SECOND DIVISION
MARCH 23, 2010
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THE DEPARTMENT OF CENTRAL MANAGEMENT ) Appeal from the
SERVICES AND THE DEPARTMENT OF ) Circuit Court of
TRANSPORTATION, ) Cook County.
)
Petitioners and Cross-Respondents-Appellants, )
) No. 08 CH 15619
v. )
)
NICK NDOCA and TEAMSTERS LOCAL )
UNION 330, ) Honorable
) Richard J. Billick,
Respondents and Cross-Petitioners-Appellees. ) Judge Presiding
PRESIDING JUSTICE CUNNINGHAM delivered the opinion of the court:
This is an appeal from the circuit court of Cook County’s denial of a petition to vacate an
arbitrator’s ruling conditionally reinstating respondent Nick Ndoca (Ndoca), a member of the
Teamsters Local Union 330 (the Union), to his employment with the petitioner, the Illinois
Department of Transportation (the Department). Ndoca was terminated by the petitioners, the
Illinois Departments of Transportation and Central Management Services (the State), after a random
drug test revealed the presence of marijuana in Ndoca’s system. The State contends on appeal that
the arbitrator exceeded her authority and violated public policy because, according to the State, the
collective bargaining agreement between the Department and the Union mandates termination of an
employee who tests positive for marijuana. Ndoca and the Union contend that the arbitrator was
within her authority because, read as a whole, the collective bargaining agreement requires just cause
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to terminate an employee, rather than automatic termination for the violation of any particular rule,
including the rule against the use of marijuana. The Union also asserts that no public policy was
violated by the arbitrator’s ruling. We affirm the judgment of the circuit court of Cook County,
which denied the State’s petition to vacate the arbitrator’s ruling.
BACKGROUND
The facts are not in dispute. No transcript was made of the evidentiary hearing before the
arbitrator, but we summarize the facts recited in the arbitrator’s opinion and ruling of January 28,
2008. Ndoca had worked for the Illinois Department of Transportation for 15 years at the time of
his termination, serving as a bridge mechanic for the last 7 of those years. A bridge mechanic
performs work on moveable bridges located over navigable waters. Ndoca was never previously
disciplined and a previous random drug test administered to him in 2001 produced negative results.
In his 15 years of employment, Ndoca was absent from work a total of 9 days. However, when a
random drug test was performed on Ndoca on March 21, 2007, he tested positive for marijuana.
Ndoca was suspended by the Department on March 30, 2007 “pending discharge.” Following a pre-
disciplinary hearing, he was terminated from his employment effective April 14, 2007.
The Union filed two grievances with the Department on Ndoca’s behalf. One grievance
alleged that Ndoca was not within the category of employees to whom random drug tests could be
administered. The second grievance protested Ndoca’s termination. Pursuant to the collective
bargaining agreement between the Union and the Department, the parties submitted to arbitration.
The arbitrator ruled against the Union’s contention that Ndoca was not in the category of employees
subject to random drug testing. However, the arbitrator also reinstated Ndoca to his position, with
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no back pay, subject to the following conditions. Ndoca must again1 successfully complete the
Department’s drug treatment program and follow any drug rehabilitation program recommended by
the Department’s substance abuse professional, and he must pass a drug and alcohol test. Successful
completion of those requirements would entitle Ndoca to reinstatement to his job, but he would
remain subject to random testing for one year after his reinstatement. The arbitrator also ruled that
if Ndoca tested positive for another illegal drug, he would be terminated from his employment. The
State does not appeal from that portion of the arbitrator’s ruling which held that it was appropriate
for the Department to subject Ndoca to random drug testing. But the State does appeal from that
portion of the arbitrator’s ruling reinstating Ndoca to his employment upon his fulfillment of the
conditions imposed by the arbitrator’s ruling.
