Wednesday, June 1, 2016

Appellate Court Reminds Employers to Make Sure Contract Language is Clear

In a recent Illinois Appellate Court case, Village of Bartonville v. Lopez, employers were reminded again of the importance of specificity when negotiating collective bargaining agreements, especially where the parties’ grievance procedure is concerned.  In Village of Bartonville, the contract language was not specific with regard to whether or not disciplinary action were subject to the parties’ grievance procedure or the exclusive jurisdiction of the Village’s Board of Fire and Police Commissioners (“BOFPC”).  This lack of specificity may ultimately lead to a second bite at the apple for a terminated police officer.

In Village of Bartonville, the police chief filed a complaint with the BOFPC seeking the termination of a police officer who violated department policy by pointing his service weapon at a motorist during a traffic stop.  The Union sought to stop the BOFPC hearing by filing a complaint for declaratory judgment and injunctive relief wherein it alleged that the hearing could not proceed because it had not been heard within it was filed, as required by the BOFPC Act.  Before the court could rule on the Union’s complaint, the case proceeded before the Board, and the Union participated fully in the hearing process.  Ultimately, the BOFPC terminated the officer’s employment.

The Union then filed a grievance under the collective bargaining agreement.  The Village responded by filing a complaint for declaratory judgment and a permanent stay of arbitration.  The parties’ contract language became the focus of the case.  Neither the grievance procedure nor the parties’ disciplinary language, which was in two separate contract articles, expressly provided for or excluded discipline from the parties’ grievance procedure.  The trial court granted summary judgment in favor of the Village because there was no language in the collective bargaining agreement that specifically subjected discipline to the parties’ grievance procedure.  The appellate court reverse the trial court on this issue and remanded the case back to the trial court with instruction to allow the case to proceed to arbitration where the arbitrator would decide whether or not the officer’s termination could be arbitrated.

In reversing the trial court, the appellate court held that when it is unclear whether the dispute falls within the scope of the parties’ arbitration clause, the trial court should not decide the issue and should refer the matter to the arbitrator to decide the issue of substantive arbitrability.  The court went on to specify that, in the context of public labor relations, the legislature has reversed the presumption that a particular matter is arbitrable only if the parties expressly agree to submit the matter to arbitration.  Instead, the court held that the relevant inquiry arising under the Labor Act is whether the parties, through their written agreement, showed the intention to exclude a particular matter from the arbitration process.  In short, the court held that unless the parties have mutually agreed otherwise, everything in a collective bargaining agreement is subject to grievance arbitration.  In an even bigger twist the court held that the past practices of the parties will be of no benefit if the language of the agreement itself does not specify the intent to subject an issue to arbitration or not (the Village had argued that the Union had previously allowed cases to proceed before the BOFPC without subsequent requests for arbitration).

The lessons of this case are clear.  When negotiating a collective bargaining agreement, any issue that an employer does not want to be subject to the grievance procedure must be clearly delineated in the agreement.  Past practice will not save the day and if your contract is vague, an arbitrator will decide whether or not the subject of the grievance will be arbitrated.  This is not the position that an employer wants to be in.  Take a close look at your agreements now to determine what you don’t want going to arbitration.  Things like discipline and performance evaluations are just two examples where specificity will be key.  As always, don’t hesitate to contact us when you have concerns.