or file a case on the call the docket today's agenda number thirteen consolidated case numbers one one three seven two one and one one three seven two three groups bill perry community unit school district number four vs the illinois educational labor relations board at all counsel for the balance you're going to split your time and the light will go off and your time's up the district committed an unfair labor practice when it refused to implement the arbitrators award there are a few core principles that work in this case your honour's first is the deferential standard of review generally  get to a much more detail shortly arbitrator arbitrary decisions are subject to a very deferential review but it is and i ask you just a factual question before you get going i'm sure was hires a tenured employee she was not ok all right and the reason for the question is if it was yes there's some due process rights under a supreme court case but nine ten correct probationary i guess would be the thank you i guess that would be in terms of she was not tenured she was subject to a yearly review all and she was not a certificate of teacher either i want to make that clear she was a pair professional exactly so she was a librarian how long did she actually work i believe it was six years six or seven years again i mean i'm using that term as it to distinguish it from  the the arbitral decision of course gets a lot of deference and this case there's an extra layer of deference because the general assembly in the educational labor relations act provided for the review arbitration decisions to first go to the educational labor relations board instead of straight to the circuit court as is the case in the public labor relations act in which one party can file an action directly in a circuit court to enforce an arbitration award or to overturn it here if a party wants to contest an arbitration award that's made under the education where the labor relations act the party most refused to comply with their ward and then the other party brings an unfair labor from the collective bargaining agreement so in other words the question before this court is whether the educational labor relations board committed clear error and determining that the arbitration decision drew its essence from the contract reason for that factual finding that the employee is not that well is that under this collective bargaining agreement before an employee may be disciplined including discharge the employee must get notice and hearing and because of or where those meanings come from ok starting with just cause just cause a sudden should be requires and i think there are some say taishan to this in our brief but just cause for discharge for instance requires some fit between the acts that have been found to have been committed and the discipline in other words this employee did this and that justify something serious as serious as discharge as standard there has to be a fit between the conduct and the discipline and that's that and that's what just cause would be and to do that you can look at again in the acts committed whether the action justified that level of discipline you can look at the parties past dealings whether wal mart fires its employees who do this or whether they do something alas but here they fire isn't mean it's review requiring a just cause just cause agh again just cause requires this look at look look at the fit looks that a comparison or a way of the conduct with consistency with the way the parties have acted in the past it just can't be so out of the bounds of reason to make no sense whatsoever there has to be some reason support so in other words so is there something in and capricious and there is another standard which is just non reviewable it you can fire them for whatever reason and that's just not reviewable and that standard wasn't what wasn't adopted either it's a higher standard than then not being able to or if it is a higher standard then being able to fire an employee for any reason imagined real you know completely absurd but it's not as high as a just cause if the employer does not have to show a fit between the conduct and the discipline imposed the employer has to only show some reason basis and the arbitrator i w arbitrator reached that determination by interpreting the contract to the extent the arbitrator purported to interpret the contract section two point six on the collective bargaining agreement that's it that ends the inquiry the question isn't whether the arbitrator reached the right standard the question is whether the arbitrator interpreted the contract once we determine that the other son of peace your argument right that the the court may reverse only when the decision is not derived from the essence of the that's absolutely correct your process provisions of collective bargaining agreement was this process that was not afforded to the employer that's correct meaning meaningful  what you're saying is that was all derived from the arbitrator from the essence of the contract it turned reversal was not reversed and was not something that could be utilized by the court in light of that absolutely i the arbitration law is very clear on that and the seventh circuit has made made this very clear that collective bargaining agreements include expressed terms but there's also implied terms in the parties realize that the parties also know that when you talk to the bargain you know you're not going to anticipate and you're not going to express everything that may arise and they know that the arbitrator will be called to fill in blanks and again that's perfectly appropriate additionally they know and this goes back to the u s supreme court's steelworkers trilogy cases they know the parties know that there is in labor arbitration they know that there is a common law of the industry and a common law of the shop that is part of the contract even if it's not it expressed in plain terms so it's a limited review and the rub is whether or not contract that's a kind of try to clarify that because there are certain core societal policies or institutions that are informing this decision the general assembly has made clear that collective bargaining agreements with grievance processes and in arbitration are favored they required it for these types of employer employee relationships the finality of arbitrary awards has been recognized as an important policy going back to us