in this case, no
"nexus" exists between DuBose's conduct and the unfortunate deaths
of the children. He states that our previous decisions have
required a nexus between the misconduct and the harm suffered in
order for the public policy exception to apply. Slip op. at 32.
However, this court has never ruled that such a nexus must exist
and to suggest otherwise oversimplifies the holding of AFSCME v.
State of Illinois. This court's decision there did not turn solely
on whether a nexus existed. The court, in fact, identified two
other factors which were equally important: whether the arbitral
award sanctioned violations of the law (it did not because the
misconduct did not go unpunished) and whether the arbitral decision
posed a threat of harm to third persons (it did not based upon the
arbitrator's factual findings). See AFSCME v. State of Illinois,
124 Ill. 2d at 463-65. Justice Heiple does not consider these two
other elements and does not discuss how they would apply to the
facts in this case.
The arbitral award here fails to safeguard DCFS, the courts,
and the public from any possible future falsifications and neglect
on DuBose's part. This shortcoming, in the eyes of the dissenting
justices, is insufficient to warrant the invocation of the public
policy exception. Instead, the dissenting justices are confident
that the next children who would come under DuBose's supervision
would receive from her all that the legislature demands. They
apparently trust that the next uniform progress report prepared by
DuBose for use at a placement hearing in the circuit court would be
accurate. We, however, cannot take the risk which attends to such
confidence. In this respect, Justices Nickels and Harrison suggest
that we are improperly speculating or assuming that DuBose will be
derelict in the future. Nothing is further from the truth. We are
merely mindful that DuBose's past performance has called into
question her dedication to and her ability to perform a job which
impacts on the safety and welfare of others. As we have stated,
when public policy is at issue, it is the court's responsibility to
protect the public interest at stake. That is why courts will not
give the drunken pilot the opportunity to fly a commercial airliner
again even though no harm befell his passengers. Likewise, courts
will step in to insure that the hungry nuclear power plant employee
will not contaminate an entire population the next time he is in a
hurry to eat lunch.
Justice Nickels states that we have removed an "important
bargained-for due process consideration from the collective-
bargaining agreement" (slip op. at 41), and Justice Harrison
denounces us for reducing industrial due process to a "sham" (slip
op. at 36). In fact, Justice Harrison's polemic leaves one with the
misimpression that our decision sounds the death knell for
organized labor in this state because an employer can now take away
an employee's job without ever having to substantiate its charges
of misconduct. None of these points are very well-taken and, in
fact, fall wide of the mark.
First, our opinion in no way enables DCFS to take away
DuBose's job without substantiating its allegations. Justice
Harrison forgets that it was AFSCME, by its own procedural
posturing, that insured that result by filing its ill-advised
"demurrer" after the circuit court specifically ordered the case to
be heard on its merits. At that time, AFSCME elected not to offer
a defense to the charges. Therefore, like the arbitrator before us
did at the conclusion of the second hearing, we, too, must conclude
that just cause did, in fact, exist for DuBose's dismissal. See
Ramonas v. Kerelis, 102 Ill. App. 2d 262 (1968) (holding that a
party's default at arbitration hearing results in a complete,
final, and binding determination of the controversy). Once AFSCME
removed the issue of just cause from its grievance, DCFS's charges
became "substantiated." Our opinion today did not compel that
result nor should the blame for it rest upon our shoulders.
Second, our opinion in no way holds that the timeliness
provision in the collective-bargaining agreement can never be
invoked. Rather, our opinion merely recognizes the fact that in
certain cases, a mechanical application of the provision may, as it
did here, collide with public policy. Indeed, DCFS employees who
occupy sensitive positions concerning the safety and welfare of the
people DCFS is legislatively designed to protect are more
susceptible to a public policy challenge than those workers who do
not. Simply stated, a DCFS child welfare specialist is not in the
same league as a DCFS janitor. The public policy concerns
implicated in the case of the former are notably absent in the case
of the latter. Our opinion acknowledges this reality. Moreover, our
recognition of the possibility of other remedies, short of a
blanket reinstatement, belies any intimation on the part of the
dissent that we have ignored the language of the collective-
bargaining agreement at issue. We note that it is in this context
that Justice Harrison accuses us of "union busting." Slip op. at
37. Like his other accusation regarding our impartiality, this
charge, too, lacks merit, is without any basis or support, and does
not deserve the dignity of a response.
The dissenting justices would have the highest court of this
state play the part of an ostrich by putting its head in the sand
and pretending that the potential for tragedy does not exist or,
even worse, by waiting until some tragedy actually befalls a child.
Although our concern for the children and families served by DCFS
is cause enough for us to invoke public policy, we feel compelled
to offer some observations, which, in our opinion, would seem
superfluous but for the opprobrium utilized by some of our
dissenting brethren. The ramifications of permitting the type of
reinstatement ordered here would undoubtedly be felt by more than
just the children and families served by DCFS. The resulting
perception of a tolerance of dishonesty and neglect in DCFS workers
would undermine the public's confidence in the system as a whole
and would do little to enhance the public image of our unions and
their workers. More important, such a reinstatement would leave our
circuit judges in the unenviable position of having to "second-
guess" the reports submitted by DuBose and her peers, reports
which, as we have pointed out, are essential in carrying out the
legislature's mandate regarding abused and neglected children.
Their jobs, already arduous because of the nature of these
proceedings, would be made even more onerous. We will not put our
imprimatur on such a disaster. We do not believe that deference to
arbitration, a concept with which we wholeheartedly agree, suffers
at all if the judiciary retains the right to keep arbitrators
within the bounds of public policy. Nor do we believe that the
United States Supreme Court's decision in Misco compels the "hands-
off" approach espoused in the dissents.
CONCLUSION
The initial arbitral award in this case violates public
policy. Therefore, the judgment of the appellate court is reversed,
and the order of the circuit court, which confirmed the
supplemental arbitral award, is affirmed.
Appellate court judgment reversed;
circuit court judgment affirmed.
JUSTICE HEIPLE, dissenting:
Courts are duty bound to enforce labor-arbitration awards
premised upon the parties' collective-bargaining agreements absent
fraud, corruption, partiality, misconduct, mistake or failure to
submit the question to arbitration. Board of Trustees of Community
College District No. 508 v. Cook County College Teachers Union,
Local 1600, 74 Ill. 2d 412, 421 (1979). As the majority correctly
opines, an exception to this rule exists where enforcement of a
contract is repugnant to the public policy favoring the welfare,
safety and protection of minors. Slip op. at 14. However, the mere
identification of a relevant public policy is insufficient to
warrant circumventing a collective-bargaining agreement. Rather,
our decisions have held that for such public policy exceptions to
apply, there must be a nexus between the misconduct of the employee
and the harm suffered. See, e.g., American Federation of State,
County & Municipal Employees v. State of Illinois, 124 Ill. 2d 246,
260-65 (1988) (holding that reinstatement of mental health workers
did not violate public policy favoring the competent care of the
mentally disabled where, inter alia, no nexus existed between the
mistreatment and the patient's death). In the instant case it is
uncontroverted that the DCFS worker's failure to fulfill her duties
was wholly unrelated to the unfortunate deaths of the children at
issue. Accordingly, the application of a public policy exception to
circumvent the collective-bargaining agreement constitutes an
unwarranted application of the public policy exception and I
respectfully dissent.
JUSTICE HARRISON, also dissenting:
My colleagues have persuaded themselves that they have struck
"the proper balance between the public's interest in protecting its
children, the utilization of arbitration as a means for settling
labor disputes, and the proper role of the judiciary in the
arbitral process." In fact, their decision does nothing to aid
children, ignores the basic protections guaranteed to State
employees by the Illinois Public Labor Relations Act (5 ILCS 315/1
et seq. (West 1992)), and converts the courts into agents for
subverting industrial due process.
To cynics familiar with this court's recent decisions in
Barnett v. Zion Park District, 171 Ill. 2d 378 (1996), and Mt. Zion
State Bank & Trust v. Consolidated Communications, Inc., 169 Ill.
2d 110 (1995), the majority's professed concern for the welfare of
children may seem more than a little disingenuous. In both of those
cases, the court had an opportunity to provide meaningful redress
where children were actually injured or killed due to the
negligence of others. Instead, when compassion would have made a
real difference, it was nowhere to be found. The court refused to
help.
Here, by contrast, the court's compassion appears boundless,
but it has waited to debut until a time when it is of no immediate
benefit to anyone but a governmental bureaucracy that is unhappy
with the obligations imposed by the Illinois Public Labor Relations
Act and by the terms of the collective-bargaining agreement it
negotiated with its employees' union.
I have certainly not forgotten, I could not forget, that dead
children figure into this case. But their deaths are wholly
unrelated to anything Vera DuBose may have done wrong in her
capacity as a DCFS child welfare specialist. The charges against
her have never been addressed on the merits, but even if DuBose did
falsify a case report and even if she did fail to prepare all of
the service plans she should have, those transgressions were wholly
unrelated to what happened to the children. The children perished
because their house burned down, not because their case worker
failed to do her job properly.
The situation here is analogous to the one we considered in
American Federation of State, County & Municipal Employees v. State
of Illinois, 124 Ill. 2d 246 (1988), where a patient at a mental
health facility died while two employees of the facility were away
from their work site without permission. The Department of Mental
Health discharged the employees, but the arbitrator reduced the
discipline to suspensions and reinstatement without back pay or
other benefits. The circuit court subsequently vacated the
arbitration award on the grounds that "it represented a severe and
extreme departure from the public policy of Illinois, which is to
protect not to endanger mental patients." American Federation of
State, County & Municipal Employees, 124 Ill. 2d at 252. The
appellate court reversed, and this court affirmed the appellate
court's judgment, remanding the cause with directions to order
enforcement of the arbitrator's award. In so doing, this court
specifically rejected the circuit court's reasoning and held that
public policy did not mandate discharge where, as here, there was
no nexus between the employees' infraction and the patient's death.
While the misconduct Dubose allegedly committed may be
reprehensible, it is certainly no worse than the conduct of the
mental health workers this court allowed to be reinstated in
American Federation of State, County & Municipal Employees. More
importantly, reinstatement of DuBose poses no more threat of harm
or danger to third persons than did reinstatement of the mental
health workers in that case. To the contrary, reinstatement of
DuBose presents a far lower risk, for her job is simply to monitor
and make reports about the care provided by others. In contrast to
the employees disciplined in American Federation of State, County
& Municipal Employees, she has no direct responsibility for client
care herself.
If reinstatement did not offend public policy in American
Federation of State, County & Municipal Employees, it surely does
not do so in this case either. The only thing that distinguishes
the cases is that the person who died in American Federation of
State, County & Municipal Employees was a profoundly mentally
retarded patient tied to a toilet by state workers and not a child,
as was the case here. That distinction, however, should be of no
consequence to my colleagues. They may believe that the life of a
helpless state mental patient is somehow less worthy of our concern
and protection than the life of a child, but they are duty bound to
place such prejudices behind them when acting as justices of this
court. Here they are obliged to follow the law, and under the law
of Illinois, all people are equal.
In making these remarks, I do not mean to suggest that sloth
or dishonesty by public employees is ever acceptable. The people of
this state are entitled to expect public workers to be
conscientious and diligent, and when workers do not fulfill their
obligations, the State must have the power to terminate or
discipline them. The State had that power here. The problem is that
the power was not exercised properly.
If DCFS really believed that continued employment of Vera
DuBose posed the terrible threat depicted by my colleagues, it
could have taken remedial action promptly, as the collective-
bargaining agreement and the Illinois Public Labor Relations Act
required. It failed to do so. Instead, it inexplicably allowed
seven months to pass before it initiated predisciplinary measures.
Where, I wonder, was the agency's concern for Vera DuBose' clients
during all that time?
Considering the lengthy delay before DCFS finally took action,
it seems apparent that the agency was not, in fact, worried that
her work might actually endanger any children. Instead, the notion
of protecting minors appears to be nothing more than an expedient
the agency has employed to circumvent its statutory and contractual
obligations to its employees. Contrary to my colleagues, I do not
believe we should aid DCFS in this effort.
Whatever DuBose allegedly did or failed to do, she did not
break the law. Her only offense, if she committed one, was failure
to perform the requirements of her job. This is not an
insignificant matter, especially where the protection and welfare
of minors may be involved, but it is no reason to negate the
provisions of the collective-bargaining agreement. Most public
employees provide important services that affect public health and
safety one way or another, and by the logic employed by my
colleagues, public policy would be violated and the terms of the
collective-bargaining agreements could be ignored anytime such an
employee failed to perform his job properly. If that were the case,
the protection afforded public employees by collective-bargaining
agreements would be rendered meaningless.
