                                     2018 IL App (1st) 170702

                            Nos. 1-17-0702 & 1-17-1851 (consolidated)

                                    Opinion filed June 15, 2018 

                                                                                         Fifth Division
______________________________________________________________________________

                                             IN THE

                                 APPELLATE COURT OF ILLINOIS

                                        FIRST DISTRICT

______________________________________________________________________________
                                                              )     Appeal from the
THE CHICAGO TRANSIT AUTHORITY,                                )     Circuit Court of
                                                              )     Cook County.
        Plaintiff-Appellant, 	                                )
                                                              )     No. 16 CH 11310
                                                              )     Honorable
     v. 	                                                     )     David B. Atkins, 

                                                              )     Judge, presiding.

                                                              )

AMALGAMATED TRANSIT UNION LOCAL 308, 	                        )     No. 17 CH 717
                                                              )     Honorable
        Defendant-Appellee.                                   )     Neil H. Cohen,
                                                              )     Judge, presiding.



        JUSTICE LAMPKIN delivered the judgment of the court, with opinion.
        Presiding Justice Reyes and Justice Rochford concurred in the judgment and opinion.

                                            OPINION

¶1      Two arbitration awards issued in 2016 found that the Chicago Transit Authority (CTA)

had violated its collective bargaining agreement with the Amalgamated Transit Union Local 308

(ATU) when the CTA unilaterally implemented rules that directly affected certain rights of the

workers concerning their schedule choices and work hours. Thereafter, the circuit court denied

the CTA’s petitions to vacate the arbitration awards.
Nos. 1-17-0702 & 1-17-1851 (consolidated)


¶2     On appeal, the CTA argues that the arbitration awards should be vacated because (1) they

are contrary to the well-established Illinois public policy requiring the CTA to provide safe mass

transportation to the riding public or (2) the arbitrators usurped the CTA’s nondelegable statutory

right and duty to provide safe mass transportation to the riding public.

¶3     For the reasons that follow, we affirm the judgments of the circuit court that affirmed the

arbitration awards.

¶4                                      I. BACKGROUND

¶5     This appeal arises from a dispute between the CTA and the ATU over the CTA’s

unilateral implementation of several new rules following the 2014 derailment of a CTA train at

the end of the Blue Line at the station at O’Hare International Airport. Specifically, the train,

which was operated by an employee represented by the ATU, overran the bumper at the O’Hare

station and partially ascended the escalator leading to the airport. Approximately 30 people

claimed injuries. The CTA concluded that operator fatigue caused the derailment and

implemented several operational changes to enhance the overall safety of the CTA’s customers

and employees. However, the ATU argued that these unilateral operational changes violated the

parties’ collective bargaining agreement, and it filed grievances and an unfair labor practice

charge against the CTA. Two separate arbitration proceedings addressed the unilateral changes

imposed by the CTA.

¶6     In the first arbitration proceeding, the arbitrator heard the grievances concerning whether

the CTA had violated the collective bargaining agreement by, inter alia, (1) requiring a

minimum of 10 hours of rest time between shifts for both “picked” and “extra board” work,

(2) requiring full-time temporary flaggers (FTTFs) who were qualified to operate trains to pick



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32 hours of motor runs per week, and (3) limiting FTTFs and rapid transit operators (RTOs) in

their first 12 months of employment to a maximum of 32 hours per week of train operation.

¶7     The arbitrator issued an award in June 2016 sustaining the grievances in part and denying

the grievances in part. The arbitrator found that, despite the CTA’s compelling interest in

enhancing operational safety, the CTA had violated specific obligations contained in the plain

terms of the collective bargaining agreement. Specifically, when the CTA unilaterally increased

the minimum time off between shifts from 8 to 10 hours, this change had a major impact on

employees’ substantive rights to pick any shift or shifts as long as they had 8 hours between

work days. Furthermore, by requiring the FTTFs qualified to operate trains to pick 32 hours of

motor runs per week, the CTA had infringed on a contractually protected right that “picking”

was to be done by seniority. Finally, by limiting first-year RTOs to 32 hours of train operation

per week, the CTA had infringed on their right to exercise their seniority and pick their work

assignments and schedules. The arbitrator ordered the CTA to cease and desist enforcement of

the rules found to be in violation of the collective bargaining agreement.

