SIXTH DIVISION

					JUNE 1, 2001

No. 1-99-2647

CHICAGO FIRE FIGHTERS UNION LOCAL NO 2,	)	APPEAL FROM THE

 			)	CIRCUIT COURT

			Plaintiff-Appellee,			)	OF COOK COUNTY.

			)

v.			)

			)

CITY OF CHICAGO,			)	HONORABLE

			)	THOMAS A. HETT,

			Defendant-Appellant.		)	JUDGE PRESIDING.

	PRESIDING JUSTICE CAMPBELL delivered the opinion of the court: 	 

	This appeal arises out of the discharge or suspension of 28 employees of the Chicago Fire Department (CFD), by respondent, the City of Chicago, (the City), as a result of their

participation in an unauthorized retirement party at a Chicago firehouse.  Petitioners, the

Chicago Fire Fighters Union Local No. 2 (the Union) grieved the discipline, and an arbitra

tor held the discharges and disciplinary suspensions untimely, thereby reinstating the

employees to their respective positions and vacating the disciplinary actions.  The Union

then initiated an action to enforce an arbitration award issued pursuant to Section 11 of the

Uniform Arbitration Act.  710 ILCS 5/11 (West 1998).  The City filed a counter petition to

vacate the arbitration award.  After considering cross motions for summary judgment, the

circuit court of Cook County entered an order granting the Union's motion and denying that of the City.  On appeal, the City contends that the arbitration award should be vacated as

against public policy.  For the following reasons, we vacate the order entered below, and

reverse and remand this matter for further proceedings consistent with this opinion.1

	I. 

BACKGROUND

	The following facts are relevant to this appeal.  In May 1997, CFD Internal Affairs

Division ("IAD") Executive Assistant Mark Edinburg learned of the existence of a video

tape of an unauthorized retirement party held on April 12, 1990, at the CFD firehouse

known as Engine 100.  The videotape depicted firefighters drinking alcoholic beverages

inside the firehouse; leaving the firehouse in fire trucks to respond to fire calls; some

participants making offensive racial, gender and ethnic slurs; and some engaging in other

conduct such as exposing their bare buttocks and genitals.  Edinburg viewed the videotape

on May 9, 1997.  On May 13, 1997, Edinburg advised Edward F. Altman, the IAD

Director, of the existence of the videotape via memorandum.  Altman did not notify his superiors of the existence of the videotape until late November 1997, after Altman learned that a local television news reporter had obtained a copy of the videotape.  At that time, the

CFD and the City commenced the disciplinary investigation process.

	In early December 1997, the City filed charges against the 28 employees who

participated in the videotaped party.  Following an investigation conducted by Inspector

General Alexander Vroustouris, discipline was imposed on the employees in May 1998. 

The disciplinary actions consisted of the discharge of seven employees and suspensions

ranging form 6 to 60 days for the remaining employees.

	On February 10, 1998, Altman was also charged with misconduct for failing to open

an investigation after learning of the videotape and failing to apprize his superiors of the

existence of the videotape.  By letter dated February 25, 1998, Altman was separated from

his position as Director of IAD.

	 Pursuant to the collective bargaining agreement (Agreement) between the City and

the Union, the Union filed grievances on behalf of the 28 disciplined CFD employees.  An

arbitration hearing commenced before Arbitrator Edwin H. Benn on October 2, 1998.  The

arbitration proceedings were limited to the threshold question as follows:

		"Whether the investigation of the alleged April 12, 1990

incident at Engine 100's quarters and/or the discipline imposed

regarding such incident was or were untimely, that the

discipline cannot stand?  If so, what is the appropriate remedy?"

The text of the opinion and award includes Benn's comment in a footnote that:

		"The videotape was received in evidence over the Union's

objection.  By receipt to the tape in evidence, I do not find at this time that the named Grievants engaged in the conduct or to

the degree attributed to them by the charges in this case.  The

videotape was received for the limited purpose of showing that

it was the basis used by the City to impose discipline." 	

Arbitrator Benn issued his opinion and award on December 30, 1998, finding that the

disciplinary action was invalid as untimely, pursuant to Section 16.2(E) of the Agreement. 

Section 16.2(E) provides in pertinent part as follows:

		"The Employer shall conduct disciplinary investigations when it

receives complaints or has reason to believe an employee has

failed to fulfill his responsibilities as an employee and just

cause for discipline exists." 