In his dissent from the appellate court's opinion, Justice
Steigmann acknowledged that the circuit court's ruling could not be
affirmed without disregarding the express terms of the collective-
bargaining agreement, but he dismissed this problem with a cavalier
"So what?" I winced when I read this, and I think anyone who
understands organized labor and the law of Illinois will have the
same response. Collective-bargaining agreements are the cornerstone
of our labor policy. Without them, the benefits of union
representation would be impossible. Organized labor would collapse.
Justice Steigmann and the majority on this court may believe
that life without unions would be a good thing, but they are wrong.
Unions help improve working conditions, wages, and job security,
and provide employees with a voice in work place matters that they
would otherwise lack. At the same time, they tend to increase the
employer's productivity by reducing employee turnover and fostering
more rational management policies.
While critics of the labor movement may take issue with some
of these claims, the matter is not for us to judge. Any debate as
to the advantages of allowing public employees to organize and
bargain collectively was settled by the General Assembly when it
enacted the Illinois Public Labor Relations Act. That statute
specifically declares that it is the public policy of this state to
grant public employees the right to organize for the purpose of
negotiating wages, hours, and other conditions of employment. 5
ILCS 315/2 (West 1994). To effectuate this policy, the statute
provides that public employees have the right and public employers
have the duty to bargain collectively (5 ILCS 315/6, 315/7 (West
1994)) and that, with certain exceptions not relevant here,
"any collective bargaining contract *** executed
pursuant to th[e] Act shall supersede any contrary
statutes, charters, ordinances, rules or regulations
relating to wages, hours and conditions of employment and
employment relations adopted by the public employer or
its agents" (5 ILCS 315/15(b) (West 1994)).
In holding that the collective-bargaining agreement at issue
here must yield to "public policy," the majority fails to see that
the foregoing statutory provisions evince a second and separate
"public policy" requiring that the collective-bargaining agreement
be enforced as written. Considering the critical importance of
collective bargaining, on the one hand, and the absence of any
demonstrable harm or threat of harm to any actual children, on the
other, it is this second "public policy" which should take
precedence under the particular facts of this case.
The majority's decision today enables DCFS to take Vera
DuBose's job away from her without ever having to substantiate its
allegations and without even having to follow the procedural
requirements specified by the collective-bargaining agreement. To
claim that this somehow satisfies industrial due process reduces
the concept to a sham. When all is said and done, this opinion
amounts to nothing more than an attempt to exploit the specter of
helpless children as a means to rationalize judicial union busting.
This effort is totally misguided. If my colleagues are truly
concerned with protecting young children, they should stand in
defense of collective bargaining and uphold the requirements of the
Illinois Public Labor Relations Act so that DCFS workers can obtain
the resources they need to keep up with their crushing caseloads
and perform their jobs properly.
For the foregoing reasons, I would affirm the judgment of the
appellate court upholding the arbitrator's award in favor of
DuBose. I therefore dissent.
JUSTICE NICKELS, also dissenting:
Public policy "is a very unruly horse, and *** once you get
astride it you never know where it will carry you." Richard v.
Mellish, 2 Bing. 229, 252, 130 Eng. Rep. 294, 303 (1824). In its
decision today, the majority grabs the reigns of that unruly horse
and embarks on a journey that will serve only to frustrate the
goals of collective bargaining and sacrifice the efficiency of
binding arbitration as a means of resolving labor disputes. I
cannot join the majority on this journey. Therefore, I respectfully
dissent.
The majority recognizes that the review of an arbitral award
is very limited. Indeed, a court must construe an award as valid if
at all possible. Board of Education v. Chicago Teachers Union,
Local No. 1, 86 Ill. 2d 469, 477 (1981). Such a deferential
judicial review is necessary to promote the efficient private
settlement of labor disputes. A reviewing court is therefore duty
bound to follow the decision of an arbitrator that draws its
essence from a collective-bargaining agreement, regardless of its
view of the wrongfulness of the conduct at issue or the
appropriateness of the punishment. Board of Trustees of Community
College District No. 508 v. Cook County College Teachers Union,
Local 1600, 74 Ill. 2d 412, 421 (1979).
I recognize that a court will not enforce an arbitral award
made pursuant to a collective-bargaining agreement where that award
violates public policy. American Federation of State, County &
Municipal Employees v. State of Illinois, 124 Ill. 2d 246, 260
(1988). The doctrine is based on the common law notion that courts
will not lend judicial power to the enforcement of private
agreements that are immoral or illegal. United Paperworkers
International Union v. Misco, Inc., 484 U.S. 29, 44, 98 L. Ed. 2d
286, 302, 108 S. Ct. 364, 374 (1987). However, the public policy
exception is an extremely narrow one and should "not otherwise
sanction a broad judicial power to set aside arbitration awards."
Misco, 484 U.S. at 43, 98 L. Ed. 2d at 302, 108 S. Ct. at 373.
In the past, this court has followed the United States Supreme
Court in carefully limiting the public policy exception to the
enforcement of arbitral awards. In order to overturn an award, the
public policy involved "must be well defined and dominant, and is
to be ascertained `by reference to the laws and legal precedents
and not from general considerations of supposed public
interests.' " W.R. Grace & Co. v. Local Union 759, 461 U.S. 757,
766, 76 L. Ed. 2d 298, 307, 103 S. Ct. 2177, 2183 (1983), quoting
Muschany v. United States, 324 U.S. 49, 66, 89 L. Ed. 744, 756, 65
S. Ct. 442, 451 (1945). Although leaving open the question of
whether an award must actually violate positive law to violate
public policy, the Supreme Court has noted that the decision to
overturn an arbitral award on public policy grounds should turn on
"whether the award created any explicit conflict with other `laws
and legal precedents.' " Misco, 484 U.S. at 43, 98 L. Ed. 2d at
302, 108 S. Ct. at 374, quoting W.R. Grace & Co. v. Local Union
759, 461 U.S. 757, 766, 76 L. Ed. 2d 298, 307, 103 S. Ct. 2177,
2183 (1983).
Applying these principles, this court has refused to overturn
an arbitral award in a case with strong similarities to the present
case. In American Federation of State, County & Municipal Employees
v. State of Illinois, 124 Ill. 2d 246 (1988), this court considered
whether an arbitrator violated public policy in awarding the
reinstatement of two mental health technicians. The technicians had
made an unauthorized trip to a flea market during their shift.
During their absence, an unattended patient at the facility died,
although the patient was not assigned to the ward where the
technicians were supposed to be on duty. The technicians were
discharged for conduct constituting mistreatment of a service
recipient and the union filed a grievance. The arbitrator
reinstated the technicians, finding that the absence did not
constitute just cause for termination.
On review, this court refused to vacate the arbitral award of
reinstatement on public policy grounds. This court acknowledged
that the compassionate care of the mentally disabled is an
important public policy. American Federation of State, County &
Municipal Employees, 124 Ill. 2d at 262. However, the arbitral
award reinstating the technicians did not conflict with any laws or
legal precedent relating to this public interest. The court stated
that "[t]here is simply no policy that mandates the discharge of
all employees found guilty of mistreatment of a service recipient."
American Federation of State, County & Municipal Employees, 124
Ill. 2d at 263.
I believe that this case calls for the same judicial
restraint. I recognize that there exists a general public policy
favoring the diligent protection of minors, similar to the general
public policy favoring the protection of the mentally disabled.
However, there exists no policy that mandates the discharge of
every DCFS employee that files a false report, regardless of the
circumstances. The majority does not identify a "well defined and
dominant" public policy that is in explicit conflict with the
reinstatement of DuBose.
In an effort to obscure this point, the majority first
manufactures a public policy that can hardly be considered well
defined. After reviewing the statutory framework set up for the
protection of minors, the majority declares that it violates public
policy for DCFS to employ "individuals whose dishonesty and neglect
could seriously undermine the welfare, safety, and protection of
minors." Slip op. at 14. How dishonest? How neglectful? Presumably,
any employee's misconduct can be framed in these generic terms.
With such a broad articulation of public policy, courts are now
free to substitute their judgment for that of the arbitrator
regarding the discipline of DCFS employees under the guise of
public policy. In addition, such a broad articulation of public
policy completely usurps an arbitrator's power to determine whether
any such misconduct constitutes "just cause" for termination. In
this opinion, the limited public policy exception to the
enforcement of arbitration awards has evolved into a basis for the
judicial review of all DCFS employment decisions.
Even if I were to accept the existence of such a nebulous
public policy as a basis to overturn an award, the reinstatement of
DuBose does not necessarily violate such a policy. The statutory
scheme put in place for the protection of minors does not evince a
public policy that would demand the firing of every individual
found to be dishonest or neglectful in regard to his or her
statutory duties. The majority tacitly acknowledges this fact in
stating that this court would be obligated to affirm the
reinstatement if the arbitrator were to make a rational finding
that the employee can be trusted to refrain from the misconduct in
the future. Slip op. at 19. Even without such a finding, there is
simply no explicit conflict with these laws or any legal precedent
posed by the reinstatement of a DCFS worker who has filed a false
report.
In its effort to find a violation of the public policy it has
identified, the majority also invades the exclusive province of the
arbitrator by engaging in inappropriate fact finding. In United
Paperworkers International Union v. Misco, Inc., 484 U.S. 29, 98 L.
Ed. 2d 286, 108 S. Ct. 364 (1987), the Supreme Court chastised the
lower court for drawing an inference that because an employee was
discovered in another employee's car with a lit marijuana cigarette
and had drugs in his own car in the company parking lot, he was
using drugs at work. The Supreme Court noted that such fact finding
is the exclusive province of the arbitrator chosen by the parties
and the "refusal to enforce an award must rest on more than
speculation or assumption." Misco, 484 U.S. at 44, 98 L. Ed. 2d at
303, 108 S. Ct. at 374. In the instant case, the majority
speculates that DuBose put children in danger by filing the false
reports and assumes that such conduct will continue if she is
reinstated. The arbitrator did not find these facts and the
majority is in error to assume them.
Moreover, I cannot accept the majority's conclusion that the
arbitrator violated public policy in the process of enforcing the
contractual provision requiring discipline be timely. The supposed
public policy identified by the majority requiring DCFS employ only
the most diligent and truthful people is not "dominant" in relation
to the general public policy favoring the timely imposition of
discipline. Timeliness is required for the imposition of almost all
civil and criminal liability, including that involving children.
The majority provides no meaningful basis for its distinction
between the timeliness provisions at issue here and those imposed
by the legislature. Such provisions impose a burden upon those
seeking sanctions to respect the rights of the individual, and all
impose corresponding costs on society. In refusing to enforce the
provision requiring discipline be timely, the majority has removed
an important bargained-for due process consideration from the
collective-bargaining agreement.
Even accepting the majority's conclusion that the award of
reinstatement violated public policy, the proper resolution of the
matter is to return this case to the arbitrator for an alternate
remedy. The formulation of remedies is a matter for the arbitrator,
not the courts. United Steelworkers of America v. Enterprise Wheel
& Car Corp., 363 U.S. 593, 597, 4 L. Ed. 2d 1424, 1428, 80 S. Ct.
1358, 1361 (1960). There is no dispute that DCFS violated the
collective-bargaining agreement in failing to impose timely
discipline. The majority's conclusion that the arbitrator adopted
an "all or nothing approach" that rejected any other remedy for the
contractual violation is simply absurd. In leaving the violation of
the timeliness provision without a remedy, the majority invites
DCFS to ignore it in the future.
In conclusion, I question how an arbitrator in the next case
can avoid the folly that this case has become. When faced with a
disciplinary action not timely taken, an arbitrator may no longer
find that the action is untimely and enforce the collective-
bargaining agreement as written. The arbitrator must now take proof
on the merits in order to determine if the misconduct actually
occurred, and if it did, then determine if it is gross enough to
negate the operation of the limitations provision. Whatever the
arbitrator's decision, it is certain to spawn an appeal thereby
sacrificing the efficiency of "binding" arbitration as a means of
resolving labor disputes. This is the legacy of the majority's ride
on that unruly horse.
JUSTICE HEIPLE joins in this dissent.
the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.
Docket No. 79376--Agenda 10--March 1996.
AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES,
AFL-CIO, Appellee, v. THE DEPARTMENT OF CENTRAL MANAGEMENT
SERVICES et al., Appellants.
Opinion filed September 19, 1996.
JUSTICE FREEMAN delivered the opinion of the court:
Plaintiff, the American Federation of State, County and
Municipal Employees, AFL-CIO (AFSCME), brought this action against
defendants, the Department of Central Management Services and the
Department of Children and Family Services (collectively, DCFS),
seeking to confirm an arbitration award and to vacate a
supplemental arbitration award. 710 ILCS 5/11, 12 (West 1992). The
circuit court of Sangamon County denied the requested relief, and
the appellate court reversed, with one justice dissenting. 272 Ill.