¶8     The CTA filed a petition to vacate this arbitration award, and the ATU filed a cross-

petition to affirm the award. In March 2017, the circuit court confirmed the arbitration award and

entered judgment in favor of the ATU.

¶9     Meanwhile, in the second arbitration proceeding, another arbitrator heard grievances

concerning whether the CTA violated the collective bargaining agreement by (1) limiting rail

operations employees to 12 hours of work a day in any 14-hour period and (2) requiring that all

rail operations employees work no more than six days within any consecutive seven-day period.




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¶ 10   The arbitrator issued an award in October 2016 sustaining the grievances in part and

denying the grievances in part. The arbitrator found that the CTA’s rule limiting rail operations

employees to 12 hours of work a day in any 14-hour period was a clear breach of the collective

bargaining agreement. The arbitrator recognized that the CTA had a compelling interest to

enhance safety and that the rule was a reasonable attempt to advance this interest; however, the

arbitrator concluded that the rule violated the plain language of the collective bargaining

agreement. The arbitrator found that the CTA was required to negotiate this change and ordered

the CTA to rescind the rule and make all affected employees whole. The matter was remanded to

the parties to determine the appropriate remedy.

¶ 11   The CTA filed a petition to vacate this arbitration award, and the ATU filed a cross-

petition to affirm the award. In July 2017, the circuit court confirmed the award and entered

judgment in favor of the ATU.

¶ 12   The CTA timely appealed the denials of its petitions to vacate, and this court

consolidated the appeals on review.

¶ 13                                   II. ANALYSIS

¶ 14   On appeal, the CTA contends that the arbitration awards should be vacated because they

are contrary to a well-established Illinois public policy that requires the CTA to provide safe

mass transportation to the riding public. Alternatively, the CTA contends that this dispute was

not arbitrable because the CTA has a nondelegable statutory right and duty to provide safe mass

transportation to the riding public.




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Nos. 1-17-0702 & 1-17-1851 (consolidated)


¶ 15                          A. The Public Policy Exception

¶ 16   A court’s review of an arbitration award is extremely limited, and courts must construe

arbitration awards, if possible, as valid. American Federation of State, County & Municipal

Employees, AFL-CIO v. State, 124 Ill. 2d 246, 254 (1988). Where, as here, the arbitration

involved a collective bargaining agreement, a court, consistent with section 12(e) of the Uniform

Arbitration Act (710 ILCS 5/12(e) (West 2016)), will disturb the arbitration award only on the

common-law grounds that existed prior to the enactment of the Uniform Arbitration Act, i.e.,

“instances of fraud, corruption, partiality, misconduct, mistake, or failure to submit the question

to arbitration.” American Federation of State, County & Municipal Employees, AFL-CIO v.

Department of Central Management Services, 173 Ill. 2d 299, 304 (1996) (AFSCME 1996).

       “The rationale for the limited review of an award interpreting a collective

       bargaining agreement is that the parties have contracted to have their disputes

       settled by an arbitrator, rather than by a judge. [Citation.] A labor arbitration

       award must be enforced if the arbitrator acts within his scope of authority and the

       award draws its essence from the parties’ collective bargaining agreement.

       [Citation.]

               However, a court will vacate the award if it is repugnant to the established

       norms of public policy. [Citation.] The public policy exception is narrow and its

       successful invocation requires a clear showing that the award violates some

       explicit public policy. [Citation.] The contract as interpreted by the arbitrator must

       violate some explicit public policy that is well-defined and dominant and

       ascertainable by reference to the laws and legal precedents and not from



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          generalized considerations of supposed public interest. [Citation.] Accordingly,

          the public policy of a state must be determined by its constitution, laws, and

          judicial decisions. [Citation.] ***

                 To vacate an award under the public policy exception, this court is

          required to undertake a two-step analysis. The threshold question is whether a

          well-defined and dominant public policy can be identified. [Citation.] If so, the

          court must determine whether the arbitrator’s award, as reflected in his

          interpretation of the agreement, violated public policy. [Citation.] As our supreme

          court has cautioned, although a rote recitation of the exception’s two-prong test

          can be easily made, the exception’s ultimate applicability to a case is necessarily

          fact dependent. [Citation.]” (Internal quotation marks omitted.) Chicago Transit

          Authority v. Amalgamated Transit Union, Local 241, 399 Ill. App. 3d 689, 695-96

          (2010) (ATU Local 241).

