Holding: Arbitrator concludes that management
violated the bargaining agreement, which requires that police officers reside
not more than seven miles from city limits, when it calculated it as seven
miles driving time, instead of a seven
mile radius.
Arbitration Award
|
In re
City of Robinson, Illinois
and
Illinois Fraternal Order of Police Labor
Council
118 LA (BNA) 1276
Grievance No. 030131-055121-A
July 30, 2003
Edward L.
Suntrup, Arbitrator.
The
Issue
There is no
dispute between parties over the issue that is before the arbitrator in this
case. They stipulate that the issue is the following, which is cited here in
pertinent part:
Does Article 22, General
Provisions, Section 5 Residency Requirement (of the labor contract) ... mean
that the maximum distance a covered employee can reside from the Robinson city
limits is measured by “driving distance” or by “radius”? 1
Contract
Provisions
The
following provisions of the parties’ collective bargaining contract apply to
this case.2 These provisions are cited here in pertinent part for the
record.
Article 7 Dispute Resolution and Grievance
Procedure
Section 1 Definition of a Grievance
A grievance is defined as any unsolved
difference between the Employer and the Lodge or any employee covered by this
Agreement regarding the application, meaning or interpretation of this
Agreement. This grievance procedure is subject to and shall not conflict with
any provisions of the Illinois Public Labor Relations Act. * * *
Section 3 Representation
Grievances may be filed on behalf of two
or more employees only if the same facts, issues, and requested remedy apply to
all employees in the group.
Section 8 Steps, in Procedure
Disputes arising under this Agreement
shall be resolved as follows:
Step 3
If the dispute is not settled at Step 2,
the matter may be submitted by the Lodge to arbitration. . . .
The Employer or Lodge shall have the right
to request the arbitrator to require the presence of witnesses and/or
documents...
Once a determination is made that the
matter is arbitrable or if such preliminary determination cannot be reasonably
made, the arbitrator shall then proceed to determine the merits of the
dispute.
The decision and award of the arbitrator
shall be made within forty-five (45) days following the hearing and shall be
final and binding on the Employer, the Lodge and the employee(s) involved. The
arbitrator shall have no power to amend, modify, nullify, ignore, add to or
subtract from the provisions of the Agreement.
Article 22—General
Provisions
Section 5 Residency
Requirement
Employees covered by this
Agreement shall establish and maintain their primary residence not more than
seven (7) miles from the Robinson city limits.
Background
A memo was
written to the Robinson, Illinois chief of police on March 3, 2002 by a police
officer who had earlier made application to work in public safety for the city
and by this date was already employed by the city. This officer, Chad Weaver,
hired in on June 11, 2001.3 Officer Weaver was looking for a place to live for
reasons that have no bearing on this case except that he was concerned that his
choice of domicile not put him in violation of the residency requirements
outlined in Article 22, Section 5 of the labor contract. In his personal memo
to the chief of police officer Weaver states the following which is cited here
in pertinent part:
“I recently spoke with (the FOP union rep) ... about the wording
and meaning of the residency requirement in our most recent contact ... He told
me the measurement should be made `as the crow flies’ from the edge of city
limits that is closest to the address ... in question. I told him that the
Police ... Commissioner 4 had decided that the distance is to be measured by
traveling the road way from city limits to the address in question. He told me
that this was an incorrect interpretation of the contract ...”
The chief of
police responded to officer Weaver about three weeks after receiving his memo.
In his lengthy response which is dated April 11, 2002 chief Watts states inter
alia, that he had informed Mr. Weaver that he “...met with the mayor, the
police and employee relations committees and they were firm with their
(residency) policy requirement which did not include `...as the crow flies ...’
(and) ... as a point of information past practice of the city residency
requirements were upheld when two other officers requested to obtain residency
outside the seven mile (driving) radius and were informed again of the
requirements of the city of Robinson ...”. Officer Weaver was asked by the
chief of police in this response to advise him of his “... decision by 4-19-03
...” whether he would abide by the city’s interpretation of the residency
requirements. In a short response to the chief of police by officer Weaver
which is dated May 27, 2002 he informed the chief that he was living at an
address which conformed to the city’s residency criteria as they existed at
that point.