App. 3d 814 (1995). We granted leave to appeal (155 Ill. 2d R. 315)
and now reverse the judgment of appellate court.
BACKGROUND
In December 1985, DCFS Child Welfare Specialist II Vera DuBose
was assigned the case file of three minor children in DCFS's
custody. In February 1990, DuBose stated in a written "uniform
progress report" that she had seen the three children in February
1990 and that they were "doing fine." Unfortunately, the children
had, in fact, perished in an accidental fire at their home on
January 16, 1990. DuBose thereafter transferred from her DCFS
regional office to another for unrelated reasons.
When DuBose's replacement conducted a "follow-up" on the
children in August 1990, he learned of the children's deaths in the
fire. The matter was then assigned to an internal DCFS investigator
on August 22, 1990. During the internal investigation, DCFS also
discovered that DuBose had failed to submit case plans for the
family for the years 1988, 1989, and 1990.
The investigator completed his inquiries and submitted a
written report to his superiors on December 13, 1990. No further
action was taken in the matter until June 20, 1991, when DCFS
informed DuBose that a "predisciplinary" meeting was scheduled for
June 24, 1991. Pursuant to the terms of the collective-bargaining
agreement, AFSCME was given an opportunity to rebut DCFS's
presentation. In the rebuttal, AFSCME maintained that a complete
and detailed statement was not possible without certain requested
documentation. Moreover, AFSCME argued that disciplinary action
could not be taken against DuBose in view of the "extreme time
delay." After submission of the rebuttal, AFSCME received a copy of
the investigator's summary report. AFSCME thereafter filed an
addendum to its rebuttal, reiterating its position that any
disciplinary action taken against DuBose would be untimely. On
September 2, 1991, a predisciplinary report was issued, containing
a recommendation that DuBose receive a 60-day suspension.
Contrary to the recommendation, DCFS notified DuBose nine days
later that she was being placed on a 30-day suspension, pending a
final determination of discharge. AFSCME then filed a grievance on
DuBose's behalf. On October 1, 1991, DCFS notified DuBose that she
was being discharged within three days for falsification of the
uniform progress report and failure to prepare service plans for
the children for three years as required by DCFS's internal rules.
The matter then proceeded to arbitration.
At arbitration, AFSCME argued that DCFS failed to impose
discipline in a timely manner, and that even if it did, DCFS did
not have just cause to discharge the employee. After conducting a
hearing, the arbitrator sustained the grievance and reinstated
DuBose. The arbitrator ruled that DCFS had breached the parties'
collective-bargaining agreement by failing to timely discipline
DuBose. Moreover, the arbitrator concluded that the failure to
impose discipline in a timely fashion prevented him from
"address[ing] the merits of this dispute."
Rather than reinstating DuBose, DCFS applied to the circuit
court of Sangamon County, seeking vacatur of the arbitrator's
reinstatement award. In granting the relief, the circuit court
agreed with DCFS that the reinstatement violated public policy
established in the Abused and Neglected Child Reporting Act (325
ILCS 5/1 et seq. (West 1994)). The court remanded the matter to the
arbitrator for a decision on the merits. The circuit court also
denied AFSCME's request for certification of the issue for appeal.
See 134 Ill. 2d R. 308.
On remand, AFSCME "demurred," electing to stand on the
arbitrator's initial decision that the disciplinary action was
untimely. As a result, the arbitrator denied the grievance, noting
that AFSCME's "demurral" prevented him from hearing the merits of
the case as directed by the circuit court.
AFSCME then filed a petition in the circuit court of Cook
County, seeking to vacate the subsequent arbitration order and to
confirm the arbitrator's initial award. Venue was subsequently
transferred to the circuit court of Sangamon County, which, as
noted, denied AFSCME's petition.
On appeal, the appellate court reversed the judgment of the
circuit court, holding that the time provisions contained in the
collective-bargaining agreement could not be relaxed in favor of
public policy. The court noted the well-recognized policy of
establishing time frames within which various types of actions must
be commenced. The effects of such policy, the court reasoned, often
produced harsh consequences--the "guilty" may go free or those
tortiously injured may be uncompensated. 272 Ill. App. 3d at 818.
The court concluded that the initial arbitral award, DuBose's
reinstatement, merely upheld the "essence" of the collective-
bargaining agreement and, as such, could not be vacated in favor of
public policy.
The dissent, although acknowledging the collective-bargaining
agreement's express language regarding time limits, questioned the
majority's disregard of the paramount considerations of public
policy. Specifically, the dissent focused upon the result created
by the majority's analysis, i.e., that "DCFS must be forced to hire
back some social worker no matter how egregious" the conduct. 272
Ill. App. 3d at 821 (Steigmann, J., dissenting).
For reasons that follow, we reverse the judgment of the
appellate court.
DISCUSSION
Resolution of this appeal requires that we consider whether
public policy concerns may be used to override an arbitral award.
DCFS argues that public policy dictates that the arbitrator's award
of reinstatement be vacated because of the severity of DuBose's
alleged conduct. AFSCME responds that the arbitrator's award
reflects a proper interpretation of the collective-bargaining
agreement, an agreement which contains certain procedures which
must be followed in order for discipline to be imposed.
The Standard of Review
This court has consistently recognized that the judicial
review of an arbitral award is extremely limited. American
Federation of State, County & Municipal Employees v. State of
Illinois, 124 Ill. 2d 246, 254 (1988); Board of Trustees of
Community College District No. 508 v. Cook County College Teachers
Union, Local 1600, 74 Ill. 2d 412, 418 (1979). This standard
reflects the legislature's intent in enacting the Illinois Uniform
Arbitration Act--to provide finality for labor disputes submitted
to arbitration. See 710 ILCS 5/12 (West 1994) (denying judicial
authority to vacate arbitral awards except on grounds recognized at
common law). The Act contemplates judicial disturbance of an award
only in instances of fraud, corruption, partiality, misconduct,
mistake, or failure to submit the question to arbitration. Board of
Education v. Chicago Teachers Union, Local No. 1, 86 Ill. 2d 469,
474 (1981). Thus, a court is duty bound to enforce a labor-
arbitration award if the arbitrator acts within the scope of his or
her authority and the award draws its essence from the parties'
collective-bargaining agreement. Board of Trustees, 74 Ill. 2d at
421.
To this end, any question regarding the interpretation of a
collective-bargaining agreement is to be answered by the
arbitrator. Because the parties have contracted to have their
disputes settled by an arbitrator, rather than by a judge, it is
the arbitrator's view of the meaning of the contract that the
parties have agreed to accept. We will not overrule that
construction merely because our own interpretation differs from
that of the arbitrator. American Federation of State, County &
Municipal Employees, 124 Ill. 2d at 254.
Application of the Standard of Review
In this case, the arbitrator based his award of reinstatement
upon the fact that DCFS breached the collective-bargaining
agreement by failing to discharge DuBose seasonably. Article IX,
section 1, of the parties' collective-bargaining agreement, which
governs discipline, states in pertinent part:
"Discipline shall be imposed AS SOON AS POSSIBLE
AFTER THE EMPLOYER IS AWARE OF THE EVENT OR ACTION GIVING
RISE TO THE DISCIPLINE AND HAS A REASONABLE PERIOD OR
TIME TO INVESTIGATE THE MATTER.
In any event, the actual date upon which discipline
commences may not exceed forty five (45) days after the
completion of the predisciplinary meeting." (Emphasis
added.)
In the present case, DCFS offered no explanation to the
arbitrator for the seven-month interval between the conclusion of
the investigation and the commencement of disciplinary proceedings.
As a result, the arbitrator concluded that the delay was
unreasonable and that DCFS had violated the contractual time
provision. The arbitrator further ruled that the entire
disciplinary proceeding was "procedurally defective" and that the
only remedy appropriate under the circumstances would be
reinstatement. The arbitrator rejected DCFS's argument that DuBose
suffered no prejudice from the delay because the contract made
timeliness a condition precedent to the imposition of discipline.
As noted, we will disturb an arbitral award only if it fails
to derive its essence from the collective-bargaining agreement at
issue. Significantly, the parties' agreement here does not
delineate the precise time frames within which disciplinary action
must be commenced. Similarly, the agreement is silent as to what
remedies are available once an infraction is found. Thus, these
matters were left for the determination of the arbitrator. In
addition, when an agreement contemplates that the arbitrator will
determine remedies for the contractual violations, courts have no
authority to disagree with his honest judgment in that respect. See
United Paperworkers International Union v. Misco, Inc., 484 U.S.
29, 38, 98 L. Ed. 2d 286, 299, 108 S. Ct. 364, 371 (1987). Given
the limited nature of our review, we simply may not substitute our
interpretation of the time provision clause for that of the
arbitrator when the arbitrator's interpretation is clearly drawn
from the essence of the collective-bargaining agreement. Indeed,
DCFS does not dispute the arbitrator's contractual interpretation
and even concedes that it violated the agreement's time provision.
What DCFS does urge, however, is that public policy dictates
that the award of reinstatement be vacated in light of the
circumstances of this case. AFSCME counters that public policy is
not violated in this instance because the enforcement of the
contract's time provisions do not violate any express public
policy.
The Public Policy Exception
Courts have crafted a public policy exception to vacate
arbitral awards which otherwise derive their essence from a
collective-bargaining agreement. The historical context of the
exception is grounded in the common law. As with any contract, a
court will not enforce a collective-bargaining agreement that is
repugnant to established norms of public policy. Likewise, we may
not ignore the same public policy concerns when they are undermined
through the process of arbitration. Board of Trustees, 74 Ill. 2d
at 424.
However, in order to vacate an arbitral award upon these
grounds, the contract, as interpreted by the arbitrator, must
violate some explicit public policy. American Federation of State,
County & Municipal Employees, 124 Ill. 2d at 261; W.R. Grace & Co.
v. Local Union No. 759, 461 U.S. 757, 766, 76 L. Ed. 2d 298, 307,
103 S. Ct. 2177, 2183 (1983). In this respect, the exception is a
narrow one and is invoked only when a contravention of public
policy is clearly shown. American Federation of State, County &
Municipal Employees, 124 Ill. 2d at 261, citing United Paperworkers
International Union v. Misco, Inc., 484 U.S. 29, 43, 98 L. Ed. 2d
286, 302, 108 S. Ct. 364, 373-74 (1987). Moreover, the public
policy must be "well-defined and dominant" and ascertainable "by
reference to the laws and legal precedents and not from generalized
considerations of supposed public interests." W.R. Grace, 461 U.S.
at 766, 76 L. Ed. 2d at 307, 103 S. Ct. at 2183. This court has
stated that it will look to our "constitution and *** statutes, and
when cases arise concerning matters upon which they are silent,
then in its judicial decisions and the constant practice of the
government officials" when determining questions regarding public
policy. Zeigler v. Illinois Trust & Savings Bank, 245 Ill. 180, 193
(1910).
Thus, application of the public policy exception requires a
two-step analysis. The threshold question is whether a well-defined
and dominant public policy can be identified. If so, the court must
determine whether the arbitrator's award, as reflected in his
interpretation of the agreement, violated the public policy.
Applying these two steps, we find there is a well-defined public
policy in favor of truthful and accurate DCFS reporting and that
the arbitral award in this case violates that policy.
Review of Cases Applying the Public Policy Exception
The seminal case involving the exception is United
Paperworkers International Union v. Misco, Inc., 484 U.S. 29, 98 L.
Ed. 2d 286, 108 S. Ct. 364 (1987). There, the United States Supreme
Court examined the role of public policy in vacating an arbitral
award which reinstated an employee discharged for violation of the
employer's drug policy. The employee had been arrested on company
premises in another's car that was filled with marijuana smoke, and
traces of marijuana were found in his own car on the company lot.
The arbitrator found that there was no evidence that the employee
had used drugs during working hours. The district court vacated the
award on public policy grounds, and the circuit court of appeals
affirmed. The Supreme Court held the reversal of the arbitral award
improper because the award did not contravene public policy.
Specifically, the Court faulted the circuit court of appeals for
making "no attempt to review existing laws and legal precedents in
order to demonstrate that they establish a `well-defined and
dominant' policy." Misco, 484 U.S. at 44, 98 L. Ed. 2d at 302, 108
S. Ct. at 374. Moreover, the court of appeals inappropriately drew
factual inferences from evidence which had been rejected by the
arbitrator. Misco, 484 U.S. at 44, 98 L. Ed. 2d at 303, 108 S. Ct.
at 374.
