also dissenting:
Public policy "is a very unruly horse, and *** once you get astride it you never know where it will carry you.” Richard v. Mellish, 2 Bing. 229, 252, 130 Eng. Rep. 294, 303 (1824). In its decision today, the majority grabs the reins of that unruly horse and embarks on a journey that will serve only to frustrate the goals of collective bargaining and sacrifice the efficiency of binding arbitration as a means of resolving labor disputes. I cannot join the majority on this journey. Therefore, I respectfully dissent.
The majority recognizes that the review of an arbitral award is very limited. Indeed, a court must construe an award as valid if at all possible. Board of Education v. Chicago Teachers Union, Local No. 1, 86 Ill. 2d 469, 477 (1981). Such a deferential judicial review is necessary to promote the efficient private settlement of labor disputes. A reviewing court is therefore duty bound to follow the decision of an arbitrator that draws its essence from a collective-bargaining agreement, regardless of its view of the wrongfulness of the conduct at issue or the appropriateness of the punishment. Board of Trustees of Community College District No. 508 v. Cook County College Teachers Union, Local 1600, 74 Ill. 2d 412, 421 (1979).
I recognize that a court will not enforce an arbitral award made pursuant to a collective-bargaining agreement where that award violates public policy. American Federation of State, County & Municipal Employees v. State of Illinois, 124 Ill. 2d 246, 260 (1988). The doctrine is based on the common law notion that courts will not lend judicial power to the enforcement of private agreements that are immoral or illegal. United Paperworkers International Union v. Misco, Inc., 484 U.S. 29, 44, 98 L. Ed. 2d 286, 302, 108 S. Ct. 364, 374 (1987). However, the public policy exception is an extremely narrow one and should "not otherwise sanction a broad judicial power to set aside arbitration awards.” Misco, 484 U.S. at 43, 98 L. Ed. 2d at 302, 108 S. Ct. at 373.
In the past, this court has followed the United States Supreme Court in carefully limiting the public policy exception to the enforcement of arbitral awards. In order to overturn an award, the public policy involved "must be well defined and dominant, and is to be ascertained 'by reference to the laws and legal precedents and not from general considerations of supposed public interests.’ ” W.R. Grace & Co. v. Local Union 759, 461 U.S. 757, 766, 76 L. Ed. 2d 298, 307, 103 S. Ct. 2177, 2183 (1983), quoting Muschany v. United States, 324 U.S. 49, 66, 89 L. Ed. 744, 756, 65 S. Ct. 442, 451 (1945). Although leaving open the question of whether an award must actually violate positive law to violate public policy, the Supreme Court has noted that the decision to overturn an arbitral award on public policy grounds should turn on "whether the award created any explicit conflict with other 'laws and legal precedents.’ ” Misco, 484 U.S. at 43, 98 L. Ed. 2d at 302, 108 S. Ct. at 374, quoting W.R. Grace & Co. v. Local Union 759, 461 U.S. 757, 766, 76 L. Ed. 2d 298, 307, 103 S. Ct. 2177, 2183 (1983).
Applying these principles, this court has refused to overturn an arbitral award in a case with strong similarities to the present case. In American Federation of State, County & Municipal Employees v. State of Illinois, 124 Ill. 2d 246 (1988), this court considered whether an arbitrator violated public policy in awarding the reinstatement of two mental health technicians. The technicians had made an unauthorized trip to a flea market during their shift. During their absence, an unattended patient at the facility died, although the patient was not assigned to the ward where the technicians were supposed to be on duty. The technicians were discharged for conduct constituting mistreatment of a service recipient and the union filed a grievance. The arbitrator reinstated the technicians, finding that the absence did not constitute just cause for termination.
On review, this court refused to vacate the arbitral award of reinstatement on public policy grounds. This court acknowledged that the compassionate care of the mentally disabled is an important public policy. American Federation of State, County & Municipal Employees, 124 Ill. 2d at 262. However, the arbitral award reinstating the technicians did not conflict with any laws or legal precedent relating to this public interest. The court stated that "[tjhere is simply no policy that mandates the discharge of all employees found guilty of mistreatment of a service recipient.” American Federation of State, County & Municipal Employees, 124 Ill. 2d at 263.
I believe that this case calls for the same judicial restraint. I recognize that there exists a general public policy favoring the diligent protection of minors, similar to the general public policy favoring the protection of the mentally disabled. However, there exists no policy that mandates the discharge of every DCFS employee that files a false report, regardless of the circumstances. The majority does not identify a "well defined and dominant” public policy that is in explicit conflict with the reinstatement of DuBose.