Thereafter,
on May 20, 2002, FOP field representative Bill Mehrtens wrote to Wallace Dean,
the mayor of Robinson, requesting a “... labor/management meeting to discuss
the apparent disagreement over the interpretation of the residency provision of
the collective bargaining agreement ...”. Absent settlement of this
disagreement Mr. Mehrtens filed a grievance on June 24, 2002 with a cover
letter to the mayor. In his cover letter Mr. Mehrtens states that the “...
union contends that the city is improperly interpreting the residency clause by
citing a `driving distance’ standard for the seven mile residency restriction.
The union maintains that the plain language of the contract, and the lack of
any evidence that driving distance was the intent of the parties, means that
the seven mile restriction is a straight line distance from the edge of the
city limits ...”. The grievance itself states that it deals with the proper
interpretation of Article 22, Section 5 and that the remedy requested is that
the city “... correctly interpret residency boundary to seven geographic
straight line miles from the city limits, plus any other appropriate relief
...”. The grievance form states that the alleged contract violation by the city
of Robinson is “ongoing”. The grievance form is signed by the chair of the
Robinson FOP local bargaining committee as grievant, and by Mr. Mehrtens as the
FOP representative. The FOP representative states in his cover letter that the
parties mutually agreed, as a result of a prior discussion between he and the
city’s administrative assistant, to process the grievance by starting at Step 2
as outlined in Article 7 of the labor contract.
On July 3,
2002 Frank J. Weber, attorney for the city, wrote to the FPO field
representative with a Step 2 response. The latter was signed by the mayor and
the chair of the city of Robinson’s employee relations committee. The grievance
was denied on both procedural and substantive grounds. Absent settlement of the
grievance Mr. Mehrtens advised the mayor of Robinson on July 16, 2002 that the
union was bringing the matter to arbitration.
Procedural
Issue: Discussion & Ruling
The city of
Robinson raises a procedural objection that must be addressed by the
arbitrator. According to this objection the grievance should be dismissed by
the arbitrator because (1) the substance of the grievance had been resolved by
the date the grievance had been filed and (2) because the union was in either
case in violation of the time-lines for filing the grievance. These time-lines
are found in Article 7 of the labor contract.
According to
the first objection, “... there was no grievance existing on the date of the
filing of the grievance by the FOP on June 24, 2002”. Why? Because, according
to argument by the attorney for the city, “...officer Weaver became a resident
of the city of Robinson on May 27, 2002 ...”. Weaver is the one who first sent
a personal memo to the chief of police on March 18, 2002 raising the issue
about the meaning of Article 22, Section 5 as noted in the foregoing.
Therefore, according to this argument by the city:
“... since officer Weaver was a resident of the city of Robinson,
Illinois and had no pending complaint with regard to (the residency) issue on
the date he established residency, the city of Robinson submits that no
grievance did in fact exist ...”.
Secondly,
counsel for the city argues, the “... city of Robinson also submits that the
FOP failed to follow the procedural requirements for the advancement of a
grievance as set forth in the Agreement”. According to this argument the chief
of police answered Weaver’s complaint on April 11, 2002. Article 7, Section 8,
Step 2 “... required the FOP, within five working days of the chief of police’s
decision on April 11, 2002 to `in writing’ refer that decision to the employee
relations committee ...”which the FOP did not do until May 20, 2002 which was
thirty-nine days later. Therefore, the “... FOP should be barred from pursuing
the grievance ...”. The city asks that the arbitrator dismiss grievance on
procedural grounds alone without addressing the merits of the case.
The union
provides, in effect, an umbrella response to both of these objections which
states that on “... June 24, 2002 Mr. Mehrtens filed a grievance on behalf of
the union and the Robinson PD bargaining unit. Officer Weaver is not listed
individually as a grievant. The submitted form indicates that the grievance is
ongoing”.