Benn found that pursuant to section 16.2(E), the City was required to have begun a

disciplinary investigation "at the time" it learned of the alleged misconduct, and that a six-

and-one-half month delay in the commencement of the disciplinary investigative process

"was far beyond any reasonable time period allowed."

	Next, as stipulated by the parties, Benn determined the appropriate remedy pursuant

to section 16.2C of the Agreement which provides that:

		"Any employee found to be unjustly suspended or discharged

shall be reinstated with full compensation for all lost time and

with full restoration of all other right, benefits and conditions of

employment, without prejudice, unless a lesser remedy is agreed upon as a grievance settlement or deemed appropriate by an

arbitrator."

Benn concluded that the disciplinary actions shall be rescinded: 

		"[t]hose employees discharged shall be reinstated to their former

positions without loss of seniority rights, benefits and

conditions of employment, without prejudice.  All affected

employees shall have their records cleared of references to

discipline stemming from the April, 1990 party.  All affected

employees shall be made whole for lost wages and benefits and

in all other respects."

After setting forth the award, Benn noted that he was required by American Federation of State County and Municipal Employees v. Department of Central Management Services, 173 Ill. 2d 299, 671 N.E. 2d 668 (1996), to take precautionary steps to ensure the

misconduct at issue would not be repeated and to take into consideration pertinent public

policy concerns.  Benn stated:

			"As I view the evidence before me, I am satisfied, and I

find, that the public can be assured that the alleged misconduct

will not be repeated by Grievants and that steps have been or

can be taken to ensure that result.

			Taken at its worst, the alleged misconduct in this case

shows that eight years before they were disciplined, Grievants,

in varying degrees, consumed alcohol in a firehouse against

regulations (and with the implication that the citizens of the

community served by Engine 100 did not have at their disposal

the services of a full complement of unencumbered firefighters);

some made racial, gender and ethnic offensive comments; and

some engaged in boorish exhibitionist conduct.  Those are troubling and serious allegations and the implications of that

conduct have a profound impact on the citizens of the City. 

However, I am satisfied that the alleged misconduct will not

happen again from these Grievants.

			First, I must consider the nature of the involved

employees.  For the most part, Grievants are very long term employees, some having over 25 years of service with the City. 

Since the incident, a number of Grievants have been promoted

to Engineer, Lieutenant, Captain, or Battalion Chief indicating

their competence and capabilities as members of the

Department.  Since the incident, a number of Grievants have

received commendations for their service and have saved lives

and protected property of the citizens of Chicago.  The parties

agreed that there has been no pertinent discipline for Grievants

prior to April 12, 1990 (with the exception of an oral

reprimand). [citation omitted] With the exception of the alleged

misconduct which occurred on one day some eight years before

they were actually disciplined, Grievants' records show them to

be exceptional employees and they have not engaged in similar

misconduct (or for that matter, for all purposes, any

misconduct) during that lengthy period of time.

			Second, I also have to consider the nature of Grievants'

work.  They are firefighters.  As such, Grievants routinely risk

their lives to save the lives and protect the property of others. 

They have been trained at considerable public expense and have

amassed considerable experience at performing their craft. 

Particularly with respect to those discharged, the public loses

when those long term and experienced employees are no longer

permitted to use their training and experience for the safety and

protection of the citizens of the City.

			Third, the fact that the City moved to take very strong

disciplinary action against Grievants is a clear and unambiguous

statement to Grievants that they will be disciplined to the fullest

extent should they engage in such conduct in the future.  Given

the high quality of employees involved in this case, I am

satisfied that message will be heeded.

			Fourth, this case has received extensive publicity -

locally and nationally - and I suspect that the publicity will

probably now continue.  Given the nature of some of the misconduct involved in this dispute, to be part of that kind of

publicity must be a damning public embarrassment to these

Grievants.  Again, the strong message has been sent to

Grievants of the consequences of this type of conduct and the

need that it never again be repeated.