In Delta Airlines, Inc. v. Air Line Pilots Ass'n
International, 861 F.2d 665 (11th Cir. 1988), a pilot, while
intoxicated, flew a commercial airliner on its scheduled flight.
His employer discharged him after discovering the misconduct.
Pursuant to a collective-bargaining agreement, the pilot complained
that his conduct was insufficient to establish just cause for
discharge. The arbitrators in that case agreed and ordered his
reinstatement. A federal district court overturned the award as
violative of public policy. In affirming the decision, the court of
appeals noted:
"[When a] person performs his employment duties and, IN
DOING SO, violates standards, restraints and restrictions
on conduct, clearly and explicitly established by the
people in their laws, a requirement that the employer
suffer that malperformance and not discharge the offender
does itself violate the same well established public
policy." (Emphasis in original.) Delta, 861 F.2d at 674.
The court of appeals stressed that the employer, Delta, was under
a duty to prevent the wrongdoing of which the employee was guilty
and it could not agree to arbitrate that issue. Thus, the
collective-bargaining agreement, as interpreted by the arbitrator,
violated public policy.
Similarly, in Iowa Electric Light & Power Co. v. Local Union
204, 834 F.2d 1424 (8th Cir. 1987), a nuclear power plant employee-
-in a hurry to leave his work area to go to lunch--ordered a
foreman to disconnect a safety device on a doorway designed to
protect the public from harmful radiation. After being discharged
for this misconduct, an arbitrator ordered his reinstatement. The
district court overturned the award as incompatible with public
safety concerns. The court of appeals affirmed, noting that
Congress had established a strict nuclear regulatory scheme which
the worker willingly contravened. The court concluded that the
worker could "no longer *** be trusted to work in such a critical
environment when he shows no respect for the safety implications of
his actions and when he is willing to jeopardize the safety of the
public." Iowa Electric, 834 F.2d at 1429. See also United States
Postal Service v. American Postal Workers Union, 736 F.2d 822, 825
(1st Cir. 1984) (vacating, on public policy grounds, an award
reinstating postal worker convicted of embezzling postal funds
because the offense "went to the heart of the worker's
responsibilities," and because the employee "represented a branch
of the federal government and was imbued with the public trust. His
actions directed violated that trust").
We have previously considered whether the public policy
exception may be used to vacate an arbitral award in American
Federation of State, County & Municipal Employees v. State of
Illinois. There, this court was presented with the case of two
mental health technicians who were away from their workplace, a
facility for the mentally disabled, for an unauthorized time. While
they were away, an unattended patient at the facility died. The
patient, however, was not assigned to the ward where the
technicians should have been on duty. For this reason, among
others, the arbitrator reduced their subsequent discharges for
conduct constituting mistreatment of a mental health recipient to
mere suspensions.
In upholding the award, this court rejected the Department of
Mental Health's public policy argument, mainly because it could not
identify a well-defined and dominant public policy: "Ther
e is
simpl
y no
polic
y
that
manda
tes
the
disch
arge
of
all
emplo
yees
found
guilt
y of
mistr
eatme
nt of
a
servi
ce
recip
ient
when
the
arbit
rator
expre
ssly
finds
that
the
griev
ants
were
exemp
lary
menta
l
healt
h
emplo
yees,
when
punis
hment
has
been
impos
ed,
and
where
no
nexis
[sic]
exist
s
betwe
en
the
infra
ction
and
the
patie
nt's
tragi
c
death
."
Ameri
can
Feder
ation
of
State
,
Count
y &
Munic
ipal
Emplo
yees,
124
Ill.
2d at
262-
63.
In contrast, our appellate court has invoked the public policy
exception to vacate an arbitral award which reinstated a school bus
driver whose unsafe driving had caused her discharge. The court
identified a dominant and well-defined public policy favoring the
safe transportation of school children and held that the
reinstatement of an unsafe driver would contravene that policy.
Board of Education of School District U-46 v. Illinois Educational
Labor Relations Board, 216 Ill. App. 3d 990 (1991).
Finally, the appellate court has vacated an arbitral award in
which a DCFS worker was discharged from and then reinstated to her
position after falsifying a case report concerning the veracity of
a report of child abuse, a factual situation somewhat akin to that
presented here for review. The arbitrator found that discharge
violated the collective-bargaining agreement's "progressive
discipline" provision. Finding that the safety and well-being of
children required "zealous" investigation and "honest" reporting,
the appellate court held that the worker's reinstatement to her
former position violated that explicit public policy. See
Department of Central Management Services v. American Federation of
State, County & Municipal Employees, 245 Ill. App. 3d 87, 98
(1993).
The above cases demonstrate that although a rote recitation of
the exception's two-prong test can be easily made, the exception's
ultimate applicability to a case is necessarily fact dependant.
With these principles in mind, we turn to the facts of the present
case.
Statutes and Legal Precedents
To be sure, the welfare and protection of minors has always
been considered one of the State's most fundamental interests. This
court long ago acknowledged the right and duty of the General
Assembly to legislate for the protection and welfare of its minors:
"[I]t would be a sad commentary on our State government,
if it is true, as is contended, there is no
constitutional power in the legislature to provide, by
suitable legislation, for [minors'] education, control
and protection. It is the unquestioned right and
imperative duty of every enlightened government, in its
character of parens patriae, to protect and provide for
the comfort and well-being of such of its citizens as, by
reason of infancy, defective understanding, or other
misfortune or infirmity, are unable to take care of
themselves. The performance of this duty is justly
regarded as one of the most important of governmental
functions, and all constitutional limitations must be so
understood and construed as not to interfere with its
proper and legitimate exercise." County of McLean v.
Humphreys, 104 Ill. 378, 383 (1882).
This public policy has led our courts to recognize that even
parents' rights are secondary to the State's strong interest in
protecting children when the potential for abuse or neglect exists.
See, e.g., Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92
S. Ct. 1208 (1972); In re Wheat, 68 Ill. App. 3d 471, 477 (1979).
Moreover, the legislature has the right to provide the "necessary
instrumentalities or agencies" for the accomplishment of its goals
in preventing abuse and neglect. Humphreys, 104 Ill. at 384.
DCFS is one such created agency, and it plays a central role
in implementing this compelling state interest. The General
Assembly specifically charged it to protect and promote the welfare
of the children of this state. 20 ILCS 505/1 (West 1992); In re
C.J., 166 Ill. 2d 264, 270 (1995). Recognizing such protection and
promotion necessitates both investigation of and contact with those
children and families who need assistance, the legislature
empowered the agency to make any investigations it deems necessary
to perform its duties. 20 ILCS 505/21 (West 1992). To that end, the
agency employs "child welfare specialists" who are trained in (i)
detection of symptoms of child neglect and drug abuse; (ii) dealing
with families and children of drug abusers, and (iii) child
development, family dynamics and interview techniques. 20 ILCS
505/21 (West 1992). The legislature also gave the agency the power
to make any rules "necessary for the execution of its powers" and
expressly adopted the regulations it promulgates under the Illinois
Administrative Procedure Act as part of the Children and Family
Services Act. 20 ILCS 505/4 (West 1992).
In order to identify the "well-defined and dominant" public
policy implicated in the present case, we must examine DCFS's
specific duties as they related to the three children assigned to
DuBose at the time of the incident. DCFS became involved with the
family as a result of a report of abuse in the children's home made
under the Abused and Neglected Child Reporting Act (325 ILCS 5/1 et
seq. (West 1992)). The Abused and Neglected Child Reporting Act
contemplates that once grounds for temporary removal from the home
are indicated, all subsequent proceedings are to be made pursuant
to article II of the Juvenile Court Act. See 325 ILCS 5/7.14 (West
1992). Accordingly, DCFS is required by legislative fiat to "assist
a Circuit Court during all stages of the court proceedings in
accordance with the purposes of this Act and the Juvenile Court Act
of 1987." 325 ILCS 5/8.3 (West 1992). We note that the General
Assembly has amended this statute during the pendency of these
proceedings. See Pub. Act 88--310, 5, eff. January 1, 1994. The
section currently provides that DCFS assist the circuit court by
"providing FULL, COMPLETE, AND ACCURATE INFORMATION to the court"
and that the "[f]ailure to provide assistance requested by a court
shall be enforceable through proceedings for contempt of court."
(Emphasis added.) See 325 ILCS 5/8.3 (West 1994).
DCFS subsequently classified the report of abuse initially
made in this case as "indicated" (see 325 ILCS 5/7.14 (West 1992)),
and pursuant to the Juvenile Court Act, the circuit court placed
the children in the agency's custody. 705 ILCS 405/2--10 (West
1992). In such circumstances, DCFS is then required to develop an
appropriate service plan for the family. 325 ILCS 5/8.2 (West
1992). Thereafter, the children's custody may be modified in a
number of ways, one of which includes placement with a relative.
705 ILCS 405/2--10 (West 1992). Here, custody of the children was
transferred to their maternal grandmother in accordance with their
mother's wishes. See 705 ILCS 405/2--27 (West 1992) (allowing
juvenile court to place a ward of the court with relative if
parents are unable to care for, protect, train, or discipline the
minor and family preservations services are unsuccessful). That
transfer resulted in the grandmother's being made the "legal
guardian" of the children. 705 ILCS 405/2--27(3) (West 1992).
The creation of such a legal guardianship in this case,
however, ended neither the juvenile court's involvement with the
children nor that of DCFS. That is because the guardianship at this
stage is not considered permanent--it is always subject to
modification and review of the court. 705 ILCS 405/2--27(6), 2--28
(West 1992). In fact, DCFS is still required by law to "provide
appropriate services to, any family whose child has been placed in
substitute care." 20 ILCS 505/5(l) (West 1992). In response to the
General Assembly's requirement that DCFS "establish rules and
regulations concerning its operation of programs" with regard to
placement under section 2--27 of Juvenile Court Act (20 ILCS
505/5(g)(9) (West 1992)), the agency promulgated rules which
require service plans be made at least every six months for the
child and the family regardless of whether they are served directly
by DCFS. See 89 Ill. Adm. Code 305.5 (1989). In the context of
placement of abused or neglected children under the Juvenile Court
Act, the obligation to develop such case plans serves to fulfill
the legislative goal of moving the child "toward the most permanent
living arrangement and permanent legal status." 20 ILCS 505/6a
(West 1992). Thus, the plans are to be reviewed and updated every
six months. 20 ILCS 505/6a (West 1992).
Moreover, to facilitate the juvenile court's review, the legal
guardian is also required by law to file case plans with the court
every six months. 705 ILCS 405/2--28(2) (West 1992). Specifically,
the General Assembly has mandated that DCFS:
"shall review the forms *** returned by each ***
guardian and supplement the information provided therein,
where required, by such additional consultations with the
*** guardian and such other INVESTIGATIONS as may be
necessary and, applying the standard and regulations
established by the Department, shall determine whether
and the extent to which, the parent or guardian or
together in any combination, are reasonably able to
provide parental payment for care and training of their
children." (Emphasis added.) 20 ILCS 505/9.4 (West 1992).
Once the child has been placed pursuant to section 2--27 of the
Juvenile Court Act, the next step in the proceedings is either a
termination of the parental rights with adoption to follow, or a
reunification with the biological parents. See 705 ILCS 405/2--
28(1) (West 1992). The court, however, will not discharge a minor
or officially "close" the case until it specifically finds that it
is in the best interests of the minor to do so and that the public
no longer has an interest in keeping the case in the system. 705
ILCS 405/2--30 (West 1992).
It is worth pointing out at this point in our discussion that
these placement proceedings represent just a portion of the
comprehensive legislative scheme designed for the welfare and
protection of children found to be abused or neglected. We focus on
this stage only because it was in this context that DuBose reported
that she had seen the children and that they were "doing fine." Her
uniform progress report, intended for submission to the juvenile
court, also contained her statement that one of the minor children
had told her that she "liked" living with her grandmother and other
siblings. Although we recognize that there is less likelihood that
the child is still threatened with abuse or neglect because the
child has been removed from the harmful environment, the court's
concentration remains fixed upon that child's safety and welfare.
This is because the placement is only temporary in nature. The
decisions which the juvenile court is mandated by statute to render
in this area require accurate reporting, honest evaluation, and
personal observation of both child and guardian on the part of the
trained child welfare specialist assigned to the case. Indeed,
DCFS's continued involvement with the placed child at these
proceedings reveals the General Assembly's recognition of reality:
it is the specialist, not the trial judge, who is versed in the
areas of child development and family dynamics. Honesty and
zealousness are essential in order to guarantee that the permanent
placement with the guardian or the restoration of parental rights
is indeed in the best interests of a child whose life has already
been disrupted by abuse and/or neglect.