A review of
the arguments presented by both parties and the evidence of record warrants the
following conclusion. The arbitrator concludes that the first objection raised
by the city is moot. The issue before the arbitrator in this case in not
whether officer Weaver may or may not have established residency status with
the city of Robinson after he hired in as a police officer. The issue is a
class action grievance filed by both the FOP local at Robinson and by the state
FOP whereby clarification is sought on the meaning and intent of the language
found in Article 22, Section 5 of the Robinson-FOP labor contract. A review of
the grievance filed on June 24, 2002 does not show officer Weaver as grievant.
The grievant is the chair of the Robinson FOP bargaining committee. The time
lines related to officer Weaver’s earlier correspondence to the chief of police
have no bearing on this case. Officer Weaver never filed a grievance with the
city of Robinson.5 Whatever issues he had with respect to the residency
question were worked out informally with the chief of police and what the
record contains is a copy of the correspondence related to that communication
between these two parties. Secondly, the time lines argument offered by the
city assumes that the April 11, 2002 response by the chief of police to Weaver’s
original March 18, 2002 inquiry had some grievance related status under Article
7 of the labor contract. It did not. The grievance filed by the FOP on June 24,
2002 was a de novo grievance. All time lines referenced in Article 7 started
after that point.
The
procedural objections raised by the city are dismissed. The arbitrator will
proceed to address the merits of the case.
Merits:
Discussion
According to counsel for the city the meaning of
the city of Robinson’s residency requirements for its police officers under
Article 22, Section 5 of the current Robinson-FOP labor contract had been
established by prior practice. Whenever there had been inquiries by police
officers of the chief of police about the meaning of the language of this
provision of the labor contract the chief had always been consistent in his
answers. The seven mile requirement has always meant “driving distance”. It has
never meant “radius”.
Counsel for the city calls this prior practice a “course of dealing”. According
to counsel, this “... course of dealing should govern in this instance ...”.
This interpretation had never been disputed in the past in Robinson. “No prior
complaints or grievances on this issue have been advanced to arbitration ...”.
According to counsel if a provision found in a labor contract is subject to
more than one interpretation the courts have held that the parties should look
at their “...own conduct in order to determine their understanding of such
ambiguities in the agreement ...”. 6 Counsel puts considerable weight in his
arguments on Illinois law wherein it “... is clear that courts will adopt
reasonable construction of a contract which is placed on the contract by the
conduct of the parties ...”.7
In addition
to prior practice counsel also argues that the city of Robinson had a reason
for its “driving distance” interpretation which is related to the emergency
needs of the city. Response time to emergency calls is important “...for the
back-up of on-duty officers ...”. According to the city measuring the seven
mile residency requirement by driving distance rather than by radius provides
better response time.
Argument by
counsel for the FOP is that the language found in Article 22, Section 5 is
clear and distinct and that the mayor and the chief of police of Robinson have
“distorted” its meaning. According to counsel, a certain prior practice
existed, but it did because those in authority in Robinson were attempting to
“... twist the language (of the contract) and (now) impose their will through
arbitration ...”. The union argues that to interpret the seven mile rule by
means of driving distance is an “...unusual interpretation ...”. Argument by the
union is that it is true that the meaning of the seven mile rule did not come
up during negotiations. But it argues that this was because it was understood,
at least by the union side of the table, that the seven miles meant the way the
crow flies. The union cites the testimony at the arbitration hearing by
councilman John Birkhofer who was formerly a police officer covered under the
FOP labor contract in Robinson and who was also formerly a member of the police
bargaining team. In his testimony Birkhofer cites the developing history of
Article 22 as he knew it.8 Prior to 1995 the residency requirements were the
Robinson township and during the 1995 negotiations they were expanded to the
mile limit which is the language as it exists in the operant contract. During
the 2000 round of negotiations the union unsuccessfully attempted to expand the
seven mile language to include all of Crawford county of which Robinson is the
county seat. This version of bargaining history is confirmed by FOP field
representative Mehrtens and is not contested in the record. According to
Birkhofer they realized that seven miles from the Robinson city limits was “...
