Cook County v. American Federation of State, County & Municipal Employees

THIRD DIVISION
February 11, 1998

No. 1-97-0147

COOK COUNTY, ) Appeal from the
) Circuit Court of
Petitioner-Appellant, ) Cook County.
)
v. )
) No. 96 CH 10165
AMERICAN FEDERATION OF STATE, COUNTY )
and MUNICIPAL EMPLOYEES, DISTRICT )
COUNSEL 31, LOCAL 3315, AFL-CIO, ) Honorable
) Lester D. Foreman,
Respondent-Appellee. ) Judge Presiding.

JUSTICE CAHILL delivered the opinion of the court:
Petitioner Cook County appeals from an order of the circuit
court confirming an arbitration award in favor of respondent
American Federation of State, County and Municipal Employees,
District Council 31, Local 3315, AFL-CIO. Petitioner and
respondent entered into a collective bargaining agreement,
effective December 1, 1990, through November 30, 1993, with
regard to assistant public defenders, grades I through IV. A
dispute arose over the promotion of a grade II attorney and a
grievance was filed with the public defender's office. The
parties were unable to resolve the issue through the standard
grievance process, and the matter was submitted to arbitration.
An arbitration award was entered in favor of respondent and was
confirmed by the circuit court. Petitioner has appealed,
contending that the arbitrator exceeded the scope of his
authority.
The dispute in this case centers around article V, section
3, of the collective bargaining agreement, which provides:
"[w]hen filling a vacancy through promotion, the most qualified
applicant will be selected; in the event qualifications are
relatively equal, seniority will control." In July 1992, a grade
III attorney position became available and approximately 10 grade
II attorneys applied for the position. On August 24, 1992,
Cheryl Lipton, the least senior applicant, was promoted to the
grade III position. Respondent filed a grievance on behalf of
all grade II attorneys who had more seniority than Lipton,
claiming that all the applicants were equally qualified for the
position and that the person with the most seniority should
therefore have been promoted.
On December 9, 1992, a step II grievance hearing was held
before the first assistant public defender. The hearing officer
ruled that Cary Berman was the most senior applicant at the time
Lipton was promoted. However, in actions unrelated to this
matter, Berman and five other grade II attorneys were promoted to
grade III positions in November and December 1992. The hearing
officer upheld Lipton's promotion and awarded Berman retroactive
pay to August 24, 1992, the date Lipton was promoted.
Respondent, however, continued the grievance process to step
III on behalf of the remaining grade II attorneys. Respondent
argued that because Lipton remained in her grade III position,
all of the other grade II attorneys with more seniority than
Lipton should be promoted to grade III. On January 22, 1993, the
hearing officer denied respondent's request, stating that such a
remedy was beyond the scope of the collective bargaining
agreement.
Respondent then submitted its grievance to arbitration.
Arbitration hearings were held on April 13, 1995, September 12,
1995, and January 3, 1996. At these hearings, the parties
stipulated to the following: (1) all of the grade II attorneys
were equally qualified at the time Lipton was promoted; (2) the
public defender's office violated the collective bargaining
agreement when it promoted Lipton instead of the most senior
attorney at the time; and (3) the sole issue to be determined by
the arbitrator was the appropriate remedy for the grievance.
Both parties claim that they stated during the arbitration
hearings that they were not seeking the removal of Lipton from
her grade III position.
On June 23, 1996, the arbitrator entered an award in favor
of respondent, directing petitioner to remove Lipton from her
grade III position and to promote the attorney highest in
seniority other than Berman to the grade III position with
retroactive pay to August 24, 1992. On September 20, 1996,
petitioner filed a motion to vacate the arbitration award, and a
hearing was held before the trial court on December 10, 1996.
The circuit court confirmed the arbitration award and petitioner
has appealed.
On appeal, petitioner contends that the arbitrator exceeded
his authority by removing Lipton from her position and by
promoting another attorney to grade III status. Petitioner also
argues that the financial compensation awarded the newly promoted
attorney constituted punitive damages. The object of arbitration
is to achieve final disposition of differences in an easier, more
expeditious and less expensive manner than by litigation. Wilcox
Co. v. Bouramas, 73 Ill. App. 3d 1046, 1050, 392 N.E.2d 198, 201
(1979). Judicial review of arbitration awards under collective
bargaining agreements is extremely narrow. Amax Coal Co. v.
