\Rule 23 Order filed		NO. 5-99-0688

April 16, 2001;

Motion to Publish granted	IN THE

May 16____________, 2001.

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

______________________________________________________________________

_____

THE STATE OF ILLINOIS, THE DEPARTMENT	)	Appeal from the

OF CENTRAL MANAGEMENT SERVICES and	)	Circuit Court of

THE DEPARTMENT OF CORRECTIONS, BIG 	)	Jefferson County.  

MUDDY RIVER CORRECTIONAL CENTER,	)

								)

	Plaintiffs-Appellants, 				)

								)

v.								)	No. 99-MR-40

								)

AFSCME, COUNCIL 31, AFL-CIO, 			)	Honorable

								)	Stephen G. Sawyer, 

	Defendant-Appellee.  				)	Judge, presiding.  

______________________________________________________________________

_____

	JUSTICE MAAG delivered the opinion of the court:

	The Department of Corrections and the Department of Central Management Services

(collectively the Employer) appeal from the Jefferson County circuit court's order denying

its petition to vacate an arbitration award and granting a motion filed by AFSCME, Council

31, AFL-CIO (the Union), to confirm the award.  On appeal, the Employer claims that the

arbitration award must be vacated because the award which reinstates the employee violates

public policy and because the arbitrator did not expressly determine that the employee was

amenable to discipline.

	The pertinent facts follow.  On August 13, 1998, the Department of Corrections

terminated Ronald Henderson from his employment as a correctional officer at the Big

Muddy River Correctional Center.  Mr. Henderson had been hired as a correctional officer

on September 14, 1981.  He was assigned to Big Muddy River Correctional Center in 1993. 

In March 1998, Mr. Henderson had an altercation with an inmate.  Another inmate, who had witnessed the skirmish, reported the incident to prison officials, and an investigation was

launched.  Following the investigation, an employee review hearing was conducted.  The

hearing officer determined that charges that Mr. Henderson violated rules regarding the use

of force and documentation of such incidents were substantiated, and the hearing officer

recommended that Mr. Henderson be placed on suspension pending discharge.  The warden

concurred in the recommendation and Mr. Henderson was discharged.

	Mr. Henderson filed a grievance.  A hearing was held on March 4, 1999.  On March

26, 1999, the arbitrator issued his written decision.  The arbitrator determined that a fight,

involving Mr. Henderson and an inmate, had occurred on March 18, 1998.  The arbitrator

found that Mr. Henderson had engaged in misconduct by initiating the use of force against

an inmate and by failing to report the incident.  The arbitrator made this determination after

weighing the testimony of the employee and the witnesses and concluding that the inmates’

accounts were more credible than the employee’s account.

	In the decision, the arbitrator outlined his findings regarding the events that led to the

fight.  On March 18, 1998, an inmate, who was walking to the dining room, turned to Mr.

Henderson, the correctional officer on duty at that time, and called him a "crack head".  This

inmate had taunted Mr. Henderson in a similar manner in the past.  After dinner, Mr.

Henderson confronted the inmate while he was playing dominos with two other inmates.  Mr.

Henderson asked the inmate not to call him a crack head again.  A heated discussion

followed.  The inmate repeated his taunt.  When Mr. Henderson directed him to refrain, the

inmate yelled, "fuck you crack head", and stated, "I have freedom of speech".  Mr.

Henderson then punched the inmate in the face.  The inmate returned a punch and the fight

ensued.  Another inmate joined in, striking Mr. Henderson twice.  Mr. Henderson fell to the

floor.  At that point, the fighting stopped.  Eventually, a third inmate reported the incident.

	After determining that Mr. Henderson had violated rules of employment, the arbitrator

turned to the issue of discipline.  In reaching his decision, the arbitrator balanced aggravating and mitigating factors to determine whether a discharge was the appropriate penalty.  The

mitigating factors noted in the award were:  (1) the employee had 16 years of seniority at the

time of his discharge, (2) all of his evaluations indicated that he met expectations in all areas

except attendance and, thus, was considered a good employee, (3) there was no evidence of

prior personnel problems with the employee, and (4) there was no premeditation on the part

of the employee.  After weighing these factors, the arbitrator found that the discharge was

not for just cause.  He reinstated Mr. Henderson to his former position without loss of

seniority but with no back pay.

