Arbitration Award
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County of Cook
Sheriff of Cook
County
and
American
Federation of State, County and Municipal Employees,
Council 31, Local 3692
117 LA (BNA) 1745
November 11, 2002
Aaron S. Wolff, Arbitrator.
The County of Cook/Sheriff of Cook County [the “County,” “Sheriff” or “Employer”] and the American Federation of State, County and Municipal Employees, Council 31, Local 3692, AFL-CIO [the “Union” or “AFSCME”] submitted to arbitration the February 13, 2001 grievance of B__, a Cook County Correctional officer since July 1985. At the outset of the Arbitration hearing on April 30, 2002, the County asserted, apparently for the first time, that the grievance was not substantively arbitrable.
Since substantive arbitrability, unlike procedural arbitrability, may be raised at any time,1 it was agreed that the parties would submit a stipulation of facts and file briefs on the issue of arbitrability as well as on the issue of who has the burden of proof as to the merits in the event the grievance is deemed arbitrable.
The “Stipulated Statement of Facts” recites as follows:
1. December, 1999—Grievant received notification that the Executive Director of the Cook County Department of Corrections recommends that the grievant be terminated and that a Loudermill hearing is scheduled for later that month.
2. December, 1999—Loudermill Hearing recommended that the charges against grievant be sustained.
3. January, 2000—Grievant suspended pending action by the Sheriff’s Merit Board.
4. Sheriff’s Office filed a complaint with the Merit Board seeking separation of employment with the Cook County sheriff.
5. December, 2000—Merit Board held a full hearing on the merits. Grievant was represented by an attorney at the hearing before the Sheriff’s Merit Board.
6. January, 2001—Merit Board issued its decision and order.
7. January 31, 2001—Grievant was returned to duty January 31, 2001
8. February, 2001—Grievance filed, Grievance is entered into the record as Joint Exhibit 2. Grievance was denied.
9. May, 2001—Grievant and union received a Fourth-Step grievance decision. The Step Four decision is entered into the record as Joint Exhibit 4.
In its Order dated January 25, 2001, the Cook County Sheriff’s Merit Board [the “Merit Board’’ or “Board’’] found that grievant was guilty of violating several General Orders of the Board as well as a Sheriff’s rule. It ordered that grievant be “suspended from employment for 120 days effective;[sic] 4th day of January 2000.’’The statute creating the Board, 55 ILCS 5/3-7001 et seq., provides that if the Board finds the employee guilty and imposes discipline, “... the sheriff shall direct such removal or other punishment as ordered by the Board ....’’[id. at §3-7012]
On remand from the Board, the Sheriff did not provide certain benefits to which grievant believed he was entitled and he filed this grievance which recites:
Art. XIII, sect. 2G, pg. 30 and Art. XIII sect. 7, pg. 32. Please find included in this packet the outcome of the Merit Board decision regarding B__. Local 3692 is requesting that he be made whole as far as back pay, vacation time, holidays, personal days, medical time, uniform allowance and retro pay per contract, and seniority restored. B__ return[ed] to duty on 1 Jan. 01.2
At the third level grievance hearing in March 2001, the County Department of Corrections denied the grievance and stated: “The Merit Board decision does not indicate reimbursement of time, uniform allowance, benefit time or back pay.’’ However, on May 14, 2001, after a 4th step grievance hearing on April 6, 2001, the Department of Corrections advised grievant:
You served a 120-day suspension effective January 15, 2000. Regarding your request for uniform allowance and retroactive pay, I am denying those portions of your grievance. Regarding your request for back pay, medical, personal and vacation days, holidays and restoration of seniority, your grievance will be granted based upon the attached actual calculations from the Department of Personnel for the time period of December 13, 2000, through January 30, 2001.3
Discussion
In its post-hearing brief the County states as follows:
The ... Sheriff’s Merit Board ... was established pursuant to Chapter 55 of the Illinois Compiled Statutes. The Merit Board is responsible for screening applicants for hiring and promotions, as well as conducting disciplinary and discharge hearings as applicable. On January 15, 2000, the Sheriff suspended the grievant, B__, and, in accordance with the Merit Board rules and regulations, subsequently filed a complaint seeking to terminate the grievant’s employment. B__ was represented by an attorney during the Merit Board proceedings. On January 25, 2001, after discovery and a full hearing on the merits, the Merit Board issued its decision ordering a 120 day suspension and reinstatement.