			Fifth, the City has already put in place mechanisms to

prevent such conduct from occurring in the future.  In

Department Memo M-39-37 dated December 8, 1997 which

issued as a result of the alleged misconduct in this case, the Fire

Commissioner ordered all Department members to re-

familiarize themselves with the orders prohibiting substance

abuse and discrimination and sexual harassment; advised the

employees that violations of those orders will not be tolerated

and that discipline for such violations will be taken; and that

management changes were put in place to ensure strict

compliance with the Department's Code of Conduct.  If

anything is not crystal clear, the Department's stance on the kind

of party and conduct which occurred on April 12, 1990 is now

known - it will not be tolerated.

			Sixth, with respect to the alleged racial, gender and

ethnic offensive comments made by some one [sic] the

videotape, if the City is of the opinion that such views still exist

within the ranks of Department, it is free within the scope of its

managerial prerogatives and the terms of Agreement to train and

repeatedly retrain its members as a whole that such conduct has

absolutely no place in the workplace.  If that training does not

work, the City is free to take strong and swift disciplinary

action.  The City has within its control powerful mechanisms to

make certain that Grievants do not engage in this kind of

conduct in the future.

			In sum then, I am satisfied - and I find - that Grievants

are capable of rehabilitation; that the conduct allegedly engaged

in by Grievants will not reoccur; and that steps have been taken

and can be taken to assure the public of that result." (Emphasis

in original).

	The Union filed a petition to enforce the arbitration award in the circuit court, and

the City filed a counter-petition to vacate the arbitration award.  The parties filed cross motions for summary judgment.  In its motion, the City argued that the arbitrator had

exceeded his authority and that the award violated public policy.

	On June 22, 1999, the circuit court granted the Union's petition to enforce the award

and denied the City's counter-petition to vacate the award.  The circuit court found that the

City was estopped from raising public policy as a ground for vacating the award because it

had agreed to submit the question of timeliness and the issue of the remedy to the arbitrator. 

The City filed a timely appeal from the order of the circuit court.

	II.

OPINION

	This matter calls upon the court to address a serious matter of public policy affecting

the health, safety and welfare of the citizens of the city of Chicago.  On appeal, the City

contends that the trial court erred in refusing to consider public policy as a ground for

vacating the arbitration award entered in favor of the Union.  The City argues that the award

violates the public policy favoring a safe and effective fire prevention system. We agree.

	I.  Standard of Review

	 We acknowledge that judicial review of an arbitral award is extremely limited. 

American Federation of State, County & Municipal Employees v. State of Illinois, 124 Ill.2d 246, 254, 529 N.E.2d 534 (1988) (hereafter "AFSCME I ");  Board of Trustees v. Cook County College Teachers Union, Local 1600, 74 Ill.2d 412, 418, 386 N.E.2d 47 (1979).  This standard reflects the legislature's intent in enacting the Illinois Uniform

Arbitration Act, that is, to provide finality for labor disputes submitted to arbitration.  See

710 ILCS 5/12 (West 1994) (denying judicial authority to vacate arbitral awards except on grounds recognized at common law).  The Act contemplates judicial disturbance of an

award only in instances of fraud, corruption, partiality, misconduct, mistake, or failure to

submit the question to arbitration.  Board of Education v. Chicago Teachers Union, Local No. 1, 86 Ill.2d 469, 474, 427 N.E.2d 1199 (1981).  Thus, a court of review must enforce a labor-arbitration award if the arbitrator acts within the scope of his or her authority and the

award draws its essence from the parties' collective-bargaining agreement.  American Federation of State, County and Municipal Employees, AFL-CIO v. Department of Central

Management Services, 173 Ill. 2d 299, 305, 671 N.E. 2d 668 (1996) (hereafter "AFSCME II").

	However, even if the arbitrator makes his award within the scope of his authority and

the award is based on the arbitrator's interpretation of the agreement, we will vacate the

award if it is repugnant to the established norms of public policy.  AFSCME I, 124 Ill.2d at 254, 529 N.E.2d 534 (1988); County of De Witt v. American Federation of State, County, Mun. Employees, Council 31, 298 Ill. App. 3d 634, 637, 699 N.E.2d 163 (1998).

	II.  Waiver

	In the present case, the trial court held that the City was "estopped" from raising a

public policy defense because the parties stipulated to submit to the arbitrator only the issue

of the timeliness of the discipline and the fashioning of the appropriate remedy.  Thus, on

appeal, the Union contends that the City "waived" its right to condemn the award as viola

tive of public policy. 	

	The Union's contention is unsupported by either the record or controlling authority. 

