                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




    City of Naperville v. Illinois Fraternal Order of Police, Labor Council, F.O.P. Lodge
                                No. 42, 2013 IL App (2d) 121071




Appellate Court            THE CITY OF NAPERVILLE, Plaintiff-Appellant, v. THE ILLINOIS
Caption                    FRATERNAL ORDER OF POLICE, LABOR COUNCIL, F.O.P.
                           LODGE NO. 42, Defendant-Appellee.



District & No.             Second District
                           Docket No. 2-12-1071


Filed                      September 24, 2013


Held                       In plaintiff city’s appeal from an arbitrator’s finding that the collective
(Note: This syllabus       bargaining agreement between the city and the union representing the
constitutes no part of     city’s police officers governed a dispute arising from the city’s refusal to
the opinion of the court   hire an officer to drive a snowplow while he was off duty and required
but has been prepared      arbitration of the issue, the appellate court held that the collective
by the Reporter of         bargaining agreement did not govern the dispute, since no express
Decisions for the          provision of the agreement referred to the city’s right to establish rules for
convenience of the         other work an officer could do for the city while off duty; therefore, the
reader.)
                           issue was not subject to arbitration.


Decision Under             Appeal from the Circuit Court of Du Page County, No. 12-MR-226; the
Review                     Hon. Bonnie M. Wheaton, Judge, presiding.



Judgment                   Reversed.
Counsel on                 Margo L. Ely, City Attorney, and Mark Antonio Scarlato, Assistant City
Appeal                     Attorney, both of Naperville, for appellant.

                           Jeffery Burke, of Illinois Fraternal Order of Police, Labor Council, of
                           Western Springs, for appellee.


Panel                      JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
                           Justices Hudson and Birkett concurred in the judgment and opinion.



                                             OPINION

¶1          The instant controversy arises from a dispute between the City of Naperville (the City)
        and the Illinois Fraternal Order of Police, Labor Council, F.O.P. Lodge No. 42 (the Lodge),
        as to whether the parties’ collective bargaining agreement (CBA) governed a situation where
        the City refused to hire a member of the Lodge to operate a snowplow while he was off duty.
        An arbitrator found that the CBA governed the parties’ dispute, and the circuit court of
        Du Page County affirmed that decision. The City appeals from that order. We reverse.

¶2                                          BACKGROUND
¶3          The City is a municipal corporation and home rule unit of government that employs
        approximately 131 police officers. The Lodge is the sole and exclusive collective bargaining
        representative for the Naperville police officers. The City and the Lodge entered into a CBA.
        The provisions of the CBA pertinent to this appeal are:
            “Section 4.1
                 Except as specifically limited by the express provisions of this Agreement, the City
            retains all traditional rights to manage and direct affairs of the Police Department in all
            of its various aspects and to manage and direct its employees, including but not limited
            to the following: To plan, direct, control and determine the budget and all the operations,
            services and missions of the Police Department; *** to make, alter and enforce
            reasonable rules, regulations, orders, policies and procedures ***.
                                                  ***
            Article 9
            Grievance Procedure
            Section 9.1 Definitions
                                                  ***
                 A ‘City/External Grievance’ is defined as a grievance which pertains to a matter
            involving policies established by the City involving an alleged violation of an express

