by Meganne Trela (Spring 2017)
A police officer waived his right to arbitrate his termination by participating in a hearing before the Board of Fire and Police Commissioners according to the Illinois Supreme Court in Village of Bartonville v. Lopez, 2017 IL 120643 (2017). The police officer at issue, Salvador Lopez, was an officer with the Village for two years when the police chief sought his termination by filing a complaint with the Village Board of Fire and Police Commissioners (“Commission”) for his violation of certain procedures and training directives. Lopez was a Union member when the discipline charges were filed.
Lopez attended the hearing and was represented by the Union attorney. During the hearing, the attorney for Lopez reiterated that the Union’s presence did not waive its contractual right to grieve a suspension or termination. At the end of the Commission hearing, the Commission issued an order of discharge, and Lopez was terminated from his employment. Neither Lopez, nor the Union, sought judicial review of the Commission’s final decision under Illinois’ Administrative Review Law.
Lopez and the Union did, however, file a grievance alleging he was terminated without just cause in violation of the applicable collective bargaining agreement. Lopez argued that arbitration, and not a hearing before the Commission, was the exclusive procedure for resolving discipline matters. When the grievance was not resolved during the three-step grievance procedure outlined in the contract, Lopez referred the grievance to arbitration. The Village then filed a complaint for declaratory judgment and for a stay of the arbitration arguing that the termination and subsequent grievance were not arbitrable.
The Village argued that Lopez’s participation in the Commission hearing was evidence that the Commission had jurisdiction to conduct a hearing on the matter. The Village additionally argued that the Commission’s decision was subject to the Administrative Review Law, not the grievance procedure, and that res judicata applied (meaning the issue had already been adjudicated).
The trial court found in favor of the Village; however, the appellate court reversed that decision finding that it was the arbitrator who should decide whether the matter was subject to the grievance procedure, not the courts. On appeal, the Illinois Supreme Court recognized that when the language of a collective bargaining agreement is broad and ambiguous on an issue, the arbitrator should initially determine the question of arbitrability. However, in its decision to overturn the ruling of the appellate court, the Illinois Supreme Court also noted that “a contractual right to arbitrate can be waived like any other contractual right.” A waiver occurs when a party acts in a manner that is inconsistent with the arbitration clause of the agreement.
Lopez participated in the hearing before the Commission – Lopez testified at the hearing, his counsel cross-examined witnesses, and his counsel gave a closing argument. Furthermore, even though Lopez’s attorney stated that he was not waiving his right to file a grievance, he never questioned the jurisdiction of the Commission. The court reasoned that Lopez should have sought an injunction to stay the proceedings before the Commission. By participating in the Commission hearing, Lopez acted inconsistent with his right to arbitrate the matter and could not pursue arbitration after the fact.
The court also held that the legal theory of res judicata also precluded Lopez’s pursuit of arbitration. Res judicata is a theory that prevents controversies that have already been decided on their merits from being re-litigated. Thus, a final judgment on the merits rendered by a court of competent jurisdiction acts as a bar to a second suit between the parties involving the same cause of action. Because the Commission hearing was judicial in nature and Lopez failed to seek the administrative review of the Commission’s decision, the Commission’s decision to terminate was a final judgment on the merits. In addition, Lopez’s grievance and the complaint heard by the Commission arose from the same operative facts and involved the same parties. As a result, res judicata also precluded Lopez from pursuing arbitration after the conclusion of the Commission hearing.
Local governments should clearly define what matters are subject to the grievance arbitration procedure. While the Village in this case was successful in its attempt to block Lopez from pursuing arbitration on a disciplinary matter heard by the Commission, clear language on the arbitrability of disciplinary disputes may have prevented a lengthy, and likely, costly legal battle.