THIRD DIVISION
March 24, 2010
No. 1-09-1218
THE CITY OF CHICAGO, ) Appeal from the Circuit Court
) of Cook County, Illinois.
Plaintiff-Appellant, )
)
v. ) No. 08 CH 35885
)
FRATERNAL ORDER OF POLICE, LODGE )
No. 7, ) Honorable Peter Flynn,
) Judge Presiding.
Defendant-Appellee. )
PRESIDING JUSTICE MURPHY delivered the opinion of the court:
Defendant, Fraternal Order of Police, Lodge No. 7, filed a series of grievances against
plaintiff, City of Chicago, regarding the involuntary transfer and detail of several detectives at the
Juvenile Intervention Support Center (JISC) in March 2006. The arbitrator concluded that
plaintiff breached provisions of the collective bargaining agreement (Agreement) between the
parties in force from July 1, 2003, to June 30, 2007 - all times relevant to the instant matter. The
arbitrator also remanded the matter on one issue for the parties to reach an agreement on the
remedy.
The parties failed to reach an agreement and the arbitrator issued a supplemental opinion
No. 1-09-1218
and award. Plaintiff filed a petition to vacate the arbitrator’s supplemental award and the parties
filed cross-motions for summary judgment. On April 14, 2009, the trial court granted
defendant’s motion for summary judgment. On appeal, the parties do not dispute the findings of
fact reached by the arbitrator. Plaintiff seeks a finding that the arbitrator’s supplemental award is
a punitive remedy not authorized by the Agreement and must be vacated. For the following
reasons, we affirm the finding of the trial court and uphold the arbitrator’s supplemental award.
I. BACKGROUND
In March 2006, the JISC was established as an operating entity to employ a
multidisciplinary approach to processing juvenile arrestees. Bids for six detective positions were
posted in early 2006 and only one application was received. Therefore, on March 2, 2006, the
resulting vacancies were filled by involuntary transfers of detectives pursuant to section 23.8 of
the Agreement. Months later, plaintiff again posted detective positions for bids and again had to
detail several detectives to the positions on June 22, 2006, to last until September 12, 2006. As
these terms neared their end, plaintiff again posted bids and received only one application. On
September 14, 2006, plaintiff involuntarily transferred detectives, who had been detailed on June
22, 2006, pursuant to section 23.8 of the Agreement. On January 4, 2007, plaintiff involuntarily
detailed three more detectives to the JISC pursuant to section 23.11 of the Agreement.
The sections of the Agreement central to this case are as follows, in relevant part:
“Section 23.8 - Filling Recognized Vacancies
***
The Employer shall post a list of recognized vacancies, if any, stating the
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No. 1-09-1218
requirements needed to fill the opening, at least 14 days before the start of the 28-
day police period. A copy of such postings shall be given to the Lodge. Non-
probationary officers within the same D-1 salary grade or D-2 job classification,
within 72 hours of the time the list has been posted, may bid on a recognized
vacancy in writing on a form to be supplied by the Employer. * * * During the
bidding and selection process, the Employer may temporarily fill a recognized
vacancy by assigning an officer to said vacancy until the recognized vacancy is
filled.
***
When there are no qualified bidders, the Employer may fill the recognized
vacancy within its discretion.
Section 23.9 - Filling Duty Assignments
***
If the Employer violates this Section by improperly filling a
recognized opening by not placing the opening up for bid, the affected
officer(s) will be compensated at the rate of time and one-half in quarter
hour increments until the violation is remedied. The Employer is granted the
ability to remedy the violation without waiting until the next police period.
If the Employer violates this section by improperly selecting a bidder
or improperly determining qualifications for a recognized opening, the
affected officer(s) will be compensated at the rate of time and one-half in
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No. 1-09-1218
quarter hour increments up to a maximum of fifty (50) hours of
compensatory time.
***
Section 23.11 - Details
***
If the Employer assigns an officer to a detail or denies an officer(s)
assignment to a detail in any manner contrary to the provisions of this Agreement,
the affected officer(s) will be entitled to compensation at the rate of time and one-
half in quarter hour increments for the duration of the detail. ” (Emphasis in
original.)
Defendant grieved plaintiff’s involuntary transferring and detailing of its members to the
JISC. Following a hearing, the arbitrator made several determinations and issued an extensive
65-page opinion and award on June 3, 2008. The first group of grievances relating to the March
2, 2006, transfers was denied in full. The second and fourth group of grievances relating to the
June 22, 2006, and January 4, 2007, involuntary details were admitted by plaintiff to be
meritorious. Accordingly, the arbitrator awarded the payment of time and one-half for the time
worked under these details pursuant to the express terms of sections 23.9 and 23.11 of the
Agreement. There is no dispute as to this determination and award for these grievances.
