By Anthony Rice
In City of Naperville v. Ill. Fraternal Order of Police, the Illinois Appellate Court held the issue of refusing to hire a police officer to operate a snowplow, while off duty, was not arbitrable because the parties’ CBA did not have an expressed provision stating otherwise.
The City’s department of public works (DPW) is responsible for snow removal from City streets. Each snow season, the DPW hires employees from other City departments to drive snowplows and remove snow. During the winter of 2009, City police officer William Kovarik applied with the DPW to operate a plow. After he was not hired, he filed a grievance under the CBA, claiming that he had a contractual right to snowplow work and was wrongly denied the opportunity to plow. The matter was ultimately assigned to an arbitrator. 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, subjected the parties’ dispute to arbitration.
The City appealed the decision to the state court. On appeal, the Union argued 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. Drawing from Section 9.3 of the same CBA, the court rejects the Union’s argument and reverses the arbitrator:
Here, [Section 9.3] indicated that only a grievance that involved an express provision would be subject to arbitration. . . Further, “express” means “clearly and unmistakably communicated; directly stated.” 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 . . . To interpret section 4.1 as broadly as the [Union] 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.
Editor’s Note (Jim Cline): A standard element of most CBA arbitration clauses, is that the ability to grieve (and arbitrate), is limited to those subjects involving the terms of the CBA. Here, the Union took and expansive view of what fell within the terms of the CBA and their view was rejected by the court.
Normally the ability to grieve is broadly interpreted and there is a presumption that almost any subject touching upon the CBA is subject to arbitration, unless the subject is expressly not subject to arbitration. In this case, the City likely achieved a narrowing of the scope of arbitrability by requiring that a subject had to be “expressly” covered by the CBA to be arbitrable.
But even without that narrowing language, the Union’s position in this case seemed like a reach. Absent some specific language in a contract, it is hard to imagine how the employer’s decision to hire, or not hire, a bargaining unit member for a different job outside the bargaining unit is a grievable item.