almost the entire county, so we dropped the issue ...”. They realized this by
“... looking at a map and taking seven miles from the city limits ...”. They
did not discuss driving or roads but rather the “... north, south, east, west
(coordinates from) the city limits ...”. They compared the seven mile limit and
the county boundaries from Robinson by using the geographical radius or the
“...color code block ...” method. In other words, they used the “way the crow
flies” method in comparing current contract language with the possibility of
extending the residency limits to include the whole county. On cross
examination this witness testifies that the research on distance and how it was
measured with respect to the residency question was done in committee by the
union bargaining team and that maps and so on were not brought to the
bargaining table nor shared with the other side.
According to testimony by FOP field representative
Mehrtens, who was present at the 1995 and 2000 labor negotiations when Article
22, Section 5 as it now stands was first put in the contract, and when the
seven mile limit was not successfully extended, the phrase “driving distance”
never came up in negotiations about residency requirements in Robinson. According to Mehrtens, response time was
always an issue with the city and the police respected that concern. But
driving distance was never discussed relative to the seven mile limit.
According to Mehrtens, he has been involved as a FOP field representative with
negotiating “... hundreds of contracts with ... various (police) bargaining
units throughout (his) years ...” of service with FOP and the language found in
the Robinson contract is “...similar to language in other city contracts that
deals with residency boundaries ...”. Mehrtens also admits that while driving
time was never brought up in negotiations about residency requirements, neither
was any discussion of radius. According to Mehrtens “... seven miles is a
geographic term ... not a function of anything other than a map ...”.
Findings on
Merits
This is a
contract interpretation case. The moving party is the union. In accordance with
arbitral precedent the moving party must bear the burden of proof that there
was a violation of the parties’ labor contract. The evidentiary standard used
in framing rulings in forums such as the instant one is normally referred to as
substantial evidence. Such evidence has been defined by the courts and accepted
by arbitrators as “... such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion ...”.9
The issue
here is the narrow one of the proper meaning and application of Article 22,
Section 5 of the parties’ labor contract. This language has been in the
contract since 1995.
The city
argues that there is a prior practice in the city of Robinson, going back to
this provision’s inception, of interpreting Article 22, Section 5 of the labor
contract to mean driving distance from the residence of a police officer to the
Robinson city limits. According to the testimony by the chief of police at the
arbitration hearing he had himself interpreted Article 22 in this manner on at
least three occasions when he had been approached by officers under his
jurisdiction who were covered by the FOP contract. He answered the same query
about residency requirements on two different occasions when they were raised
by an officer by the name of Dan Hill. The latter was looking at property to
buy and had a concern, apparently, about not violating the labor contract when
he made a decision about purchasing a home. The chief of police testified that
he also answered the same question posed to him by another officer by the name
of Matt Myers. In all
instances, according to the chief, he responded that the residency requirement
meant that an officer had to live within seven miles’ “... driving time ...” from
the city limits. Testimony by the mayor of the city corroborates that of the
chief of police. The mayor states that it had always been his
understanding that the seven mile language found in Article 22 was to be
interpreted as the chief of police testified. The mayor states that in all negotiations
related to police labor contracts at the city the geographical “radius” issue
had not been a part of the negotiating discussion.
With respect
to this testimony given by the chief of police and the mayor the arbitrator
notes the following. Irrespective of the rationale given by the chief of police
in interpreting the intent of the language of Article 22 in the manner in which
he did, as well as the supporting corroborative testimony by the mayor, the
arbitrator observes that in the instant case prior practice established at the
city of Robinson in or of itself is no bar for the labor union policing its
labor contract if it concludes that an interpretation of the agreement had
surfaced which it considers to be an improper application of the contract’s
provisions. In the presence of clear and unambiguous language such would simply
have precedence over prior practice. But that is not exactly what we have
here.