The Sheriff complied with [the] ruling. The grievant was placed back to work and given a 120 day suspension. The Merit Board decision was silent as to back pay and benefits. In accordance with past practice and procedure, the Sheriff followed the guidelines set forth in the Rule 23 decision in Washington.4 The Rule 23 decision, which mandates the procedures the Sheriff shall utilize to calculate back wages after Merit Board hearings, is binding on the Sheriff. The Sheriff has been adhering to the decision since its issuance. The Sheriff fully complied with the mandates of the Merit Board and the Appellate Court, both independent authoritative bodies. ...
Rather than address the issues of wages and benefits with the Merit Board through his attorney, B__ chose to file a grievance, through the union, requesting back wages and benefits based on the Merit Board decision. However, arbitration is not the appropriate forum to address this matter.
The collective bargaining agreement informs parties what matters can be arbitrated, and this issue is not one of them. Both the grievant, through the union, and the employer agreed to the subject matters of arbitration, and the agreement is binding on the parties. There is no provision in the collective bargaining agreement which allows for arbitration as a means to challenge the Merit Board decision or calculate wages or benefits. Accordingly, the grievant cannot second guess the Merit Board’s decision through arbitration, and his grievance must be dismissed for lack of subject matter jurisdiction.
If the grievant was not satisfied with the Merit Board decision, he could have, and, pursuant to statute, should have sought administrative review or filed in other appropriate forums. The grievant was represented by an attorney during the Merit Board proceedings and therefore had the opportunity to discuss all options with his attorney. Although the union seems to suggest that the employer could have informed the grievant of his rights to file in other forums, it is not the employer’s responsibility or obligation to counsel employees on legal remedies against the Sheriffs interests.
In favor of arbitration and arbitrability, the Union contends in its post-hearing brief as follows:
Under the Cook County Sheriff’s Merit Board Act, (“Act”), the ... Merit Board ... governs all matters relevant to hiring, promotion, and termination of employees of the Cook County Sheriffs Department. ... 55 ILCS 5/3-7000 et seq. When an employee violates Merit Board rules, the Sheriff must file a formal charge with the Merit Board if he believes the offense warrants discharge or a suspension exceeding 30 days. 55 ILCS 5/3-7012. The Merit Board holds hearings on the charge, and if it makes a finding of guilty it can order termination, demotion, or a suspension of up to 180 days. Id, Orders of the Merit Board can be appealed in state court, as governed by the Administrative Review Act. Id.
The instant grievance concerns actions taken by the Sheriff following the January 25, 2001 Order of the Sheriffs Merit Board imposing a 120 day suspension upon B__ effective January 4, 2000. Grievant, B__, filed a grievance over the Employer’s failure to make him whole relative to back pay, vacation time, holidays, personal days, medical time (sick leave), uniform allowance and retro pay per the contract for the period of time he was off work in excess of the 120 day suspension imposed by the Merit Board. The grievance also covered the Employer’s failure to restore B__’s seniority for that same period of time. The grievance claims that these actions by the Employer violate Article XIII, Section 2, G and Section 7 of the collective bargaining agreement.5 In its Fourth Step grievance response, the Employer granted the portions of the grievance concerning back pay, vacation time, holidays, personal days, medical time and restoration of seniority for the time period from December 13, 2000 through January 30, 2001, which is the time from the conclusion of the proceedings before the Merit Board to B__’s reinstatement with the Employer. The Union moved the grievance to arbitration to contest the Employer’s limitation of the remedy to the above-described time frame.
The Employer argues that the B__’s grievance is not substantively arbitrable because it is an appeal of a Merit Board order and concerns a matter that falls within the jurisdiction of the Sheriff’s Merit Board, not the Sheriff. This argument, however, must be rejected for two reasons. ...