We, therefore, have little difficulty in concluding that there
exists a "well-defined and dominant" public policy against DCFS's
employment of individuals whose dishonesty and neglect could
seriously undermine the welfare, safety, and protection of minors.
The statutes we have cited cannot, in any way, be viewed as mere
"general considerations of supposed public policy" concerning the
proper placement of children whose lives have already been
disrupted by abuse and/or neglect. That no harm apparently resulted
to the children from this inaccurate representation and the
apparent three-year neglect is hardly comforting. Nor should it be
the yardstick by which application of the public policy exception
is measured. Our identification of this public policy also augments
the appellate court's conclusion in Department of Central
Management Services v. American Federation of State, County &
Municipal Employees, 245 Ill. App. 3d 87, 97 (1993), that there
exists a public policy of both timely contact with the children and
accurate documentation of investigations necessary for DCFS to
fulfill its legislative mandate of investigating claims of
suspected child abuse and neglect.
Conflict with Public Policy
Our inquiry must next focus upon whether the contract in this
case, as interpreted by the arbitrator, clearly violates that
policy. We are mindful of the fact that the foregoing public policy
conflicts with the policy inherent in providing for time limits
within which disciplinary charges or claims may be brought.
However, the State's interest in its children's welfare and
protection must override AFSCME's concerns for timeliness. In
certain cases, interpreting the time provisions as the arbitrator
did in this case and ordering reinstatement will not contravene the
public policy enunciated above. Mere charges of tardiness, standing
alone, would not contravene that public policy. However, the manner
in which the time provision was enforced in this case with respect
to the misconduct at issue cannot be upheld. As with any
limitation, the nature of the conduct at issue must be considered
before arbitrary time restrictions can be imposed.
The arbitrator's remedy for the violation of the contract's
time provision caused him to fully reinstate a DCFS child welfare
specialist--charged with both falsifying a uniform progress report
intended for submission to the Juvenile Court and neglecting to
compile required family service plans for three years--without any
determination that the welfare of the minors in the DCFS system
will not be compromised by such a reinstatement. Rather, he avoided
discussion of the charges against DuBose. He did not take any
precautionary steps to ensure the misconduct at issue here will not
be repeated, and he neither considered nor respected the pertinent
public policy concerns that arose from them Thus, the remedy in
this case violates public policy in that it totally ignores any
legitimate public policy concerns.
As with any contract, a court may not enforce a collective-
bargaining agreement in a manner that is contrary to public policy.
Accordingly, if an arbitrator construes such an agreement in a way
that violates public policy, an award based on that construction
may be vacated by a court. W.R. Grace, 461 U.S. at 766, 76 L. Ed.
2d at 307, 103 S. Ct. at 2183. Questions of public policy, of
course, are ultimately left for resolution by the courts. Board of
Trustees, 74 Ill. 2d at 424; see also W.R. Grace, 461 U.S. at 776,
76 L. Ed. 2d at 307, 103 S. Ct. at 2183. Even if the arbitrator had
considered issues of public policy, "we may not abdicate to him our
responsibility to protect the public interest at stake." Board of
Trustees, 74 Ill. 2d at 424. We believe the public policy
identified above is violated by the arbitral award in this case.
That award cannot be said to in any way promote the welfare and
protection of children. DCFS, in agreeing to a time provision that
does not allow for exigent disciplinary circumstances, has
compromised its ability to discharge its duties as expressed by the
General Assembly.
Thus, we believe the appellate court's likening of the
parties' contractual time provision to our criminal statutes of
limitation is flawed. Such statutes, as enacted by the legislature,
embody the public's regard of the seriousness of the conduct in
issue. Although certain crimes do carry statutes of limitation
within which prosecution must be commenced, some crimes such as
treason, arson, forgery, first and second degree murder,
involuntary manslaughter, and reckless homicide do not. 720 ILCS
5/3--5(a) (West 1992). Therefore, the people of this State, through
the General Assembly, have recognized that certain conduct is never
subject to time limitations and may be prosecuted at any time, no
matter the "staleness." We cannot compare such statutory provisions
with the time provision contained in the collective-bargaining
agreement at issue here, particularly where the agreement applies
to employees of a State agency charged with particular
responsibilities which represent the will of the public with
respect to the welfare and protection of children.
That said, we do not lightly disregard the right of the
parties to privately negotiate their contracts. Nor do we attempt
to restrain them in any way from so acting in the future. However,
where public employment is at issue and that employment concerns
the welfare and protection of minors, this court must balance these
competing, positive policies so that the two can co-exist
harmoniously and the public can reap the benefits from both.
Likewise, we find the analogy to the statutes of limitation
governing civil actions between citizens unpersuasive because we
are not dealing with private claims here, but claims arising from
employment with an agency which represents the State and derives
its duties from the General Assembly. Case law teaches us that in
matters concerning child abuse and neglect, even a parent's rights
yield to the State's interest in protecting its children. Although
the timeliness provision of the contract is laudatory and espouses
the concepts inherent in our government's disapproval of "stale
claims," it, too, must yield to the public's interest in the
welfare and protection of abused and neglected children.
Nevertheless, AFSCME contends that the award of reinstatement
here does not violate public policy because there is no positive
law which forbids DCFS from rehiring a worker in DuBose's
situation. We acknowledge that the United States Supreme Court left
unanswered the question of whether only a precise violation of a
positive law, caused by the award itself, is necessary before a
court may vacate the award on public policy grounds. As a result,
the federal circuit courts of appeals have taken different views on
the matter. Compare United States Postal Service v. National Ass'n
of Letter Carriers, 810 F.2d 1239 (D.C. Cir. 1987) (upholding
reinstatement of postal carrier convicted of unlawful delay of mail
because there was no legal proscription against reinstatement of
such employee), with United States Postal Service v. American
Postal Workers Union, 736 F.2d 822 (1st Cir. 1984) (vacating
reinstatement of postal employee who had been convicted of
embezzlement of postal funds on public policy grounds despite no
legal proscription against rehiring such employees). However, in
cases where the safety and welfare of third persons is compromised,
the results are more consistent. See Exxon Shipping Co. v. Exxon
Seamen's Union, 11 F.3d 1189 (3d Cir. 1993) (vacating arbitral
award which reinstated seaman discharged for intoxication while on
duty); Amalgamated Meat Cutters & Butcher Workmen of North America
AFL-CIO, Local Union 540 v. Great Western Food Co., 712 F.2d 122
(5th Cir. 1983) (vacating arbitral award which reinstated driver
who drove employer's truck while drunk). In this case, we need not
elaborate as to the potential tragedies which can result from even
one false DCFS case report.
We believe that a bright-line test requiring that the award
itself violate an explicit law has the potential to swallow the
public policy exception. Indeed, this case illustrates why such a
narrow view is unworkable. None of the Acts enacted by the
legislature concerning DCFS contain any statute which explicitly
prohibits the agency from hiring "dishonest" workers or workers
previously disciplined for dishonesty. True, too, there is no
statute which expressly prohibits a DCFS worker from submitting a
false case report. Such prohibitions are absent because the very
essence of the Acts presupposes that only trustworthy workers will
be hired. The employment of any other type of worker defeats the
legislative purpose surrounding the entire statutory scheme. That
DCFS caseworkers be diligent and truthful is not a "general
consideration[ ] of supposed public interests." Given their
statutory mandates, truthfulness, diligence, and honesty are
implicit in their duties. For DCFS to employ an untrustworthy child
welfare specialist violates these implied mandates. For these
reasons, we decline AFSCME's invitation to adopt such a rigid rule
in cases where public policy is at issue.
We also disagree with AFSCME's contention that the contractual
time provision at issue here protects "industrial due process" and,
as such, must be upheld. Courts have defined "industrial due
process" as merely requiring employers to give employees advance
notice of and an opportunity to respond to the charges against them
before discipline is imposed. See Stroehmann Bakeries, Inc. v.
Local 776, 969 F.2d 1436 (3d Cir. 1992) (and cases cited therein).
DuBose received both notice and an opportunity to be heard;
therefore, industrial due process, as defined by our courts, has
been satisfied in this case. Moreover, some courts have recognized
that the "just cause" provisions found in many collective
bargaining agreements also trigger analyses in terms of industrial
due process. See, e.g., Chauffeurs Local Union No. 878 v. Coca Cola
Bottling Co., 613 F.2d 716, 718 (8th Cir. 1980). Indeed, "just
cause," like the time provision at issue here, is a "condition
precedent" to discipline. However, that has not prevented courts
from vacating, on public policy grounds, reinstatements based upon
the lack of "just cause." We stress that our decision should not be
interpreted as denigrating either the notion or importance of
industrial due process in the day-to-day administration of labor
contracts in the workplace. We simply fail to see any violation of
the concept in the present case.
Finally, AFSCME submits that if we were to overturn the
arbitral award, we would be encouraging employers to ignore the
bargained-for rights that employees have earned through the
collective-bargaining agreement. We disagree. Nothing in our
decision restrains an arbitrator from imposing sanctions against
employers who violate a contractual provision. The arbitrator
remains free to determine appropriate remedies within the confines
of the collective-bargaining agreement. As the Eighth Circuit Court
of Appeals has stated:
"As long as the arbitrator's remedy is `rationally
explainable as a logical means of furthering the aims of
the contract' [citation], the arbitrator may for example,
impose monetary penalties, order the [employer] to
reimburse the employee for rehabilitation programs, order
reinstatement of the employee to a position in which he
poses no danger to the public, or create its own unique
sanction to deter overreaching by the employer." Union
Pacific R.R. Co. v. United Transportation Union, 3 F.3d
255, 263 (8th Cir. 1993).
In fact, as long as the arbitrator makes a rational finding that
the employee can be trusted to refrain from the offending conduct,
the arbitrator may reinstate the employee to his or her former job,
and we would be obliged to affirm the award. See American
Federation of State, County & Municipal Employees, 124 Ill. 2d at
263 (upholding arbitrator's reinstatement despite public policy
arguments because arbitrator found employees were "exemplary," some
punishment had been imposed, and the conduct at issue did not
threaten patient safety). Accord Northwest Airlines v. Air Lines
Pilots Ass'n, International, 808 F.2d 76 (D.C. Cir. 1987)
(upholding reinstatement of pilot who flew commercial airliner
while drunk because reinstatement was conditioned upon the pilot's
recertification by the Federal Aviation Administration); E.I.
DuPont de Nemours & Co. v. Grasselli Employees Independent Ass'n of
East Chicago, Inc., 790 F.2d 611 (7th Cir. 1986) (upholding
reinstatement of employee discharged after mental breakdown at work
because arbitrator specifically found that recurrence of mental
illness was unlikely so that worker safety was not comprised).
However, the arbitrator's freedom in fashioning an appropriate
remedy is not without limitation, as this case amply demonstrates.
Where, as here, an arbitrator awards full reinstatement as a remedy
for the contractual violation without any findings that the worker
poses no risk to the welfare and protection of DCFS's children and
their families, the award simply cannot stand. For the reasons
stated earlier in this opinion, the full measure of the
arbitrator's discretion must always yield to public policy.
Accordingly, we must decide the proper disposition of this
case given our conclusions as to the public policy identified and
the arbitral award of reinstatement. AFSCME's demurrer at the
second arbitration hearing has complicated our review of the case
in that AFSCME contends throughout its brief that the employee has
never been found guilty of any of the conduct alleged by DCFS.
Specifically, AFSCME argues that "in the absence of a finding by
the[a]rbitrator that the employee was guilty of misconduct, there
is no basis for an argument predicated on public policy." Although
such an argument may be justified in the name of zealous advocacy,
we find it to be a perversion of the record. The procedural history
of this case reveals that AFSCME, by its own actions, prevented the
arbitrator from making any such findings.
The original circuit court order in this case stated the
following:
"Plaintiff's Petition to Vacate the Arbitrator's
Award and Remand to the Arbitrator for a HEARING ON THE
MERITS is granted as the Arbitrator's Award is contrary
to public policy of this State as set forth in the Abused
and Neglected Child Reporting Act." (Emphasis added.)
AFSCME then requested the circuit court to certify the issue
regarding public policy and the timeliness provision under Supreme
Court Rule 308 for purposes of an interlocutory appeal. The circuit
court denied the request. Thus, because the court found that the
case did not involve a question of law as to which there was a
substantial ground for difference of opinion and that an immediate
appeal would not materially advance the ultimate termination of the
litigation, AFSCME was obligated to return to the arbitrator for a
hearing on the merits, as ordered by the circuit court.
