The opinion
Illinois Official Reports
Appellate Court
Illinois State Toll Highway Authority v.
International Brotherhood of Teamsters, Local 700,
2015 IL App (2d) 141060
Appellate Court THE ILLINOIS STATE TOLL HIGHWAY AUTHORITY,
Caption Plaintiff-Appellee, v. INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, LOCAL 700, Defendant-Appellant.
District & No. Second District
Docket No. 2-14-1060
Filed November 17, 2015
Decision Under Appeal from the Circuit Court of Du Page County, No. 14-CH-651;
Review the Hon. Terence M. Sheen, Judge, presiding.
Judgment Reversed.
Counsel on Nicole L. Chaney, of Teamsters Local 700, of Park Ridge, for
Appeal appellant.
Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro,
Solicitor General, and Christina T. Hansen, Assistant Attorney
General, of counsel), for appellee.
Panel JUSTICE BURKE delivered the judgment of the court, with opinion.
Presiding Justice Schostok and Justice Hutchinson concurred in the
judgment and opinion.
OPINION
¶1 Defendant, the International Brotherhood of Teamsters, Local 700 (Union), appeals a
judgment vacating an arbitrator’s award in its favor and against plaintiff, the Illinois State
Toll Highway Authority (Tollway). We reverse, and we reinstate the award.
¶2 The Union filed a grievance against the Tollway. According to the arbitrator’s written
decision, the Tollway “requir[es] that an employee, who is absent due to illness for two or
fewer days, present medical documentation, or other proof acceptable to the Tollway,
certifying the employee’s ability to return to work, and explaining the reasons for the
absence.” The Union contended that this policy violates the parties’ Collective Bargaining
Agreement (CBA).1
¶3 As pertinent here, the CBA reads:
“ARTICLE I
Purpose
1.1 It is the intent and purpose of the parties to set forth in this Agreement the
terms of employment concerning rates of pay, hours of employment, and other
working conditions to be observed by them and the employees covered hereby.
***
ARTICLE III
Management Rights
3.1 The management of the operations of the Employer, the determination of its
policies, budget and operations, the manner of exercise of its statutory functions, and
the direction of its working forces, including, but not limited to, the right to hire,
promote, demote, transfer, classify and reclassify, assign and direct employees; to
discipline, suspend, and discharge for cause; to relieve employees from duty because
of lack of work or other legitimate reasons; to make and enforce reasonable rules of
conduct and regulation; to implement a substance abuse program, to determine the
departments, divisions and sections and work to be performed therein; to determine
quality; to determine the number of hours of work and shifts per work week; to
establish and change work schedules and assignments; to introduce new methods of
operation; to eliminate, relocate, transfer, or subcontract work and to maintain
efficiency is vested exclusively in the Employer provided, however, that no such
management right shall be exercised in a manner contrary to or inconsistent with the
provisions of this Agreement. The exercise of these rights shall be subject to the
grievance procedure set forth in Article XII.
1
The record contains no further evidence of the grievance. There is no dispute, however, that the
arbitrator’s summary of the grievance is accurate.
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***
ARTICLE XI
Miscellaneous Rights and Benefits
***
11.2(A) SICK LEAVE. A full-time employee shall accumulate sick leave at the
rate of one (1) day for each month of full-time service. Except as hereinafter
provided, sick leave days shall be used only for reason of bona fide illness, accident
or injury of the employee. Unused sick leave may be carried forward without
limitation. Sick leave benefits as provided above shall be payable with the first (1st)
day of absence. If an employee is absent due to illness for more than two (2) days,
he/she must present medical documentation or other proof acceptable to the
Employer, certifying his/her ability to return to work and explaining the reasons for
the absence.
***
ARTICLE XII
Grievance and Arbitration Procedure
12.1 GRIEVENCE STEPS. In order to provide an orderly method of handling and
disposing of all disputes, misunderstandings, differences, or grievances arising
between the Employer and the Union or the employees covered by this Agreement as
to the meaning, interpretation, and application of the provisions of this Agreement,
such differences shall be settled in the following manner, except as herein otherwise
provided. In the event the Employer re-organizes or changes otherwise its grievance
representatives listed below, it agrees to timely notify the Union of said changes and
such notice shall serve solely as a procedural modification of this Article.
STEP 1: An aggrieved employee and steward, if requested by the employee, shall
first orally take up the grievance with the employee’s immediate Section Manager
and District Manager. The District Manager and Section Manager shall orally reply to
the grievance within three (3) work days.
STEP 2: If the grievance is not satisfactorily adjusted in Step 1 or an answer is not
given within the time specified, the grievance shall be reduced to writing on a
standard grievance form, signed by the employee involved and the steward, dated and
presented in duplicate:
(A) In the case of an Engineering Department employee, to the General
Manager of Maintenance and Traffic.
(B) In the case of an Operational Services employee, to the Chief of
Operational Services.
The written grievance shall contain a brief statement of the nature of the
grievance, shall identify the section or sections of the Agreement allegedly violated
and shall state the relief sought. Within seven (7) calendar days of receipt of the
written grievance, the representative of the Employer named above shall make
arrangements with the designated representative of the Union for a meeting to discuss
the grievance. In addition to the designated representative of the Union and the
representative of the Employer named above, those attending the meeting shall
include, if requested by either party, the Supervisor of the grievant, the grievant, the
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Union Steward and employee witnesses. Within seven (7) calendar days after the
meeting, the representative of the Employer named above shall note his disposition of
the grievance thereon, sign, date and return one (1) copy of the grievance to the
designated representative of the Union.
STEP 3: If, in the case of Engineering Department employees, the matter is not
satisfactorily adjusted in Step 2 within the time specified, the designated
representative of the Union shall within seven (7) calendar days request a meeting
with the Chief Engineer. Within seven (7) calendar days after such meeting, the Chief
Engineer shall note his disposition on the grievance form, sign, date and return one
(1) copy thereof to the designated representative of the Union.