Questions of public policy are left to the courts, not the arbitrator.  On review, this court is not bound by the arbitrator's consideration of public policy and we may not abdicate to the

arbitrator our responsibility to protect the public interest at stake. Board of Trustees, 74 Ill. 2d at 424, 386 N.E. 2d 47 (1979).  "Questions of public policy * * * are ultimately left for

resolution by the courts."  AFSCME II, 173 Ill. 2d at 318. 

	The authority relied upon by the Union in support of its argument for waiver is

distinguishable.  For example, in Board of Education v. Illinois Education Labor Relations Board, 289  Ill. App. 3d 1019, 682 N.E. 2d 398 (1997), the Board of Education (Board) terminated a teacher for unsatisfactory performance.  The Chicago Teachers Union (CTU)

filed a grievance on behalf of the teacher, arguing that the Board violated the collective

bargaining agreement by evaluating the teacher's performance according to the incorrect

procedures for tenured teachers.  The grievance went to arbitration, and the arbitrator issued

a final and binding award in favor of the CTU, ordering reinstatement of the teacher.  The

Board, however, failed to both comply with the arbitrator's award, and to file any timely

exceptions to the award.  After the deadline for the filing of exceptions passed, the Board

filed exceptions to the ALJ's original decision, arguing that the decision was against the

public policy of providing a quality public education.  The IELRB issued its opinion

holding that the original decision by the ALJ was final and binding. Board of Education, 289  Ill. App. 3d at 838.  

	On appeal, this court held that the Board's failure to file timely exceptions to the

original decision of the ALJ constituted waiver of its right to contest the propriety of that

decision.  This court found the public policy concerns "radically different" from those implicated in AFSCME II (see discussion infra) and not controlling of the facts presented in the Board's appeal.  Board of Education, 289  Ill. App. 3d at 1022. 

	By contrast, in the present case, the issue of public policy was properly before the

arbitrator.  The record shows that the arbitrator not only acknowledged the implication of

public policy concerns, but went to great lengths in his opinion and order to address those

concerns, ultimately concluding that public policy was not adversely affected by his

decision to reinstate the 28 firefighters.

	An agreement to submit to arbitration does not operate as a device or structure to

circumvent questions of public policy, especially where, as here, the Union initiated an

action in court to enforce the arbitration award.  We therefore find erroneous the trial

court's determination that the City was foreclosed from challenging the award as against

public policy upon review in the circuit court.  

 	III.  Public Policy Exception

	In order to vacate an award under the "public policy exception" we are required to

undertake a two-step analysis.  First, we inquire whether a well-defined and dominant

public policy can be identified.  If so, we must then determine whether the arbitrator's

award, as reflected in his interpretation of the agreement, violated the public policy. To

ascertain the existence of public policy, we look to our constitution, statutes and relevant

judicial opinions.  AFSCME II, 173 Ill.2d at 308; De Witt, 298  Ill. App. 3d at 637.

	As to the first inquiry, it is unquestionable that an established public policy exists in

Illinois favoring safe and effective fire protection services.  The Illinois Legislature specif

ically created fire protection districts in 1871 (Laws 1871-72, p.218, art. V, (as renumbered) § 64), and codified fire protection districts with the creation of the Fire

Protection District Act (The Act) in 1927.  Laws, 1927, p.305 (July 8, 1927), § 1; Ill. Rev.

Stat. 1927, ch. 127 1⁄2,  ¶ 31.2  The Act pronounces that fire protection districts are fundamentally created "as a matter of legislative determination * * *  in order to promote

and protect the health, safety, welfare and convenience of the public," and in the "public

interest * * * [to] provide as nearly adequate protection from fire for lives and property

within the districts as possible and regulate the prevention and control of fire therein."  70

ILCS 705/1 (West 1998) (formerly Ill. Rev. Stat 1991, ch. 127 1⁄2 ¶ 21). 

	Further evidence of the public policy of protecting the public from fire can be found

in section 11 of the Act which provides for life saving and rescue equipment, emergency

ambulance services and facilities in furtherance of the "declared matter of public policy

* * * to preserve, protect and promote the public health, safety and general welfare." 