The final grievances relating to the September 14, 2006, involuntary transfers were
sustained by the arbitrator as violating section 23.8 of the Agreement. The arbitrator determined
that plaintiff abused its discretion in these transfers because it based the transfers on the
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No. 1-09-1218
detectives’ experience gained under their procedurally improper detail. In his extensive
discussion and findings on this issue, the arbitrator first noted that he was constrained by the
specific authority granted under section 9.7 of the Agreement and that he was required to find
exclusive support for his decision from the terms and conditions of the Agreement. The
arbitrator summarized the typical role and duties of an arbitrator and what level of remedial
authority is vested in the arbitrator.
The arbitrator continued, detailing the differences between section 23.8 of the Agreement,
which provides no specific language regarding a monetary remedy of penalty compensation, and
sections 23.9 and 23.11, which provide the monetary remedy of time and one-half compensation
for improper detail or improper filling unit duty assignments, respectively. Ultimately, the
arbitrator stated that he stood “at the cusp on the remedy issue” and remanded the matter to the
parties on the remedy issue for these violations. The arbitrator retained jurisdiction for 60 days
in the event the parties continued at a stalemate so he could issue a supplemental award and
“untie this ‘Gordian knot.’ ”
After the parties requested a supplemental opinion and award, the arbitrator complied on
July 1, 2008, granting the same monetary remedy of time and one-half pay for the violation of
section 23.8. He noted the “time-honored rule” of contract interpretation that the mention of one
thing is the exclusion of another, but found that applying it to section 23.8 would find the
remedial power of the arbitrator intentionally limited by indirect negotiated language. The
arbitrator concluded that it is not the legitimate province of the arbitrator to add language and the
monetary penalty was proper. In addition, the arbitrator found that the request of some of the
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No. 1-09-1218
grievants for special protections from being involuntarily transferred again would be an
impermissible modification of the Agreement and was denied.
Plaintiff filed a petition to vacate the supplemental award in the circuit court. A hearing
was held on the parties’ cross-motions for summary judgment. The court agreed with the
arbitrator that the Agreement did not provide clear guidance from the language of sections 23.8,
23.9 and 23.11, whether the parties intended for no remedy to attach to section 23.8. The court
noted that the silence in section 23.8 presented a difficult case for the arbitrator and “the
wonderful thing about silence is that you can construe silence either way depending on the
situation.” The court then reviewed the arbitrator’s opinion and award and quoted several
passages that it opined evidenced the arbitrator’s logic in concluding a monetary remedy was
proper for a violation of section 23.8.
Specifically, the trial court concluded that the arbitrator was not trying to legislate, but
simply tried to faithfully interpret the Agreement. It found that the arbitrator properly relied on
its finding that the Agreement lacked any specific provision that the parties intended no remedy
to attach to section 23.8. With the lack of an explicit bar of a remedy and the negotiated
provisions for remedies for similar violations, the arbitrator concluded that the same remedy was
implicitly available for section 23.8 violations. Accordingly, the trial court opined the
arbitrator’s supplemental opinion and award was not patently outside the lines of the Agreement
and defendant’s motion for summary judgment was granted. This appeal followed.
II. ANALYSIS
A. Standard of Review
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No. 1-09-1218
Summary judgment may be granted when the pleadings, depositions, admissions and
affidavits on file demonstrate no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2004). The trial court is to
view all evidence in a light most favorable to the nonmovant. Norris v. National Union Fire
Insurance Co., 326 Ill. App. 3d 314, 320 (2001). We review an order granting summary
judgment de novo. Big Sky Excavating, Inc. v. Illinois Bell Telephone Co., 217 Ill. 2d 221, 234
(2005).
As the issue before the trial court was the arbitrator’s interpretation of the Agreement, we
review the underlying arbitration award pursuant to section 12 of the Illinois Uniform Arbitration
Act. 710 ILCS 5/12 (West 2006). Because the legislature was clear in intending to provide
finality for disputes sent to arbitration, our review is extremely limited and we may vacate an
award only under certain circumstances. American Federation of State, County & Municipal
Employees v. Department of Central Management Services, 173 Ill. 2d 299, 304 (1996)
(AFSCME); 710 ILCS 5/12(a) (West 2006). We will not overrule the arbitrator’s decision simply
if our interpretation differs. We must affirm the award if the arbitrator has acted within the scope
of his or her authority and granted an award that draws its essence from the agreement between
the parties. AFSCME, 173 Ill. 2d at 304-05.