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         provision of this Agreement including, but not limited to issues such as use of sick leave
         or availability of medical benefits.
                                                 ***
         Section 9.3 Arbitration
              If the grievance is not settled *** and the Lodge wishes to appeal the grievance ***,
         the Lodge may refer the grievance to arbitration.
                                                 ***
         Section 9.4 Limitations on Authority of Arbitrator
              The arbitrator shall have no right to amend, modify, nullify, ignore, add to, or
         subtract from the provisions of this Agreement.
                                                 ***
         Section 29.3 Entire Agreement
              This agreement constitutes the complete and entire Agreement between the parties
         for its term. *** The parties acknowledge that, during the negotiations which resulted in
         this Agreement, each has the unlimited right and opportunity to make demands and
         proposals with respect to any subject or matter not removed by law or ordinance from the
         area of collective bargaining, and that the understandings and agreements arrived at by
         the parties after the exercise of that right and opportunity are set forth in this Agreement.”
¶4       It is also relevant to this appeal that the City’s department of public works (DPW) is
     responsible for snow removal from City streets and cul-de-sacs. Each snow season, the DPW
     hires employees from other City departments to drive snowplows and remove snow from cul-
     de-sacs. It is a voluntary program available to employees during their off-duty hours. The
     program is controlled and managed solely by the DPW. The police department does not have
     a role in hiring, firing, or managing snowplow drivers.
¶5       During the winter of 2009, City police officer William Kovarik applied with the DPW
     to participate in the voluntary snow removal program. After he was not hired, he filed a
     grievance under the CBA, claiming that he had a contractual right to snowplow work and that
     he was wrongly denied the opportunity to snowplow. The City responded to the grievance
     by asserting that the grievance was invalid because it did not implicate an “express
     provision” of the CBA, and, therefore, the matter was not arbitrable.
¶6       After the Lodge continued to pursue Kovaril’s grievance pursuant to the CBA, the matter
     was ultimately assigned to an arbitrator. Because the City continued to protest that the
     dispute was not subject to arbitration, the arbitrator agreed to bifurcate the proceedings and
     rule on the arbitrability of the matter prior to an arbitration on the merits.
¶7       On July 12, 2010, following a hearing, the arbitrator found that the City interpreted the
     phrase “express provision” too narrowly. Instead, the arbitrator explained, the CBA required
     only that some express provision “be shown to cover or deal with [the] dispute in the sense
     that one can plausibly maintain that the contract has or has not been violated.” 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 that subjected the parties’ dispute
     to arbitration.

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¶8         On August 31, 2010, the City filed a complaint for declaratory judgment in the circuit
       court. The City sought a declaration that the grievance was not arbitrable under the terms of
       the CBA. On January 24, 2011, the circuit court dismissed the City’s action without
       prejudice.
¶9         On December 9, 2011, following a hearing, the arbitrator ruled in the Lodge’s favor as
       to the merits of Kovaril’s grievance. On February 9, 2012, the City again filed a complaint
       for declaratory judgment in the circuit court, seeking a declaration that the grievance was not
       arbitrable. On September 9, 2012, the circuit court dismissed the City’s complaint with
       prejudice, holding that the grievance was substantively arbitrable pursuant to section 4.1 of
       the CBA and that the arbitrator had correctly ruled on the merits. The City thereafter filed a
       timely notice of appeal.

¶ 10                                          ANALYSIS
¶ 11        On appeal, the City argues, as it did throughout the proceedings below, that the
       underlying dispute between it and the Lodge is not subject to arbitration.
¶ 12        At the outset, we address the Lodge’s argument that the City’s appeal is untimely because
       the City failed to appeal the arbitrator’s initial July 12, 2010, ruling on arbitrability. The
       Lodge contends that, pursuant to section 12(b) of the Uniform Arbitration Act (the Act) (710
       ILCS 5/12(b) (West 2010)), the City was obligated to appeal the arbitrator’s initial ruling
       within 90 days. Because it did not, the Lodge insists that the City’s action is barred by res
       judicata and collateral estoppel.
¶ 13        Section 12 of the Act provides that a party may seek to have a court vacate an arbitrator’s
       award. 710 ILCS 5/12(a) (West 2010). To do so, the party must file its application within 90
       days after delivery of a copy of the award to the party. 710 ILCS 5/12(b) (West 2010). Here,
       the arbitrator did not enter an award on July 12, 2010. Rather, it simply found that the
       parties’ dispute was subject to arbitration. Thus, pursuant to section 12(b), there was not a
       basis for the City to appeal the arbitrator’s initial decision. Further, although the City did
       appeal to the circuit court the arbitrator’s initial decision, on January 24, 2011, the trial court
       dismissed the City’s action without prejudice. Dismissals that are entered without prejudice
       are not final and appealable orders. DeLuna v. Treister, 185 Ill. 2d 565, 569-70 (1999). As
       such, neither res judicata nor collateral estoppel barred the City from raising again its
       contention that the parties’ dispute was not subject to arbitration. Arnold Schaffner, Inc. v.
       Goodman, 73 Ill. App. 3d 729, 732 (1979) (res judicata and collateral estoppel apply only
       where there is a final judgment). The City’s appeal before us was timely filed.
¶ 14        Turning to the merits of the City’s appeal, we note that the issue of whether a contract
       to arbitrate exists must be determined by the court, not an arbitrator. “[I]f the opposing party
       denies the existence of the agreement to arbitrate, the court shall proceed summarily to the
       determination of the issue so raised ***.” 710 ILCS 5/2(a) (West 2010). Although arbitration
       is a favored method of dispute resolution, the parties to an agreement are bound to arbitrate
       only those issues they have agreed to arbitrate, as shown by the clear language of the
       agreement and their intentions expressed in that language. Menard County Housing Authority
       v. Johnco Construction, Inc., 341 Ill. App. 3d 460, 463 (2003).