Notwithstanding the above order, AFSCME elected not to proceed
with a hearing on the merits. Rather, AFSCME submitted the
following to the arbitrator upon remand:
"The Union has decided to interpose a demurrer on
the basis of the time-limits provision in the contract as
interpreted and applied in your vacated award. Rather
than arguing the merits, we will stand on the first
award.
The time-limits provision was predicated upon the
agreement of the parties that it would violate an
employee's due process rights to require the employee to
defend herself against State charges as in the present
case. [The circuit court] in effect has found either that
the State cannot agree to such a due process protection
or that it cannot be applied to the instant case. His
order fails to explicate his reasoning for applying the
public policy doctrine.
ACCORDINGLY, THE UNION WILL NOT OFFER A DEFENSE TO
THE STATE'S CHARGES AND ITS CLAIM THAT THEY WARRANT
DISCHARGE. It is our position that, to do so, would
severely prejudice Ms. DuBose's right to legally
challenge [the circuit court's] order vacating your
award.
Under these circumstances, [the Union] submits that
you have no authority under the Court order but to deny
the grievance, recognizing that the Union has elected to
stand on its rights under the earlier award." (Emphasis
added.)
In the arbitrator's supplemental arbitral order following the
remand from the circuit court, he reasoned that AFSCME, by way of
its "demurrer," had withdrawn all of its remaining arguments to the
discharge, including the issue of just cause. This is an apt
conclusion given the fact that the demurrer states that AFSCME
specifically stood on "the time-limits provision of the contract,
as INTERPRETED AND APPLIED in [the arbitrator's] vacated award."
(Emphasis added.) The arbitrator concluded that "there is no longer
anything before me to decide. If a party chooses to no longer press
a position, I cannot compel it to do so." Thereafter, the
arbitrator denied the grievance in the following language:
"Given [the circuit court's] order, the parties'
positions prompted by the procedural posture of this
matter, the Union's demurrer and notwithstanding my prior
award sustaining the grievance, and recognizing that the
Union has elected to stand on its rights under the
earlier award, the grievance is now denied based upon the
Union's demurrer."
The circuit court confirmed the supplemental arbitral order, and
AFSCME appealed to the appellate court, which reversed the court's
confirmation and reinstated the initial arbitral award.
Thus, the case comes to us in a somewhat unusual procedural
posture--the common law "demurrer," as such, no longer exists in
Illinois, the General Assembly having abolished it over 60 years
ago. See Ill. Ann. Stat., ch. 110, par. 2--615, Joint Committee
Comments [1955], at 407 (Smith-Hurd 1983). After the enactment of
the Civil Practice Act, the demurrer evolved into what is now
recognized as a motion to dismiss under section 2--615(e) of the
Code of Civil Procedure (735 ILCS 5/2--615(e) (West 1992)). Such a
motion raises the question of the sufficiency of the pleadings, as
a matter of law, and admits the pleadings solely for purposes of
deciding the legal question. However, once that legal question has
been answered and rejected, and a circuit court orders the case to
be heard on the merits, the time to demur on the pleadings has
passed. See generally 735 ILCS 5/2--1301(b) (West 1992).
Here, AFSCME requested the arbitrator, and later the circuit
court, to rule on DCFS's failure to impose discipline in a timely
fashion. Although the arbitrator agreed with AFSCME that the
discipline was not imposed "as soon as possible," the circuit court
rejected that contention and ordered the case to be heard on the
merits. Thus, in the absence of some other defensive pleading
attacking DCFS's allegations, the case was no longer at the
pleading stage, and AFSCME was not entitled to reiterate its
previously rejected position by way of a demurrer. In this context,
AFSCME's demurrer served only as a withdrawal of all of its other
challenges to the discharge. Put another way, those challenges were
abandoned.
We further note that AFSCME's contention that it had to
"preserve" its argument regarding the "as soon as possible"
language because the circuit court had denied its request for Rule
308 certification is disingenuous. Although, the circuit court's
order was nonfinal for purposes of appeal, an appeal from a
subsequent final judgment " `draws in question all prior non-final
orders and rulings which produced the judgment.' " Burtell v. First
Charter Service Corp., 76 Ill. 2d 427, 433 (1979), quoting Elfman
Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1253 (3d Cir. 1977).
The denial of Rule 308 certification does not render the issue
nonappealable after a subsequent entry of a final judgment.
Accordingly, there was no danger that the issue of timeliness would
not be preserved for later appellate review.
AFSCME's abandonment of its remaining challenges to the
discharge leaves this court with the sole issue of whether the
arbitrator's remedy for the violation of the "as soon as possible"
contractual language--a "blanket" reinstatement--violates public
policy. We have found that it does. Because AFSCME has stood on the
arbitrator's application of the "as soon as possible" language, all
of its remaining contentions have been waived, and a full hearing
as to those contentions is no longer appropriate. AFSCME had the
opportunity to make a record before the arbitrator on these
remaining contentions in order to preserve them, but willingly
chose not to do so. It cannot now change its stance. See Leffler v.
Browning, 14 Ill. 2d 225, 228 (1958).
AFSCME further maintains that this court must remand the case
to the arbitrator on a limited basis for reconsideration of a
remedy for DCFS's violation of the "as soon as possible" language.
In other words, if a remand for a hearing on the merits is not
possible, then this court should nevertheless remand the matter for
a redetermination of the appropriate remedy. We find this request
to be tenuous at best.
First, AFSCME is now asking this court for reconsideration of
the appropriate remedy despite the fact that it had previously
indicated to the arbitrator that it was prepared to "stand on the
[arbitrator's] first award." Second, nothing in this case
prohibited AFSCME from trying the case on the merits, and then,
once the arbitrator determined all of the factual questions,
requesting that an appropriate remedy be fashioned. Finally, the
possibility of a remand for redetermination of a different remedy
based solely on the failure to impose timely discipline has already
been precluded by the arbitrator's interpretation of the "as soon
as possible" language, an interpretation AFSCME specifically
"stood" on.
Indeed, in construing the contractual provision at issue,
i.e., "[d]iscipline shall be imposed as soon as possible after the
Employer is aware of the event or action giving rise to the
discipline and has a reasonable period or time to investigate the
matter," the arbitrator discussed various remedies which he could
utilize to give effect to the provision. The arbitrator reviewed
other arbitral decisions in which delay was found and discipline
nonetheless was imposed. He rejected, however, the notion that any
other remedy absent a blanket reinstatement was appropriate.
Specifically, the arbitrator stated at length:
"The answer to the remedy question in this case
comes from the parties' negotiated words. *** If
discipline is not imposed `as soon as possible', the
merits of the discipline cannot be addressed--no matter
how egregious the alleged misconduct may be. ***
***
*** The result of my conclusion is simple and
provides stability. Most importantly, my conclusion
follows the clear language of the Agreement and is what
the parties agreed to.
*** Given that the discipline has been found to be
invalid, THE ONLY REMEDY is that Grievant must be
reinstated to her former position without loss of
seniority and other rights and benefits and she shall be
made whole for all lost compensation." (Emphasis added.)
Thus, the arbitrator specifically adopted an "all or nothing"
approach as a remedy for a violation of the timeliness provision,
to the exclusion of all other remedies. This approach is analogous
to that taken by courts when ruling on motions to dismiss based
upon statutes of limitations. If an action is not timely filed, the
only remedy is dismissal of the entire cause of action without any
determination of the merits. Here, the arbitrator reasonably
interpreted the timeliness provision to admit of no other remedies
but a blanket reinstatement without reaching the merits of the
case. He, rightly or wrongly, explicitly rejected imposing any
other remedy.
Accordingly, we cannot order a remand even if we were to
disagree with the arbitrator's honest judgment as to the
unavailability of other remedies. See Misco, 484 U.S. at 38, 98 L.
Ed. 2d at 299, 108 S. Ct. at 371. Indeed, such action on our part
would severely undermine the role of judicial review in the
arbitral process. As the United States Supreme Court has stated:
"The question of interpretation of the collective
bargaining agreement is a question for the arbitrator. It
is the arbitrator's construction which was bargained for;
and so far as the arbitrator's decision concerns
construction of the contract, the courts have no business
overruling him because their interpretation of the
contract is different from his." United Steelworkers of
America v. Enterprise Wheel & Car Corp., 363 U.S. 593,
599, 4 L. Ed. 2d 1424, 1429, 80 S. Ct. 1358, 1362 (1960).
The Supreme Court has also advised courts not to be "suspicious" of
an arbitrator's interpretation merely because an arbitrator's
actions might not track those that courts would take when faced
with analogous situations. United Steelworkers of America v.
Warrior & Gulf Navigation Co., 363 U.S. 574, 580-81, 4 L. Ed. 2d
1409, 1416-17, 80 S. Ct. 1347, 1351-52 (1960). In Misco, the Court
again cautioned that the deference to an arbitrator's determination
is high "even though the parties may allege that the award rests on
errors of fact or on misinterpretation of the contract." Misco, 484
U.S. at 36, 98 L. Ed. 2d at 298, 108 S. Ct. at 370.
Therefore, even if we were to interpret the collective-
bargaining agreement to permit other remedies which would not
violate public policy in this case, our interpretation of the
contract is irrelevant in the face of the arbitrator's specific
conclusion that no other remedy existed. The arbitrator's factual
determinations and legal conclusions generally receive deferential
review as long as they derive their essence from the collective-
bargaining agreement, notwithstanding the error of those factual or
legal conclusions. Thus, we do not have the license to order a
remand for the imposition of some other remedy when the arbitrator
has specifically rejected the possibility of other remedies. We
simply lack the authority to so act.
We are mindful that the public policy exception has become "a
favorite pretext for those less than favorably disposed to the
awards of labor arbitrators." Stead Motors v. Automotive Machinists
Lodge No. 1173, 886 F.2d 1200, 1210 (9th Cir. 1989). We believe
that our opinion, however, strikes the proper balance between the
public's interest in protecting its children, the utilization of
arbitration as a means for settling labor disputes, and the proper
role of the judiciary in the arbitral process. Unfortunately, the
dissenting justices fail to appreciate this fact. We believe that
Justice Harrison's remarks have little to do with the legal issues
in this case. We further believe, with respect, the criticisms of
Justices Heiple and Nickels reflect a serious misunderstanding of
our opinion.
In arguing that the deaths of the three children in this case
were wholly unrelated to anything Vera DuBose may have done wrong,
Justice Harrison states that he "could not forget[ ] that dead
children figure into this case." Slip op. at 33. However, this case
is not about dead children. The case is about children who are
alive today and under DCFS protection. It is those children who
depend upon child welfare specialists like Vera DuBose to monitor
their cases and to speak for them in the court proceedings where
their neglect, abuse, and dependency are at issue and where their
futures are decided. The case illustrates what happens, or could
happen, if false reports are made by DCFS child welfare
specialists--reports which are submitted to our circuit judges in
difficult and emotional proceedings where child placement decisions
are made. Serious consequences may follow if Vera DuBose fails to
fulfil her statutory duty. In our view, it was DuBose's
falsification of the progress report and her failure to make
service plans which is the harm suffered in this case, not the fact
that three children have tragically died.
Justice Harrison also chides us for waiting until now to
"debut" our "compassion" for the children of this State. Slip op.
at 33. Even if he were correct in his assessment of our previous
decisions, which he is not, what would he have us do in this case?
Perpetuate our indifference? He then insists that the only
distinction between DuBose's case and that of the two mental health
technicians in AFSCME v. State of Illinois is "that the person who
died in [that case] was a profoundly mentally retarded patient ***
and not a child, as was the case here." Slip op. at 34. He suggests
that we view the life of a mental patient "as somehow less worthy
of our concern and protection than the life of a child" and hastens
to remind us that we "are duty bound to place such prejudices
behind [us] when acting as justices of this court [where we] are
obliged to follow the law, and under the law of Illinois, all
people are equal." Slip op. at 34. These accusations are not only
unfounded, but they have no place in a judicial opinion and do not
deserve the dignity of a response.
Returning to the legal issues in this case, we note that
although Justices Heiple and Nickels omit the rancor, they, too,
view AFSCME v. State of Illinois as analogous to the case before
us. However, DuBose's situation is not analogous to that of the two
mental health technicians. As we have explained, the arbitrator
there reinstated the workers by reducing their dismissals to
suspensions. We upheld the arbitral decision because the arbitrator
expressly found that the employees "were exemplary mental health
employees, *** punishment ha[s] been imposed, and *** no nexis
[sic] exist[ed] between the infraction and the *** death." AFSCME
v. State of Illinois, 124 Ill. 2d at 262-63. That holding
specifically recognized the long-standing principle that an
employee's amenability to discipline is a factual determination
which cannot be questioned or rejected by a reviewing court. See
Misco, 484 U.S. at 44-45, 98 L. Ed. 2d at 303, 108 S. Ct. at 374.