	The Employer filed an application to vacate the arbitration award in the circuit court

of Jefferson County.  The Union filed a motion to confirm the arbitration award.  After a

hearing, the circuit court denied the Employer's petition to vacate the award and confirmed

the arbitration award.

	Judicial review of an arbitration award is extremely limited.  American Federation of State, County & Municipal Employees, AFL-CIO v. State, 124 Ill. 2d 246, 261, 529 N.E.2d 534, 540-41 (1988) (AFSCME); American Federation of State, County & Municipal Employees, AFL-CIO v. Department of Central Management Services, 173 Ill. 2d 299, 304, 671 N.E.2d 668, 672 (1996) (Central Management).  A court will enforce an arbitration

award if the arbitrator acts within the scope of his authority and the award draws its essence

from the parties' collective bargaining agreement.  Board of Education of City of Chicago v. Chicago Teachers Union, Local No. 1, 86 Ill. 2d 469, 474, 427 N.E.2d 1199, 1200-01 (1981).  This is because the parties to the agreement bargained for the arbitrator's construction of the contract, and a court has no business overruling him because its

interpretation of a contract provision is different from his.  Central Management, 173 Ill. 2d at 305, 671 N.E.2d at 672.

	Courts have carved out a public policy exception to vacate arbitration awards that otherwise are based in a collective bargaining agreement.  Central Management, 173 Ill. 2d at 306, 671 N.E.2d at 673; United Paperworkers International Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 98 L. Ed. 2d 286, 108 S. Ct. 364 (1987).  This exception is a narrow one and is invoked only when a contravention of public policy is clearly shown.  AFSCME, 124 Ill. 2d at 261, 529 N.E.2d at 540-41.  In order to vacate an arbitrator's award on public policy

grounds, some provision of the contract, as interpreted by the arbitrator, must violate some

explicit and dominant public policy.  Central Management, 173 Ill. 2d at 307-08, 671 N.E.2d at 673.

	The public policy exception requires a two-step analysis.  The initial question is

whether a well-defined public policy can be identified.  If there is a definitive public policy,

then the next question is whether the arbitrator's award, as reflected in his interpretation of

the agreement, violated public policy.  Central Management, 173 Ill. 2d at 307-08, 671 N.E.2d at 674;  Misco, Inc., 484 U.S. at 43-44, 98 L. Ed. 2d at 302-03, 108 S. Ct. at 373-74.  Ultimately, the exception's applicability to a case is necessarily fact dependent.  Central Management, 173 Ill. 2d at 311, 671 N.E.2d at 675.

	In this case the arbitrator found that Mr. Henderson was guilty of misconduct by

inappropriately initiating the use of force against an inmate and by not reporting the incident

but that because of mitigating factors, discharge was not for just cause.  The arbitrator

reinstated the employee to his former position without a loss of seniority but with no back

pay.

	The Employer contends that the award reinstating Mr. Henderson violates public

policy.  That there is a public policy against battering prisoners (730 ILCS 5/1-1-2(c) (West

1992)) is not disputed.  The question is whether the arbitrator's award of reinstatement

actually violated that public policy.  Central Management, 173 Ill. 2d at 307-08, 671 N.E.2d at 674; Misco, Inc., 484 U.S. at 44, 98 L. Ed. 2d at 303, 108 S. Ct. at 373-74.

	When an agreement contemplates that the arbitrator will determine remedies for

contractual violations, such as in the case here, it is the function of the arbitrator, not the

court, to decide what disciplinary action is required and a court has no authority to disagree

or to substitute its judgment.  Central Management, 173 Ill. 2d at 306, 671 N.E.2d at 673.  If the arbitrator makes a rational finding that the employee can be trusted to refrain from the

offending conduct, the arbitrator may reinstate the employee to his or her former job and the

courts would be obligated to affirm the award.  Central Management, 173 Ill. 2d at 322, 671 N.E.2d at 680.  However, if the arbitrator's construction of an agreement, including the

remedy he fashions, violates public policy, an award based upon that construction may be

vacated.  Central Management, 173 Ill. 2d at 318, 671 N.E.2d at 678.