70 ILCS 705/22 (West 1998).3  Additional examples of our legislature's intent to promote fire safety is evidenced by other statutes, including the Illinois Fire Protection Training Act

(50 ILCS 740/1, et. seq. (West 1998)), which requires advanced training of fire department protection personnel "in order to promote and protect the health, safety, and welfare of the public * * *."   (50 ILCS 740/1 (West 1998)); as well as the entirety of Chapter 425 of the

Illinois Compiled Statutes entitled:  "Fire Safety," which includes Acts requiring smoke

detectors in such public facilities as nursing homes, child care facilities, and community

residential alternative homes ("Facilities Requiring Smoke Detectors Act," 425 ILCS 10

(West 1998); The Forest Fire Protection District Act (425 ILCS 40 (West 1998), designed

for the prevention and suppression of forest fires and which also incorporates criminal

penalties for violation thereof; and Acts regulating Fireworks (425 ILCS 30, 35 (West

1998)), Furniture Fire Safety (425 ILCS 45 (West 1998)), Fire Escapes (425 ILCS 15 (West

1998)), and Space Heating (425 ILCS 65 (West 1998)).

	Having identified a well-defined public policy favoring safe and effective fire

prevention services, we next turn our attention to the question of whether the arbitrator's

award violated that public policy. 

	Here, the arbitrator interpreted the Agreement to hold that a six-and-one-half month

delay in instituting disciplinary action against the 28 firefighters was in contravention of the

provision of the agreement which required that the offending firefighter be notified of

disciplinary action "when" the department became aware of the alleged infraction, or

specifically, in the words of the arbitrator, "at the time" the department learned of the

alleged misconduct.  However, the Agreement contains no explicit provision detailing that

investigations of infractions of CFD rules begin within any specific time period.

	In AFSCME II, our supreme court refuted a similar interpretation of a timeliness provision in a collective bargaining agreement regarding the institution of a disciplinary

action. The facts in that case are as follows:  In August 1990, the Department of Children and Family Services (DCFS) learned that a worker had filed a false report about the

progress of children in the DCFS system.  In her report, submitted in February 1990, the

worker stated that the children were "doing fine," when they had in fact perished in a fire in

January 1990.  Investigators completed a written report against the worker on December 13,

1990, however, no further disciplinary action was taken against the worker for 7 1⁄2 months,

until June 20, 1991.  The Union, AFSCME, intervened arguing that under the collective

bargaining agreement (CBA), disciplinary action could not be taken against the worker in

view of the "extreme time delay."  After arbitration, the arbitrator concluded that the DCFS'

failure to impose discipline in a timely fashion according to the CBA prevented him from

reaching the merits of the dispute. The CBA provided in pertinent part:

		"Discipline shall be imposed as soon as possible after the

Employer is aware of the event or action giving rise to the

discipline and has a reasonable period of time to investigate the

matter.  In any event, the actual date upon which discipline

commences may not exceed forty five (45) days after the com

pletion of the predisciplinary meeting."

The arbitrator ordered the worker reinstated.

	The State appealed, and the circuit court held that reinstatement violated public

policy and remanded the matter to the arbitrator for a decision on the merits.  The arbitrator

refused to hear the merits of the case, however, after AFSCME "demurred," electing to

stand on the arbitrator's initial decision.  AFSCME filed a petition in the circuit court,

seeking to confirm the arbitrator's initial award, which was denied by the circuit court.  On appeal, the appellate court reversed, holding that the time provisions contained in the CBA

could not be relaxed in favor of public policy.  AFSCME II, 173 Ill. 2d at 303 (citing 272  Ill. App. 3d 814, 818, 651 N.E. 2d 718).

	Our supreme court reversed.  In determining that reinstatement of the worker

violated  public policy in that it totally ignored any of the legitimate public policy concerns

charging a state agency and its employees "with particular responsibilities which represent

the will of the public with respect to the welfare and protection of children." the court held:

		"In certain cases, interpreting the time provisions as the arbitra

tor did in this case and ordering reinstatement will not contra

vene the public policy enunciated above.  * * * However, the

manner in which the time provision was enforced in this case

with respect to the misconduct at issue cannot be upheld.  As

with any limitation, the nature of the conduct at issue must be

considered before arbitrary time restrictions can be imposed." 

AFSCME II, 173 Ill. 2d at 317.

	Here, as in AFSCME II, the Union argues that the award of reinstatement of the 28 firefighters does not violate public policy.  The Union argues that the arbitrator strictly

followed the guidelines set forth in AFSCME II for reinstatement through his six-part "rehabilitation" analysis, at the end of which he concluded that the firefighters were

unlikely to repeat their offensive conduct in the future. 

