ILLINOIS OFFICIAL REPORTS
Appellate Court
City of Naperville v. Illinois Fraternal Order of Police, Labor Council, F.O.P. Lodge
No. 42, 2013 IL App (2d) 121071
Appellate Court THE CITY OF NAPERVILLE, Plaintiff-Appellant, v. THE ILLINOIS
Caption FRATERNAL ORDER OF POLICE, LABOR COUNCIL, F.O.P.
LODGE NO. 42, Defendant-Appellee.
District & No. Second District
Docket No. 2-12-1071
Filed September 24, 2013
Held In plaintiff city’s appeal from an arbitrator’s finding that the collective
(Note: This syllabus bargaining agreement between the city and the union representing the
constitutes no part of city’s police officers governed a dispute arising from the city’s refusal to
the opinion of the court hire an officer to drive a snowplow while he was off duty and required
but has been prepared arbitration of the issue, the appellate court held that the collective
by the Reporter of bargaining agreement did not govern the dispute, since no express
Decisions for the provision of the agreement referred to the city’s right to establish rules for
convenience of the other work an officer could do for the city while off duty; therefore, the
reader.)
issue was not subject to arbitration.
Decision Under Appeal from the Circuit Court of Du Page County, No. 12-MR-226; the
Review Hon. Bonnie M. Wheaton, Judge, presiding.
Judgment Reversed.
Counsel on Margo L. Ely, City Attorney, and Mark Antonio Scarlato, Assistant City
Appeal Attorney, both of Naperville, for appellant.
Jeffery Burke, of Illinois Fraternal Order of Police, Labor Council, of
Western Springs, for appellee.
Panel JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
Justices Hudson and Birkett concurred in the judgment and opinion.
OPINION
¶1 The instant controversy arises from a dispute between the City of Naperville (the City)
and the Illinois Fraternal Order of Police, Labor Council, F.O.P. Lodge No. 42 (the Lodge),
as to whether the parties’ collective bargaining agreement (CBA) governed a situation where
the City refused to hire a member of the Lodge to operate a snowplow while he was off duty.
An arbitrator found that the CBA governed the parties’ dispute, and the circuit court of
Du Page County affirmed that decision. The City appeals from that order. We reverse.
¶2 BACKGROUND
¶3 The City is a municipal corporation and home rule unit of government that employs
approximately 131 police officers. The Lodge is the sole and exclusive collective bargaining
representative for the Naperville police officers. The City and the Lodge entered into a CBA.
The provisions of the CBA pertinent to this appeal are:
“Section 4.1
Except as specifically limited by the express provisions of this Agreement, the City
retains all traditional rights to manage and direct affairs of the Police Department in all
of its various aspects and to manage and direct its employees, including but not limited
to the following: To plan, direct, control and determine the budget and all the operations,
services and missions of the Police Department; *** to make, alter and enforce
reasonable rules, regulations, orders, policies and procedures ***.
***
Article 9
Grievance Procedure
Section 9.1 Definitions
***
A ‘City/External Grievance’ is defined as a grievance which pertains to a matter
involving policies established by the City involving an alleged violation of an express
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provision of this Agreement including, but not limited to issues such as use of sick leave
or availability of medical benefits.
***
Section 9.3 Arbitration
If the grievance is not settled *** and the Lodge wishes to appeal the grievance ***,
the Lodge may refer the grievance to arbitration.
***
Section 9.4 Limitations on Authority of Arbitrator
The arbitrator shall have no right to amend, modify, nullify, ignore, add to, or
subtract from the provisions of this Agreement.
***
Section 29.3 Entire Agreement
This agreement constitutes the complete and entire Agreement between the parties
for its term. *** The parties acknowledge that, during the negotiations which resulted in
this Agreement, each has the unlimited right and opportunity to make demands and
proposals with respect to any subject or matter not removed by law or ordinance from the
area of collective bargaining, and that the understandings and agreements arrived at by
the parties after the exercise of that right and opportunity are set forth in this Agreement.”
¶4 It is also relevant to this appeal that the City’s department of public works (DPW) is
responsible for snow removal from City streets and cul-de-sacs. Each snow season, the DPW
hires employees from other City departments to drive snowplows and remove snow from cul-
de-sacs. It is a voluntary program available to employees during their off-duty hours. The
program is controlled and managed solely by the DPW. The police department does not have
a role in hiring, firing, or managing snowplow drivers.