United Mine Workers of America, 92 F.3d 571, 575 (7th Cir. 1996).
Illinois law provides that judicial review of an arbitrator's
decision is more limited than appellate review of a trial court's
decision. Tim Huey Corp. v. Global Boiler & Mechanical, Inc.,
272 Ill. App. 3d 100, 108, 649 N.E.2d 1358, 1364 (1995).
The Illinois Arbitration Act allows vacation of an
arbitration award only if it was procured by corruption or fraud,
partiality or misconduct by the arbitrator, or where the
arbitrator exceeded the scope of his authority. 710 ILCS
5/12(a)(1) through (a)(3) (West 1992). There is a presumption
that the arbitrator did not exceed the scope of his authority.
Tim Huey, 272 Ill. App. 3d at 106, 649 N.E.2d at 1362.
Therefore, if the arbitrator acted in good faith, the award is
conclusive upon the parties. Tim Huey, 272 Ill. App. 3d at 106,
649 N.E.2d at 1362. In this case, petitioner does not allege
fraud, partiality, misconduct or failure to hear evidence on the
part of the arbitrator. So the only issue is whether the
arbitrator exceeded the scope of his authority in determining the
appropriate remedy for petitioner's violation of the agreement.
It is well settled that the scope of an arbitrator's
authority is determined by the arbitration agreement or by the
submission, which serves not only to define, but also to
circumscribe, the authority of the arbitrator. Wilcox, 73 Ill.
App. 3d at 1050, 392 N.E.2d at 201. If an arbitrator attempts to
decide a question clearly not submitted to him, then he exceeds
his authority and the award may be vacated. Wilcox, 73 Ill. App.
3d at 1050-51, 392 N.E.2d at 202. Where it is contemplated that
the arbitrator will determine remedies for contract violations,
courts have no authority to disagree with an arbitrator's honest
judgment. United Paperworkers International Union v. Misco,
Inc., 484 U.S. 29, 38, 98 L. Ed. 2d 286, 299, 108 S. Ct. 364, 371
(1987). As long as the arbitrator is even arguably construing or
applying the contract and acting within the scope of his
authority, the fact that a court is convinced he committed
serious error does not suffice to overturn the arbitrator's
decision. United Paperworkers, 484 U.S. 29 at 38, 98 L. Ed. 2d
at 299, 108 S. Ct. at 371.
In the case at bar, the collective bargaining agreement
defines the arbitrator's authority as follows:
"The Arbitrator, in his/her opinion, shall
not amend, nullify, ignore or add to the
provisions of this Agreement. The issue or
issues to be decided will be limited to those
presented to the Arbitrator in writing by the
County/Designee and the Union. His/Her
decision must be based solely upon his/her
interpretation of the meaning or application
of the express relevant language of the
Agreement."
Petitioner does not dispute that it violated the agreement when
it promoted Lipton to the grade III position instead of the most
senior attorney at the time. The only issue submitted to the
arbitrator in writing was the "appropriate remedy" for
petitioner's violation. Petitioner argues that the parties
limited the scope of the arbitrator's authority by stating during
the arbitration hearings that they were not seeking the removal
of Lipton from her grade III position. These statements,
however, were made with regard to the remedy that each party was
seeking, rather than for the purpose of limiting the arbitrator's
authority. Furthermore, the statements were never placed in
writing and submitted to the arbitrator under the terms of their
agreement. As in Board of Education of Community High School
District No. 155 v. Illinois Educational Labor Relations Board,
247 Ill. App. 3d 337, 346, 617 N.E.2d 268, 275 (1993), the broad
wording of the parties' submission to the arbitrator gives the
arbitrator "virtual carte blanche" to fashion a suitable remedy.