	However, the City found enough reason, after considering the activities of the indi

viduals on the videotape, to discharge 7 employees and suspend 21 employees.  The City

also found it appropriate to "separate" Altman from his position as Director of the IAD. 

	Here, public policy considerations regarding the health, safety and welfare of the

public regarding its fire prevention services mitigates against inappropriate remedies for violation of CFD rules:

		"As long as the arbitrator's remedy is 'rationally explainable as a

logical means of furthering the aims of the contract' [citation],

the arbitrator may for example, impose monetary penalties,

order the [employer] to reimburse the employee for rehabilita

tion programs, order reinstatement of the employee to a position in which he poses no danger to the public, or create its own unique sanction to deter overreaching by the employer."

AFSCME II, 173 Ill. 2d at 322 (citing Union Pacific R.R. Co. v. United Transportation Union, F. 3d 255, 263 (8th Cir. 1993).) (Emphasis supplied).

	In Dewitt,4 this court examined an arbitration award which reinstated a County nursing home employee who had been discharged for striking an elderly resident.  The

arbitrator in that case had interpreted the relevant collective bargaining agreement to hold that one incident of striking, which resulted in "no apparent injury" did not amount to "resi

dent abuse" and that the employee could not be terminated for that singular offense.  This

court reversed the arbitrator's holding that the arbitrator's "one free hit" rule violated the

established public policy of protecting senior citizens from abusive and degrading treat

ment:

		"When a nursing home employee lashes out in frustration or

anger and strikes a resident, it is small comfort that it happened

only once or that the hit did not create a visible injury.  Such an

incident is degrading and an example of the type of behavior the

legislature addressed when it enacted the Nursing Home Care

Act and the Elder Abuse and Neglect Act.  We believe the

public policy of this state does not tolerate any incidents of abuse upon the elderly, no matter now infrequent or mild. 

Therefore, we cannot recognize or enforce an interpretation of a

contract that prevents an employer from responding to such

behavior."  DeWitt, 298  Ill. App. 3d at 638.

	The record shows that the arbitrator cited six reasons why he was assured that

employees posed no further danger to the public without ever considering the merits of the case.  Although the order recited that the arbitrator viewed the videotape, the arbitrator specifically stated that it was for the "limited purpose of showing that it was the basis used

by the City to impose discipline."  Without considering the conduct contained in the video

tape for evidentiary purposes, the arbitrator was unable to fashion an appropriate award.  Failure to consider the merits of the allegations ignores the seriousness of the any possible

lack of readiness of municipal firefighters who are on call 24-hours a day to respond to

emergency situations within a few scant minutes.  It cannot be doubted that firefighters who

are ill-equipped to adequately perform their ascribed duties as the result of a state of

intoxication including, but not limited to the operation of any kind of vehicle, may have a

substantial, detrimental impact on the health and safety of  the citizens of the City of

Chicago.

	The record, in fact, belies the arbitrator's conclusions.  Transcripts of interviews of

the  firefighters conducted by the City's Inspector General reveal that some of the firefight

ers deny any wrongdoing by their conduct. Several firefighters interviewed denied any

knowledge of CFD rules and regulations, e.g., General Order No. 87-008, dated February 1, 1987, that prohibited firefighters from consuming alcohol while on duty.  One lieutenant on

duty at Engine 100 on the day of the party acknowledged that there was a "keg" in the

firehouse, and although he claimed to have no knowledge of the contents of the keg, he

made a statement to another firefighter that "we have to get rid of it," and that he "wanted it

out of the firehouse."  At the same time, this lieutenant testified that he neither observed any

infractions of CFD rules, nor did he report any misconduct on the part of any fire depart

ment employees.  A lieutenant from another company who attended the party with his crew

testified that in his opinion, the party did not violate any CFD rules and regulations

"according to what's been tradition on our job for a good many years."