¶5 During the winter of 2009, City police officer William Kovarik applied with the DPW
to participate in the voluntary snow removal program. After he was not hired, he filed a
grievance under the CBA, claiming that he had a contractual right to snowplow work and that
he was wrongly denied the opportunity to snowplow. The City responded to the grievance
by asserting that the grievance was invalid because it did not implicate an “express
provision” of the CBA, and, therefore, the matter was not arbitrable.
¶6 After the Lodge continued to pursue Kovaril’s grievance pursuant to the CBA, the matter
was ultimately assigned to an arbitrator. Because the City continued to protest that the
dispute was not subject to arbitration, the arbitrator agreed to bifurcate the proceedings and
rule on the arbitrability of the matter prior to an arbitration on the merits.
¶7 On July 12, 2010, following a hearing, the arbitrator found that the City interpreted the
phrase “express provision” too narrowly. Instead, the arbitrator explained, the CBA required
only that some express provision “be shown to cover or deal with [the] dispute in the sense
that one can plausibly maintain that the contract has or has not been violated.” The arbitrator
found that section 4.1 of the CBA, which provided that the City had the power to make
reasonable rules and regulations, was an express provision that subjected the parties’ dispute
to arbitration.
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¶8 On August 31, 2010, the City filed a complaint for declaratory judgment in the circuit
court. The City sought a declaration that the grievance was not arbitrable under the terms of
the CBA. On January 24, 2011, the circuit court dismissed the City’s action without
prejudice.
¶9 On December 9, 2011, following a hearing, the arbitrator ruled in the Lodge’s favor as
to the merits of Kovaril’s grievance. On February 9, 2012, the City again filed a complaint
for declaratory judgment in the circuit court, seeking a declaration that the grievance was not
arbitrable. On September 9, 2012, the circuit court dismissed the City’s complaint with
prejudice, holding that the grievance was substantively arbitrable pursuant to section 4.1 of
the CBA and that the arbitrator had correctly ruled on the merits. The City thereafter filed a
timely notice of appeal.
¶ 10 ANALYSIS
¶ 11 On appeal, the City argues, as it did throughout the proceedings below, that the
underlying dispute between it and the Lodge is not subject to arbitration.
¶ 12 At the outset, we address the Lodge’s argument that the City’s appeal is untimely because
the City failed to appeal the arbitrator’s initial July 12, 2010, ruling on arbitrability. The
Lodge contends that, pursuant to section 12(b) of the Uniform Arbitration Act (the Act) (710
ILCS 5/12(b) (West 2010)), the City was obligated to appeal the arbitrator’s initial ruling
within 90 days. Because it did not, the Lodge insists that the City’s action is barred by res
judicata and collateral estoppel.
¶ 13 Section 12 of the Act provides that a party may seek to have a court vacate an arbitrator’s
award. 710 ILCS 5/12(a) (West 2010). To do so, the party must file its application within 90
days after delivery of a copy of the award to the party. 710 ILCS 5/12(b) (West 2010). Here,
the arbitrator did not enter an award on July 12, 2010. Rather, it simply found that the
parties’ dispute was subject to arbitration. Thus, pursuant to section 12(b), there was not a
basis for the City to appeal the arbitrator’s initial decision. Further, although the City did
appeal to the circuit court the arbitrator’s initial decision, on January 24, 2011, the trial court
dismissed the City’s action without prejudice. Dismissals that are entered without prejudice
are not final and appealable orders. DeLuna v. Treister, 185 Ill. 2d 565, 569-70 (1999). As
such, neither res judicata nor collateral estoppel barred the City from raising again its
contention that the parties’ dispute was not subject to arbitration. Arnold Schaffner, Inc. v.
Goodman, 73 Ill. App. 3d 729, 732 (1979) (res judicata and collateral estoppel apply only
where there is a final judgment). The City’s appeal before us was timely filed.
¶ 14 Turning to the merits of the City’s appeal, we note that the issue of whether a contract
to arbitrate exists must be determined by the court, not an arbitrator. “[I]f the opposing party
denies the existence of the agreement to arbitrate, the court shall proceed summarily to the
determination of the issue so raised ***.” 710 ILCS 5/2(a) (West 2010). Although arbitration
is a favored method of dispute resolution, the parties to an agreement are bound to arbitrate
only those issues they have agreed to arbitrate, as shown by the clear language of the
agreement and their intentions expressed in that language. Menard County Housing Authority
v. Johnco Construction, Inc., 341 Ill. App. 3d 460, 463 (2003).