supreme court decision so then what does it mean to draw for a decision to draw essence from a collective bargaining agreement it means that the arbitrator interpreted the contract and made a good faith application of its terms this happens where the arbitrator looks to the language of the contract examines the interrelationship of the various contract provisions looks at the parties past practices the parties bargaining history the industrial common law and applies the facts to the ups to those findings this does not permit the court to determine that the court misinterpreted a contract provision or made an incorrect fact finding or misinterpreted what the past bargaining history procedure but in hearing in in just commonly understood terms of the industry employers are not permitted to act arbitrary and capricious lee that is the arbitrators construction of the industrial common law and we employers are not permitted to act arbitrarily and capriciously now that also is derived from the specific language i would be it vague or ambiguous of section two point six of the agreement which provides that a staff member shall be given reasonable prior written notice of the reasons for discipline and is entitle to personal representation at the meeting from that from that specific contractual language one could say or one reasonably can say one could interpret that to say this is say this creates protections for the employee notice a hearing notice and hearing hallmarks of due process section two point six now whether the arbitrator got industrial common law all wrong and certainly isn't our position that he did we it's our position that he was certainly correct in that and this arbitrator is a you know in so far as he prepared to be applying this to a common law which he is allowed to do whether you know the correctness of bad weather he interpreted that correctly again is not something that is subject to review judicial review similarly they weren't able to reach an agreement that a probationary employees could be fired for no reason whatsoever so that can't be the standard so the cons the fact that there's contracts science parties when they're in a collective bargaining will fill in the blanks they knew that they they need the arbitrator to do this the arbitrator properly look to their bargain history realize that these are the the the ends of the spectrum that the parties both proposed but couldn't reach on and and rejected so the district proposed i don't see the words just because the district proposed a five year probationary period and during that period  firms that a progressive discipline regime can take what i meant when i said it's a it's an intermediate step between just cause an arbitrary and capricious an as is that instead of jumping straight to terminations for these reasons missed what the real issue in this case this is not a case about contract interpretation it's a case about the arbitrator dispensing his own brand of industrial justice and there are two very crucial set of facts here that the court needs to understand to to understand what's happened the arbitrator wrote in the award on remained that he could not award just cause because the parties had not agreed to it and the law in is clear that if the parties expressly reject a proposal during bargaining an arbitrator may not then try to impose that particular result in the arbitration award what happened in the bargaining in this case saying he's outside of it for he never got he never under the tast of essence of the contract he couldn't get to the to the to the to the point where he could decide the case under the essence of the contract test because his award he was awarding the very things that the parties particularly the union rejected in bargaining what happened is th absolutely earth shattering ok because it completely is opposed to the actual intentions of the parties as they bargained if this court  reverses the appellate court and says that under two point six notice of reasonable response prior notice and the opportunity for union representative to appear before school board i requires a substantive standard for dismissal you will have required a sensually a just cause type dismissal standard every time disappears in a contract and the point is nobody knows what just cause means because it all depends upon what the arbitrator means and if he decided it in the essence of the agreement then it can't be reviewed even if he's wrong on the wall wrong on the facts completely wrong in fisk ace we have a clear set of facts in which the negotiations between the union and the board of education resulted in a tentative agreement on april twenty first one nine hundred ninety seven the two point six provision of the contract which provided that if an employee was required to appear before the school board that they would have to have prior written notice and they could be accompanied by essential union representation the testimony of arbitration from the union person who was at the table is that this was a procedural provision one that was tentatively agreed to this substance the issues of substantive standards for dismissal were still on the table the union proposed progressive discipline the ultimate reach carrying out of progressive discipline is just cause and that was acknowledged in the record subsequently by the union the board of education came back with the proposed sol that proposed a hearing percy jer's of prior written notice of  union representation of the right to present evidence and the right to receive a written decision same thing the arbitrator proposed or awarded in his contract the board of education also that there be a standard of a manifest weight of the evidence heard to judge whether or not the board's action in the arbitrator's action what was appropriate a reasonable  standard now the union rejected that at the table and the testimony at the arbitration by the union chief negotiator was that the union and the words were expressly every bit of the board's proposal termed it volatile now there we have those two positions negotiations didn't go further what happened is the union proposed that the parties respectfully are mutually waived both of their proposals result that was louth was employment at will the board accepted that now the whole the whole central idea that the arbitrator gets to that somehow the parties intended to meet in the middle an arbitrary and