2020 IL App (1st) 200281
FIRST DIVISION
July 20, 2020
No. 1-20-0281
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
TIMOTHY C. EVANS, as Chief Judge of the Circuit )
Court of Cook County, )
)
Plaintiff-Appellee, )
) Appeal from the
v. ) Circuit Court of
) Cook County
CHICAGO NEWSPAPER GUILD-CWA, a Local )
(#34071) chartered by The Newspaper Guild-CWA ) No. 19 CH 14137
(AFL-CIO, CLC) and STEVEN M. BIERIG, in his )
capacity as a Certified Arbitrator, ) The Honorable
) Neil H. Cohen,
Defendants ) Judge Presiding.
)
(Chicago Newspaper Guild-CWA, a Local (#34071) )
chartered by The Newspaper Guild-CWA (AFL-CIO, )
CLC), Defendant-Appellant). )
JUSTICE PIERCE delivered the judgment of the court, with opinion.
Presiding Justice Griffin and Justice Walker concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Timothy C. Evans, in his capacity as Chief Judge of the Circuit Court of Cook
County, filed a complaint in the circuit court seeking to permanently enjoin an arbitration
proceeding. The circuit court granted a preliminary injunction, finding that it had authority to
decide procedural gateway issues to arbitration. Defendant, Chicago Newspaper Guild-CWA,
No. 1-20-0281
appeals from the circuit court’s entry of the preliminary injunction. 1 On appeal, plaintiff concedes
that an arbitrator should decide procedural gateway issues to arbitration and agrees that the
injunction in his favor should be reversed. We agree and reverse the circuit court’s preliminary
injunction in favor of plaintiff, and we remand for further proceedings.
¶2 I. BACKGROUND
¶3 We set forth only those facts necessary to understand our disposition. The parties are
subject to a collective bargaining agreement (CBA), which, among other things, governs
grievances. All grievances must be in writing, and all submission times and time limits for
processing grievances may be extended by mutual agreement. Section 14.4 of CBA outlines the
Grievance Procedure Steps. The union must first, within 30 days, submit a grievance to the
aggrieved employee’s immediate supervisor. If the grievance is not resolved in the employee’s
favor, the union must, within five days, submit the grievance to the Director of Interpreter Services
(the Director). If the Director does not resolve the grievance in the employee’s favor, the union
must, within 10 days, submit the grievance to plaintiff. If plaintiff does not resolve the grievance
in the employee’s favor, the union must, within 30 days, submit the grievance to an impartial party
for arbitration. Section 14.8 of the CBA provides in part that “[t]he party making the request for
impartial arbitration must request the State Labor Relations Board, American Arbitration
Association or the Federal Mediation and Conciliation Service to provide a panel of arbitrators to
each party within sixty (60) days of the notice or the grievance will be forfeited.”
¶4 Martin Perez was employed by plaintiff as a court interpreter and is a member of defendant,
a union acting as the sole and exclusive representative for purposes of collective bargaining for
court interpreters employed by the Circuit Court of Cook County. In May 2017, plaintiff suspended
1
Steven Bierig, in his capacity as a certified arbitrator, was a defendant below, but has not
participated in this appeal.
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Perez for 10 days. Defendant filed, within 30 days, a grievance challenging the suspension
(suspension grievance). The matter was not resolved in Perez’s favor by his immediate supervisor
or the Director, and on October 13, 2017, plaintiff denied Perez’s grievance. On October 23, 2017,
defendant submitted a written notice of intent to arbitrate the suspension grievance.
¶5 In December 2017, plaintiff terminated Perez’s employment. Defendant filed, within 30
days, a grievance challenging the termination (termination grievance). The matter was not resolved
in Perez’s favor by his immediate supervisor or the Director, and on February 26, 2018, plaintiff
denied Perez’s grievance. On March 2, 2018, defendant submitted a written notice of intent to
arbitrate the termination grievance.
¶6 On April 16, 2019, defendant contacted plaintiff’s labor relations counsel to schedule an
arbitration on the termination grievance with defendant, Steven M. Bierig, a certified arbitrator.
The parties agreed to arbitrate the termination grievance before Bierig on December 11, 2019. In
November 2019, plaintiff, through counsel, notified defendant and Bierig that the arbitration would
be cancelled because of defendant’s delays in scheduling the arbitration under section 14.8 of the
CBA. Bierig, however, twice denied plaintiff’s request to cancel the arbitration and expressed the
intent to proceed with the arbitration even if plaintiff failed to participate.
¶7 On December 9, 2019—just two days before the scheduled arbitration—plaintiff filed a
verified complaint for declaratory judgment and an application to stay the arbitration. The thrust
of plaintiff’s complaint was that, pursuant to section 14.8 of the CBA, defendant forfeited any right
to arbitration by failing to request that any arbitral forum provide a panel of arbitrators to the
parties within 60 day of the notice of intent to arbitrate. Along with his verified complaint, plaintiff
sought an emergency temporary restraining order (TRO) to enjoin the arbitration.
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¶8 On December 10, 2019, defendant filed a motion to dismiss plaintiff’s complaint pursuant
to sections 2-615 and 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619(a)(9)
(West 2018)). Defendant asserted that plaintiff could not state a claim for injunctive relief because
the complaint acknowledged that the CBA contained an arbitration agreement. Defendant further
asserted that plaintiff’s complaint was barred by an affirmative matter, namely that plaintiff had
already agreed to arbitration and participated in preliminary matters with Bierig. The same day
that defendant filed its motion to dismiss, the circuit court, after hearing oral argument, granted
plaintiff a TRO, enjoined the scheduled arbitration “until further order,” and set a briefing schedule
on defendant’s motion to dismiss.
