Illinois Department of Central Management Services v. AFSCME

NO. 4-96-0008

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT


THE ILLINOIS DEPARTMENT OF CENTRAL ) Appeal from
MANAGEMENT SERVICES and THE ILLINOIS ) Circuit Court of
DEPARTMENT OF MENTAL HEALTH AND ) Morgan County
DEVELOPMENTAL DISABILITIES, ) No. 95MR107
Plaintiffs-Appellants, )
v. )
AMERICAN FEDERATION OF STATE, COUNTY ) Honorable
AND MUNICIPAL EMPLOYEES (AFSCME), ) J. David Bone,
Defendant-Appellee. ) Judge Presiding.
_________________________________________________________________

PRESIDING JUSTICE COOK delivered the opinion of the
court:
Plaintiffs Illinois Department of Central Management
Services (CMS) and Illinois Department of Mental Health and
Developmental Disabilities (Department) appeal the circuit
court's dismissal on timeliness grounds of their application to
vacate an arbitration award. We affirm.
The American Federation of State, County and Municipal
Employees (union) filed a grievance on behalf of Bill McGownd for
his June 6, 1994, discharge by the Department from his position
as a mental health technician II. The Department discharged him
for one incident of "using abusive, threatening or profane lan-
guage towards recipients or staff," and another incident in which
he allegedly physically and verbally abused a blind patient at
the residential treatment facility for mentally retarded citizens
where he worked. The arbitrator sustained the grievance because of the Department's failure to abide by the "prompt discipline"
provisions of the collective-bargaining agreement. It found no
justification for delays of five months and eight months in the
Department's investigations of the respective charges, and
accordingly ordered McGownd reinstated and made whole for his
losses. The award issued on April 3, 1995, and the Department
received it on April 6.
Plaintiffs filed an application to vacate the award on
July 6, 91 days later, alleging the award was against public
policy and the arbitrator exceeded his authority. That applica-
tion stated it was "brought pursuant to  12 and 13 of the
Uniform Arbitration Act [(Act)] (710 ILCS 5/12 and 5/13 (West
19[94]))." The union moved to dismiss the application as untime-
ly under the 90-day time limit imposed by section 12(b) of the
Act. 710 ILCS 5/12(b) (West 1994). Plaintiffs then asserted
that the Act did not apply, at least that the time limits of the
Act did not apply. The motion was granted, and plaintiffs filed
this appeal.
The sole issue before us is the propriety of the
dismissal of plaintiffs' petition to vacate. The parties agree
the petition was filed 91 days after the Department received the
award. Accordingly, the only dispute concerns interpretation and
application of the relevant statutes. This is a question of law,
on which we need not defer to the conclusions reached by the
circuit court. See Fitzpatrick v. Human Rights Comm'n, 267 Ill.
App. 3d 386, 392, 642 N.E.2d 486, 491 (1994).
There are several relevant provisions. Since this case
concerns an award entered under a collective-bargaining agreement
with noneducational public employees, it is governed by the
Illinois Public Labor Relations Act (Labor Relations Act) (5 ILCS
315/1 et seq. (West 1994)). Section 8 of the Labor Relations Act
provides "[t]he grievance and arbitration provisions of any
collective[-]bargaining agreement shall be subject to the [Act]."
5 ILCS 315/8 (West 1994). Section 12(b) of the Act provides
"[a]n application under this Section shall be made within 90 days
after delivery of a copy of the award to the applicant," unless
the award was procured by "undue means" (710 ILCS 5/12(b) (West
1994)), which is not alleged in this case. Section 12(e) of the
Act then provides:
"Nothing in this Section or any other
Section of this Act shall apply to the vacat-
ing, modifying, or correcting of any award
entered as a result of an arbitration agree-
ment which is a part of or pursuant to a
collective[-]bargaining agreement [(the first
clause)]; and the grounds for vacating, modi-
fying, or correcting such an award shall be
those which existed prior to the enactment of
this Act [(the second clause)]." 710 ILCS
5/12(e) (West 1994).
Finally, section 13-205 of the Code of Civil Procedure (Code)
provides there is a five-year limitations period on "actions ***
on awards of arbitration." 735 ILCS 5/13-205 (West 1994).