The question of whether an award violated public policy is one of law, which we review de novo.

City of Des Plaines v. Metropolitan Alliance of Police, Chapter No. 240, 2015 IL App (1st)

140957, ¶ 20.

¶ 17      The CTA does not contend that the arbitrators exceeded their authority or that the awards

failed to draw their essence from the collective bargaining agreement. Instead, the CTA argues

that this court should vacate the arbitration awards because the awards violate the well-defined

and dominant Illinois public policy requiring the CTA to provide safe mass transportation to the

public.




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Nos. 1-17-0702 & 1-17-1851 (consolidated)


¶ 18   The arbitration awards at issue here held that the CTA could not bypass the collective

bargaining process and unilaterally impose rules that directly affected certain rights of the

workers concerning their schedule choices and work hours. These awards cannot be vacated

under the public policy exception unless the CTA clearly shows that the awards violate an

explicit, well-defined, and dominant public policy that is ascertainable by reference to our laws

and legal precedents.

¶ 19   The CTA cites the Illinois Constitution and refers to four provisions of its enabling

statute, the Metropolitan Transit Authority Act (Transit Act) (70 ILCS 3605/1 et seq. (West

2016)), to show that the awards violate an explicit, well-defined and dominant public policy

favoring safe public transit. Specifically, article XIII, section 7, of the Illinois Constitution

provides that “[p]ublic transportation is an essential public purpose” and the General Assembly

“may provide for, aid, and assist public transportation.” Ill. Const. 1970, art. XIII, § 7.

Furthermore, section 6 of the Transit Act grants the CTA the “power to acquire, construct, own,

operate and maintain for public service a transportation system.” 70 ILCS 3605/6 (West 2016).

Section 9a(f) of the Transit Act empowers the CTA to cooperate with the Regional

Transportation Authority to protect public transit facilities, employees, and users of public

transportation facilities from crime and unsafe conditions, and this cooperation could include

agreements to coordinate or merge police or security forces. Id. § 9a(f). Section 31 of the Transit

Act grants the Chicago Transit Board the power to pass ordinances and make rules and

regulations to regulate the use, operation, and maintenance of its property and to assess fines to

enforce this power. Id. § 31. Finally, section 53 of the Transit Act requires the Chicago Transit




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Board to “develop written protocols to respond to medical and sanitation emergencies and to

other safety hazards.” Id. § 53.

¶ 20   The cited provisions of the Illinois Constitution and Transit Act do not show a well-

defined public policy regarding the safety of transit workers’ scheduling options or work hours.

Rather, these provisions show merely a broad and general interest in safe public transit, which is

not sufficient to successfully invoke the public policy exception to vacate the arbitration awards

as repugnant to an explicit, well-defined, and dominant public policy. There is no law or legal

precedent specifically directing that a transit authority must control the schedules and work hours

of transit employees to provide safe public transit, and the CTA cannot show a well-defined and

dominant public policy that prevents collective bargaining of the type of scheduling and work

hour matters at issue here. To the contrary, an explicit, well-defined, and dominant public policy

supports the collective bargaining process between transit authorities and transit workers. This

public policy favoring collective bargaining is ascertainable by provisions of the Transit Act and

the Illinois Public Labor Relations Act (5 ILCS 315/1 et seq. (West 2012)) that expressly allow

or require employers and employees to collectively bargain over matters directly affecting

wages, hours, and terms and conditions of employment. 70 ILCS 3605/28a (West 2016); 5 ILCS

315/4 (West 2012).

¶ 21   Furthermore, our judicial decisions have recognized an “ ‘underlying public policy in

favor of resolving collective bargaining disputes by arbitration.’ ” Department of Central

Management Services v. American Federation of State, County, and Municipal Employees

(AFSCME), AFL-CIO, 222 Ill. App. 3d 678, 686 (1991) (quoting Board of Trustees of

Community College District No. 508 v. Cook County College Teachers Union, Local 1600, AFT,



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AFL/CIO, 74 Ill. 2d 412, 424 (1979) (College Teachers Union Local 1600)); see also California

Brewers Ass’n v. Bryant, 444 U.S. 598, 608 (1980) (referring to “this Nation’s longstanding

labor policy of leaving to the chosen representatives of employers and employees the freedom

through collective bargaining to establish conditions of employment”).