 	Nevertheless, the arbitrator ordered complete reinstatement of employment and benefits to each individual disciplined by the department.  The order of the arbitrator fails to show that any precautionary steps were taken to deter any future misconduct or to ensure

that it would not be repeated.  The arbitrator merely concluded, based on his own

assumptions, that the firefighters would fail to engage in any offensive activities in the

future.  The arbitrator held no hearing whatsoever on the merits of the alleged infractions

committed by the 28 firefighters, and failed to consider any evidence that the firefighters

took responsibility in any way for the conduct they engaged in and the charges leveled

against them.  The arbitrator's award fails to promote the safety and welfare of the public in

direct contravention of well-established public policy. We cannot say that the arbitrator was

either within his authority in making a determination of timeliness based on the Agreement

or that he was able to make a "rational" finding that the employees could be trusted to

refrain from the offending conduct in the future: 

		"[W]hen public policy is at issue, it is the court's responsibility

to protect the public interest at stake. That is why courts will not

give the drunken pilot the opportunity to fly a commercial

airliner again even though no harm befell his passengers." 

AFSCME II, 173 Ill., 2d 333.

	Under the circumstances of this case, the petition for relief granted by the arbitrator

in favor of the Union and, upheld on review in the circuit court, is hereby vacated, and we

remand this matter for a hearing on the merits of the allegations in accordance with the

provisions of the collective bargaining agreement.

	III.

RECONSIDERATION UPON REMAND 

	We reconsider this matter, our original opinion having been vacated and the matter

remanded to this court by the Illinois Supreme Court.  Upon reconsideration, this court

entered an order granting the parties leave to file supplemental briefs confined solely to the

following issue addressed in the United States Supreme Court case of Eastern Associated Coal Corp. v. United Mine Workers, 121 S.Ct. 462 (November 28, 2000): "whether there exists an explicit, well defined, dominant public policy to which the arbitrator's decision ran

contrary," and to address what bearing, if any, the decision in Eastern has on the present case.

	In Eastern, a labor arbitrator ordered an employer to reinstate an employee truck driver who had twice tested positive for marijuana.  The question before the Supreme Court

was whether considerations of public policy required the lower court to refuse to enforce

the arbitration award:

		"[t]he question to be answered is not whether Smith's drug use

itself violates pubic policy, but whether the agreement to rein

state him does so.  To put the question more specifically, does a

contractual agreement to reinstate Smith with specified condi

tions * * * , run contrary to an explicit, well-defined, and

dominant public policy, as ascertained by reference to positive

law and not from general considerations of supposed public

interests?"  Eastern, 121 S.Ct. at 467.

The Supreme Court upheld the award of the arbitrator, finding that there was no explicit, well-defined or dominant public policy to which the arbitrator's decision was contrary.  In

doing so, the Supreme Court noted that the activities of truck drivers are governed by the

Omnibus Transportation Employee Testing Act of 1991 (49 U.S. C. § 31306(b((1)(A)

("Testing Act")), and the U.S. Department of Transportation's implementing regulations by

the Secretary of Transportation (49 CFR §382.605 (1999)).  The Court noted that the

remedial aims of the Act are complex, including a Testing Act policy favoring rehabilitation

of employees who use drugs:

		"Neither Congress nor the Secretary has seen fit to mandate the

discharge of a worker who twice tests positive for drugs.  We

hesitate to infer a public policy in this area that goes beyond the

careful and detailed scheme Congress and the Secretary have

created."  Eastern, 121 S. Ct. at 469.  

	The Union cites as additional support the Ohio case Southwest Ohio Regional Transit Authority v. Amalgamated Transit Union, Local 627, 91 Ohio St.3d 108 (2001).  There, the employer, a mass transit system, established a "zero tolerance" drug-and-alcohol-

prevention policy which subjected "safety sensitive" employees to random drug-testing with

termination of employment mandated upon a positive test.  The Union filed a grievance on

behalf of a bus repairperson, who was classified as a "safety sensitive" employee.  The

arbitration panel found that the policy was facially valid and that testing positive was a

dischargeable offense, but that the automatic discharge provision conflicted with, and

therefore violated the "sufficient cause" discharge provision of the collective bargaining agreement (CBA), and ordered the employee reinstated.  The award was confirmed by the

Court of Common Pleas.  On appeal, however, the award was reversed.  The Ohio Appeals

court held that reinstating the employee violated the "explicit, well-defined and dominant

public policy to ensure the safety of the passengers of common carriers and the general

public by suppressing illegal drug use among transportation employees."  However, upon

review, the Ohio Supreme Court held that Ohio has no dominant and well-defined public

policy that renders unlawful an arbitration award reinstating a safety-sensitive employee

who was terminated for testing positive for a controlled substance.  The court held that a

while the drug policy established by employer was facially valid, the employer did not have

the right to unilaterally adopt a policy of automatic termination without the possibility of

reinstatement as a sanction for testing positive for drugs because such a sanction conflicts

with the "sufficient cause" requirement for dismissal found in the collective bargaining

agreement. This Ohio case is distinguishable from the present case: as continuously noted in

the body of our opinion, there is no absence of a well-defined, explicit public policy here. 