In Board of Education of Meridian Community Unit School
District 101 v. Meridian Education Ass'n, 112 Ill. App. 3d 558,
445 N.E.2d 864 (1983), the fifth district considered the inter-
play of sections 12(b) and (e) of the Act. It held that in
actions to modify, vacate or correct awards under collective-
bargaining agreements the first clause of section 12(e) of the
Act overrode the jurisdictional time limits of section 12(b) of
the Act. Meridian, 112 Ill. App. 3d at 562, 445 N.E.2d at 867.
Significantly, it based this result solely on the presumption
that the wording of a statute is not surplusage. Meridian, 112
Ill. App. 3d at 562, 445 N.E.2d at 867.
Meridian did not, of course, consider section 8 of the
Labor Relations Act, which specifically provided the Act would
apply, because Meridian was decided in 1983 and the Labor Rela-
tions Act did not become law until 1984. See Pub. Act 83-1012,
eff. July 1, 1984 (1983 Ill. Laws 6830, 6859). The Labor Rela-
tions Act, together with the Illinois Educational Labor Relations
Act (Educational Act) (115 ILCS 5/1 et seq. (West 1994)), consti-
tute an "attempt to provide 'a comprehensive regulatory scheme
for public sector [collective] bargaining in Illinois.'" Board
of Education of Community School District No. 1, Coles County v.
Compton, 123 Ill. 2d 216, 221, 526 N.E.2d 149, 152 (1988),
quoting Chicago Board of Education v. Chicago Teachers Union, 142
Ill. App. 3d 527, 530, 491 N.E.2d 1259, 1261 (1986). Compton
observed section 8 of the Labor Relations Act "explicitly pro-
vides for enforcement of arbitration awards in accordance with
the [Act]." Compton, 123 Ill. 2d at 221-22, 526 N.E.2d at 152.
In 1993, however, the second district followed Meridian
and held section 12(e) of the Act eliminated the time limits of
section 12(b) of the Act in actions to vacate Labor Relations Act
awards, section 8 of the Labor Relations Act notwithstanding.
Hyatte v. Quinn, 239 Ill. App. 3d 893, 897-98, 607 N.E.2d 321,
323-24 (1993). The Hyatte court merely cited Meridian, however,
and did not discuss how section 12(e) of the Act and section 8 of
the Labor Relations Act were to be reconciled. Hyatte, 239 Ill.
App. 3d at 897-98, 607 N.E.2d at 323-24.
In Chicago Transit Authority v. Amalgamated Transit
Union Local 308, 244 Ill. App. 3d 854, 860, 614 N.E.2d 120, 124
(1993), the first district held that greater deference is given
arbitration awards under common law standards than is given under
the standards of the Act. (We question whether that is true. As
Transit Authority concedes, review under the Act is itself very
deferential. Transit Authority, 244 Ill. App. 3d at 867, 614 N.E.2d at 128.) Transit Authority went on to conclude that the
reason for section 12(e) was to provide for "greater deference to
arbitrators, and a lesser role for the courts, in judicial review
of arbitration awards under collective[-]bargaining agreements."
Transit Authority, 244 Ill. App. 3d at 860, 614 N.E.2d at 124.
The first district then considered whether the 1983 enactment of
the Illinois Public Labor Relations Act (see Ill. Rev. Stat.,
1984 Supp., ch. 48, par. 1601 et seq.), including section 8,
which provided that "[t]he grievance and arbitration provisions
of any collective[-]bargaining agreement shall be subject to" the
Act (Ill. Rev. Stat. 1989, ch. 48, par. 1608), affected judicial
review. The first district stated that if section 8 did not
subject public employee grievance arbitration "to the greater
judicial scrutiny available under the [Act], it apparently has no
effect." Transit Authority, 244 Ill. App. 3d at 860, 614 N.E.2d
at 124.