¶ 22   The CTA cites Carlson v. Chicago Transit Authority, 2014 IL App (1st) 122463, and

ATU Local 241, 399 Ill. App. 3d 689, to support its argument that the awards violated a well-

defined public policy. The CTA’s reliance on these cases, however, is unavailing. In Carlson, a

bus passenger sustained injuries when the bus driver stopped suddenly to avoid a collision with a

vehicle that cut into the traffic lane in front of the bus. This court addressed, in the context of a

personal injury action, the duty of care a common carrier owes its passengers to exercise the

highest degree of care consistent with the practical operations of its conveyances. Carlson, 2014

IL App (1st) 122463, ¶ 24. Carlson, which made no reference to collective bargaining or public

employee labor law, simply referred to a general public policy favoring safe public mass transit.

¶ 23   In ATU Local 241, the CTA discharged a bus driver after the CTA discovered that he had

been convicted of aggravated criminal sexual abuse of a minor who was a family member. ATU

Local 241, 399 Ill. App. 3d at 690. The union filed a grievance on the driver’s behalf, and an

arbitrator ordered that the driver be reinstated. Id. at 695. The evidence at the arbitration hearing

showed that the driver told his therapist he had engaged in sexual acts with the victim on

countless occasions, failed to complete the sex offender treatment program, and failed several

polygraphs concerning his sexual behavior before finally passing a polygraph several years after

he left the treatment program. Id. at 690-95. In addition, the driver failed to advise the CTA that

he was serving a four-year probation term and was a registered sex offender, and this court

believed that he inevitably violated the terms of his probation during his employment with the

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CTA by being alone with an unaccompanied minor. Id. at 699. On review, this court vacated the

arbitration award because it violated well-defined and dominant public policies derived from

specific statutes, including the criminal code, about protecting children from potential sexual

predators on public transportation and protecting the public from convicted sex offenders. Id. at

697-98. Unlike the situation in ATU Local 241, there are no specific statutory provisions in the

instant case to support the existence of a public policy favoring a public employer’s unilateral

control over matters of work conditions and hours to increase the safety of public mass transit.

As discussed above, the CTA’s references to the Illinois Constitution and the Transit Act show

merely a general public policy favoring safe public transit. Furthermore, whereas the dispute in

ATU Local 241 concerned the reinstatement of a worker discharged by the CTA for misconduct,

the instant case presents a dispute of an entirely different nature, i.e., the CTA’s unilateral

implementation of rules that restrict the bargained-for rights of many workers. In addition, the

work hour and schedule choice conduct at issue here does not remotely approach the heinous

conduct at issue in ATU Local 241.

¶ 24   Even assuming the CTA met the first prong of the public policy exception to clearly

show an explicit, well-defined, and dominant public policy favoring the implementation of rules

limiting the work hours and schedule choices of transit workers to promote safe public

transportation, the CTA must also satisfy the second prong of the exception—that the arbitration

awards themselves, not the underlying actions leading to the grievances, violate such a policy.

See Eastern Associated Coal Corp. v. United Mine Workers of America, District 17, 531 U.S. 57,

63 (2000); AFSCME 1996, 173 Ill. 2d at 308. Specifically, the CTA must show that the

arbitration awards, by requiring the CTA to engage in collective bargaining and refrain from

unilaterally imposing rules that directly affect the workers’ rights concerning schedule choices

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and work hours, run contrary to an explicit, well-defined, and dominant public policy favoring

safe public transit.

¶ 25    The CTA asserts that there “can be no doubt” that the arbitration awards violated the

public policy favoring safe public mass transit by the CTA because (1) common sense and the

expert testimony presented by the CTA—about the safety standards adopted by public agencies

in industries similar to mass transit—establish that the risk of employee fatigue will increase if

the CTA is forced to reinstate the methods of operation that were in effect prior to the CTA’s

unilateral rule changes and (2) subjecting the CTA’s unilateral rule changes to the collective

bargaining process prevents the CTA “from taking effective and practicable action to fulfill its

duty to provide safe public mass transportation.” The CTA complains that its collective

bargaining agreement is a “shackle that strangles [its] efforts to introduce effective safety

measures” and “emasculate[s] out of existence” the CTA’s management right “to operate its

property according to its best judgment and the orders of competent authority.”