The court in that case explained: "[t]o limit the arbitrator to
a single remedy would be antithetical to the oft-acknowledged
need for flexibility in fashioning arbitration remedies for
violations of collective bargaining agreements." Board of
Education, 247 Ill. App. 3d at 346, 617 N.E.2d at 276. In United
Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 4 L. Ed. 2d 1424, 80 S. Ct. 1358 (1960), the United States
Supreme Court stated that "[w]hen an arbitrator is commissioned
to interpret and apply the collective bargaining agreement, he is
to bring his informed judgment to bear in order to reach a fair
solution of a problem. This is especially true when it comes to
formulating remedies. There the need is for flexibility in
meeting a wide variety of situations." United Steelworkers, 363 U.S. at 597, 4 L. Ed. 2d at 1428, 80 S. Ct. at 1361.
Here, the arbitrator found that as long as Lipton remained
in her grade III position, all the attorneys who were improperly
bypassed suffered an injury. Respondent asked that all of the
remaining grade II attorneys be promoted to grade III status.
The arbitrator, however, found this proposed remedy to be unduly
punitive and inappropriate because there was only one grade III
position at issue. Consequently, the arbitrator resolved the
matter by removing Lipton from her grade III position and
reinstating her to the same position she would have been in had
she not been improperly promoted before the other qualified
candidates. The arbitrator also directed petitioner to promote
the most senior attorney, other than Berman, to the grade III
position held by Lipton. Petitioner contends that the arbitrator
exceeded his authority in doing this because Berman, the most
senior attorney at the time of Lipton's promotion, was promoted
in November 1992. The arbitrator, however, noted in his opinion
that the promotion of Berman to a different grade III position in
November 1992 was a separate, unrelated action and irrelevant to
his determination of the appropriate remedy. Based on his
interpretation of the agreement and the facts before him, the
arbitrator reasoned that the person entitled to the grade III
position held by Lipton was the attorney who had the most
seniority on August 24, 1992, other than Berman. This remedy,
although not the only possible solution, was well within the
scope of the arbitrator's authority.
Petitioner also argues that the retroactive financial
compensation awarded the newly promoted grade III attorney
constituted punitive damages. We disagree. Punitive damages are
not awarded as compensation, but serve instead to punish the
offender and to deter that party and others from committing
similar acts of wrongdoing in the future. Loitz v. Remington
Arms Co., 138 Ill. 2d 404, 414, 563 N.E.2d 397, 401 (1990).
Punitive damages may only be awarded in arbitration if the
parties expressly agree that the arbitrator has the authority to
award such damages. Edward Electric Co. v. Automation, Inc., 229
Ill. App. 3d 89, 105, 593 N.E.2d 833, 844 (1992). In this case,
there is nothing in the record that suggests the award of
retroactive pay was punitive. The retroactive compensation award
was limited to the salary differential between a grade II and
grade III attorney. The award was designed to put the newly
promoted attorney in the position he would have been in if
petitioner had not violated the agreement, and not to punish
petitioner. Based on the record before us, we believe that the
arbitrator acted within the scope of his authority in resolving
the issue submitted to him by the parties and that the financial
compensation awarded was not punitive in nature.
Finally, in a footnote contained in its reply brief,
petitioner cites Chief Judge of the Sixteenth Judicial Circuit v.
Illinois State Labor Relations Board, 178 Ill. 2d 333 (1997),
states that "arguably" respondent may no longer represent the
aggrieved public defenders. Yet, petitioner neither presents
argument nor requests relief based on this recent supreme court
decision. We will not address issues that might have been raised
but that were not properly presented to this court. We,
however, note for the record that Chief Judge was decided
December 11, 1997, affirming an appellate court opinion issued
October 11, 1995. Chief Judge of the Sixteenth Judicial Circuit
v. Illinois State Labor Relations Board, 275 Ill. App. 3d 853,
656 N.E.2d 791 (1995). The grievance filed by respondent in the
case before us arose out of an incident on August 24, 1992, and
was governed by a collective bargaining agreement that expired
November 30, 1993. Under that agreement, Cook County public
defenders were vested with the right to a grievance process while
the collective bargaining agreement was in effect. At the time
there were no statutory provisions or judicial holdings that
public defenders were managerial employees prohibited from
entering into collective bargaining agreements with their
employers. Supreme and appellate court opinions may not be read
to apply retroactively when the reading impairs a vested right.
First of America Trust Co. v. Armstead, 171 Ill. 2d 282, 664 N.E.2d 36 (1996).
The judgment of the circuit court is affirmed.
Affirmed.
LEAVITT, P.J., and BURKE, J., concur.