On the issue of Ndoca’s termination, the Union did not contest the validity of the drug test
results, which revealed marijuana in his system. But the Union disagreed that Ndoca’s job
performance was diminished, or that he was even under the influence of marijuana while he was
working, since marijuana can remain within a person’s system for long periods of time. The Union
also noted that after being advised of the positive drug test, Ndoca willingly enrolled in the
Department’s drug program and successfully completed that program.
The arbitrator looked to the following relevant provisions of the collective bargaining
agreement between the Union and the Department.
Article 7.1 provides:
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Ndoca had voluntarily participated in the Department’s drug treatment program and
successfully completed it after the positive drug test but before his termination.
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“The Employer shall not discharge or suspend any employee except
for just cause ***.”
Article 14.2 provides:
“If, as a result of [an] investigation and/or pre-disciplinary hearing,
just cause is present, discipline shall be imposed as follows:
***
A positive drug test will result in a 30-day suspension pending
discharge.”
Examining these provisions together, the arbitrator concluded that the overriding principle of just
cause governed decisions to terminate employees. She further found that terminating Ndoca despite
his excellent work record over 15 years was inconsistent with just cause. In response to the State’s
argument that reinstatement would violate public policy, the arbitrator held that reinstatement with
conditions would satisfy any public policy concerns.
The State filed a petition to vacate the arbitrator’s ruling, and the Union filed a cross-petition
to confirm the ruling. The circuit court of Cook County denied the State’s petition and granted the
petition of the Union, confirming the arbitrator’s ruling. The State then filed an appeal to this court.
For the reasons stated below, we affirm the judgment of the circuit court of Cook County which
confirmed the arbitrator’s ruling conditionally reinstating Ndoca to his job.
ANALYSIS
The parameters of a court’s review of an arbitrator’s ruling are extremely narrow. American
Federation of State, County & Municipal Employees v. Department of Central Management
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Services, 173 Ill. 2d 299, 304, 671 N.E.2d 668, 672 (1996); American Federation of State, County
& Municipal Employees v. Department of Mental Health, 124 Ill. 2d 246, 254, 529 N.E.2d 534, 537
(1988) (Department of Mental Health). If possible, we must construe the ruling as valid.
Department of Mental Health, 124 Ill. 2d at 254, 529 N.E.2d at 537. But the primary rule in cases
involving collective-bargaining agreements is that an arbitrator’s ruling must be enforced if it falls
within the scope of the arbitrator’s authority and it “draws its essence from the parties’ collective
bargaining agreement.” Department of Central Management Services, 173 Ill. 2d at 304-05, 671
N.E.2d at 672. The State contends that the arbitrator’s ruling was not within the scope of the
arbitrator’s authority because it was in direct violation of Article 14.2 of the collective bargaining
agreement, which states that “A positive [drug] test will result in a 30-day suspension pending
discharge.” We do not find that Article 14.2 mandates discharges with the clarity which the State
asserts. If the parties to the agreement intended that a positive drug test would result in automatic
discharge or termination, they could have easily and clearly drafted a provision that said so. Instead,
the collective bargaining agreement refers to a 30-day suspension “pending discharge.” We view
these provisions in light of Article 7's just-cause requirement for termination, which applies to all
employees covered by the agreement, and not only those who have tested positive for illegal drugs.
In this context, it is reasonable for the arbitrator to have found that the drafters of the agreement
intended that the guiding principle for determining whether an employee should be terminated was
just cause. Contrary to the State’s assertion, the collective bargaining agreement had no clearly
articulated automatic-termination requirement for those employees found to have tested positive for
illegal drugs. Therefore, the decision to apply a lesser penalty did not exceed the arbitrator’s
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authority. Most importantly, the arbitrator acted within her authority in construing the meaning of
Article 14.2. The fact that her construction placed the emphasis on just cause as opposed to
automatic termination was also within her authority and was a reasonable construction of the
provision. On appellate review we are not charged with determining the validity or reasonableness
of an arbitrator’s construction of ambiguous provisions of a document. As long as it is clear that the
arbitrator has engaged in construction of the agreement, we must affirm that construction. Chicago
Transit Authority v. Amalgamated Transit Union Local 308, 244 Ill. App. 3d 854, 868, 614 N.E.2d
120, 129 (1993). Although the reasonableness of the construction is not under review here, we note
nevertheless that in this instance the arbitrator’s construction was reasonable.