capricious standard is the one in the middle if lies completely and directly in face of the real facts of what happened in bargaining because that was rejected by the union you can't then resurrect that and decide that it is the middle ground because the boards per proposal was not for total and review ability but a reasonable standard back out rejected but when the proposal was put forward by the union to mutually withdraw the result was that you were left with the employment by will and you can argue you cannot argue that this wasn't contemplated by the parties during negotiations when you were negotiating a standard for dismissal and you don't come to that standard that the arbitrator did not impose a just cause standard merely concluded that employment plus it in the due process provisions of the collective burden remit was that the process due to the employee must be mean there was no due process provision in this contract it is not like harrisburg and the arbitrary in the way the arbitrator treated the arbitrary and capricious standard as the appellate court said was just just cause by another name it was a just cause woes and it smelled the same he awarded a test of arbitrariness and the same a substantially the same percy gers as had been rejected by the union i want to give you a chance because you're not sure to get up again what are they going to say was the due process standard well what is it in the contract what how would you address the sure there are two awards in this case the first one you have to look at is where i think the real intention of the arbitrator is and that's the original award he comes up with this idea of this test of arbitrariness out of i submit thin air he invented it he wrote specifically that the it was based upon his instinct and the fundamental notion of what is afforded by a fair hearing fairness is a personal opinion you can't have the essence of the agreement if what you based it on as the law cited in the briefs is feeling a body of law policy outside of the of the contract so we comes up with this he comes up with this feeling you don't get to any analysis of the contract until the remain and the award on remained and then suddenly there is  well we have an ambiguity in two point six hundred reasonable prior would notice because the parties didn't contemplate this they didn't they wanted to meet in the middle ground you can't get to that kind of analysis when what you're looking at in terms of what happened actually in bargaining the council on this that the line of federal cases under the facts of this case the negotiations concern the question of just what's the smiths will stand are going to be and the parties put that off the table me what with the arbitrator under these facts had could do nothing but determine that the employee was discharged if the board provided the the notice and provided the union representation nothing more because there's no standard he is imposing a standard a dismissal standard that the parties did not agree to and he says in his award on remained that he can't do that so in this situation what what is so disturbing here is what the appellant's want is for the court to give them what they didn't get at the  to some kind of hearing no there was there was not an agreement as to hearing there was an agreement that there was a procedural procedural i knew if you look at harrisburg there was the distinction between current is isn't what the arbitrator is saying then that there has to be some kind of standard if you've agreed to a hearing there has to be have some kind of standard that's what i'm starting with you just can't have people come in and talk or whatever let's just instruction well i think is he saying there has to have been implicit in the agreement to have a hearing some kind of standard to be applied or hearing is meaningless no i don't think a hearing is is meaningless when you have a situation particularly we're dealing here particularly in a small town and these people all know each other and the record shows that the board of education had had complaints about this employee they knew about it but when you have these people have to come together and they we did there was a preacher emanation hearing those things have an impact on people they have an impact on on board members but the point here when you say they're half stiffy and that's the problem in terms of the arbitrator saying out of this blue we're going to have a standard but it can't be a just cause standard because under the arbitrators view there was a rejection he failed to to look at the fact that the there was also a rejection of the reasonableness standard that he imposed and a and the hearing procedures that there were instructions bargaining is an contracts are to be settled by the parties at the collective bargaining table d from the standpoint of coming to i'm coming to court and it becomes extremely important in in the whole question of the validity and the faith that laypeople like board meant board members all across this state have that what you bargain is what you can rely on and then the arbitrator will decide those things if we have as we have here the arbitrator sitting in judgment that in this under this record that we can ignore all that we can put in employer imply things that were specifically bargain and because they were specifically bargained that becomes one of the most important things that differentiates this case that's what the appellate court found in terms of the arbitrator dispensing is own brand of industrial justice he comes and as the judge as you said where do these things come from they have to come from the bargaining of the parties we don't have a appellate court be a farm when when you were talking about harrisburg and earlier cases i thought you were careful to distinguish between hearing and meeting two point six three first meeting is there another section of the contract that refers to hearing no there's a history of smell is there a difference between a hearing and a meeting the implications of that would have well yes i mean a hearing hearing might be construed t mean all sorts of you know the notice and those sorts of things of course in this in this particular case those particular procedures were put forward in a board proposal now that we realize that these were initial proposals but the union chose not to continue to bargain over this issue but proposed to mutually