This edition shifts from our typical defense perspective to a case in which the Township was the Plaintiff in a declaratory judgment action to determine whether a Township employee was subject to an arbitration clause contained in a collective bargaining agreement. In Bourbonnais Township and Steve Bisaillon (Road Commissioner) v. International Union of Operating Engineers of Chicago, Illinois Vicinity Local No. 399 and John Wignore, 2022 IL App (3d) 210409, the Third District Appellate Court affirmed the trial court’s order compelling arbitration.
The Township argued that the Highway Department employee was a probationary employee, could be terminated without cause and was not subject to the arbitration provision
Defendant Wigmore was terminated from the Highway Department less than two months after he was hired by Road Commissioner Bisaillon. The Union claimed Wigmore’s termination violated the Collective Bargaining Agreement and demanded arbitration. The Township refused arbitration and filed a declaratory action to determine whether the arbitration clause was applicable to Wigmore as an employee still on a probationary period.
The Township relied upon three sections of the Collective Bargaining Agreement:
“[Article I,] Section 1.2 Fair Representation. *** All employees who are hired hereafter shall become and remain members in good standing of the Union as a condition of employment on and after the 61st day following the beginning of their employment or on and after the 61st day following the effective date of this Agreement or the date of this Agreement, whichever is the later.
Article III Management Rights[.] *** [T]hese rights and authorities include *** to discipline, suspend and discharge employees for just cause (probationary employees without cause) ***.
Article VI Discipline and Discharge[.] Disciplinary action or measures shall normally include only the following: oral reprimand, written reprimand, suspension and discharge. *** An employee may file a grievance over disciplinary action, but only disciplinary grievances involving suspensions without pay or discharge are subject to arbitration.” Id.
Since Wigmore was terminated 58 days into his employment, the Township argued that he was not subject to the arbitration provision as he was still a probationary employee. Wigmore could be terminated without cause, and the Township should not have to justify his termination in arbitration.
The Union argued that arbitration was proper under the CBA “Grievance Procedure” and the Illinois Uniform Arbitration Act
Grievance Procedure
Article VII of the CBA provides a “Grievance Procedure” that could result in arbitration. The CBA defines a “grievance” as “a complaint arising under and during the term of this Agreement raised by an employee of the Union against *** Bourbonnais alleging that there has been an alleged violation, misinterpretation of an express written provision of this Agreement.” The CBA provides that step one required the employee to submit a grievance to their department head who would render a written response to the grievance. If the grievance was not settled, step two required the grievant to submit to their Bourbonnais supervisor. If the grievance was not resolved at step two, the parties would undergo arbitration. Id.
Illinois Uniform Arbitration Act
“[W]here [a] contract contains an arbitration clause, there is a presumption of arbitrability in the sense that ‘[a]n order to arbitrate [a] particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.’ ” AT&T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 650 (1986) (quoting United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83 (1960).
The Third District Appellate Court applied a three-pronged approach to determine whether an agreement to arbitrate is applicable
(1) if it is clear that the dispute falls within the scope of the arbitration clause, the court must compel arbitration;
(2) if it is clear that the dispute does not fall within the scope of the arbitration clause, the court must deny the motion to compel arbitration; and
(3) if it is unclear or ambiguous whether the dispute falls within the scope of the arbitration clause, the matter should be referred to the arbitrator to determine arbitrability. Guarantee Trust Life Insurance Co. v. Platinum Supplemental Insurance, Inc., 2016 IL App (1st) 161612, ¶ 26; see MHR Estate Plan, LLC v. K & G Partnership, 2016 IL App (3d) 150744, ¶ 20.
The Appellate Court agreed with the circuit court finding that it is unclear whether the matter falls within the scope of the arbitration clause. Such an ambiguity was raised by the Township in its interpretation of the Collective Bargaining Agreement. That being the case, the Appellate Court found that the matter must be referred to an arbitrator to determine arbitrability. City of Naperville v. Illinois Fraternal Order of Police, Labor Council, F.O.P. Lodge No. 42, 2013 IL App (2d) 121071, ¶ 15. Id.
Conclusion
The purpose of arbitration is to rely upon the arbitrator’s judgment to resolve issues and ambiguities. Id. While the Township argued that arbitration would prevent it from seeking judicial review as arbitration decisions are binding, where an arbitrator determines a question of arbitrability, such decisions are subject to judicial review. See Salsitz v. Kreiss, 198 Ill. 2d 1, 13-14 (2001). Id. The Appellate Court affirmed the judgment of the circuit court compelling arbitration in this matter.
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