First and foremost, the grievance filed by AFSCME and B__ does not protest the decision of the Sheriff’s Merit Board. It does not challenge the Merit Board’s decision to suspend B__ for 120 days. Instead, it grieves the manner in which the Sheriff implemented the Merit Board’s Order. It challenges the Employer’s decision to not make B__ whole relative to back pay, vacation time, holidays, personal days, medical time and seniority for the period of time he was off work in excess of the 120 day suspension ordered by the Merit Board.
This dispute is over how the Sheriff’s Department implemented the Merit Board Order. The Merit Board imposed a 120-day suspension on B__ after the Sheriff presented a formal charge. Thus the Merit Board functioned as it is required to under 55 ILCS 5/3-7012, i.e., it held a hearing and found B__ guilty. The Merit Board then ordered a lengthy suspension, again in accordance with 55 ILCS 513-7012. From there, as mandated by statute yet again, the Employer implemented the suspension. Under the Act, the Sheriff’s responsible for implementing orders of the Merit Board. 55 ILCS 5/3-7012 (“Thereupon the Sheriff shall direct such removal or other punishment as ordered by the Board...”) The Merit Board’s authority ends once it makes “a finding of guilty and orders ... disciplinary punishment ... which the offense merits.” (55 ILCS 5/3-7012). The Employer immediately returned B__ to duty as he had already served his 120-day suspension. B__ did not appeal the Merit Board’s Order and accepted the 120 suspension. At this point, his case before the Merit Board was closed.
A new dispute arose after B__ was returned to work and the Employer refused to make him whole for the time in excess of the 120-day suspension ordered by the Merit Board. The grievance was filed over this dispute, not over the decision of the Merit Board. B__ and AFSCME allege that this refusal violates Article XIII, Section 2 G of the contract because it effectively punishes B__ a second time for an offense that was already ruled upon by the Merit Board. The Employer’s action in implementing the Merit Board Order converts the Order from a 120-day suspension to a 392-day suspension. Article XIII, Section 2 G does not allow the Sheriff to increase B__’s suspension without additional facts. Moreover, the benefits that were denied to B__, i.e., back pay, vacation time, holidays, personal days, medical time and restoration of seniority, are contract based benefits and accrue to B__ solely because of the collective bargaining agreement. The instant grievance challenges the Sheriff’s decision to deny B__ benefits provided for in Articles IV, VI, VII, VIII, IX and X, Section 3 of the collective bargaining agreement.
Questions of substantive arbitrability depend on whether the parties have agreed to submit a given dispute to arbitration. United Cable Tele. Corp. v. Northwest Ill. Cable Corp., 128 Ill.2d 301, 310 (1989). Arbitrability is presumed where a collective bargaining agreement is involved. Jupiter Mech. Indus. v Sprinkler Fitters and Apprentices Local Union No. 281, 281 Ill.App.2d 217, 221 (1996).
In the instant case, the parties have clearly contracted for arbitration of grievances concerning violations of Article XIII, Section 2, G and violations of vacation time, holidays, personal days, medical time and the seniority provisions of the contract. The collective bargaining agreement, in Article XII, Section 2, provides for use of the grievance procedure, which includes arbitration as the final step, for any difference with respect to the interpretation or application or compliance with the terms of the collective bargaining agreement, except a dispute between an employee or covered dependent and the processor of claims. Since B__ and AFSCME allege that the manner in which the Sheriff implemented the Merit Board’s Order violates specific provisions of the collective bargaining agreement, the dispute is a difference between the parties as defined in Article XII, Section 2. Accordingly, the dispute is arbitrable.
The Union also argues that the Board does not have jurisdiction over the subject matter of the grievance. It states that there is nothing in the Merit Board’s rules or statutory enactment giving it authority to “monetarily compensate or provide contract based benefits to employees.” 6 Continuing, the Unions states:
Since the Merit Board cannot decide monetary issues or award an employee contract based benefits, the Sheriff is responsible for those activities. The Sheriff’s Department acknowledged its responsibility to award B__ his back pay and other contract based benefits when it granted the instant grievance for the time period from December 13, 2000 through January 30, 2001 at the fourth step of the grievance procedure.