If, in the case of the Operational Services employees, the matter is not
satisfactorily adjusted in Step 2 within the time specified, the designated
representative of the Union shall within seven (7) calendar days request a meeting
with the Chief of Operational Services. Within seven (7) calendar days of such
meeting, the Chief of Operational Services shall note his disposition on the grievance
form, sign, date and return one (1) copy thereof to the designated representative of the
Union.
STEP 4: If the grievance is not satisfactorily adjusted in Step 3 or an answer is not
given within the time specified, the Union may at its election submit the grievance
within thirty (30) calendar days from the date of the Employer’s written denial of the
grievance or the date an answer was due to arbitration in accordance with the
following procedure.
The Union and the Employer shall jointly request the Federal Mediation and
Conciliation Service for a list of names of seven (7) arbitrators, all of whom are
members of the National Academy of Arbitrators. From the list, the Union shall strike
three (3) names, then the Employer shall strike three (3) names, and the person whose
name remains shall be the arbitrator.
The arbitrator will be jointly contacted and asked to hold a hearing at which both
parties may present evidence. The Arbitrator [sic] shall decide only the grievance
submitted by applying only the express language of this Agreement, and shall have no
authority to add to, subtract from, modify, or amend this agreement [sic].
The arbitrator’s duly rendered decision shall be final and binding on the
Employer, the Union, and the employee or employees involved. ***
12.2 TIME LIMITS. Grievances must be presented in Step 1 [sic] within ten (10)
working days from the occurrence of the incident or the time the employee should
have obtained direct knowledge of the condition which gave rise to the grievance.
Appeals from one step to the next must be taken within five (5) working days from
[the] date of answer or time specified for answer.”
¶4 On December 13, 2013, at an arbitration hearing, both parties presented witnesses and
introduced evidence. (The record contains no report of this hearing.) On January 8, 2014, the
arbitrator issued his written ruling.
¶5 The arbitrator noted that the Tollway requires any employee who is absent due to illness
for two days or fewer to present medical documentation, or other acceptable proof, certifying
the employee’s ability to return to work and explaining the absence. The Union contended
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that this policy violates the CBA. The issues were (1) whether the Union’s grievance was
arbitrable; and (2) if so, whether it was meritorious.
¶6 The arbitrator then recited the following undisputed facts. The Tollway has a legitimate
interest in deterring the use of sick days for improper purposes. It has given its supervisors,
known as “garage managers,” the authority to require certain employees to provide a doctor’s
excuse or other proof of illness before they are permitted to return to work. However, a
garage manager has the discretion to decide when to require documentation. The Tollway
admitted that it had required some employees who took sick leaves of two days or fewer to
present documentation that they were able to return to work and explaining their absences. At
least one such employee was told by his foreman that, if he did not provide the
documentation, the foreman would “write him up” for insubordination. The Union filed a
grievance contending that “[the] medical-documentation requirement as applied by [the
Tollway]” violated article XI, section 2(A), of the CBA. The grievance was not filed by or in
the name of a specific employee.
¶7 The arbitrator first addressed whether the grievance was subject to arbitration. He noted,
“The Tollway says there is nothing for me to decide,” because the grievance did not mention
a specific aggrieved employee or allege a specific date and time when an employee was
required to present documentation. The arbitrator disagreed, noting that article XII, section 1,
of the CBA states that arbitration shall “provide an orderly method of handling and disposing
of all disputes, misunderstandings, differences, or grievances arising between the Employer
and the Union or the employees covered by this Agreement as to the meaning, interpretation,
and application of the provisions of this Agreement.” This language was not limited to
disputes between the Tollway and specific employees, but extended to those between “the
Employer and the Union.” Although the award that the Union sought might be considered a
form of declaratory relief, and a permanent injunction against enforcing the Tollway’s policy,
the CBA enables the arbitrator to provide such relief.
¶8 The arbitrator then turned to the merits of the grievance. He stated as follows:
“Article XI, Section 11.2(A) is plainly written. If an employee is absent due to
illness for more than two days, then that employee must present medical
documentation or other proof acceptable to the Tollway certifying the ability to return
to work and explaining the reasons for the absence. The Tollway reading that
language tells me it means that the Tollway also has the discretion to require medical
documentation for illness absences of two days or fewer. Why is that? Very simple,
says the Tollway. The [CBA] doesn’t say the Tollway can’t ask for documentation if
the absence is for two days or fewer.
Is that what the [CBA] says? Does that make sense? It would make perfect sense
if there was no two-day grace period in the [CBA], and if the [CBA] said, ‘If an
employee is absent due to illness, he/she must present medical documentation or
other proof acceptable to the Employer, certifying his/her ability to return to work and
explaining the reasons for the absence.’ What the Tollway is asking me to do is, by
arbitration award, delete the two-day grace period from the [CBA].”
¶9 The arbitrator noted the Tollway’s argument for why the parties had not intended to
establish an automatic two-day grace period. Previously, the Tollway contended, there had
been a “sick-leave bank” that encouraged employees not to take medical leave without good
cause; the less they took, the more they accumulated in the long run. However, the CBA had
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eliminated the sick-leave bank, and now, without any documentation requirement, employees
could “ ‘game the system’ ” by taking sick leave for one or two days without being sick, with
no way for the Tollway to stop them. The arbitrator granted that article XI, section 11.2(A),
might allow “abuse of the sick-day benefit.” Cheating was possible, but, he explained, “even
a doctor’s excuse is not a magic elixir to prevent dishonesty. You can actually buy fake
doctor’s illness excuses online. In the end, I simply do not have the authority to rewrite the
[CBA] to make it easier to catch the cheater.” Moreover, the Tollway was not left without
recourse; it can discipline an employee for just cause, and “there are available investigative
methods to catch the cheater.” In any event, had the parties intended to give the Tollway the
discretion to require medical documentation for any sick-leave absence, “they should have
said what they meant.”