A review of
the language framed by the parties in Article 22, Section 5 fails to persuade
the arbitrator that we have anything here other than what arbitral forums
normally refer to as general language.10 General language is found in labor
contracts for any of a variety of reasons. Those reasons are not to be
questioned by grievance arbitrators. Sometimes the presence of general language
in labor contracts causes problems with respect to the administration of the
contracts. Sometimes it does not. Obviously in the city of Robinson the general
language associated with Article 22, Section 5 is creating problems. When that
happens it is the function of grievance arbitrators to sort out the most
reasonable intent of the meaning of the language used by the parties when they
resort to arbitral assistance. That is what has happened in this case.
On this
matter the arbitrator must address a line of reasoning used by the city in
denying the grievance filed prior to taking it to arbitration. In the Step 2
response to FOP by the city the latter “... objects to the applicability of
grievance arbitration to the subject matter of the grievance filed on June 24,
2002”. Why? Because, according to this response to the grievance, “...grievance
arbitration is not appropriate to modify the terms of an existing contract.
That is to be done by bargaining either under the ‘re-opener’ provision of the
current contract, or upon termination of the existing contract ...”. The
arbitrator’s view of this reasoning is as follows. The labor contract does
provide at Article 26, Section 3 the possibility for reopening negotiations
“...if either side decides ...”, and if one side serves notice in accordance
with time-lines stated in that Article and so on. It is a highly unorthodox
line of reasoning on the part of an employer, however, to argue that a
grievance lacks validity because a union opted to grieve a contract
interpretation issue rather than resort to a contract’s re-opener clause. Such
reasoning has not only the potential of destroying the meaning and intent of
the grievance procedure process, whose sole purpose is to assist the parties in
the resolution of differences over the interpretation of the meaning of the
contract, but this line of reasoning could potentially put the parties in the
stance of unending negotiations over the unending set of issues that crop up on
a continuing basis in any employer-employee relationship. If the instant issue
before the arbitrator is not arbitrable, it is not because the union had no
right to file a grievance over it. A union has the right to file a grievance
over any issue—whether it relates to discipline or contract interpretation—as
long as the issue is not expressly barred from the grievance process by the
language of contract. Absent such language in the parties’ contract this
argument outlined here by the employer will be dismissed.
The issue in
this case is whether the interpretation given by the city of Robinson to
Article 22, Section 5 of the Robinson-FOP labor contract, as articulated by its
chief of police, is the most appropriate and reasonable one, given evidence of
record provided to the arbitrator.
According to
testimony at the hearing the language that currently exists in Article 22,
Section 5 has not changed since 1995. The disputed interpretation given by the
city surfaced over the last seven or so years.
The problem centers on the meaning of the phrase:
“... not more than seven (7) miles from the Robinson city limits ...”. The
issue is simply one of measurement. How does one measure the “... seven (7)
miles ...” from the two points of an officer’s primary residence to the
Robinson city limits? Obviously, there is more than one way to measure the
seven miles. This is both a fact, and it is also the problem in this case. So
the issue for the arbitrator, when confronted with this general language, becomes:
what is the most reasonable way of measuring the seven miles, given the
evidence of record?
A
fundamental principle of contract interpretation, so common in arbitral
precedent that it need not be documented, is that it is improper for an arbitrator
to impose labor contract interpretations on the parties that are obscure,
obtuse, or unreasonable or which are contrary to the commonly understood
application of labor contracts in the history of union-management relations
under U.S. labor laws.11 Having said that the arbitrator will now examine the
parties’ arguments and rationale on some detail.
According to
the union the language found in the Robinson-FOP labor contract is not novel.
According to field representative Mehrtens, who states under oath that he
himself had negotiated many labor agreements for police in different
communities in Illinois, the standard meaning of language such as that found in
Article 22, Section 5 of the FOP-Robinson labor contract is that seven miles
means the “... way the crow flies ...”. On this point the arbitrator can but
note the absence in the record of any precedent to support the proposition that
this is not what the language means. If the language means other than what the
union argues and if others had subscribed to this the arbitrator would have
expected affirmative defense by the city that its interpretation had been
tested and not found wanting in other municipalities where similar language
regulates residency requirements for police officers under union contract.
