Is There A Bright Line Where An Employee's Conduct Becomes Grounds For Dismissal?

In cases involving arbitration under collective bargaining agreements, arbitrators have interpreted cause to mean some cause not arbitrary or capricious. ..."Just Cause" includes only conduct that an employee knows is subject to discipline. While an employer has the right to create rules, they must be made known to employees and employees must reasonably believe that they will be enforced. ...

1. To determine if public policy has been violated, a two-step analysis is employed. The threshold question is whether a well-defined and dominant public policy can be identified. If so, the next question is whether an arbitrator's award, as reflected in the interpretation of the agreement, violated public policy.
2. The Supreme Court in AFSCME III found a well-defined public policy in favor of truthful and accurate DCFS reporting.
   1. A DCFS caseworker in a progress report wrote that she had seen 3 children in February and that they were doing fine. Unfortunately, the children had in fact perished in an accidental fire at their home in January. DCFS ultimately dismissed the caseworker, even though the department waited, without explanation, for 17 months between the conclusion of its investigation and the commencement of disciplinary proceedings. The arbitrator found DCFS’s delay was unreasonable under the language of the union contract at issue and ordered reinstatement. The Court found that because no harm apparently resulted to the children from this inaccurate representation and the apparent three-year neglect was not the yardstick by which application of the public policy exception is measured.
   2. In determining whether the arbitrator's interpretation of the contract at issue violated public policy, the Court focused on the following factors:
      1. The failure to determine whether the reinstatement of the caseworker might compromise the welfare of the children.
      2. The failure to determine whether the caseworker's misconduct would be repeated.

1. A bus driver was dismissed for harassment of others, lying to the director of transportation, inappropriate driving tactics, and unsafe and unlawful driving practices. There was a just cause and progressive discipline procedure in the parties' collective bargaining agreement.
2. The Fourth District found a public policy in favor of safe transportation of children in the Illinois Constitution, statutes and judicial decisions.
3. The employee's past conduct could be examined to determine whether an arbitrator's award violates public policy in the context of the duty imposed upon the employee.

We believe that a bright-line test requiring that the award itself violate an explicit law has the potential to swallow the public policy exception. Indeed, this case illustrates why such a narrow view is unworkable. None of the acts enacted by the legislature concerning DCFS contain any statute which explicitly prohibits the agency from hiring "dishonest" workers or workers previously disciplined for dishonesty. True, too, there is no statute which expressly prohibits a DCFS worker from submitting a false case report. Such prohibitions are absent because the very essence of the act presupposes that only trustworthy workers will be hired. The employment of any other type of worker defeats the legislative purpose surrounding the entire statutory scheme.

1. Public employees who occupy positions sensitive to the safety and welfare of children are more susceptible to a public policy challenge than workers who do not. The Court refused to be an “ostrich” hiding its head in the sand until tragedy strikes.

In June 2004, petitioner, Central Community Unit School District No. 4 (District), voted to dismiss Quenten Schumacher from his position as head custodian at the high school. Respondent Laborers' International Union of North America, Local 751 (Local 751), filed a grievance on Schumacher's behalf. In September 2006, an arbitrator issued an award reinstating Schumacher to a full-time custodian position and granting back pay, except for the 10 working days of suspension without pay. The District's board of education voted not to comply with the award and refused to reinstate Schumacher with back pay. In December 2006, Local 751 filed an unfair labor practice charge with Respondent Illinois Educational Labor Relations Board (IELRB). In July 2007, an administrative law judge (ALJ) issued a recommended decision and order which concluded the District violated Section 14(a)(8) and derivatively, Section 14(a)(1) of the Illinois Educational Labor Relations Act (Act) (115 ILCS 5/14(a)(8), (a)(1) (West 2006)). In April 2008, the IELRB issued a decision affirming the ALJ's recommended decision and order. The District appealed.

Several incidents occurred between June 2002 and March 2004 that ultimately led to the District's decision to terminate Schumacher's employment with the District. In June 2002, Schumacher was reprimanded after another school employee heard him refer to the District's superintendent as a "f-b" after she instructed Schumacher to set up the auditorium for a speaker.

On December 30, 2002, someone tracked mud across the gym walkway. Schumacher thought it was some of the basketball players who made the mess and confronted the basketball coach about it in the gym in front of students. Schumacher used profanity during this confrontation, including the term "f..." On January 7, 2003, the high school principal wrote a letter to Schumacher stating that he "simply [could] not have obscene language confrontations in front of the students" and that he expected this to never happen again. A three-day suspension without pay was imposed and Schumacher was informed that further "incidents of this nature could result in further discipline or dismissal." Schumacher did not file a grievance over the suspension.

On March 15, 2004, a student spilled milk in the cafeteria. Schumacher told the student to get a mop to clean it up. Several students overheard Schumacher say "stupid son of a b...".

On March 24, 2004, Schumacher, while driving a bus, observed a student wearing headphones and listening to a compact disc (CD) player. Schumacher stopped the bus, confiscated the CD player and headphones, and threw them in the trash, breaking the CD player.

On April 7, 2004, the Superintendent sent Schumacher a memo informing him she had completed her investigation of the March 15 and 24, 2004, incidents. She believed Schumacher said "stupid son of a b...." after the milk incident but did not believe he directed it at any student. The Superintendent informed Schumacher she was recommending that he be demoted from head custodian to custodian in lieu of discharging him. The Superintendent stated Schumacher's ability to control his temper was interfering with the performance of his duties and noted this was not Schumacher's first time having difficulty with his temper. He had already received verbal and written warnings as well as a suspension without pay, and the next step would be dismissal. Schumacher was encouraged to get assistance in anger management and indicated she was willing to assist him in setting up sessions through the employee-assistance program.