¶ 26    The CTA’s arguments lack merit. In rendering the awards, the arbitrators did not dispute

that the CTA was attempting to improve the safety of its operation when it imposed the new

restrictions on the workers’ schedules and hours. The arbitrators simply interpreted the collective

bargaining agreement to require the CTA to engage in the collective bargaining process and

refrain from implementing the new restrictions unilaterally. As discussed above, the statutory

provisions of the Transit Act and Illinois Public Labor Relations Act clearly show a well-defined

public policy favoring collective bargaining for matters that directly affect wages, hours, and the

terms and conditions of employment. We conclude that the arbitration awards requiring the

parties to negotiate the proposed rule changes do not violate a public policy favoring safe public



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transportation. Accordingly we deny the CTA’s request to vacate the awards under the public

policy exception.

¶ 27                   B. Whether the Dispute Involved a Nondelegable Power

¶ 28    In the alternative, the CTA argues that the arbitration awards should be vacated based on

the legal principle of nondelegability of public authority, which provides that a dispute “is not

arbitrable if it would constitute an impermissible delegation of discretionary public responsibility

specifically reposed by law in” a public body such as the CTA. College Teachers Union Local

1600, 74 Ill. 2d at 420; see also Parisi v. Jenkins, 236 Ill. App. 3d 42, 52 (1992) (the police

board’s statutory power to determine cause for dismissal and terminate employees was an

integral duty and function of the board and could not be abrogated by a collective bargaining

agreement); Board of Trustees of Junior College District No. 508 v. Cook County College

Teachers Union, Local 1600, 87 Ill. App. 3d 246, 250-51 (1980) (where the pertinent statute

vested the school board with all powers proper for the maintenance, operation, and development

of any college and the collective bargaining agreement reserved to the school board the duty to

determine the qualifications and assignments of the faculty members, that duty, which required

educational expertise, could not be delegated to an arbitrator and thus was not subject to

arbitration).

¶ 29    The CTA contends that the arbitrators did not have jurisdiction to limit its nondelegable

power to provide safe mass transit, this power includes the authority to limit the hours train

operators can work, and the CTA could not bargain this duty away to the ATU regardless of any

collective bargaining agreement. The CTA asserts that safety is integral to public mass transit




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and this responsibility should not be turned over to or shared with arbitrators or labor unions

because they have no expertise in safety matters.


¶ 30   The parties here do not challenge the arbitrators’ interpretations of the collective


bargaining agreement, which found that the workers had certain rights concerning their schedule 


choices and work hours that were directly affected by the CTA’s unilaterally implemented rules.


Consequently, we do not review contract interpretation issues as part of our review of the CTA’s


nondelegable duty claim. The question of whether a dispute is arbitrable is a question of law,


which this court reviews de novo. International Brotherhood of Electrical Workers, Local 193 v. 


City of Springfield, 2011 IL App (4th) 100905, ¶ 14. 


¶ 31   The CTA’s references to provisions of the Illinois Constitution and Transit Act, which 


were discussed above, do not indicate that the law specifically reposed in the CTA the 


nondelegable power to regulate general transit safety or safety limitations of the workers’


schedule options and work hours. To the contrary, the Illinois Public Labor Relations Act and the


Transit Act expressly require the CTA to bargain over matters directly affecting hours and


conditions of employment. 5 ILCS 315/4 (West 2012); 70 ILCS 3605/28a (West 2016). 


¶ 32   We conclude that the CTA does not have a nondelegable duty that allows it to 


unilaterally determine, in the name of transit safety, restrictions on the employees’ collectively


bargained-for schedule options and work hours.


¶ 33                                   III. CONCLUSION


¶ 34   For the foregoing reasons, we find that the arbitration awards did not violate an explicit,


well-defined, and dominant public policy or a nondelegable statutory power belonging to the 





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CTA. Therefore, we affirm the judgments of the circuit court, which rejected the CTA’s public


policy and nondelegable duty claims.


¶ 35   Circuit court judgments affirmed.


¶ 36   Arbitration awards affirmed.





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