To avoid this perceived diminishment in the deference
given arbitration pursuant to collective-bargaining agreements,
the first district concluded that the purpose of section 8 was to
clarify the procedural distinction between the Illinois Public
Labor Relations Act and the Illinois Educational Labor Relations
Act (Ill. Rev. Stat. 1989, ch. 48, par. 1701 et seq.). Both
those acts were enacted at the same time. They differ in that
the Illinois Educational Labor Relations Act divests courts of
jurisdiction to review arbitration awards and grants the Illinois
Educational Labor Relations Board exclusive jurisdiction over
such awards. Transit Authority, 244 Ill. App. 3d at 860-61, 614 N.E.2d at 124. We disagree with Transit Authority on two counts.
First of all, while we are uncertain why nonuniform section 12(e)
was enacted in the first place, we do not see that heightened
judicial review will result from applying the Act to collective-
bargaining agreement arbitrations. Second, we are unwilling to
ignore the clear language of section 8 that grievance and arbi-
tration provisions of collective-bargaining agreements "shall be
subject to" the Act. 5 ILCS 315/8 (West 1994).
Public Act 83-1012 enacted the Labor Relations Act (see
5 ILCS 315/1 et seq. (West 1994); Pub. Act 83-1012, eff. July 1,
1984 (1983 Ill. Laws 6830)) and Public Act 83-1014 enacted the
Educational Act (see 115 ILCS 5/1 et seq. (West 1994); Pub. Act
83-1014, eff. January 1, 1984 (1983 Ill. Laws 6870)). Public Act
83-1012 grew out of Senate Bill 536. Pub. Act 83-1012, eff. July
1, 1984 (1983 Ill. Laws 6830). Senate Bill No. 536 went through
several revisions before becoming law. As sent to the Governor
by the General Assembly for his approval on June 30, 1983, the
bill contained the language of section 8 at issue here. 83d Ill.
Gen. Assem., Senate Bill 536, 1983 Sess., at 15. As the bill
existed at that time, it applied to all public employees, includ-
ing educational employees. 83d Ill. Gen. Assem., Senate Bill
536, 1983 Sess., at 4. Educational employees were only removed
from its ambit by the Governor's amendatory veto. Governor's
Amendatory Veto, Senate Bill 536 (September 23, 1983). Thus the
language in section 8 of the Labor Relations Act could not be
intended to differentiate between educational and noneducational
public employees, because it was present in the bill when the
bill applied to both.
We also presume that the wording of a statute is not
mere surplusage. Meridian, 112 Ill. App. 3d at 562, 445 N.E.2d
at 867; People v. Frieberg, 147 Ill. 2d 326, 349, 589 N.E.2d 508,
519 (1992). Given our rejection of the first district's holding
that the language is intended to clarify a distinction that did
not exist when it was drafted, we see no reasonable interpreta-
tion except that section 8 is intended to overrule the first
clause of section 12(e) of the Act and apply the Act's procedures
in a limited situation: in the context of arbitrations under
collective-bargaining agreements involving noneducational public
employees. The legislature did not simply repeal section 12(e)
because the section still has effect in cases other than public
labor relations cases. The rules that the specific controls the
general (see Hernon v. E.W. Corrigan Construction Co., 149 Ill. 2d 190, 195-96, 595 N.E.2d 561, 563 (1992)) and that the more
recently enacted of two conflicting statutes will prevail (County
of Macon v. Edgcomb, 274 Ill. App. 3d 432, 437, 654 N.E.2d 598,
602 (1995); Jahn v. Troy Fire Protection District, 163 Ill. 2d 275, 282, 644 N.E.2d 1159, 1162 (1994)) both support this result.
Courts must evaluate a statute as a whole, construing
each provision in connection with all others. Bonaguro v. County
Officers Electoral Board, 158 Ill. 2d 391, 397, 634 N.E.2d 712,
714 (1994). Section 11 of the Act instructs courts to confirm an
award upon application of a party "unless within the time limits
hereinafter imposed grounds are urged for vacating or modifying
or correcting the award," in which case the court is to proceed
under sections 12 or 13 of the Act. 710 ILCS 5/11 (West 1994).
If we adopted plaintiffs' construction of section 12(e) of the
Act the phrase "time limits hereinafter imposed" in section 11 of
the Act would either continue to refer to the 90-day limits in
sections 12 and 13 or would suddenly refer to the five-year dead-
line in the Code. Neither alternative is acceptable.