After careful review of the arguments and authorities’ advanced by the parties, it is my opinion that the grievance is arbitrable for the following reasons.
The statute creating the Merit Board permits the sheriff to impose a disciplinary suspension for not more than 30 days. 55 ILCS 5/3-7011. For longer suspensions, discharge or demotion, the Sheriff must apply to the Board which, “for cause,” can remove, demote or suspend an employee, but a suspension cannot exceed 180 days. [§3-7012] If the Board finds the employee guilty and imposes discipline, “[t]hereupon the sheriff shall direct such ... punishment as ordered by the Board ....”[Id.]
In this case the Board found grievant guilty of the charges and on January 25, 2001 ordered that grievant “be and is suspended from employment FOR 120 DAYS EFFECTIVE; 4th day of January 2000.” The Sheriff was required to carry out that order—i.e., a 120 day suspension. There is nothing in the Merit Board’s enabling Act that provides for rehearing or clarification of the Board’s order. After issuing its order, the Board, like an arbitrator who issues an award, is functus officio; after issuance of the order [award] the Board [or arbitrator] lacks power to alter or clarify it.7 The only remedy provided for review of the Board’s order is to seek judicial review under the Administrative Review Law. [see §3-7012] Here, neither the Sheriff nor grievant sought judicial review; both parties accepted the Board’s order. Further, assuming that either party could or should have appealed the Board’s order via judicial review, there is nothing to indicate that such means of review is exclusive or to indicate that an employee cannot grieve the Sheriff’s alleged violations of the Contract in carrying out the Board’s order.
The essence of the grievance or complaint here is that the Sheriff did not carry out the Board’s order and, in the process, denied grievant rights under the Contract to back pay, vacation, seniority, etc. Since these rights or benefits, assuming without deciding that grievant is entitled to them, arise under the Collective Bargaining Agreement, the grievance is arbitrable under the plain language of Article XII Grievance Procedure, §2 which defines a grievance as “a difference between an employee or the Union and the Employer with respect to the interpretation or application of, or compliance with the terms of this Agreement between the Employer and Union.” Even if there were doubt as to arbitrability, it should be resolved in favor of arbitrability.8
The Arbitrator is aware that Article XIII, Discipline, provides in §8 that “Any disciplinary actions referred to the Merit Board seeking discipline in excess of thirty (30) days, including discharge, are not subject to the terms and conditions of this Agreement.” However, this grievance does not protest or attack the discipline meted out by the Board. It protests the Sheriff’s interpretation or application of the Board’s order; and the Sheriff’s interpretation implicates the terms and conditions of the Contract which makes this grievance arbitrable.
Other indicia of the arbitrability of this grievance may be found in the sheriff’s 4th step answer which granted the grievance in part and denied it in part:
Regarding your request for uniform allowance and retroactive pay, I am denying those portions of your grievance. Regarding your request for back pay, medical, personal and vacation days, holidays and restoration of seniority, your grievance will be granted based upon the attached actual calculations from the Department of Personnel for the time period of December 13, 2000, through January 30, 2001.
The County’s reliance on the Washington “case” is misplaced. First, that decision of the Illinois Appellate Court was issued as an unpublished “order.” Under Illinois Supreme Court Rule 23 (e) “An unpublished order ... is not precedential and may not be cited by any party except to support contentions of double jeopardy, res judicata, collateral estoppel or law of the case.” None of these exceptions are claimed or exist here and, therefore, the case has no precedential value here. While the County also argues that a “past practice” exists under which the Sheriff has “followed the guidelines set forth in ... Washington there is no evidence of such practice in this record. As noted above, p. 1, fn. 1, no evidence was offered at the hearing in this case other than the documents referred to herein. A binding past practice cannot be established without evidence. See, R. Mittenthal, Past Practice and the Administration of Collective Bargaining Agreements (Proceedings of the 14th Annual Meeting, National Academy of Arbitrators; BNA, 1961), pp. 30, 35 [also printed in 59 Mich. L. Rev. 1017 (1961)]. Further, Washington is factually distinguishable and otherwise does not support the Sheriff here. There the Board had issued a 180 day suspension without pay but the Sheriff’s application of the Board’s order resulted in a suspension without pay for more than one year [June 15, 1987 until June 20, 1988]; and back pay was ordered after taking into account that the employee was partly responsible for the delay in the Merit Board’s proceedings.9
Finally, if the Washington case were precedent, it would undercut the Sheriff’s action here. In Washington the Appellate Court made clear, what the statute plainly says, that the Board cannot impose a suspension of more than 180 days. Ipso facto, neither can the Sheriff do so in attempting to carry out the Board’s order. See also, Mitchem v. Cook County Sheriff’s Board, supra at fn. 7, 554 N.E.2d at 334 [The Board’s suspension limit of 180 days includes those suspensions pending a hearing].
