The Illinois Supreme Court has long held that when parties enter into a broad arbitration agreement but it’s unclear whether the specific subject of a dispute is covered, the question of arbitrability is initially decided by the arbitrator, not a court. But that rule is subject to a big caveat: the right to arbitrate can be waived where the party voluntarily participates in proceedings inconsistent with arbitration. In the closing days of the January term, the Court unanimously held that a police officer had waived any right he might otherwise have had to arbitrate his termination, affirming the Appellate Court in Village of Bartonville v. Lopez. Our detailed report on the underlying facts and lower court holdings in Village of Bartonville is here.
The defendant in Village of Bartonville was a police officer for the plaintiff from 2012 through 2014. At all relevant times, there was a collective bargaining agreement in place between the defendant labor union and the Village which provided for a grievance procedure. In a separate article, the CBA addressed discipline, providing that discipline should be progressive and corrective, and that no officer could be disciplined without just cause.
The village police chief signed a complaint for termination against the defendant officer in August 2014, accusing him of violating certain procedures and field training directives during and after a traffic stop. The complaint was filed with the board of fire and police commissioners. Counsel for the Board agreed with counsel for the officer (who also represented the union) that a hearing on the complaint would be set for October 3.
Just prior to the hearing, the officer filed a declaratory judgment action in Circuit Court, seeking a judgment that the Board had lost jurisdiction over the complaint by failing to have a complaint within thirty days of filing. A few months later, the court granted summary judgment to the defendants in that action, holding that the delay in the hearing had been at the officer’s request, and the Appellate Court affirmed.
At the outset of the October 3 hearing, counsel for the officer stated that the officer was participating in the hearing without waiving his challenge to jurisdiction or his right to grieve any suspension or termination that might be imposed. During the hearing, defense counsel cross-examined witnesses and made a closing argument (during which once again counsel stated that he was not waiving the challenge to jurisdiction or the right to file a grievance). At the conclusion of the hearing, the Board discharged the officer. The officer did not seek review of that decision pursuant to the Administrative Review Law.
Instead, the officer filed a grievance over his termination. The plaintiff responded by filing a declaratory judgment action of their own, seeking a judgment that the termination was not an arbitrable matter. The defendants argued that the officer was attempting to get improper collateral review of the Board’s administrative decision firing him. The court ultimately granted plaintiff’s motion for summary judgment, holding that there was no provision in the parties’ CBA consigning discipline and termination to the grievance arbitration procedure. The Appellate Court reversed, applying the rule above – since the contract was unclear about whether arbitration of discipline was intended, the decision on arbitrability should be made in the first instance by an arbitrator.
In an opinion by Justice Thomas, the Supreme Court unanimously reversed. On appeal, the defendants argued that the only question was whether the CBA expressly excluded discipline and termination from arbitration. If it did not, pursuant to long-standing precedent, the question of arbitrability was turned over to an arbitrator.
The problem with that view, the Supreme Court found, was the officer’s substantive participation in the Board hearing. The Court noted that during the hearing, although counsel had purported to reserve the right to file a grievance, the officer never challenged the Board’s jurisdiction on the grounds that the matter was subject to grievance arbitration (the officer’s jurisdictional challenge went solely to the delay in the hearing), nor did he ask the Board to stay the proceedings pending his filing of a grievance, or ask a court to enjoin the Board from proceeding.
The defendants argued that the Municipal Code authorized them to pursue both the hearing and arbitration in tandem. But that could not be, the Court held; that would imply that an arbitrator could potentially overrule the Board, or even a court, in the parallel proceedings. Since the defendants had permitted the Board’s decision to become final without an appeal, that decision now barred any resort to the grievance procedure by res judicata, given that the Board’s proceedings (in which the officer testified, and his counsel presented evidence, cross-examined witnesses and made a closing argument) were judicial in nature.
Holding that by fully participating in the hearing and allowing the Board’s decision to become final the officer had acted in a manner inconsistent with any right he might have had to arbitrate, the Court reversed the Appellate Court.
Image courtesy of Flickr by Mark Goebel (no changes).