Are all disciplinary actions against public employees, up to and including termination, subject to a rebuttable presumption of arbitrability absent an express carve-out in the parties’ collective bargaining agreement? In the closing days of the May term, the Illinois Supreme Court agreed to address that question, allowing a petition for leave to appeal in Village of Bartonville v. Lopez, a decision from the Third District of the Appellate Court.
Bartonville began in mid-2014 when the police chief of the plaintiff village filed a complaint with the Village’s Board of Fire and Police Commissioners seeking to terminate a police officer. According to the complaint, the officer had drawn his firearm during a traffic stop and pointed it at a motorist without proper grounds for doing so.
The Village’s police officers were represented by a union, which had entered into a collective bargaining agreement with the Village. The parties’ CBA described the grievance procedure as “the sole and exclusive procedure for resolving any grievance or dispute which was or could have been raised by an Officer covered by this Agreement or the Union.” A separate article of the CBA dealt with discipline, and neither expressly included nor expressly excluded disciplinary actions from the scope of the grievance procedure.
Just before the Board heard the chief’s termination complaint, the defendant officer filed a complaint in court seeking a declaratory judgment and injunctive relief, arguing that the Board had no jurisdiction to proceed and the matter must be arbitrated. Before the trial court could rule, the Board met to address the complaint. The officer’s attorney challenged the Board’s jurisdiction, but when that challenge was rejected, the officer fully participated in the hearing on the merits. The Board ultimately ruled that the officer should be terminated. The union then filed a grievance with the police department challenging the Board’s decision.
Not long after that, the Village filed another complaint, seeking a declaratory judgment and permanent stay of arbitration under the CBA. The defendants, including the officer, responded by filing a motion to compel arbitration. The Village answered with a motion for summary judgment, arguing that arbitration was barred by the Municipal Code, the Administrative Review Law and res judicata. The court granted the Village’s motion for summary judgment, and the defendants appealed.
A divided Appellate Court reversed. On appeal, the defendants argued that the trial court had believed that arbitration was not required unless the CBA expressly included disciplinary matters within the scope of the grievance procedure. The correct standard, they argued, was that all matters were presumptively included unless expressly excluded. The defendants further argued that even if the Municipal Code and Administrative Review Law arguably seemed to exclude arbitration of discipline, they conflicted with the Illinois Public Labor Relations Act, 5 ILCS 315/1, which establishes a presumption of arbitrability unless the parties expressly agree otherwise.
According to the Appellate Court, because arbitration is a “uniquely suitable procedure for settling labor disputes,” the arbitration provisions of collective bargaining agreements must be given a broader construction than similar provisions in routine commercial contracts. Because the Labor Relations Act reverses the usual presumption against arbitrability, in cases where the parties’ intent is unclear, the matter should be referred to an arbitrator for the threshold determination of what the parties intended.
The Court concluded that the parties’ CBA was unclear on whether or not discipline was subject to the grievance procedure – on the one hand, the actual grievance provision didn’t expressly exclude discipline, but on the other hand, disciplinary matters were addressed in a separate article of the agreement. Therefore, the Court reversed the trial court with instructions that the court should send the matter to arbitration for a determination of the scope of the grievance procedure.
Presiding Justice O’Brien specially concurred, arguing that the fact that the grievance article didn’t expressly exclude discipline was dispositive, so there was no need for a threshold determination of the scope of arbitration.
Justice McDade dissented, arguing that even though the majority’s arbitration analysis was correct – the ambiguity of the CBA triggered a presumption of arbitration – the officer had waived his right to arbitrate by participating on the merits before the Board, and now res judicata barred arbitration.
We expect Village of Bartonville to be decided this winter.