One issue remains as to who has the burden of proof as to the merits of the grievance. This is a discipline case; grievant was given a 120 day suspension. It can hardly be doubted that in a discipline case, the employer has the burden of proof. But this is no ordinary discipline case. The body imposing the discipline was the Merit Board, not the Sheriff. However, the Sheriff had the burden of proof before the Board.10 But the issue before the arbitrator is not one of guilt; that was decided by the Merit Board. The issue remaining as to the merits is whether the Sheriff is affording grievant his Contract rights after being given a 120 day suspension. Although the question is somewhat novel, it seems to me that the burden of persuasion still rests with the Employer. If requested, the grievant must supply data as to outside earnings during the period as to which back pay is claimed.
Award
For the reasons set forth in the Opinion, which Opinion is incorporated by reference in this Award, the grievance is arbitrable and the burden of persuasion as to the merits remains with the Employer. Unless the parties resolve the grievance, they should jointly contact the Arbitrator within twenty-one [21] days to arrange an early date for hearing the grievance on its merits.
1. F. & E. Elkouri, How Arbitration Works, (5th Ed. 1997; Volz &Goggin, Editors), p. 311.
2. Under the binding stipulated facts, grievant returned to duty on January 31, 2001.
3. JX 4 does not include the “attached calculations’’ or explain why December 13, 2000 is the starting point for the calculations.
4. Washington refers to an unpublished “Rule 23’’ order of the Illinois Appellate Court in Washington v. O’Grady, [1st Dist., 2d Div; No. 1-92-4432; June 30, 1994 which was objected to by the Union as being non-precedential under Illinois Supreme Court Rule 23 (e).
5. These sections provide in pertinent part: “Once disciplinary action has been taken against an employee, such disciplinary action on the particular charge cannot be increased in severity, unless additional facts are presented, which increase the severity of the offence. Any subsequent adjustment of the discipline shall be made only by mutual agreement in settlement of the dispute”[§2G]; and “Suspension of more than thirty (30) days or discharge shall be handled in accordance with the State of Illinois Statutes ... “[§7].
6. Citing: Nolan v. Hillard, 309 Ill.App.3d 129, 722 N.E.2d 736 (1999), and Mitchem v. Cook County Sheriff’s Merit Board, 196 Ill.App.3d 528, 533, 554 N.E.2d 331 (1990).
7. See, F. & E. Elkouri, How Arbitration Works, (5th Ed.
1997; Volz & Goggin, Editors), pp. 387-8.
8. 7 See, F. & E. Elkouri, How Arbitration Works, (5th Ed. 1997; Volz & Goggin, Editors), pp. 387-8.
As the Supreme Court stated in United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-3 (1960), 34 LA 561, 564-5 [46 LRRM 2416]: “An order to arbitrate the 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.”
9. It is worth noting also that in the Washington case, the employee was suspended by the Sheriff on June 15, 1987 but the case was not finally resolved until seven years later when the Appellate Court issued its order on June 30, 1994. In the case before me, less than three years have elapsed so far since the grievant was suspended on January 15, 2000. If the parties are diligent in returning to arbitration on the merits of this dispute, the grievance can be resolved in few months.
10. “If the charges against an accused deputy sheriff are established by a preponderance of evidence, the Board shall make a finding of guilty ....” [§3-7012]
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