¶9 On January 29, 2020, after briefing and a hearing, the circuit court denied defendant’s
motion to dismiss and ordered that “the stay of arbitration shall continue in effect.” The circuit
court made several findings on the record relative to the stay. At bottom, the circuit court reasoned
that whether defendant had forfeited its ability to pursue arbitration by failing to meet the
contractual procedures or time limits set forth in the CBA was a question that could be determined
by the circuit court rather than by an arbitrator.
¶ 10 Defendant filed a notice of interlocutory appeal on February 10, 2020, pursuant to Illinois
Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2017), from the circuit court’s January 29, 2020, order
continuing the stay of arbitration.
¶ 11 II. ANALYSIS
¶ 12 On appeal, both parties request that we reverse the circuit court’s injunction. Defendant
argues that the circuit court erred as a matter of law by not deferring the question of procedural
arbitrability to the arbitrator, Bierig, and further erred by denying its motion to dismiss. Plaintiff
agrees that contractual procedural questions or requirements should be resolved by an arbitrator
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and not by the circuit court, and concedes that he was not entitled to injunctive relief. Plaintiff also
argues that this court lacks jurisdiction to review the circuit court’s denial of defendant’s motion
to dismiss.
¶ 13 Arbitration agreements are contracts (Carr v. Gateway, 241 Ill. 2d 15, 20 (2011)), and are
interpreted in the same manner and according to the same rules as are all other contracts (State
Farm Fire & Casualty Co. v. Watts Regulator Co., 2016 IL App (2d) 160275, ¶ 27 (citing J & K
Cement Construction, Inc. v. Montalbano Builders, Inc., 119 Ill. App. 3d 663, 669 (1983))). The
interpretation of a contract is a question of law that we review de novo. Carr, 241 Ill. 2d at 20.
Furthermore, because the circuit court did not hold an evidentiary hearing on the request for an
injunction, our review of the circuit court’s judgment is de novo. See Amalgamated Transit Union,
Local 900 v. Suburban Bus Division of Regional Transportation Authority, 262 Ill. App. 3d 334,
337 (1994).
¶ 14 Where a party seeks to compel arbitration, the sole issue before the circuit court is whether
the parties agreed arbitrate the dispute in question. Griffith v. Wilmette Harbor Ass’n, Inc., 378 Ill.
App. 3d 173, 180 (2007). “ ‘If the language of an arbitration agreement is clear and it is obvious
that the dispute desired to be arbitrated falls within the scope of the arbitration clause, the court
should compel arbitration.’ ” Id. (quoting Travis v. American Manufacturers Mutual Insurance
Co., 355 Ill. App 3d 1171, 1175-76 (2002)).
¶ 15 Here, there is no dispute that the CBA set forth the procedures for resolving grievances,
including through arbitration, and neither party challenges the enforceability of the CBA’s
arbitration provision. In the proceedings below, the sole issue before the circuit court was whether
defendant’s alleged failure to comply with section 14.8 of the CBA amounted to forfeiture. In other
words, plaintiff contended that defendant’s failure to abide by a contractual procedure in the
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grievance process—a timely request to an arbitral forum for a list of arbitrators—extinguished
defendant’s right to arbitrate Perez’s suspension and termination grievances.
¶ 16 The United States Supreme Court has observed that “procedural questions which grow out
of the dispute and bear on its final disposition are presumptively not for the judge, but for an
arbitrator to decide.” (Emphasis in original and internal quotation marks omitted.) Howsam v.
Dean Witter Reynolds, Inc., 537 U.S. 79, 84 (2002) (quoting John Wiley & Sons, Inc. v. Livingston,
376 U.S. 543, 557 (1964)). There is also a presumption, where the parties to an arbitration
agreement did not clearly contract otherwise, that the arbitrator should decide “an allegation of
waiver, delay, or a like defense to arbitrability.” Moses H. Cone Memorial Hospital v. Mercury
Construction Corp., 406 U.S. 1, 24-25 (1983). This court’s precedent is in accord with the Supreme
Court’s view that procedural questions affecting whether arbitration was properly invoked are
matters for an arbitrator, not the courts. See, e.g., Amalgamated Transit Union, Local 900, 262 Ill.
App. 3d at 340-41 (finding that the timeliness of following steps in the grievance process is a
procedural question to be determined by an arbitrator as opposed to a condition precedent to
invoking a right to arbitration that may be resolved by the courts).
¶ 17 Here, plaintiff raised a defense to arbitration, namely that defendant forfeited its right to
arbitrate a grievance by failing to timely follow the steps outlined in section 14.8 of the CBA. We
agree with the parties that the question of whether defendant forfeited its right to arbitration is a
procedural question to be resolved by the arbitrator, not the circuit court, and that the circuit court’s
judgment staying arbitration was in error and should be reversed.
¶ 18 Finally, defendant argues that the circuit court erred by denying its motion to dismiss.
Plaintiff responds that we lack jurisdiction to consider that aspect of the circuit court’s judgment
because the denial of a motion to dismiss is not a final and appealable order and cannot be reviewed
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in an interlocutory appeal under Rule 307(a)(1). Defendant has not responded to plaintiff’s
argument. Given the parties’ agreement that plaintiff’s complaint has not identified a right to
injunctive relief for staying arbitration, we find it unnecessary to decide this question and that the
appropriate action is to remand to the circuit court and order the parties to proceed to arbitration.
¶ 19 III. CONCLUSION
¶ 20 For the foregoing reasons, the judgment of the circuit court of Cook County enjoining
arbitration is reversed, and we remand to the circuit court for further proceedings consistent with
this opinion.
¶ 21 Reversed and remanded.
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