waive those proposals and that takes all of that off the table that leaves you under the facts of this case with employment  rejected both parties the record shows that both parties rejected the proposal of the other the ones that were on the table and then when the proposal was made to mutually withdraw that was accepted because then that leaves employment at will the facts of this case under the because of those facts the  application is very narrow if you affirm the appellate court if you reverse your changing the law in the state of illinois to affect every school district in this state and you have no idea where you're going to go on that because under of the argument and the position of the appellant's the arbitrator just can do justify anything he wants to if he can get to  essence of the agreement thank you thank you rebuttal and your honors i need your name go over cornfield i need five minutes the teacher not the teacher she was a paraprofessional the collective bargaining agreement only covered non certified employees of the district she was employed eleven years in the district the only employee with the status of exam free under the collective bargaining agreement the principal went to the school board in february of two thousand and eight and shared with the school board material that had never been placed in the employee's personnel file including anonymous unspecified complaints allegedly from a parent or other school board members and by the way the reference to school board members  having received complaints was never shared with the employee in february when the principal in executive session went before the school board with this material that had never been shared with the employ never been placed in a personnel file the board voted upon her recommendation to terminate or the superintendent after the meeting gave the employee the opportunity to resign in march at the school board meeting the next school board meeting the school board formally voted to terminat now we've heard unbelievable frankly statements about what's in the contract and what is not in the contract there's been no reference at all today to two point one of the collective bargaining agreement which is referred to by the arbitrator was extensively a part of the transcript before the arbitrator two point one point one on page one of the contract reads every employee should have the right to add to and review material in his her official in capital letters personnel file and attach the scenting or explanatory material to any document or other piece of material on file that was not done with this employee the employee did not even know the principal was going before the board ensuring material that had never even been mentioned by the principal to the employee then under two point six of the collective bargaining vest the provision that's been solely discussed that day and two point one the school board having received this material in executive session and never shared with the employee voted to have voted to discharge her then she goes before a meeting of the school board and they confirmed the discharge is on that basis that the arbitrator followed by breeding two point one two point six of a collective bargaining agreement together that the individual did not receive the process required under the collective bargaining agreement to terminate or that is the basis of the essence of the agreement there is nothing in this record about just cause that is a fiction that's been raised by the employer the arbitrator is humanist first  rejects just because because it's not mentioned in the collective bargaining agreement in fact the arbitrator doesn't deal with the substance of the reasons for discharge he found that the process wasn't followed particularly fundamental right not only under the contract but none to the personnel review act that the in apprised of allegations against or anonymous opportunity to respond and they should have been placed in our personnel file is a matter of fact material did not come forward until at the arbitration hearing we insisted and the principal it's all the record had to go into her office to get this material which had not been part of the personnel file but which she had shared with the school board the decision of the arbitrator's is not deal with the substance of why a person under this contract can be terminated with the arbitrator deals with had been here and it wasn't before the arbitrator and we had a second arbitration on the reasons for just cherry which is not here and i for i would be for you i would say arbitrariness is a basis for reviewing terminations of so called at will employees in the public sector now in the public sector when you have a public body and someone is adversely affected by actions of that public body then you can file a petition for better social verify and under our common say at one point had to reviewing what had happened that the actions of the school board in that light the fact he didn't follow the contract was arbitrary you happen to use the word arbitrary but if you read his award it doesn't reach it doesn't go into the substantive reasons why a school district or the school to school district says you have agreed to certain procedures now in reviewing the negotiating history the purpose he was the arbitrated to that was to determine that the parties had not that that the negotiating history which could help him or not help him interpret the contract the negotiating history did not deal with just because the union never proposed just because the union had proposals and what was left was two point one and two point six with the arbitrator turbin applied if this court sustains the appellate court then we will have countless litigation over whether an arbitrator has ruled based upon the essence of the contract is the reverse of what consul was saying if you sustain the  court you're inviting mostly o b employers to challenge every arbitration decision in the public sector on the basis it does not arrive or it doesn't contract or the arbitrator thank you thank you you can sell a case numbers one one three seven two one and one one three seven two three griggs bill perry community of the school district number four vs the illinois educational labor relations board has now taken under advisement as general number thirteen i wish everyone a happy thanksgiving next week by the contention is arguments today and