There is no such information in the record before the arbitrator in this case.
Both sides admit that they never brought up in negotiations in Robinson their
versions of what they now argue the seven mile provision means. Maybe both
sides just thought the issue would go away. Or maybe they thought that someday
the meaning of the language would be clarified in arbitration. If the latter,
their wish is now being fulfilled.
The primary defense of the “driving distance” argument
by the city is based on an emergency “response time” argument. The union argues
that it does not dismiss this concern but it might not take it as seriously as
the city of Robinson does. A review of the record shows that this argument is
less than substantially developed by the city. There is no information on when
the response time issue has ever really been a problem in Robinson. The chief of police himself apparently
has no empirical information on this issue. He only testified that when he was
dealing with officer Weaver it took him 11 minutes to travel from Weaver’s home
to the city limits. It this a good response time? Is it a bad one? What does it
mean? Factual information of record does not permit the arbitrator to come to
any reasonable conclusions about this issue except that it is important in the
mind of those in charge of the city of Robinson. There is no information to
permit conclusion that the police officers in Robinson who are off duty might
not reasonably and expeditiously respond to any emergency that might come up
whether this be under the “driving distance” or the “radius” scenario.
The
arbitrator is left with the rule of reasonableness in interpreting the seven
mile language found in Article 22, Article 5 of the parties’ labor contract.
This is sufficient substantial evidence upon which to frame a ruling here. The
seven mile measure has to mean something specific because it is a specific
measure. And in order for the contract to be rationally interpreted the seven
mile measure always has to mean the same thing and it has to mean the same
thing for all collective bargaining unit members covered by the contract. A
review of the parties’ labor contract shows that it is replete with
quantitative measures. The seven mile one is not the only one. Many examples
can be cited. For example, Appendix A lists wage rates. When all new officers
are hired effective 5/1/01 they are paid $16.27 per hour at the end of their
first year. They are not paid “about” that amount. Likewise specific measures
are applied to vacation time, to carry-over vacation credit, to leaves of
absences, to sick leave benefits, and so on. All of these quantified provisions
in the parties’ labor contract have a specific, predictable meaning applied to
all members of the bargaining unit. They all mean exactly the same thing to all
members of the bargaining unit. Such conclusion is but congruent with the
time-honored manner of administering union-management contracts under all U.S.
labor laws irrespective of whether they cover the private or public sectors.
Labor contracts are group contracts. They cover everyone in the bargaining unit
(defined group) in the same manner.12
The problem
with the city of Robinson’s interpretation of the seven mile provision found in
Article 22, Section 5 is that it does not permit consistent application of that
provision for all police officers. The city’s interpretation is subject to the
vagaries of where the roads are built in Crawford county. This issue was
explored in testimony at the arbitration hearing. A review of that testimony
can lead a reasonable mind to only one conclusion: using the “driving distance”
method does not tell us exactly what the seven mile limit means. Using that
method, seven miles can mean different things to different officers, under the
contract, depending on where they live in Crawford county. The “driving
distance” approach does not lead to consistent application of Article 22,
Section 5 of the labor contract. The “radius” method does. The “driving
distance” approach leads to obtuse and inconsistent application of the
provision in question. Whether either one or the other method has any bearing
on response time is not sufficiently established in the record as noted. But
the radius method does permit consistent and predictable application of Article
22, Section 5 of the labor contract to all members of the collective bargaining
unit. This method puts these provisions on an even keel with all of the other
quantified provisions of the labor contract which must be applied consistently
to all members of the bargaining unit. For this reason the radius method is the
proper and more reasonable method to be used in interpreting this provision of
the labor contract. The arbitrator so rules.
Award
The
grievance is sustained in accordance with the Findings. The city of Robinson, Illinois shall interpret the
seven mile residency provision in Article 22, Section 5 of the labor contract
it has with the Fraternal Order of Police by the “radius”, or the “way the crow
flies” method. The city of Robinson shall cease using the “driving distance” method
to interpret Article 22, Section 5 of the contract upon receipt of this Award.