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¶ 15 Where there is an arbitration agreement, but it is unclear whether the subject matter of
the dispute falls within the scope of the arbitration agreement, the question of substantive
arbitrability should initially be decided by the arbitrator. Donaldson, Lufkin & Jenrette
Futures, Inc. v. Barr, 124 Ill. 2d 435, 447-48 (1988). This is consistent with the purpose of
arbitration, employing the arbitrator’s skilled judgment to resolve the ambiguity. Id. at 448.
Where an arbitrator decides the question of arbitrability in the first instance, the circuit court
must still review the arbitrator’s decision de novo. Menard County Housing Authority, 341
Ill. App. 3d at 463. Were this not so, a “party would be bound by the arbitration of disputes
he has not agreed to arbitrate and would be left with only a court’s deferential review of the
arbitrator’s decision on the question of arbitrability.” Salsitz v. Kreiss, 198 Ill. 2d 1, 14
(2001). This court reviews de novo the circuit court’s construction of an arbitration clause.
Tortoriello v. Gerald Nissan of North Aurora, Inc., 379 Ill. App. 3d 214, 227 (2008).
¶ 16 In Croom v. City of De Kalb, 71 Ill. App. 3d 370 (1979), this court addressed a similar
issue as to whether the parties’ CBA bound them to arbitrate a certain dispute. In Croom,
firefighters filed an action to force the city to arbitrate the issue of additional pay for
firefighters who were assigned the duties of acting command officers. The firefighters sought
“acting up” pay for the additional duties they were required to perform. The city refused to
arbitrate the matter, claiming that there was no express provision in the CBA that required
it to do so. The firefighters argued that the dispute was subject to arbitration due to the
contract’s wage provisions. The circuit court found that there was no express provision in
the CBA that required the parties to arbitrate. Id. at 373.
¶ 17 On appeal, this court affirmed. Id. at 376. We explained that, because the CBA provided
that only grievances implicating an express provision of the agreement could be arbitrated,
that necessarily meant that not all grievances were subject to arbitration. Id. at 375. We held
that the parties had not agreed to arbitrate the issue of whether certain firefighters were
entitled to “acting up” wages, because there was no express provision indicating that the
parties would arbitrate that issue. Id. at 375-76. In so ruling, we rejected the firefighters’
argument that the CBA’s reference to wages meant that any dispute over wages was
arbitrable. We further explained that our determination was supported by the CBA’s
provision that the firefighters had the unlimited right and opportunity to make demands and
proposals with respect to any subject matter. Id. Thus, because the CBA was silent as to the
issue of additional pay for the performance of the duties of acting command officers, it meant
that there was not an agreement to arbitrate that issue. Id.
¶ 18 Here, the parties’ CBA indicated that only a grievance that involved an express provision
would be subject to arbitration. This necessarily means that not every grievance a police
officer had with the City would be subject to arbitration. Id. Further, “express” means
“clearly and unmistakably communicated; directly stated.” (Internal quotation marks
omitted.) Quintas v. Asset Management Group, Inc., 395 Ill. App. 3d 324, 333 (2009). There
is no provision in the CBA that directly states that a police officer may seek to arbitrate the
City’s failure to hire him to drive a snowplow while he was off duty. As the CBA indicates
that the parties had the right to seek the inclusion of such an issue in the agreement, but none
is included, there is an inference that the parties did not agree to arbitrate that issue. See
Croom, 71 Ill. App. 3d at 375-76. Accordingly, we hold that, pursuant to the plain language
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of the CBA, the City was not obligated to arbitrate the underlying dispute with the Lodge.
The circuit court therefore erred in finding to the contrary.
¶ 19 In so ruling, we reject the Lodge’s argument that section 4.1 of the CBA constituted an
express provision that required the parties to arbitrate the underlying dispute. Section 4.1
refers to the City’s ability to make reasonable rules, regulations, and orders in determining
the services and missions of the police department. That section does not specifically refer
to the City’s ability to establish rules for other work that police officers do for the City while
they are off duty. To interpret section 4.1 as broadly as the Lodge asks that we do would
essentially render meaningless section 9.3’s requirement that only a grievance involving an
express provision of the CBA be subject to arbitration. That, of course, we decline to do. See
Thompson v. Gordon, 241 Ill. 2d 428, 442 (2011) (courts will not interpret a contract
provision in a manner that would render provisions null or meaningless, or in a way that is
contrary to the plain and obvious meaning of the language used).
¶ 20 CONCLUSION
¶ 21 For the foregoing reasons, the judgment of the circuit court of Du Page County is
reversed.
¶ 22 Reversed.
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