If section 12(e) of the Act eliminates the deadlines
for filing motions to vacate or modify or correct but has no
effect on actions to confirm, the anomalous result is that while
a party has five years to move to vacate modify or correct, the
opposing party can request the court to confirm the award if the
action is not filed within 90 days (the "time limits hereinafter
imposed")--and the court would be required to do so. See 710
ILCS 5/11 (West 1994) (the court "shall" confirm unless grounds
to vacate or modify or correct are urged in timely fashion);
Fumarolo v. Chicago Board of Education, 142 Ill. 2d 54, 96, 566 N.E.2d 1283, 1301 (1990) (unless context indicates otherwise,
"shall" is mandatory). The court would thereafter have to enter
judgment on the order. 710 ILCS 5/14 (West 1994). We must
assume that the legislature did not intend such an absurdity.
People ex rel. Bonefeste v. B.D.H. Rentals, 277 Ill. App. 3d 614,
623, 660 N.E.2d 1012, 1018 (1996), citing State Farm Fire &
Casualty Co. v. Yapejian, 152 Ill. 2d 533, 541, 605 N.E.2d 539,
542 (1992).
The other alternative, that the parties would have to
wait five years before being able to confirm an award, is even
less palatable. Section 2 of the Labor Relations Act explicitly
states that "[i]t is the public policy of the State of Illinois
that where the right of employees to strike is prohibited by law
[as in this case (see 5 ILCS 315/8 (West 1994))], it is necessary
to afford an alternate, expeditious, equitable and effective
procedure for the resolution of labor disputes subject to approv-
al procedures mandated by this Act." (Emphasis added.) 5 ILCS
315/2 (West 1994). A five-year statute of limitations on en-
forcement would be, to put it mildly, less than "expeditious."
Also, the collective-bargaining agreements themselves last less
than five years, and are based in part on the results in past
arbitrations. Section 13-205 of the Code, as it applies to
actions on awards of arbitration, is more a statute of limita-
tions on enforcement than it is on commencement of an action. To
be enforced, arbitration awards must be reduced to judgment in a
court of law. The five-year limit of section 13-205 is a limita-
tion on court actions, and has nothing to do with commencement of
the arbitration proceeding or the securing of the arbitration
award. There is no cause of action on an arbitration award until
the award is entered.
Plaintiffs complain it would be unfair to require them
to file petitions to vacate within 90 days when the parties in
private labor arbitration have five years to do so. First, the
legislature may treat different situations differently. Second,
this limitations period cuts both ways, affecting both employers
and employees. Finally, while 90 days is much shorter than five
years, plaintiffs advance no justification for comparing their
situation with parties in private labor arbitration. More
compelling to us are comparisons of the time limits in this case
and cases involving security employees, peace officers or fire
fighters (90 days) (5 ILCS 315/14(k) (West 1994)), or educational
employees (six months) (115 ILCS 5/15 (West 1994)).
Nor does our result here conflict with the decisions of
this and other districts finding the second clause of section
12(e) of the Act (dealing with grounds for vacating, modifying,
or correcting an award) applicable in this type of case. See,
e.g., Department of Central Management Services v. American
Federation of State, County & Municipal Employees, 197 Ill. App.
3d 503, 507, 554 N.E.2d 759, 762 (1990); Transit Authority, 244
Ill. App. 3d at 861, 614 N.E.2d at 125. The first clause of
section 12(e) of the Act, which says that the Act does not apply,
must be superseded by section 8 of the Labor Relations Act, which
says that the Act does apply. The second clause of section
12(e), which says that even where the Act applies, the grounds
for vacating, modifying, or correcting shall be those which
existed at common law, is not inconsistent with the section 8
requirement that the Act apply. The decisions keeping the second
clause of section 12(e) of the Act in force promote the same
policy considerations as our decision here: expeditious final
resolution of disputes. Also, the Act's severability clause (710
ILCS 5/21 (West 1994)) allows application of the first clause of
section 12(e) of the Act in this context despite the earlier
decisions invalidating application of the second clause.
For the reasons above stated, we affirm the judgment of
the circuit court of Morgan County dismissing the application to
vacate the arbitration award as untimely.
Affirmed.
McCULLOUGH and GARMAN, JJ., concur.