¶ 10 The arbitrator held that, for absences of two days or fewer, the Tollway may not require
documentation certifying that an employee is able to return to work and explaining the
absence.
¶ 11 The Tollway applied under the Uniform Arbitration Act (Act) (710 ILCS 5/1 et seq.
(West 2012)) for judicial review. The application raised three arguments: (1) the arbitrator
erred in finding that the grievance was subject to arbitration; (2) the arbitrator exceeded his
authority by revising the CBA; and (3) the arbitrator’s construction of the CBA violated
public policy. On the first issue, the Tollway asserted that the CBA limited arbitration to a
grievance brought by “an actual aggrieved employee,” as implied by article XII, section 1
referencing, in Step 1, “[a]n aggrieved employee” and article XII, section 2 requiring that a
grievance be presented “within ten (10) working days from the occurrence of the incident to
the time the employee should have obtained direct knowledge of the condition which gave
rise to the grievance.” (Emphasis added.) The Tollway reasoned that, because the Union had
not brought the grievance on behalf of a specific employee, the arbitrator could not decide it.
¶ 12 On the second issue, the Tollway argued that article III, section 1, authorizes it to make
and enforce reasonable rules of conduct that are not inconsistent with the CBA. Giving
management the discretion to require documentation for absences of two days or fewer is
such a rule. Article XI, section 2(A), does not prohibit this rule; it merely states that, for an
absence of more than two days, an employee must present documentation. Thus, the Tollway
argued, in prohibiting any requirement of documentation for shorter absences, the arbitrator
had not interpreted the CBA but had amended it.
¶ 13 Finally, on the third issue, the Tollway argued that the arbitrator’s construction of the
CBA violated public policy by prohibiting the Tollway from enforcing federal and state laws
relating to motor-vehicle safety, in particular those laws that prohibit a person from operating
a vehicle if he or she is taking certain medicine(s) unless a physician certifies that the person
is able to do so without impairment. The Tollway reasoned that the flat ban on requiring
documentation for short absences impeded its ability to enforce those laws.
¶ 14 The Union responded as follows. First, the dispute was subject to arbitration even without
a specific incident or a specific aggrieved employee. Second, the arbitrator had based his
decision on the pertinent language of the CBA, not on extraneous matters, and the court
could not replace his interpretation of the CBA with its own. Finally, the Tollway had not
shown that the arbitrator’s decision violated an explicit, well-defined, and dominant public
policy. According to the Union, although safe driving is an important public interest, the
documentation policy for short absences was not based on any concern that an employee
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might be “unsafe for the road.” Instead, it gave garage managers “unfettered discretion” to
require documentation.
¶ 15 The court ordered briefing. Although the Tollway filed a brief, it is not in the record on
appeal. The Union filed a brief and an amended brief, which are in the record.
¶ 16 On September 30, 2014, the trial court issued its judgment. The court agreed with the
Union that the dispute was subject to arbitration, but it agreed with the Tollway on the merits.
On arbitrability, the court noted that article XII, section 1, states that it governs “all disputes,
misunderstandings, differences, or grievances arising between the Employer and the Union
or the employees covered by this Agreement.” (Emphases added.) However, although this
section specifies a process for an employee to follow in order to bring a dispute to arbitration,
it does not specify any such process for the Union to bring a grievance to arbitration. Thus,
there was a conflict. The court concluded that the arbitrator had resolved this conflict
reasonably.
¶ 17 Turning to the merits, the court held that the arbitrator had exceeded his authority in
finding that the CBA barred the Tollway from giving its supervisors any discretion to require
employees to document sick-leave absences of two days or fewer. The arbitrator had not
interpreted the CBA but had added “a blanket prohibition” that “redefined the rights of the
parties.” The court recognized that it could not substitute its construction of the CBA for the
arbitrator’s honest judgment (see United Paperworkers International Union v. Misco, Inc.,
484 U.S. 29, 38 (1987)), which must stand if it was clearly drawn from the essence of the
CBA (see American Federation of State, County & Municipal Employees v. Department of
Central Management Services, 173 Ill. 2d 299, 306 (1996) (AFSCME II)). Nonetheless, the
court stated, although the CBA did not expressly require documenting sick-leave absences of
two days or fewer, it did not follow that “the parties gave up all managerial discretion not
expressly provided for therein; it could mean the parties intended to leave those decisions up
to their own discretion or the parties did not see a need to expressly provide for those
situations.”
¶ 18 The court qualified its holding: “[T]he spirit of the Arbitrator’s ruling must be upheld.
The Tollway may only require doctor’s notes for absence of two days or less upon good
cause shown, not to facilitate a witch hunt against employees whom it believes are using sick
days in violation of the sick day policy.” The court invalidated only the arbitrator’s “blanket
prohibition against asking for doctor’s notes after employee absences of two days or less,
because the addition of language to the CBA exceeded his scope of authority.” (Emphasis in
original.)
¶ 19 Finally, the court held, the arbitrator’s construction of the CBA violated “a strong public
policy in Illinois to keep roadways safe and ensure [that] unsafe motorists are not operating
vehicles in ways [by which] they could injure themselves or others.” This was because at
times “it may be necessary for the Tollway to seek a doctor’s note from an employee before
permitting them to return to work on the Illinois roadways.”
¶ 20 The court vacated the “blanket prohibition portion of the Award.” The Union appealed.
¶ 21 On appeal, the Union contends that the trial court erred by (1) substituting its
construction of the CBA for that of the arbitrator; and (2) holding that the arbitrator’s
construction of the CBA violated public policy. The Tollway disagrees with both
contentions, and it also asserts that the court and the arbitrator erred in holding that the
Union’s grievance was arbitrable. We address the Tollway’s contention first; if the arbitrator
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should not have considered the grievance at all, the award cannot stand, regardless of the
merits.