	In this case, the parties had contractually agreed to a system of progressive and

corrective discipline, and a suspension and a discharge were penalties available to the

arbitrator.  The Employer has not pointed to any contractual provision which requires that

an employee be automatically terminated for hitting a prisoner.  Nor did the Employer recite

any statute or regulation that prohibits reinstatement for such conduct.  Therefore, there is

no evidence that an automatic termination was required for the proven misconduct under the

collective bargaining agreement or any statute or regulation.

	The arbitrator carefully balanced the aggravating and mitigating factors to determine

whether the penalty was proportionate to the misconduct.  In explaining the balancing

process, the arbitrator specifically referenced and quoted from an opinion written by

Arbitrator Malin (the Department of Management Services and the Department of

Corrections, Arbitration No. 3029 (Malin, 1997)), who stated that a balance must be struck

between the employee's investment in his job and expectation of job security and the risk to

the employer posed by continuing to employ the employee.

	After reviewing his decision, we conclude that the arbitrator made a rational determination that Mr. Henderson was amenable to discipline.  It is clear to us that in

reaching this decision, the arbitrator considered the potential of the employee to repeat his

offense and the risk posed to the Employer and to the inmates of the facility.  The arbitrator

specifically noted that throughout 16 years of service, this employee had received good

evaluations, had no history of prior personnel problems, and did not plan or provoke the

fight.  The arbitrator indicated that if the employee did not have a proven track record, he

would have sustained the discharge.  Implicit in the decision is the arbitrator’s consideration

of the public policy against battering prisoners and thoughtful determination that Mr.

Henderson was amenable to rehabilitation and that the risk that he would engage in similar

incidents in the future was low.  There is no requirement that the arbitrator expressly state

that an employee is amenable to discipline.  See Central Management, 173 Ill. 2d at 332, 671 N.E.2d at 685 (citing Stead Motors of Walnut Creek v. Automotive Machinists Lodge No. 1173, International Ass'n of Machinists & Aerospace Workers, 886 F.2d 1200, 1213 (9th Cir. 1989)).  If it is clear from the award that the arbitrator made a rational finding that an

employee could capably return to and perform his duties without impinging or undermining

the public policy and without posing a risk to public safety and welfare and that the

employee will refrain from the misconduct, the court is obligated to affirm the award.

	In this case, the arbitrator imposed a measured but meaningful penalty after

determining that the employee was guilty of misconduct, that he was a capable employee,

that the risk of a repeat of the proven misconduct was low, that reinstatement posed little risk

to the welfare of the inmates and the Employer, and that reinstatement was appropriate. 

Based upon this record, we cannot say that public policy mandated that Mr. Henderson be

discharged.

	Accordingly, the judgment of the circuit court denying the petition to vacate and

confirming the arbitration award is affirmed.

	Affirmed.

	GOLDENHERSH and WELCH, JJ., concur.

                                     	NO. 5-99-0688

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

___________________________________________________________________________________

THE STATE OF ILLINOIS, THE DEPARTMENT	)	Appeal from the

OF CENTRAL MANAGEMENT SERVICES and	)	Circuit Court of

THE DEPARTMENT OF CORRECTIONS, BIG 	)	Jefferson County.  

MUDDY RIVER CORRECTIONAL CENTER,	)

								)

	Plaintiffs-Appellants, 				)

								)

v.								)	No. 99-MR-40

								)

AFSCME, COUNCIL 31, AFL-CIO, 			)	Honorable

								)	Stephen G. Sawyer, 

	Defendant-Appellee.  				)	Judge, presiding.  

___________________________________________________________________________________

Rule 23 Order Filed:		April 16, 2001

Motion to Publish Granted:	May 16_______, 2001

Opinion Filed:			_______May 16, 2001

___________________________________________________________________________________

Justices:	Honorable Gordon E. Maag, J.

	Honorable Richard P. Goldenhersh, J., and

	Honorable Thomas M. Welch, J.,

	Concur

___________________________________________________________________________________

Attorney	Jerald S. Post, Assistant Attorney General, State of Illinois, 100 W. Randolph

for	Street, 12th Floor, Chicago, IL 60601

Appellants	

___________________________________________________________________________________

Attorney	Gilbert Feldman, Cornfield and Feldman, 25 East Washington Street, Suite 1400,

for	Chicago, IL 60602-1803

Appellee	

___________________________________________________________________________________