B. Untying the Gordian Knot
This case is simply a question of contract interpretation - whether the arbitrator correctly
interpreted the Agreement or exceeded his authority. While a dry exercise, put in the interesting
metaphorical terms used by the arbitrator and the trial court, the question could be phrased as to
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No. 1-09-1218
whether the arbitrator was Alexander the Great breaking the Gordian knot under the powers of
the Agreement, or if he was King Solomon crafting a penalty out of whole cloth. As the trial
court also noted, and the extensive opinion and award of the arbitrator evidence, this is a difficult
case, but we agree with the trial court that the arbitrator was more Alexander than Solomon.
Plaintiff concedes that it violated the Agreement as determined by the arbitrator and that
review of an arbitrator’s award is narrow. However, it argues that it is clear that the arbitrator
exceeded his authority and the award must therefore be vacated. 710 ILCS 5/12(a) (West 2006).
Plaintiff maintains that Illinois case law clearly holds that a noncompensatory, punitive damages
award, which is not expressly provided for in a collective bargaining agreement, must be vacated
as a remedy exceeding the authority of the arbitrator. City of Chicago v. Water Pipe Extension,
302 Ill. App. 3d 940, 946 (1999); City of Chicago v. American Federation of State, County &
Municipal Employees, Council 31, 283 Ill. App. 3d 446, 451 (1996) (AFSCME, Council 31);
Edward Electric Co. v. Automation, Inc., 229 Ill. App. 3d 89, 105 (1992).
In determining whether an award is punitive, we begin by examining the plain language
of the arbitrator’s opinion and award. AFSCME, Council 31, 283 Ill. App. 3d at 451 (1996). The
language of the arbitrator is not determinative, but helpful in ascertaining if the award was
intended to punish or deter. Water Pipe Extension, 302 Ill. App. 3d at 947. Plaintiff notes that
courts have also considered the issue of whether the award exceeds monetary loss as part of this
calculus. Water Pipe Extension, 302 Ill. App. 3d at 947-48.
In Water Pipe Extension, this court reversed an award of double-time pay for violation of
a contractual notice requirement for shift changes while it was undisputed that the contract only
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No. 1-09-1218
provided for time and one-half pay. Water Pipe Extension, 302 Ill. App. 3d at 948. Following
AFSCME, Council 31, the court examined the language of the award. The arbitrator noted that
he could not impose punitive damages in his award and also cited a prior decision of the
arbitrator that awarded a double-time remedy as the best way to handle future violations and “
‘getting the message through’ ” that willful violations would result in double-time pay. Water
Pipe Extension, 302 Ill. App. 3d at 947. Accordingly, the court vacated the award because it
clearly exceeded the terms of the collective bargaining agreement and the record showed that the
arbitrator granted the award as a means of deterring or punishing the plaintiff’s violation of the
notice requirements. Water Pipe Extension, 302 Ill. App. 3d at 949.
Plaintiff argues that the supplemental award must be vacated under AFSCME and Water
Pipe Extension. Plaintiff cites to the language the arbitrator used throughout both the original
and supplemental opinion and award. Specifically, plaintiff points to the arbitrator’s use of the
word “penalty” throughout, and also his classification of the award and authorizing sections as:
“specific penalty”; “specific penalty compensation”; “specific penalty pay provisions”;
“monetary penalties”; “penalty compensation”; or “penalty time and one-half compensation.”
Plaintiff concludes that the use of these words can only lead to the conclusion that the award is
punitive. Plaintiff discounts the language that defendant highlights, the arbitrator’s use of
“remedy,” “compensation,” and “monetary remedy,” arguing these terms shed no light on the
intent of the award.
Plaintiff asserts that the award did not compensate for any monetary loss and, even if
there were monetary loss, there is the lack of any express remedy provision in section 23.8.
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No. 1-09-1218
Plaintiff argues that the parties’ inclusion of a remedy in sections 23.9 and 23.11 solidifies this
argument under the long-held maxim that the mention of one thing implies the exclusion of
another by its silence. Because of this, plaintiff argues that the award does not “draw its essence”
from the Agreement. AFSCME, 173 Ill. 2d at 305. Together with the lack of any evidence that
the grievants suffered lost wages, benefits, increases in costs or lost opportunities due to the
transfers, plaintiff maintains the supplemental award must be vacated.
Defendant responds that the plain language of the arbitrator’s award and supplemental
award support the conclusion reached by the trial court - that the arbitrator was not legislating a
punitive award, but attempted to provide a remedial award. As noted above, defendant points to
the arbitrator’s use of not only “remedy,” “compensation,” and “monetary remedy,” but also
“compensation” and “equitable remedy” in describing the award. Defendant asserts that the
arbitrator’s use of “penalty” simply was picking up on plaintiff’s arguments. Defendant points to
this court’s decision in Board of Education of Community High School District No. 155 v.