¶ 22 The Union contends that the Tollway forfeited its arbitrability argument by failing to
raise it until “the day of the arbitration–and at no point prior during the grievance procedure.”
The portion of the record to which the Union cites does not support this premise; it includes
only the arbitrator’s statement that the Tollway had raised the arbitrability issue at some
point. Moreover, the Union cites no legal authority to support its argument. For this reason,
we deem the argument forfeited. See Gandy v. Kimbrough, 406 Ill. App. 3d 867, 875 (2010)
(arguments unsupported by proper citations to the record and pertinent authority are
forfeited).
¶ 23 The Union’s argument is forfeited for a second reason. In the trial court, the Union
responded on the merits to the Tollway’s argument that the grievance was not arbitrable; it
did not claim that the Tollway had forfeited the issue. Indeed, the Union’s response stated,
“The Tollway and Union jointly presented issues to the arbitrator, namely, ‘Is the Union’s
Grievance arbitrable?’ ” The Union raises its forfeiture argument belatedly. Thus, it has
forfeited its forfeiture argument. See People ex rel. Foreman v. Village of Round Lake Park,
171 Ill. App. 3d 443, 449 (1988). We also note that the arbitrator did not find the arbitrability
issue forfeited; he decided it on the merits.
¶ 24 Turning to those merits, we note that, when it is unclear whether the subject matter of a
dispute falls within an arbitration agreement, the question should initially be decided by the
arbitrator. City of Naperville v. Illinois Fraternal Order of Police, 2013 IL App (2d) 121071,
¶ 15. However, the trial court’s review of the arbitrator’s decision is de novo, and our review
of the trial court’s ruling is also de novo.2 Id. “[T]he parties to an agreement are bound to
arbitrate only those issues [that] they have agreed to arbitrate, as shown by the clear language
of the agreement and their intentions expressed in that language.” Id. ¶ 14. Nonetheless,
“[d]oubts regarding the scope of arbitrable issues ought to be resolved in favor of
arbitration.” Heiden v. Galva Foundry Co., 223 Ill. App. 3d 163, 168 (1991).
¶ 25 If the “boilerplate” in the case law seems less than wholly consistent, the same may be
said of the CBA’s provisions on arbitrability. On the one hand, the Tollway is correct that the
specific procedures spelled out in article XII, including arbitration, do appear to presuppose
that, as Step 1 reads, “[a]n aggrieved employee” is the one filing a grievance. Article XII,
section 2, sets the time limit for presenting a grievance at 10 working days “from the
occurrence of the incident or the time the employee should have obtained direct knowledge
of the condition which gave rise to the grievance.” It appears to presuppose that a grievance
must be filed by a particular employee or be based on a specific incident–or perhaps both.
¶ 26 On the other hand, the Union is correct that article XII, section 1, states broadly that the
procedure spelled out in the rest of article XII, including arbitration, shall be used to handle
and dispose of “all disputes, misunderstandings, differences, or grievances arising between
2
The trial court apparently approached the arbitrator’s finding under the assumption that the limited
judicial review that the Act provides for arbitrators’ decisions on the merits also applies to arbitrators’
findings on arbitrability. This error is of no consequence here, as in essence we review de novo the
arbitrator’s decision on arbitrability and, in any event, we review the trial court’s judgment and not the
reasoning that it provided in support of that judgment.
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the Employer and the Union or the Employees covered by this Agreement as to the meaning,
interpretation, and application of the provisions of this Agreement.” This phraseology
implies that article XII’s procedure applies to the grievance here, despite the absence of a
specific employee as grievant or a specific incident as the basis of the grievance.
¶ 27 The use of the categorical “all” is followed not merely by “grievance,” which is
customarily used in relation to a specific incident involving a specific employee, but also
“disputes,” “misunderstandings,” and “differences,” words that do not imply the existence of
a specific grievant or the limitation of relief to past wrongs. Although this multiplicity might
be explained by an abundance of caution–or just traditional lawyerly redundancy–the
remainder of the quoted language is more telling. The “disputes, misunderstandings,
differences or grievances” that are subject to arbitration are those “between the Employer and
the Union or the Employees covered by this Agreement.” (Emphasis added.) This
phraseology implies that arbitration applies to any CBA-based dispute between the Tollway
and the Union, as well as any such dispute between the Tollway and one or more specific
employees. Moreover, the use of the phrase “meaning, interpretation, and application”
(emphasis added) suggests the availability of declaratory relief that does not depend on the
existence of a dispute over the past application of the CBA to a specified employee.
¶ 28 We acknowledge that the matter is not as clear-cut as a court would wish, but we resolve
any doubts in favor of arbitrability. We also note that the grievance here did not raise a
purely abstract question; the parties agreed that at least one employee had been subjected
coercively to the documentation requirement that the Tollway had allowed supervisors to
impose at their discretion. Further, the phraseology of Step 1 and article XII, section 2, might
have been chosen because, in the great majority of cases, a grievance is filed by a specified
employee (or specified employees) and is based on a specified past injury. We cannot say
that this choice of language implies that those scenarios were intended as the only ones that
would be arbitrable.
¶ 29 Having resolved arbitrability in favor of the arbitrator’s decision, we turn to the merits of
his ruling. The Union contends first that the trial court erred in vacating (or modifying) the
arbitrator’s interpretation of the CBA as applied to the authority of supervisors to require
documentation for sick-leave absences of two days or fewer. The Union argues that the court
exceeded its limited review powers and improperly substituted its construction of the CBA
for that of the arbitrator. For the reasons that follow, we agree.