In other words, this court's decision then reflected the
understanding that
"[o]rdinarily, a court would be hard-pressed to find
a public policy barring reinstatement in a case in which
an arbitrator has, expressly or by implication,
determined that the employee is subject to rehabilitation
and therefore not likely to commit an act which violates
public policy in the future." Stead, 886 F.2d at 1213.
Of course, such an express or implied determination from the
arbitrator is totally lacking in this case. And that, of course, is
why AFSCME v. State of Illinois is of little assistance in
resolving the issues presented in this case.
In addition, Justice Heiple stresses that, in this case, no
"nexus" exists between DuBose's conduct and the unfortunate deaths
of the children. He states that our previous decisions have
required a nexus between the misconduct and the harm suffered in
order for the public policy exception to apply. Slip op. at 32.
However, this court has never ruled that such a nexus must exist
and to suggest otherwise oversimplifies the holding of AFSCME v.
State of Illinois. This court's decision there did not turn solely
on whether a nexus existed. The court, in fact, identified two
other factors which were equally important: whether the arbitral
award sanctioned violations of the law (it did not because the
misconduct did not go unpunished) and whether the arbitral decision
posed a threat of harm to third persons (it did not based upon the
arbitrator's factual findings). See AFSCME v. State of Illinois,
124 Ill. 2d at 463-65. Justice Heiple does not consider these two
other elements and does not discuss how they would apply to the
facts in this case.
The arbitral award here fails to safeguard DCFS, the courts,
and the public from any possible future falsifications and neglect
on DuBose's part. This shortcoming, in the eyes of the dissenting
justices, is insufficient to warrant the invocation of the public
policy exception. Instead, the dissenting justices are confident
that the next children who would come under DuBose's supervision
would receive from her all that the legislature demands. They
apparently trust that the next uniform progress report prepared by
DuBose for use at a placement hearing in the circuit court would be
accurate. We, however, cannot take the risk which attends to such
confidence. In this respect, Justices Nickels and Harrison suggest
that we are improperly speculating or assuming that DuBose will be
derelict in the future. Nothing is further from the truth. We are
merely mindful that DuBose's past performance has called into
question her dedication to and her ability to perform a job which
impacts on the safety and welfare of others. As we have stated,
when public policy is at issue, it is the court's responsibility to
protect the public interest at stake. That is why courts will not
give the drunken pilot the opportunity to fly a commercial airliner
again even though no harm befell his passengers. Likewise, courts
will step in to insure that the hungry nuclear power plant employee
will not contaminate an entire population the next time he is in a
hurry to eat lunch.
Justice Nickels states that we have removed an "important
bargained-for due process consideration from the collective-
bargaining agreement" (slip op. at 41), and Justice Harrison
denounces us for reducing industrial due process to a "sham" (slip
op. at 36). In fact, Justice Harrison's polemic leaves one with the
misimpression that our decision sounds the death knell for
organized labor in this state because an employer can now take away
an employee's job without ever having to substantiate its charges
of misconduct. None of these points are very well-taken and, in
fact, fall wide of the mark.
First, our opinion in no way enables DCFS to take away
DuBose's job without substantiating its allegations. Justice
Harrison forgets that it was AFSCME, by its own procedural
posturing, that insured that result by filing its ill-advised
"demurrer" after the circuit court specifically ordered the case to
be heard on its merits. At that time, AFSCME elected not to offer
a defense to the charges. Therefore, like the arbitrator before us
did at the conclusion of the second hearing, we, too, must conclude
that just cause did, in fact, exist for DuBose's dismissal. See
Ramonas v. Kerelis, 102 Ill. App. 2d 262 (1968) (holding that a
party's default at arbitration hearing results in a complete,
final, and binding determination of the controversy). Once AFSCME
removed the issue of just cause from its grievance, DCFS's charges
became "substantiated." Our opinion today did not compel that
result nor should the blame for it rest upon our shoulders.
Second, our opinion in no way holds that the timeliness
provision in the collective-bargaining agreement can never be
invoked. Rather, our opinion merely recognizes the fact that in
certain cases, a mechanical application of the provision may, as it
did here, collide with public policy. Indeed, DCFS employees who
occupy sensitive positions concerning the safety and welfare of the
people DCFS is legislatively designed to protect are more
susceptible to a public policy challenge than those workers who do
not. Simply stated, a DCFS child welfare specialist is not in the
same league as a DCFS janitor. The public policy concerns
implicated in the case of the former are notably absent in the case
of the latter. Our opinion acknowledges this reality. Moreover, our
recognition of the possibility of other remedies, short of a
blanket reinstatement, belies any intimation on the part of the
dissent that we have ignored the language of the collective-
bargaining agreement at issue. We note that it is in this context
that Justice Harrison accuses us of "union busting." Slip op. at
37. Like his other accusation regarding our impartiality, this
charge, too, lacks merit, is without any basis or support, and does
not deserve the dignity of a response.
The dissenting justices would have the highest court of this
state play the part of an ostrich by putting its head in the sand
and pretending that the potential for tragedy does not exist or,
even worse, by waiting until some tragedy actually befalls a child.
Although our concern for the children and families served by DCFS
is cause enough for us to invoke public policy, we feel compelled
to offer some observations, which, in our opinion, would seem
superfluous but for the opprobrium utilized by some of our
dissenting brethren. The ramifications of permitting the type of
reinstatement ordered here would undoubtedly be felt by more than
just the children and families served by DCFS. The resulting
perception of a tolerance of dishonesty and neglect in DCFS workers
would undermine the public's confidence in the system as a whole
and would do little to enhance the public image of our unions and
their workers. More important, such a reinstatement would leave our
circuit judges in the unenviable position of having to "second-
guess" the reports submitted by DuBose and her peers, reports
which, as we have pointed out, are essential in carrying out the
legislature's mandate regarding abused and neglected children.
Their jobs, already arduous because of the nature of these
proceedings, would be made even more onerous. We will not put our
imprimatur on such a disaster. We do not believe that deference to
arbitration, a concept with which we wholeheartedly agree, suffers
at all if the judiciary retains the right to keep arbitrators
within the bounds of public policy. Nor do we believe that the
United States Supreme Court's decision in Misco compels the "hands-
off" approach espoused in the dissents.
CONCLUSION
The initial arbitral award in this case violates public
policy. Therefore, the judgment of the appellate court is reversed,
and the order of the circuit court, which confirmed the
supplemental arbitral award, is affirmed.
Appellate court judgment reversed;
circuit court judgment affirmed.
JUSTICE HEIPLE, dissenting:
Courts are duty bound to enforce labor-arbitration awards
premised upon the parties' collective-bargaining agreements absent
fraud, corruption, partiality, misconduct, mistake or failure to
submit the question to arbitration. Board of Trustees of Community
College District No. 508 v. Cook County College Teachers Union,
Local 1600, 74 Ill. 2d 412, 421 (1979). As the majority correctly
opines, an exception to this rule exists where enforcement of a
contract is repugnant to the public policy favoring the welfare,
safety and protection of minors. Slip op. at 14. However, the mere
identification of a relevant public policy is insufficient to
warrant circumventing a collective-bargaining agreement. Rather,
our decisions have held that for such public policy exceptions to
apply, there must be a nexus between the misconduct of the employee
and the harm suffered. See, e.g., American Federation of State,
County & Municipal Employees v. State of Illinois, 124 Ill. 2d 246,
260-65 (1988) (holding that reinstatement of mental health workers
did not violate public policy favoring the competent care of the
mentally disabled where, inter alia, no nexus existed between the
mistreatment and the patient's death). In the instant case it is
uncontroverted that the DCFS worker's failure to fulfill her duties
was wholly unrelated to the unfortunate deaths of the children at
issue. Accordingly, the application of a public policy exception to
circumvent the collective-bargaining agreement constitutes an
unwarranted application of the public policy exception and I
respectfully dissent.
JUSTICE HARRISON, also dissenting:
My colleagues have persuaded themselves that they have struck
"the proper balance between the public's interest in protecting its
children, the utilization of arbitration as a means for settling
labor disputes, and the proper role of the judiciary in the
arbitral process." In fact, their decision does nothing to aid
children, ignores the basic protections guaranteed to State
employees by the Illinois Public Labor Relations Act (5 ILCS 315/1
et seq. (West 1992)), and converts the courts into agents for
subverting industrial due process.
To cynics familiar with this court's recent decisions in
Barnett v. Zion Park District, 171 Ill. 2d 378 (1996), and Mt. Zion
State Bank & Trust v. Consolidated Communications, Inc., 169 Ill.
2d 110 (1995), the majority's professed concern for the welfare of
children may seem more than a little disingenuous. In both of those
cases, the court had an opportunity to provide meaningful redress
where children were actually injured or killed due to the
negligence of others. Instead, when compassion would have made a
real difference, it was nowhere to be found. The court refused to
help.
Here, by contrast, the court's compassion appears boundless,
but it has waited to debut until a time when it is of no immediate
benefit to anyone but a governmental bureaucracy that is unhappy
with the obligations imposed by the Illinois Public Labor Relations
Act and by the terms of the collective-bargaining agreement it
negotiated with its employees' union.
I have certainly not forgotten, I could not forget, that dead
children figure into this case. But their deaths are wholly
unrelated to anything Vera DuBose may have done wrong in her
capacity as a DCFS child welfare specialist. The charges against
her have never been addressed on the merits, but even if DuBose did
falsify a case report and even if she did fail to prepare all of
the service plans she should have, those transgressions were wholly
unrelated to what happened to the children. The children perished
because their house burned down, not because their case worker
failed to do her job properly.
The situation here is analogous to the one we considered in
American Federation of State, County & Municipal Employees v. State
of Illinois, 124 Ill. 2d 246 (1988), where a patient at a mental
health facility died while two employees of the facility were away
from their work site without permission. The Department of Mental
Health discharged the employees, but the arbitrator reduced the
discipline to suspensions and reinstatement without back pay or
other benefits. The circuit court subsequently vacated the
arbitration award on the grounds that "it represented a severe and
extreme departure from the public policy of Illinois, which is to
protect not to endanger mental patients." American Federation of
State, County & Municipal Employees, 124 Ill. 2d at 252. The
appellate court reversed, and this court affirmed the appellate
court's judgment, remanding the cause with directions to order
enforcement of the arbitrator's award. In so doing, this court
specifically rejected the circuit court's reasoning and held that
public policy did not mandate discharge where, as here, there was
no nexus between the employees' infraction and the patient's death.
While the misconduct Dubose allegedly committed may be
reprehensible, it is certainly no worse than the conduct of the
mental health workers this court allowed to be reinstated in
American Federation of State, County & Municipal Employees. More
importantly, reinstatement of DuBose poses no more threat of harm
or danger to third persons than did reinstatement of the mental
health workers in that case. To the contrary, reinstatement of
DuBose presents a far lower risk, for her job is simply to monitor
and make reports about the care provided by others. In contrast to
the employees disciplined in American Federation of State, County
& Municipal Employees, she has no direct responsibility for client
care herself.
If reinstatement did not offend public policy in American
Federation of State, County & Municipal Employees, it surely does
not do so in this case either. The only thing that distinguishes
the cases is that the person who died in American Federation of
State, County & Municipal Employees was a profoundly mentally
retarded patient tied to a toilet by state workers and not a child,
as was the case here. That distinction, however, should be of no
consequence to my colleagues. They may believe that the life of a
helpless state mental patient is somehow less worthy of our concern
and protection than the life of a child, but they are duty bound to
place such prejudices behind them when acting as justices of this
court. Here they are obliged to follow the law, and under the law
of Illinois, all people are equal.
In making these remarks, I do not mean to suggest that sloth
or dishonesty by public employees is ever acceptable. The people of
this state are entitled to expect public workers to be
conscientious and diligent, and when workers do not fulfill their
obligations, the State must have the power to terminate or
discipline them. The State had that power here. The problem is that
the power was not exercised properly.
If DCFS really believed that continued employment of Vera
DuBose posed the terrible threat depicted by my colleagues, it
could have taken remedial action promptly, as the collective-
bargaining agreement and the Illinois Public Labor Relations Act
required. It failed to do so. Instead, it inexplicably allowed
seven months to pass before it initiated predisciplinary measures.
Where, I wonder, was the agency's concern for Vera DuBose' clients
during all that time?
Considering the lengthy delay before DCFS finally took action,
it seems apparent that the agency was not, in fact, worried that
her work might actually endanger any children. Instead, the notion
of protecting minors appears to be nothing more than an expedient
the agency has employed to circumvent its statutory and contractual
obligations to its employees. Contrary to my colleagues, I do not
believe we should aid DCFS in this effort.
