Cook County Record

Tuesday, January 21, 2020

Appeals panel: Fired worker's 'last chance agreement' lets Cook County sidestep arbitration over termination

By Scott Holland | Apr 6, 2018

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A labor grievance against Cook County won’t avoid its day in court after a state appeals panel said a “Last Chance Agreement” between the county and a fired worker allows the county to sidestep a union collective bargaining agreement, and thus nixes the union’s attempt to send the matter to arbitration.

The underlying dispute involves former Cook County juvenile probation officer Anthony Jordan who filed a grievance after his February 2015 termination for not fulfilling various work duties. Although American Federation of State, County and Municipal Employees (AFSCME) Local 3477 and the county agreed to arbitration and selected an arbitrator, the county reversed course and said the employee’s “last chance agreement,” agreed to following an Oct. 2011 suspension, established his termination as not subject to arbitration.

The union filed a petition to compel arbitration in Cook County Circuit Court and both parties moved for summary judgment. A Cook County judge found the agreement to be unclear in that regard and referred the issue to an arbitrator to determine if the dispute could legally be resolved in that forum. The county appealed that ruling. Meanwhile, the AFL-CIO signed onto the matter alongside AFSCME.

The Illinois First District Appellate Court ruled on the appeal in an unpublished order issued March 30. Justice James G. Fitzgerald Smith wrote the opinion; Justices Cynthia Y. Cobbs and Terrence Lavin concurred. The order was issued under Supreme Court Rule 23, which restricts its use as precedent, except under very limited circumstances permitted by the Supreme Court rule.

Although the court acknowledged, “arbitration's preferred status in resolving labor disputes,” per Smith, the county asserted that presumption was overcome based “on the uniqueness of the (Last Chance Agreement) which specifically demonstrates the parties’ explicit intent that Jordan's termination would not be subject to arbitration.”

Both parties acknowledged “there is no Illinois case law directly dealing with language like that found in the instant LCA,” Smith wrote, adding that “labor policy strongly favors arbitration with respect to labor relation disputes,” leaving the panel to presume “a labor dispute should be arbitrated unless the parties have specifically agreed otherwise.”

The union insisted the breadth of its collectively bargained agreement’s arbitration clause made it unclear whether both parties agreed to arbitration for issues like Jordan’s. The county, meanwhile, said the CBA and LCA clearly show an intent to have the dispute resolved in court.

“LCAs are not separate agreements from CBAs,” Smith wrote. “As supplements, they are nevertheless considered to be binding contracts, with the ultimate end of providing a way, outside of the CBA, for an employee to save his job.”

While the CBA provided a five-step grievance procedure culminating in arbitration, the mutually agreeable LCA shifted the dynamics. Further, the panel noted, the details of the LCA were made clear at the time of the October 2011 suspension, essentially meaning he could only keep his job by agreeing to forego future access to arbitration.

“The text of the LCA itself not only mandated that Jordan follow department rules and work directives,” Smith wrote, “but specifically ordered him to acknowledge that ‘any singular non-compliance with these conditions will cause his immediate termination from the department without the recourse of the collective bargaining grievance procedures.’ ”

The union also tried to say the October 2011 LCA was ambiguous because it agreed to a new CBA in August 2012 that covered December 2008 through November 2012 and did not include exceptions for LCAs. However, the panel said that CBA contains no reference to Jordan’s situation and found no reason to nullify a signed individual contract.

The panel determined the circuit court should have granted summary judgment to the county and reversed the ruling.

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Organizations in this Story

Cook CountyIllinois First District Appellate CourtAmerican Federation of State County and Municipal Employees