¶ 30 Judicial review of an arbitrator’s award is “extremely limited.” AFSCME II, 173 Ill. 2d at
304. A court may disturb an award only in the event of fraud, corruption, partiality,
misconduct, mistake, or the failure to submit the question to arbitration. Id.; see 710 ILCS
5/12(a) (West 2012). Because the parties bargained to have the meaning of the CBA settled
by the arbitrator, not by a judge, we may not disturb the arbitrator’s interpretation of the
parties’ contract merely because we have a different interpretation. AFSCME II, 173 Ill. 2d at
305. Rather, we must enforce the award if the arbitrator acted within the scope of his
authority and the award drew its essence from the agreement. Id. at 304-05. Thus, we may
not disturb the arbitrator’s award unless he based it on a body of thought, feeling, policy, or
law outside of the contract. Village of Posen, Illinois v. Illinois Fraternal Order of Police
Labor Council, 2014 IL App (1st) 133329, ¶ 37.
¶ 31 Although the arbitrator’s interpretation of the CBA, and, in particular, article XI, section
2(A), is surely open to debate, we cannot say that he based it on something outside the
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parties’ contract. The pertinent portion of the award that we quoted at length, even if dubious
as legal logic, is a good-faith reading of a legal document, based on principles of construction
aimed at ascertaining the intent of the parties who drafted and agreed to it.
¶ 32 The arbitrator noted that article XI, section 2(A), explicitly requires employees to supply
medical documentation for sick-leave absences of more than two days but says nothing about
any requirement for shorter such absences. The arbitrator then reasoned that this conscious
omission implied that the parties had intended that there be no such requirement for shorter
absences–i.e., that there be a “two-day grace period.” We note that, although article XI,
section 2(A), does not explicitly create a “two-day grace period” for sick leave, neither does
anything in the CBA explicitly rule out that possibility. The arbitrator appears to have relied
on the maxim of construction inclusio unius est exclusio alterius–the inclusion of one thing
implies the exclusion of another (see In re Marriage of Hendry, 409 Ill. App. 3d 1012, 1018
(2011)).
¶ 33 The arbitrator’s inferences are not beyond dispute. But they are based on his construction
of the CBA, not on a body of thought, feeling, policy, or law outside of it. One may certainly
question whether the reasoning by negative implication is as conclusive as the arbitrator
stated: perhaps the exclusion of any explicit documentation requirement for shorter
sick-leave absences was intended to leave discretion with the Tollway to impose such a
requirement later. The trial court reasoned that the omission of any requirement for
documenting short absences “could mean the parties intended to leave those decisions up to
their own discretion or the parties did not see a need to expressly provide for those
situations.” (Emphasis added.) But we may not overturn an arbitrator’s construction of a
collective bargaining agreement merely because it could mean something else.
¶ 34 However one resolves the issue, even a resolution adverse to that chosen by the arbitrator
is no more than a conclusion that he made an error of contract construction. There is no basis
to infer that extraneous, improper, or extracontractual factors entered into his decision.
¶ 35 The trial court held that, in his construction of the CBA, the arbitrator “exceeded his
authority” by “adding” a term to the CBA instead of interpreting the CBA as written. But this
really amounted to saying that the arbitrator erred in interpreting the CBA–that he made an
error of law (or fact) that had the effect of adding a term. Were this all it took for courts to
vacate arbitrators’ constructions of collective bargaining agreements, there would be little if
any distinction between our “extremely limited” (AFSCME II, 173 Ill. 2d at 304) review of
arbitrators’ decisions and our de novo review of the judicial construction of contracts. Any
act of contractual interpretation that is erroneous can be said to have “changed the parties’
contract” or even (in many instances) to have “added a term.”
¶ 36 On this issue, we note finally that the trial court limited its ruling by specifying that the
Tollway’s right to require documentation for short sick-leave absences (or to authorize its
supervisors to do so) applied only with “good cause shown, not to facilitate a witch hunt
against employees whom it believes are using sick days in violation of the sick day policy.”
With all due respect, we believe that it was the court, and not the arbitrator, that added a term
to the CBA. While the court’s policy decision might well be commendable, it lacked the
authority to rewrite the CBA–or even to interpret it in a way that it preferred to the
arbitrator’s way.
¶ 37 We hold that the trial court erred in vacating the arbitrator’s construction of the CBA. We
uphold the arbitrator’s conclusion that the CBA prohibits the Tollway from imposing any
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documentation requirement for sick-leave absences within the “grace period.” We must
decide the final issue: whether this construction of the CBA violates public policy and is thus
invalid.
¶ 38 The trial court agreed with the Tollway that the CBA, as the arbitrator construed it,
violates public policy. The court noted that, in deciding whether to vacate the award as
against public policy, it had to ask (1) whether a well-defined and dominant public policy
could be identified; and (2) if so, whether the arbitrator’s award, as reflected in his
interpretation of the agreement, violated that policy. Also, the court noted, to ascertain the
existence of public policy, a court must look to the constitution, statutes, and relevant judicial
opinions. See Chicago Fire Fighters Union Local No. 2 v. City of Chicago, 323 Ill. App. 3d
168, 176 (2001).
¶ 39 In holding that the arbitrator’s award was against public policy, the court did not
conclude that the “blanket prohibition” on requiring documentation for short sick-leave
absences actually violated any constitution, statute, or judicial opinion. Indeed, the court’s
order did not cite any constitution, statute, or judicial opinion. Instead, it explained:
“The Court finds [that] there is a strong public policy in Illinois to keep roadways
safe and ensure [that] unsafe motorists are not operating vehicles in ways [by which]
they could injure themselves or others. Further, and for the same reasons previously
addressed, the Arbitrator’s blanket prohibition precluding the Tollway from asking
for a doctor’s note for absences of two days or less highlights circumstances where it
may be necessary for the Tollway to seek a doctor’s note from an employee before
permitting them to return to work on the Illinois roadways. Therefore, the Arbitrator’s
award violates public policy to the extent [that] a blanket prohibition *** prevents the
Tollway from ensuring [that] its employees are fit for the operation of motor vehicles
on Illinois roads.”