Illinois Educational Labor Relations Board, 247 Ill. App. 3d 337 (1993), to argue that this
verbiage clearly indicates the arbitrator intended the award as a remedial measure and not
punitive. The Board of Education court considered the arbitrator’s statement that “ ‘ the
Grievant is entitled to a monetary award to remedy the damage done to his professional integrity
and standing which resulted from the [District’s] action’ and then ‘direct[ed] the [District] to
compensate the Grievant.’ (Emphasis added.)” Board of Education, 247 Ill. App. 3d at 348. The
court determined that, from these words of the arbitrator, it was readily apparent that the focus
was on remedy and compensation and not on punishment. Board of Education, 247 Ill. App. 3d
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No. 1-09-1218
at 348.
We agree with the trial court that, as with all contract interpretation regarding silence, this
case presents a difficult question. Both parties have cited to the language used by the arbitrator
in support of their argument; accordingly, the specific verbiage cannot be considered
determinative. We agree with defendant that the arbitrator’s reasoning overcomes the use of any
certain terminology and indicates the desire to formulate a remedy and not a penalty. Unlike
Water Pipe Extension, there is no clear pay scheme that has been violated or any language clearly
indicating that the arbitrator intended to penalize or deter future action.
Under section 9.7 of the Agreement, the arbitrator is charged with interpreting the terms
of the Agreement in resolving disputes. The arbitrator is specifically barred from amending,
modifying, nullifying, disregarding, adding to, or subtracting from the provisions. Section 23.8
does not specifically provide the time and one-half remedy, but it also does not specifically
provide no remedy for a violation. The arbitrator carefully reviewed the Agreement for any
command to the contrary and could not find one. Sections 23.9 and 23.11 provide the time and
one-half remedy for similar types of violations and do not specifically limit the remedy to those
specific sections. In fact, section 23.11 provides this remedy is proper for details “in any manner
contrary to the provisions of this Agreement.”
Accordingly, we agree that the arbitrator did not act as King Solomon and craft the award
out of whole cloth. Rather, the arbitrator ostensibly labored over the terms of the Agreement and
the actions of the parties and untied the Gordian knot with bold and fair strokes of his pen. The
Agreement does not provide specific limitations and, unlike the penalty cases cited by plaintiff, a
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No. 1-09-1218
remedy was not created out of whole cloth or above and beyond that negotiated by the parties.
The arbitrator’s reading of the Agreement is fair and supported and, given the extremely narrow
review we conduct, certainly must be affirmed.
III. CONCLUSION
Accordingly, for the aforementioned reasons, the decision of the trial court is affirmed.
Affirmed.
STEELE and COLEMAN, JJ., concur.
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No. 1-09-1218
Please Use
REPORTER OF DECISIONS – ILLINOIS APPELLATE COURT
Following (Front Sheet to be Attached to Each Case)
Form:
CITY OF CHICAGO,
Complete
TITLE
of Case Petitioner-Appellant,
v.
FRATERNAL ORDER OF POLICE, LODGE NO. 7,
Respondent-Appellee.
Docket No.
COURT No. 1-09-1218
Appellate Court of Illinois
Opinion First District, FOURTH Division
Filed
March 24, 2010
(Give month, day and year)
JUSTICES
PRESIDING JUSTICE MURPHY delivered the opinion of the court:
Steele and Coleman, JJ., concur [s]
dissent[s]
APPEAL from
the Circuit
Ct. of Cook
Cty; Lower Court and T rial Judge(s) in form indicated in the margin:
The Hon.
________, Ho norable Peter Flynn , Judge Presiding.
Judge
Presiding.
For
APPELLANTS,
John Doe, Indicate if attorney represents APPELLANTS or APPELLEE S and include
of Chicago. attorneys of counsel. Indicate the word NONE if not represented.
For Attorneys for App ellant: Mara S . Georges, Corporation Counsel of the City of Chicago
APPELLEES,
Smith and Benna Ruth Solomon, Deputy Corporation Counsel
Smith of Myriam Zreczny Kasper, Chief Asst. Corporation Counsel
Chicago, Suzanne M. Loose, Asst. Corporation Counsel
Joseph 30 N. La Salle Street, Suite 800
Brown, (of Chicago, IL 60602
Counsel)
Phone: (312) 744-8519
Also add
attorneys Attorneys for App ellee: Thomas J. Pleines
for third- , Fraternal O rder of Po lice, Lodge No . 7
party 1412 W . Washington Bo ulevard
appellants
or Chicago, IL 60607
appellees. Phone: (312) 733-777696
13
City of Chicago v. Fraternal Order of Police, Lodge No. 7
Combined Opinion