There is no other remedy or relief associated with this Award.
Notes
1 See
signed, joint statement of the parties’ understanding of the grievance. This
statement was provided to the arbitrator at the hearing. The parties provided
this in accordance with their mutual understanding of the intent of Article 7,
Section 8, Step 3 of the labor contract that provides inter alia that “...
(b)oth parties agree to make a good faith attempt to arrive at a joint
statement of ... (the) issue ( ) to be submitted to the arbitrator ...”.
2 All
citations taken from Joint Exhibit No. 1: Agreement between City of Robinson and
Illinois Fraternal Order of Police Labor Council/ Norman T. Richards Memorial
Lodge #122. Effective between May 1, 2000 and April 30, 2003. Although this
Award is being issued after the expiration of the labor contract the grievance
was filed on June 24, 2002 and properly fell under the contract’s
jurisdiction.
3 Officer
Weaver was still seeking clarification on the residency requirement some nine
months or so after being hired by the city because the city of Robinson
requirements for working for the city as a police officer states inter alia
that a police officer must “... become a resident of the city of Robinson
within 12 months of appointment ...”. It was subsequently concluded, it
appears, that this city requirement was in conflict with the Robinson-FOP labor
contract since the latter states nothing about a residency grace period.
4 This
police officer also states that the Fire Commissioner holds the same
interpretation as the Police Commissioner. There is no issue in this case
involving the Robinson fire department. The officer’s reference to the “Police
Commissioner” is apparently to the chief of police. It is unclear to the
arbitrator if such job title as police commissioner exists in Robinson. On the
appearance list at the arbitration hearing and in all subsequent references to
himself, and by others, Kenneth R. Watts is always referred to as the chief of
police in Robinson.
5 Weaver did
not appear at the arbitration hearing. He did not have to. It was not his
grievance. There was much information at the beginning of the hearing about
Weaver. After this occurred, the arbitrator asked, at one point, whether Weaver
was to appear at the hearing. The arbitrator was advised by counsel for the FOP
that Weaver would not since the grievance was not about him. It was about the
meaning of Article 22, Section 5 of the labor contract. As the hearing
proceeded, and as the arbitrator had the occasion to scrutinize more closely
the exhibits that had just been provided to him, including the original grievance
form, it became clear that this was the case.
6 Citing National
Diamond, Inc. v. Parcel Service, Inc. 897 F.2d 253 (CA 7, Ill. 1990).
7 Citing Board
of Trade of the City of Chicago v. Dow Jones & Co., 108 Ill.App.3d 681,
439 N.E.2d 526 Ill. Dec. 275 (1982) seq.
8 The
Robinson police department was organized by FOP in 1988-89. The first labor
contract between FOP and the city of Robinson became effective in May of
1989.
9 Consol.
Ed. Co. v. Labor Board, 305 U.S. 197, 229. See also Burlington Northern
Railroad v. Brotherhood Carmen Division of Transportation Communication
International Union, PLB 5712, National Mediation Board, Award No. 4 (1995)
(Suntrup).
10 The union
argues that the language is clear and unambiguous. If it were, assuming high
levels of rational behavior between parties, which sometimes does not always
happen, this case logically would not exist. The arbitrator will understand the
union to argue that it views the language as clear and unambiguous with a distinction
being made between its view and the actual language. But then, the same can be
said for the city of Robinson.
11
Arbitrators obviously do not have to always follow judicial opinions although
they commonly will not totally disregard them when framing Awards. Reference
here counsel for Robinson’s citation of the Illinois judiciary’s view that
reasonable construction of a contract looks to the conduct of the parties. In
the instant case it is precisely that conduct that is being questioned. In a
contrary sense it should be noted that few arbitration awards are vacated by
the courts, which is why is it pretty much a waste of time and resources to
appeal them, because the courts almost always defer to the decisions of
arbitrators on merits.
12 The only
idiosyncratic variance of this is found in sports, entertainment, etc. where
individuals have coverage of both labor contracts and individual contracts
because of the peculiar “star” system in those arenas.