¶ 40 Apparently, at the arbitration hearing, the Tollway never contended that a flat ban on
requiring documentation for short sick-leave absences would violate public policy;
otherwise, the arbitrator’s ruling would have said so and discussed the issue. In its
application to the trial court, the Tollway raised the issue in six short paragraphs. Paragraph
20 cited an appellate opinion for general principles. Paragraph 21 stated, in full, “The
Arbitrator’s Award, by creating a new contractual term, prohibits the Tollway from enforcing
federal and state laws relating to motor safety.” Paragraph 22 quoted the pertinent part of the
arbitrator’s award. Paragraph 23 stated, in full, “The Award does not allow for exception
[sic] regardless of need or circumstances.” Paragraph 24 stated, in full, “Federal and state law
prohibits drivers of vehicles, especially those with CDL’s [sic], from operating vehicles if
they are taking certain medications unless, in certain circumstances, certified [sic] by a
physician that they are able to perform their duties without impairment.” A final,
unnumbered paragraph read, in full, “By creating a new contractual provision that does not
allow the Tollway to enforce federal and state laws as to the ability of employees to perform
their duties without impairment, the Award is in violation of public policy.” The application
did not cite, quote, or attach copies of any federal or state laws.
¶ 41 Although we cannot say exactly what the Tollway’s trial brief contained, the Union’s
response briefs imply that the Tollway cited regulations (not specified by the Union)
contained in the Code of Federal Regulations (CFR). According to the Union’s initial
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response brief, the Tollway’s brief argued that the arbitrator’s award prevented it from
complying with the CFR.
¶ 42 The Union argued that the Tollway had introduced no evidence of a nexus between safe
driving and the Tollway’s wholly discretionary policy. Also, the Union asserted, the Tollway
had other means to ensure their employees’ fitness to drive, such as discipline for just cause.
¶ 43 With the foregoing clarifications in mind, we turn to the trial court’s ruling that the CBA
as the arbitrator construed it violates public policy. As the issue is one of law, our review is
de novo. See AFSCME II, 173 Ill. 2d at 318.
¶ 44 As with any contract, a court will not enforce a collective bargaining agreement that is
repugnant to established norms of public policy. Id. at 307. However, successfully invoking
the doctrine requires more than “speculation or assumption.” Misco, 484 U.S. at 44. The
party seeking to do so must clearly show that the agreement, as interpreted by the arbitrator,
contravenes a “ ‘well-defined and dominant’ ” policy that is ascertainable “ ‘by reference to
the laws and legal precedents and not from generalized considerations of supposed public
interests.’ ” AFSCME II, 173 Ill. 2d at 307 (quoting W.R. Grace & Co. v. Local Union 759,
461 U.S. 757, 766 (1983)).
¶ 45 The trial court did not hold, and the Tollway does not now contend, that the CBA as the
arbitrator construed it actually violates any law or legal precedent. Instead, in agreeing with
the Tollway, the court reasoned that (1) there is a strong public policy in favor of promoting
safe driving; and (2) the CBA, as construed, will tend to undermine this policy, because at
times “it may be necessary for the Tollway to seek a doctor’s note from an employee before
permitting them to return to work on the Illinois roadways.” We note that, in the trial court,
the Tollway apparently supported the first premise by citing federal regulations that do not
appear anywhere in the record on appeal. The court did not cite these regulations or any other
specific laws but took judicial notice that there are federal and state laws that prohibit driving
under various circumstances that regulatory agencies and legislatures have deemed unsafe.
¶ 46 On appeal, the Tollway cites some specific laws and judicial opinions to support the
proposition that preventing ill and fatigued drivers from operating vehicles on the public
roads is a well-defined and dominant public policy. These include a federal regulation, which
has been codified in Illinois law (see 625 ILCS 5/18b-105 (West 2012)), reading: “No driver
shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a
driver to operate a commercial motor vehicle, while the driver’s ability or alertness is so
impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to
make it unsafe for him/her to begin or continue to operate the commercial motor vehicle.” 49
C.F.R. § 392.3 (2011).
¶ 47 The Tollway also cites several judicial opinions noting that federal regulations and
Illinois law prohibit drinking alcohol within specified times before driving and driving under
the influence of alcohol. The exact pertinence of these laws and opinions to the requirement
for medical clearance after sick leave is not clear; apparently, the Tollway cites them for the
general proposition that safe driving is a recognized concern of public policymakers and that
allowing people to drive while intoxicated is analogous to allowing them to drive while ill.
The Tollway concludes that the arbitrator’s award interfered with this policy by limiting its
ability to prevent employees from driving while medically unsuited to do so. We presume
that this is the reasoning that the Tollway used in the trial court and that the court adopted in
its terse ruling.
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¶ 48 In the trial court, the Union responded to this reasoning in several ways, which it
reiterates in its appeal. First, the Union argues, although there is a public interest in safe
driving, there is no well-defined public policy supporting “an employer’s unfettered
discretion to demand medical documentation certifying an employee’s ability to work and
explaining the reasons for her absence.” The Union adds that there is a “countervailing policy
interest” in preserving “an employee’s right to and expectation of privacy with respect to
medical documentation.”
¶ 49 Second, the Union argues, even assuming the existence of a well-defined public policy,
the Tollway did not identify a “nexus” between its documentation rule and the arbitrator’s
award. The Union notes that the award prohibited the Tollway from requiring an employee
absent for two days or fewer to document both his ability to return to work and the reason for
his absence. According to the Union, the arbitrator’s construction of the CBA does not bar
the Tollway from evaluating an employee’s fitness to return to work and physical ability to
do his duties safely. Further, the Union notes, the award did not refer to the Tollway’s
purported concern with safety, which apparently played no role in the arbitration hearing;
instead, the award shows that the Tollway was concerned solely with combating the use of
sick leave for nonmedical purposes.