Whatever DuBose allegedly did or failed to do, she did not
break the law. Her only offense, if she committed one, was failure
to perform the requirements of her job. This is not an
insignificant matter, especially where the protection and welfare
of minors may be involved, but it is no reason to negate the
provisions of the collective-bargaining agreement. Most public
employees provide important services that affect public health and
safety one way or another, and by the logic employed by my
colleagues, public policy would be violated and the terms of the
collective-bargaining agreements could be ignored anytime such an
employee failed to perform his job properly. If that were the case,
the protection afforded public employees by collective-bargaining
agreements would be rendered meaningless.
In his dissent from the appellate court's opinion, Justice
Steigmann acknowledged that the circuit court's ruling could not be
affirmed without disregarding the express terms of the collective-
bargaining agreement, but he dismissed this problem with a cavalier
"So what?" I winced when I read this, and I think anyone who
understands organized labor and the law of Illinois will have the
same response. Collective-bargaining agreements are the cornerstone
of our labor policy. Without them, the benefits of union
representation would be impossible. Organized labor would collapse.
Justice Steigmann and the majority on this court may believe
that life without unions would be a good thing, but they are wrong.
Unions help improve working conditions, wages, and job security,
and provide employees with a voice in work place matters that they
would otherwise lack. At the same time, they tend to increase the
employer's productivity by reducing employee turnover and fostering
more rational management policies.
While critics of the labor movement may take issue with some
of these claims, the matter is not for us to judge. Any debate as
to the advantages of allowing public employees to organize and
bargain collectively was settled by the General Assembly when it
enacted the Illinois Public Labor Relations Act. That statute
specifically declares that it is the public policy of this state to
grant public employees the right to organize for the purpose of
negotiating wages, hours, and other conditions of employment. 5
ILCS 315/2 (West 1994). To effectuate this policy, the statute
provides that public employees have the right and public employers
have the duty to bargain collectively (5 ILCS 315/6, 315/7 (West
1994)) and that, with certain exceptions not relevant here,
"any collective bargaining contract *** executed
pursuant to th[e] Act shall supersede any contrary
statutes, charters, ordinances, rules or regulations
relating to wages, hours and conditions of employment and
employment relations adopted by the public employer or
its agents" (5 ILCS 315/15(b) (West 1994)).
In holding that the collective-bargaining agreement at issue
here must yield to "public policy," the majority fails to see that
the foregoing statutory provisions evince a second and separate
"public policy" requiring that the collective-bargaining agreement
be enforced as written. Considering the critical importance of
collective bargaining, on the one hand, and the absence of any
demonstrable harm or threat of harm to any actual children, on the
other, it is this second "public policy" which should take
precedence under the particular facts of this case.
The majority's decision today enables DCFS to take Vera
DuBose's job away from her without ever having to substantiate its
allegations and without even having to follow the procedural
requirements specified by the collective-bargaining agreement. To
claim that this somehow satisfies industrial due process reduces
the concept to a sham. When all is said and done, this opinion
amounts to nothing more than an attempt to exploit the specter of
helpless children as a means to rationalize judicial union busting.
This effort is totally misguided. If my colleagues are truly
concerned with protecting young children, they should stand in
defense of collective bargaining and uphold the requirements of the
Illinois Public Labor Relations Act so that DCFS workers can obtain
the resources they need to keep up with their crushing caseloads
and perform their jobs properly.
For the foregoing reasons, I would affirm the judgment of the
appellate court upholding the arbitrator's award in favor of
DuBose. I therefore dissent.
JUSTICE NICKELS, also dissenting:
Public policy "is a very unruly horse, and *** once you get
astride it you never know where it will carry you." Richard v.
Mellish, 2 Bing. 229, 252, 130 Eng. Rep. 294, 303 (1824). In its
decision today, the majority grabs the reigns of that unruly horse
and embarks on a journey that will serve only to frustrate the
goals of collective bargaining and sacrifice the efficiency of
binding arbitration as a means of resolving labor disputes. I
cannot join the majority on this journey. Therefore, I respectfully
dissent.
The majority recognizes that the review of an arbitral award
is very limited. Indeed, a court must construe an award as valid if
at all possible. Board of Education v. Chicago Teachers Union,
Local No. 1, 86 Ill. 2d 469, 477 (1981). Such a deferential
judicial review is necessary to promote the efficient private
settlement of labor disputes. A reviewing court is therefore duty
bound to follow the decision of an arbitrator that draws its
essence from a collective-bargaining agreement, regardless of its
view of the wrongfulness of the conduct at issue or the
appropriateness of the punishment. Board of Trustees of Community
College District No. 508 v. Cook County College Teachers Union,
Local 1600, 74 Ill. 2d 412, 421 (1979).
I recognize that a court will not enforce an arbitral award
made pursuant to a collective-bargaining agreement where that award
violates public policy. American Federation of State, County &
Municipal Employees v. State of Illinois, 124 Ill. 2d 246, 260
(1988). The doctrine is based on the common law notion that courts
will not lend judicial power to the enforcement of private
agreements that are immoral or illegal. United Paperworkers
International Union v. Misco, Inc., 484 U.S. 29, 44, 98 L. Ed. 2d
286, 302, 108 S. Ct. 364, 374 (1987). However, the public policy
exception is an extremely narrow one and should "not otherwise
sanction a broad judicial power to set aside arbitration awards."
Misco, 484 U.S. at 43, 98 L. Ed. 2d at 302, 108 S. Ct. at 373.
In the past, this court has followed the United States Supreme
Court in carefully limiting the public policy exception to the
enforcement of arbitral awards. In order to overturn an award, the
public policy involved "must be well defined and dominant, and is
to be ascertained `by reference to the laws and legal precedents
and not from general considerations of supposed public
interests.' " W.R. Grace & Co. v. Local Union 759, 461 U.S. 757,
766, 76 L. Ed. 2d 298, 307, 103 S. Ct. 2177, 2183 (1983), quoting
Muschany v. United States, 324 U.S. 49, 66, 89 L. Ed. 744, 756, 65
S. Ct. 442, 451 (1945). Although leaving open the question of
whether an award must actually violate positive law to violate
public policy, the Supreme Court has noted that the decision to
overturn an arbitral award on public policy grounds should turn on
"whether the award created any explicit conflict with other `laws
and legal precedents.' " Misco, 484 U.S. at 43, 98 L. Ed. 2d at
302, 108 S. Ct. at 374, quoting W.R. Grace & Co. v. Local Union
759, 461 U.S. 757, 766, 76 L. Ed. 2d 298, 307, 103 S. Ct. 2177,
2183 (1983).
Applying these principles, this court has refused to overturn
an arbitral award in a case with strong similarities to the present
case. In American Federation of State, County & Municipal Employees
v. State of Illinois, 124 Ill. 2d 246 (1988), this court considered
whether an arbitrator violated public policy in awarding the
reinstatement of two mental health technicians. The technicians had
made an unauthorized trip to a flea market during their shift.
During their absence, an unattended patient at the facility died,
although the patient was not assigned to the ward where the
technicians were supposed to be on duty. The technicians were
discharged for conduct constituting mistreatment of a service
recipient and the union filed a grievance. The arbitrator
reinstated the technicians, finding that the absence did not
constitute just cause for termination.
On review, this court refused to vacate the arbitral award of
reinstatement on public policy grounds. This court acknowledged
that the compassionate care of the mentally disabled is an
important public policy. American Federation of State, County &
Municipal Employees, 124 Ill. 2d at 262. However, the arbitral
award reinstating the technicians did not conflict with any laws or
legal precedent relating to this public interest. The court stated
that "[t]here is simply no policy that mandates the discharge of
all employees found guilty of mistreatment of a service recipient."
American Federation of State, County & Municipal Employees, 124
Ill. 2d at 263.
I believe that this case calls for the same judicial
restraint. I recognize that there exists a general public policy
favoring the diligent protection of minors, similar to the general
public policy favoring the protection of the mentally disabled.
However, there exists no policy that mandates the discharge of
every DCFS employee that files a false report, regardless of the
circumstances. The majority does not identify a "well defined and
dominant" public policy that is in explicit conflict with the
reinstatement of DuBose.
In an effort to obscure this point, the majority first
manufactures a public policy that can hardly be considered well
defined. After reviewing the statutory framework set up for the
protection of minors, the majority declares that it violates public
policy for DCFS to employ "individuals whose dishonesty and neglect
could seriously undermine the welfare, safety, and protection of
minors." Slip op. at 14. How dishonest? How neglectful? Presumably,
any employee's misconduct can be framed in these generic terms.
With such a broad articulation of public policy, courts are now
free to substitute their judgment for that of the arbitrator
regarding the discipline of DCFS employees under the guise of
public policy. In addition, such a broad articulation of public
policy completely usurps an arbitrator's power to determine whether
any such misconduct constitutes "just cause" for termination. In
this opinion, the limited public policy exception to the
enforcement of arbitration awards has evolved into a basis for the
judicial review of all DCFS employment decisions.
Even if I were to accept the existence of such a nebulous
public policy as a basis to overturn an award, the reinstatement of
DuBose does not necessarily violate such a policy. The statutory
scheme put in place for the protection of minors does not evince a
public policy that would demand the firing of every individual
found to be dishonest or neglectful in regard to his or her
statutory duties. The majority tacitly acknowledges this fact in
stating that this court would be obligated to affirm the
reinstatement if the arbitrator were to make a rational finding
that the employee can be trusted to refrain from the misconduct in
the future. Slip op. at 19. Even without such a finding, there is
simply no explicit conflict with these laws or any legal precedent
posed by the reinstatement of a DCFS worker who has filed a false
report.
In its effort to find a violation of the public policy it has
identified, the majority also invades the exclusive province of the
arbitrator by engaging in inappropriate fact finding. In United
Paperworkers International Union v. Misco, Inc., 484 U.S. 29, 98 L.
Ed. 2d 286, 108 S. Ct. 364 (1987), the Supreme Court chastised the
lower court for drawing an inference that because an employee was
discovered in another employee's car with a lit marijuana cigarette
and had drugs in his own car in the company parking lot, he was
using drugs at work. The Supreme Court noted that such fact finding
is the exclusive province of the arbitrator chosen by the parties
and the "refusal to enforce an award must rest on more than
speculation or assumption." Misco, 484 U.S. at 44, 98 L. Ed. 2d at
303, 108 S. Ct. at 374. In the instant case, the majority
speculates that DuBose put children in danger by filing the false
reports and assumes that such conduct will continue if she is
reinstated. The arbitrator did not find these facts and the
majority is in error to assume them.
Moreover, I cannot accept the majority's conclusion that the
arbitrator violated public policy in the process of enforcing the
contractual provision requiring discipline be timely. The supposed
public policy identified by the majority requiring DCFS employ only
the most diligent and truthful people is not "dominant" in relation
to the general public policy favoring the timely imposition of
discipline. Timeliness is required for the imposition of almost all
civil and criminal liability, including that involving children.
The majority provides no meaningful basis for its distinction
between the timeliness provisions at issue here and those imposed
by the legislature. Such provisions impose a burden upon those
seeking sanctions to respect the rights of the individual, and all
impose corresponding costs on society. In refusing to enforce the
provision requiring discipline be timely, the majority has removed
an important bargained-for due process consideration from the
collective-bargaining agreement.
Even accepting the majority's conclusion that the award of
reinstatement violated public policy, the proper resolution of the
matter is to return this case to the arbitrator for an alternate
remedy. The formulation of remedies is a matter for the arbitrator,
not the courts. United Steelworkers of America v. Enterprise Wheel
& Car Corp., 363 U.S. 593, 597, 4 L. Ed. 2d 1424, 1428, 80 S. Ct.
1358, 1361 (1960). There is no dispute that DCFS violated the
collective-bargaining agreement in failing to impose timely
discipline. The majority's conclusion that the arbitrator adopted
an "all or nothing approach" that rejected any other remedy for the
contractual violation is simply absurd. In leaving the violation of
the timeliness provision without a remedy, the majority invites
DCFS to ignore it in the future.
In conclusion, I question how an arbitrator in the next case
can avoid the folly that this case has become. When faced with a
disciplinary action not timely taken, an arbitrator may no longer
find that the action is untimely and enforce the collective-
bargaining agreement as written. The arbitrator must now take proof
on the merits in order to determine if the misconduct actually
occurred, and if it did, then determine if it is gross enough to
negate the operation of the limitations provision. Whatever the
arbitrator's decision, it is certain to spawn an appeal thereby
sacrificing the efficiency of "binding" arbitration as a means of
resolving labor disputes. This is the legacy of the majority's ride
on that unruly horse.
JUSTICE HEIPLE joins in this dissent.
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