Schumacher was offered a last chance agreement in lieu of dismissal. The last chance agreement required Schumacher to participate in and successfully complete an anger management course. Schumacher's union filed a grievance. Schumacher refused to enter into the last chance agreement.

Following a June 16, 2004 hearing, the Board of Education terminated Schumacher's employment with the District.

The application of the public policy exception involves a two-step analysis according to the Supreme Court in AFSCME II. First, the court determines whether a well-defined and dominant public policy can be identified. "If so, the court must determine whether arbitrator's award, as reflected in his interpretation of the agreement, violated the public policy."

The Arbitrator stated he was only concerned with Schumacher's conduct as custodian because Schumacher had already been removed from his position as bus driver and that he believed any incident that occurred while serving as a bus driver was only relevant to Schumacher's employment with the District as a bus driver, not as a custodian. In the IELRB's decision, in which it concluded the arbitration award was binding, the IELRB likewise refused to consider Schumacher's conduct as a bus driver and determined the Arbitrator's award did not violate public policy.

"That the administrative decision at issue is a ruling on the validity of the arbitrator's award complicates our review, for 'a court's review of an arbitrator's award is extremely limited,' and 'a court must construe an award, if possible, as valid.'" Board of Education of Community High School District No. 155 v. Illinois Educational Labor Relations Board, 247 Ill.App. 3d 337, 344, 617 N.E.2d 269, 276 (1993), quoting American Federation of State, County & Municipal Employees v. Illinois, 124 Ill.2d 246, 254, 529 N.E.2d 534, 537 (1988). "The IELRB's review of an arbitration award is similarly constrained." DuPage High School, 246 Ill.App.3d at 974, 617 N.E.2d at 794.

This is an appeal of an IELRB decision that found the Arbitrator's award was binding. However, because the IELRB's review of an arbitrator's decision is so constrained, the IELRB declined reconsideration of the Arbitrator's decision to exclude Schumacher's actions as a bus driver from consideration.

When a court reviews an IELRB's decision, it is cognizant that the IELRB's review of the Arbitrator's decision was very limited. The reason review of an arbitrator's award is limited is "because the parties have chosen by contractual agreement how their dispute is to be decided, and judicial modification of an arbitrator's decision deprives the parties of their choice." International Ass'n of Firefighters, Local No. 37 v. City of Springfield, 378 Ill.App.3d 1078, 1081, 883 N.E.2d 590, 592 (2008). "Because the parties to an arbitration did not bargain for a judicial determination, a reviewing court cannot set aside an arbitration award because of errors in judgment or mistakes of law or fact." City of Springfield, 378 Ill.App.3d at 1081, 883 N.E.2d at 592.

While keeping these considerations in mind, the Court concluded the IELRB's decision to give no weight to Schumacher's conduct as a bus driver was arbitrary and capricious. By excluding that conduct, the IELRB's review was improperly limited to whether the Arbitrator's award violated a public policy against using profanity in front of children. This was too narrow a look at the public policy at issue. A broader and very important public policy concerning the safety of school children is really what is at issue in this case. "The welfare and protection of minors has always been considered one of the State's most fundamental interests."

While the Court recognized the AFSCME II and District U-46 cases involved specific statutes where the public policy could be found, the Court found that there is support for a general policy in favor of the safety of school children in Section 24-24 of the School Code. 105 ILCS 5/24-24 (West 2006). Section 24-24 places "teachers, other certificated educational employees, and any other person, whether or not a certificated employee, providing a related service for or with respect to a student" in the relation of parents and guardians to the pupils in all matters relating to discipline and conduct of the schools. 105 ILCS 5/24-24 (West 2006). They are charged with maintaining discipline in the schools. 105 ILCS 5/24-24 (West 2006). This relationship extends to all activities connected with the school and may be exercised at any time for the safety and supervision of the pupils in the absence of their parents or guardians.

Schumacher's conduct as a bus driver is part of the evidence showing he has anger management issues and that he has, on several occasions, directed his temper at school children. His anger control issues were further displayed in other incidents at the school when Schumacher was performing his duties as custodian, although those incidents involving students were verbal in nature. A proper determination of whether the District's termination of Schumacher's employment with the District as a custodian violated the Agreement requires consideration of all of that relevant conduct. Schumacher's conduct in which he displayed his temper toward children while serving in his role as a bus driver is relevant. Terminating Schumacher's employment as a bus driver and reassigning him to a custodian position at the elementary school does not (1) ensure he will have no contact with children or (2) eliminate the possibility he will have another incident involving his temper at or in the presence of children. All relevant evidence must be considered in this case because the safety and protection of school children is at issue. Accordingly, the decision to disregard Schumacher's conduct as a bus driver was arbitrary and capricious. The Court remanded for the Arbitrator to consider this evidence in reaching his decision.

1. IELRB has remanded case to Arbitrator, but refused to provide the Arbitrator with the record on appeal for his reconsideration. The parties were required to “recreate” the record and submit it to the Arbitrator. This was done by September 11, 2009.
2. The Arbitrator’s reconsidered award is pending.