¶ 50 Finally, the Union argues, any nexus between the purported public interest and the
arbitrator’s award is tenuous, because the Tollway has many ways other than the
discretionary documentation policy to ensure compliance with safe-driving regulations. For
example, the Union notes, if a supervisor has a bona fide concern about an employee’s
fitness to work safely, the supervisor can send the employee home, order a fitness-for-duty
examination, or require the employee to undergo drug and alcohol testing. Additionally, the
employee has an affirmative obligation to notify the Tollway of any prescription medicines
that could affect his ability to drive safely. Finally, the Union contends that, although
motorist safety is “undoubtedly a priority” for the Tollway, there is no reason to infer that
motorist safety “bears any connection whatsoever” to the short absences or minor illnesses at
issue here.
¶ 51 To resolve this issue, we start by examining cases in which the public-policy exception
has been invoked, successfully and otherwise. In AFSCME II, DuBose, an employee of the
Department of Children and Family Services (DCFS), filed a report in February 1990 stating
that, earlier that month, she had seen three minor children in her care and they were “ ‘doing
fine.’ ” AFSCME II, 173 Ill. 2d at 301. In actuality, the children had died in a fire at their
home the previous month. Id. DCFS transferred DuBose for other reasons; after her
replacement learned about the deaths, an internal investigation revealed that DuBose had
failed to submit case plans for the family for the years 1988, 1989, and 1990. Id. After
hearings, in October 1991, DCFS discharged DuBose and the matter proceeded to an
arbitration hearing. Id. at 302.
¶ 52 The union argued that the discharge could not stand, because DCFS had not timely
disciplined DuBose as required by the parties’ collective bargaining agreement. The
arbitrator agreed and reinstated Dubose without deciding whether DCFS had lacked just
cause to discharge her. DCFS appealed. Id. The trial court agreed with DCFS that the
reinstatement of DuBose violated the public policy established in the Abused and Neglected
Child Reporting Act (Reporting Act) (325 ILCS 5/1 et seq. (West 1994)), and it remanded
for a final decision on the merits. AFSCME II, 173 Ill. 2d at 302-03. On remand, the union
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stood on its argument that the disciplinary action had been untimely, and it did not address
the merits. The arbitrator denied the grievance. Id. at 303. The union appealed; the trial court
denied its petition. The appellate court reversed and held that the public-policy doctrine could
not be applied, because DCFS had violated the agreement’s time limits for bringing
disciplinary proceedings. Id. DCFS appealed to the supreme court. Id.
¶ 53 The court agreed with DCFS that the arbitrator’s award violated public policy. After
noting that DCFS was not challenging the arbitrator’s finding that it had violated the
agreement’s time provision (id. at 306), the court cautioned that the public-policy exception
“is a narrow one and is invoked only when a contravention of public policy is clearly
shown.” Id. at 307.
¶ 54 The court noted that, in Misco, the Supreme Court held that the employer failed to make
the required showing. Id. at 308. There, an employee, who operated dangerous machinery,
was fired for violating the employer’s policy against bringing illegal drugs onto company
property. The factual basis for the finding was his presence on company premises in another
person’s car when that car was filled with marijuana smoke. Misco, 484 U.S. at 32-33. The
arbitrator ordered the employee reinstated, holding that he had been fired without just cause,
because there had been insufficient proof that he himself had used or possessed marijuana on
company property. Id. at 34. The federal district court held that the reinstatement violated
public policy. Id. at 34-35. The federal appellate court affirmed, holding that the
reinstatement violated the public policy “ ‘against the operation of dangerous machinery by
persons under the influence of drugs or alcohol.’ ” Id. at 35 (quoting Misco, Inc. v. United
Paperworkers International Union, 768 F.2d 739, 743 (5th Cir. 1985)).
¶ 55 The Supreme Court reversed. The Court reiterated its statement in W.R. Grace that the
public-policy exception requires a showing that the contract as interpreted would violate a
well-defined and dominant public policy, as reflected by laws and legal precedents, and not
merely be antithetical to general considerations of public interests. Id. at 43-44. The court of
appeals had not based its conclusion on such a showing; indeed, it had not even reviewed
existing laws and legal precedents to show that they established a well-defined and dominant
policy against operating dangerous machinery while under the influence of drugs, although
“such a judgment is firmly rooted in common sense.” Id. at 44. (The Court also held that,
even granting the existence of such a well-defined and dominant policy, no violation of the
policy had been shown in the case. Id. at 45.)
¶ 56 The AFSCME II court also noted that, in American Federation of State, County &
Municipal Employees v. State, 124 Ill. 2d 246 (1988) (AFSCME I), it had declined to vacate
an arbitrator’s decision to reduce two mental-health technicians’ discharges to suspensions.
The technicians had left their workplace, a facility for the mentally disabled, without
authority; while they were gone, an unattended patient died. The patient had not been
assigned to the ward where the technicians should have been on duty, which was why the
arbitrator reduced their punishment. AFSCME II, 173 Ill. 2d at 310; see AFSCME I, 124 Ill.
2d at 262. The AFSCME I court explained that no public policy required discharging “all
employees found guilty of mistreatment of a service recipient when the arbitrator expressly
finds that the grievants were exemplary mental health employees, when punishment has been
imposed, and when no nexis [sic] exists between the infraction and the patient’s tragic
death.” AFSCME I, 124 Ill. 2d at 263.