The State also contends that retaining an employee who has tested positive for illegal drugs
is contrary to public policy, because such a decision implicates and threatens public safety. But in
order to determine whether an arbitrator’s ruling has violated public policy on a particular issue, we
must first determine that there is a clearly articulated public policy regarding that issue. We must
then determine whether the public policy was clearly violated by the arbitrator’s ruling. Department
of Central Management Services, 173 Ill. 2d at 307, 671 N.E.2d at 673-74. The State has failed to
demonstrate the existence of a clear public policy that mandates automatic termination for public
employees upon the discovery of any illegal drug usage by the employee. On the contrary, it is clear
that the collective bargaining agreement contemplates that employees who have engaged in the use
of illegal drugs will not automatically be terminated. Article 14.3 of the collective bargaining
agreement states:
“The Department [of Transportation] fully supports the Employee
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Assistance Program and encourages employees who are using
unauthorized controlled substances to seek the confidential services
of the Employee Assistance Program in their work place. The
Employee Assistance Program plays an important role by providing
employee[s] an opportunity to eliminate illegal drug use. Referrals
can be made to appropriate treatment and rehabilitative facilities
[which] follow-up with individuals during their rehabilitation period
to track their progress and encourage successful completion of the
program.”
This policy of offering treatment for employees who use illegal drugs negates the State’s argument
that there is a strict public policy mandating termination from employment with the Department for
first-time illegal drug users.
Furthermore, as the arbitrator noted, there was no evidence that Ndoca was under the
influence of marijuana at any time during the performance of his employment duties. There was no
indication that his job performance had been compromised or had deteriorated in any way. Indeed,
the undisputed evidence was that Ndoca was an excellent employee who had a strong work history
and had worked for the Department for 15 years without having any disciplinary action taken against
him. He missed only nine days of work in his 15-year tenure with the Department. Also, to
minimize the possibility of any additional illegal drug usage, the arbitrator imposed a number of
conditions on Ndoca, which he was required to satisfy prior to actually being reinstated. Those
conditions were designed to ensure that Ndoca was no longer using illegal drugs, had received proper
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drug treatment, and would be subject to random drug testing and automatic termination for a second
violation. Under these circumstances and conditions, and in light of the extremely narrow
parameters of appellate review of an arbitrator’s ruling, we find no violation of public policy in the
ruling of the arbitrator.
As we have noted, in a dispute of this kind, an arbitrator’s ruling must be upheld if it falls
within the scope of the arbitrator’s authority and it “draws its essence from the parties’ collective-
bargaining agreement.” Department of Central Management Services, 173 Ill. 2d at 304-05, 671
N.E.2d at 672. We have found no support for the contention that the arbitrator’s ruling was outside
of her authority. It is uncontested that this dispute was properly submitted to an arbitrator pursuant
to the collective bargaining agreement between the Union and the Department. There is no dispute
that the arbitrator’s ruling arises from the collective bargaining agreement. The specific terms of that
agreement provide that an employee can only be terminated for just cause. The arbitrator determined
that just cause did not exist to warrant termination in light of the facts and circumstances of this case.
The arbitrator considered Ndoca’s exemplary work record of 15 years and imposed strict conditions
as a requirement for reinstatement in applying the principle that the collective bargaining agreement
required the application of “just cause” for termination. We therefore we find no basis for
overturning the arbitrator’s ruling and affirm the judgment of the circuit court of Cook County
denying the petition to vacate the arbitrator’s ruling and confirming that ruling.
The judgment of the circuit court of Cook County is affirmed.
Affirmed.
HOFFMAN and THEIS, JJ., concur.
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