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¶ 15        Where there is an arbitration agreement, but it is unclear whether the subject matter of
       the dispute falls within the scope of the arbitration agreement, the question of substantive
       arbitrability should initially be decided by the arbitrator. Donaldson, Lufkin & Jenrette
       Futures, Inc. v. Barr, 124 Ill. 2d 435, 447-48 (1988). This is consistent with the purpose of
       arbitration, employing the arbitrator’s skilled judgment to resolve the ambiguity. Id. at 448.
       Where an arbitrator decides the question of arbitrability in the first instance, the circuit court
       must still review the arbitrator’s decision de novo. Menard County Housing Authority, 341
       Ill. App. 3d at 463. Were this not so, a “party would be bound by the arbitration of disputes
       he has not agreed to arbitrate and would be left with only a court’s deferential review of the
       arbitrator’s decision on the question of arbitrability.” Salsitz v. Kreiss, 198 Ill. 2d 1, 14
       (2001). This court reviews de novo the circuit court’s construction of an arbitration clause.
       Tortoriello v. Gerald Nissan of North Aurora, Inc., 379 Ill. App. 3d 214, 227 (2008).
¶ 16        In Croom v. City of De Kalb, 71 Ill. App. 3d 370 (1979), this court addressed a similar
       issue as to whether the parties’ CBA bound them to arbitrate a certain dispute. In Croom,
       firefighters filed an action to force the city to arbitrate the issue of additional pay for
       firefighters who were assigned the duties of acting command officers. The firefighters sought
       “acting up” pay for the additional duties they were required to perform. The city refused to
       arbitrate the matter, claiming that there was no express provision in the CBA that required
       it to do so. The firefighters argued that the dispute was subject to arbitration due to the
       contract’s wage provisions. The circuit court found that there was no express provision in
       the CBA that required the parties to arbitrate. Id. at 373.
¶ 17        On appeal, this court affirmed. Id. at 376. We explained that, because the CBA provided
       that only grievances implicating an express provision of the agreement could be arbitrated,
       that necessarily meant that not all grievances were subject to arbitration. Id. at 375. We held
       that the parties had not agreed to arbitrate the issue of whether certain firefighters were
       entitled to “acting up” wages, because there was no express provision indicating that the
       parties would arbitrate that issue. Id. at 375-76. In so ruling, we rejected the firefighters’
       argument that the CBA’s reference to wages meant that any dispute over wages was
       arbitrable. We further explained that our determination was supported by the CBA’s
       provision that the firefighters had the unlimited right and opportunity to make demands and
       proposals with respect to any subject matter. Id. Thus, because the CBA was silent as to the
       issue of additional pay for the performance of the duties of acting command officers, it meant
       that there was not an agreement to arbitrate that issue. Id.
¶ 18        Here, the parties’ CBA indicated that only a grievance that involved an express provision
       would be subject to arbitration. This necessarily means that not every grievance a police
       officer had with the City would be subject to arbitration. Id. Further, “express” means
       “clearly and unmistakably communicated; directly stated.” (Internal quotation marks
       omitted.) Quintas v. Asset Management Group, Inc., 395 Ill. App. 3d 324, 333 (2009). 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. As the CBA indicates
       that the parties had the right to seek the inclusion of such an issue in the agreement, but none
       is included, there is an inference that the parties did not agree to arbitrate that issue. See
       Croom, 71 Ill. App. 3d at 375-76. Accordingly, we hold that, pursuant to the plain language

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       of the CBA, the City was not obligated to arbitrate the underlying dispute with the Lodge.
       The circuit court therefore erred in finding to the contrary.
¶ 19        In so ruling, we reject the Lodge’s argument 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. That section does not specifically refer
       to the City’s ability to establish rules for other work that police officers do for the City while
       they are off duty. To interpret section 4.1 as broadly as the Lodge 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. That, of course, we decline to do. See
       Thompson v. Gordon, 241 Ill. 2d 428, 442 (2011) (courts will not interpret a contract
       provision in a manner that would render provisions null or meaningless, or in a way that is
       contrary to the plain and obvious meaning of the language used).

¶ 20                                    CONCLUSION
¶ 21       For the foregoing reasons, the judgment of the circuit court of Du Page County is
       reversed.

¶ 22       Reversed.




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