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¶ 57 On the other side of the ledger, the AFSCME II court noted several opinions in which
courts vacated arbitration awards that had reinstated employees who were terminated for
various forms of egregious misconduct. AFSCME II, 173 Ill. 2d at 308-10; see Delta Air
Lines, Inc. v. Air Line Pilots Ass’n, International, 861 F.2d 665, 674 (11th Cir. 1988)
(termination of pilot who flew commercial airliner while intoxicated; court noted that
employer was under duty to prevent employee from violating standards that law clearly
established); Iowa Electric Light & Power Co. v. Local Union 204 of the International
Brotherhood of Electrical Workers, 834 F.2d 1424, 1429 (8th Cir. 1987) (nuclear power
plant employee who got safety device disconnected so that he could leave area to go to lunch
had violated federal regulatory scheme and thereby jeopardized public safety and thus could
not be reinstated consistently with that policy); United States Postal Service v. American
Postal Workers Union, 736 F.2d 822, 825 (1st Cir. 1984) (postal worker terminated for
embezzling postal funds, violating public trust); Board of Education of School District U-46
v. Illinois Educational Labor Relations Board, 216 Ill. App. 3d 990 (1991) (school bus driver
who was fired for unsafe driving violated well-defined public policy favoring safe
transportation of school children).
¶ 58 The AFSCME II court turned to the facts before it. Applying the first prong of the
public-policy test, the court stated, “the welfare and protection of minors has always been
considered one of the State’s most fundamental interests.” AFSCME II, 173 Ill. 2d at 311.
Indeed, the court had long recognized that the legislature has not merely the right but the
duty to protect minors’ welfare. Id.; see County of McLean v. Humphreys, 104 Ill. 378, 383
(1882). DCFS plays a central role in implementing this “compelling state interest.” AFSCME
II, 173 Ill. 2d at 312. Among the responsibilities that DCFS has are to assist the trial court
throughout court proceedings, make reports, and file case plans regularly. Id. Thus, there
exists a public policy of both timely contact with the children and accurately documented
investigations of suspected child abuse and neglect. Id. at 316-17.
¶ 59 The court concluded that the arbitrator’s award violated this public policy. The union had
argued that it did not, because there was no positive law that prohibited DCFS from rehiring
someone in DuBose’s position. Id. at 319. The court rejected this narrow construction of the
exception. The statutes involved did not explicitly prohibit rehiring a dishonest worker,
because they presupposed that DCFS workers would be honest and trustworthy. Id. at
320-21. Employing untrustworthy workers would defeat the entire purpose of the statutory
scheme. Id. at 321. The court also held that public-policy considerations overrode the effect
of the agreement’s time limits for imposing discipline. Id. Finally, the court rejected the
argument of a dissent (id. at 336 (Heiple, J., dissenting)) that DCFS was required to show a
nexus between the misconduct and the harm suffered. Id. at 332 (majority opinion).
¶ 60 Numerous other opinions, from Illinois and elsewhere, address the public-policy doctrine.
As in the cases we have noted so far, they arise in the context of the discharge or punishment
of an employee and consider whether the reinstatement (or lessened punishment) of the
employee violated public policy. Much more difficult to find is a case such as this one, in
which an employer argues that striking down a rule of employee conduct violates public
policy even though no employee has committed a wrong or been disciplined.
¶ 61 We do note, however, that in City of Stamford v. Stamford Police Ass’n, 540 A.2d 400
(Conn. App. Ct. 1988), a police officer who was blind, with little hope of recovering his
sight, was terminated from extended-sick-leave status. He and the defendant union filed a
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grievance; the arbitrators agreed with them that the plaintiff municipality had violated the
parties’ collective bargaining agreement, which did not provide for terminating the
extended-sick-leave status of an officer. Id. at 401. The plaintiff appealed, arguing that the
award violated public policy. Specifically, it contended, because it could not replace the
officer on disability with officers who were capable of performing his duty, the reinstatement
of the officer to extended sick leave undermined the public policy of providing public safety.
Id.
¶ 62 The trial court rejected the plaintiff’s argument, and the court of appeals agreed with the
trial court. The court of appeals stated that “the fact that police officers are engaged in the
important field of public safety” and the fact that public confidence in the police is a matter
of public concern could not override the officer’s contractual right to unlimited sick-leave
benefits. Id. The court did not deny that the plaintiff would be unable to fill the officer’s
position in the field, but this possible harm “simply [did] not rise to the level of a violation of
public policy.” Id. at 402.
¶ 63 Although City of Stamford differs greatly on its facts from our case, it does illustrate the
principle that proving a violation of public policy requires more than making a plausible
argument that the public will suffer some sort of harm from the enforcement of an arbitration
award. In AFSCME II, and in the cases that it cited in which awards were overturned on
public-policy grounds, the awards amounted to condoning blatant and specific violations of
established policies and in effect to enabling future violations by employees who had
demonstrated their proclivities to gross unfitness or illegality. The possibility of harm arising
indirectly from the enforcement of the award appears to be insufficient, even if it is possible
to state that this harm is contrary to some sort of general public policy or public interest.
¶ 64 Here, the two-day “grace period” does not violate public policy and, as the arbitrator’s
interpretation of the CBA, it must stand. Eliminating supervisors’ discretion to require
explanations and clearances after short sick leaves is far from tantamount to condoning or
making inevitable violations of the traffic laws. A short leave of absence does not create a
presumption that the returning employee is medically unfit to fulfill his duties. (Also, an
employee who has not been out on sick leave is not automatically fit; he might also be
fatigued or on prescription medicine.) More important, as the Union has pointed out, there
are numerous ways to address the problem without rewriting the CBA as the arbitrator
construed it: a supervisor who doubts an employee’s fitness can send him home, order an
examination, or require testing. Thus, preserving the two-day grace period does not violate
the public policy embodied in the federal regulations and state statute that the Tollway cites.
¶ 65 Notably, the Tollway made little effort at the arbitral or trial level to support its
public-policy argument with data or even plausible speculation that short absences are
correlated with unfitness to work upon return or that alternative means of ensuring worker
fitness are inferior to the wholly discretionary option of requiring medical clearances. On this
record, we cannot say that the Tollway has supported its invocation of the narrow
public-policy doctrine.
¶ 66 For the foregoing reasons, we reverse the judgment of the circuit court of Du Page
County, and we reinstate the arbitrator’s award.
¶ 67 Reversed.
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