In an effort to obscure this point, the majority first manufactures a public policy that can hardly be considered well defined. After reviewing the statutory framework set up for the protection of minors, the majority declares that it violates public policy for DCFS to employ "individuals whose dishonesty and neglect could seriously undermine the welfare, safety, and protection of minors.” 173 Ill. 2d at 316. How dishonest? How neglectful? Presumably, any employee’s misconduct can be framed in these generic terms. With such a broad articulation of public policy, courts are now free to substitute their judgment for that of the arbitrator regarding the discipline of DCFS employees under the guise of public policy. In addition, such a broad articulation of public policy completely usurps an arbitrator’s power to determine whether any such misconduct constitutes “just cause” for termination. In this opinion, the limited public policy exception to the enforcement of arbitration awards has evolved into a basis for the judicial review of all DCFS employment decisions.
Even if I were to accept the existence of such a nebulous public policy as a basis to overturn an award, the reinstatement of DuBose does not necessarily violate such a policy. The statutory scheme put in place for the protection of minors does not evince a public policy that would demand the firing of every individual found to be dishonest or neglectful in regard to his or her statutory duties. The majority tacitly acknowledges this fact in stating that this court would be obligated to affirm the reinstatement if the arbitrator were to make a rational finding that the employee can be trusted to refrain from the misconduct in the future. 173 Ill. 2d at 322. Even without such a finding, there is simply no explicit conflict with these laws or any legal precedent posed by the reinstatement of a DCFS worker who has filed a false report.
In its effort to find a violation of the public policy it has identified, the majority also invades the exclusive province of the arbitrator by engaging in inappropriate fact finding. In United Paperworkers International Union v. Misco, Inc., 484 U.S. 29, 98 L. Ed. 2d 286, 108 S. Ct. 364 (1987), the Supreme Court chastised the lower court for drawing an inference that because an employee was discovered in another employee’s car with a lit marijuana cigarette and had drugs in his own car in the company parking lot, he was using drugs at work. The Supreme Court noted that such fact finding is the exclusive province of the arbitrator chosen by the parties and the "refusal to enforce an award must rest on more than speculation or assumption.” Misco, 484 U.S. at 44, 98 L. Ed. 2d at 303, 108 S. Ct. at 374. In the instant case, the majority speculates that DuBose put children in danger by filing the false reports and assumes that such conduct will continue if she is reinstated. The arbitrator did not find these facts and the majority is in error to assume them.
Moreover, I cannot accept the majority’s conclusion that the arbitrator violated public policy in the process of enforcing the contractual provision requiring discipline be timely. The supposed public policy identified by the majority requiring DCFS employ only the most diligent and truthful people is not "dominant” in relation to the general public policy favoring the timely imposition of discipline. Timeliness is required for the imposition of almost all civil and criminal liability, including that involving children. The majority provides no meaningful basis for its distinction between the timeliness provisions at issue here and those imposed by the legislature. Such provisions impose a burden upon those seeking sanctions to respect the rights of the individual, and all impose corresponding costs on society. In refusing to enforce the provision requiring discipline be timely, the majority has removed an important bargained-for due process consideration from the collective-bargaining agreement.
Even accepting the majority’s conclusion that the award of reinstatement violated public policy, the proper resolution of the matter is to return this case to the arbitrator for an alternate remedy. The formulation of remedies is a matter for the arbitrator, not the courts. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 4 L. Ed. 2d 1424, 1428, 80 S. Ct. 1358, 1361 (1960). There is no dispute that DCFS violated the collective-bargaining agreement in failing to impose timely discipline. The majority’s conclusion that the arbitrator adopted an "all or nothing approach” that rejected any other remedy for the contractual violation is simply absurd. In leaving the violation of the timeliness provision without a remedy, the majority invites DCFS to ignore it in the future.
In conclusion, I question how an arbitrator in the next case can avoid the folly that this case has become. When faced with a disciplinary action not timely taken, an arbitrator may no longer find that the action is untimely and enforce the collective-bargaining agreement as written. The arbitrator must now take proof on the merits in order to determine if the misconduct actually occurred, and if it did, then determine if it is gross enough to negate the operation of the limitations provision. Whatever the arbitrator’s decision, it is certain to spawn an appeal thereby sacrificing the efficiency of "binding” arbitration as a means of resolving labor disputes. This is the legacy of the majority’s ride on that unruly horse.
JUSTICE HEIPLE joins in this dissent.