	Here, the Union argues that Eastern dictates that whether the reinstatement of the firefighters violates public policy is to be "ascertained by reference to positive law," and

where the "award violates no specific provision of any law or regulation," it is to be

enforced.  The Union argues that the collective bargaining agreement does not preclude the

actions of the arbitrator here, and urges this court to focus on the "legality of the action

ordered by the arbitrator, not on the recognized violation of the grievant."  At the same

time, the Union recognizes that Eastern is not binding on the present case.

	As the City responds, even focusing on the decision of the arbitrator, nothing in

Eastern undermines the decision of this court.  The question is not whether the award is consistent with the collective bargaining agreement, but whether the agreement, as

interpreted by the arbitrator, is consistent with public policy.  Eastern, 121 S.Ct. at 466-67; AFSCME II, 173 Ill. 2d at 307. Here, the arbitrator's award reinstating the discharged fire fighters violates the well-established public policy favoring safe and effective fire preven

tion services in the critical matter of public safety.  (See, e.g. Illinois Nurses Association v. Board of Trustees, Nos. 1-99-3324, 1-99-3732 & 1-99-3733, Consolidated (Ill. App.1st District February 2, 2001).  The conduct at issue in the present case was recorded on video-

tape and reveals public safety workers in an on-going state of intoxication, some

participants setting about to perform their duties by way of responding to an alarm for a

fire.  Nevertheless, the arbitrator ordered reinstatement and barred all discipline and

sanctions without considering the merits of the case.  Firefighters have the extraordinary

responsibility for carrying out the well-stated public policy of safe and effective fire

prevention.  Firefighters must be prepared to respond immediately to emergency conditions

at all times, and in all weather conditions, whenever the alarm bell in the firehouse sounds. 

For these reasons, and for all of the reasons cited by our supreme court in AFCSME II, 173 Ill. 2d 299 et seq., we adhere to our original opinion as set forth above. 	

	Vacated, reversed, and remanded with instructions.

	BUCKLEY, J., and O'BRIEN, J.,5 concur.

	DIGEST OF OPINION

			CHICAGO FIRE FIGHTERS UNION LOCAL NO. 2,

		Plaintiff-Appellee,

CASE NAME:	v.

			CITY OF CHICAGO,

		Defendant-Appellant.

 FIRST 	1-99-2647 	JUSTICE CALVIN C. CAMPBELL	JUNE 1, 2001

 District	Docket #	Authoring Judge				Date Filed

PANEL MEMBERS:		BUCKLEY, J., and O'BRIEN, J., concur.

SUMMARY:

	This appeal arises out of the discharge or suspension of 28 employees of the Chicago

Fire Department, by respondent, the City of Chicago, (the City), as a result of their partici

pation in an unauthorized retirement party at a Chicago firehouse.  Petitioners, the Chicago

Fire Fighters Union Local No. 2 (the Union) grieved the discipline, and an arbitrator held

the discharges and disciplinary suspensions untimely, thereby reinstating the employees to

their respective positions and vacating the disciplinary actions.  The Union then initiated an

action to enforce an arbitration award issued pursuant to Section 11 of the Uniform Arbi

tration Act.  710 ILCS 5/11 (West 1998).  The City filed a counter petition to vacate the

arbitration award.  After considering cross motions for summary judgment, the circuit court

of Cook County entered an order granting the Union's motion and denying that of the City.  

	On appeal, we vacated the arbitration award as against the public policy favoring a

safe and effective fire prevention system.  We held that:  (1) The City did not waive its right

to appeal the arbitration award as violative of public policy, where (a) the issue of public

policy was properly before the arbitrator; and (b) an agreement to submit to arbitration does

not operate to circumvent questions of public policy; (2) there exists a well-defined public

policy favoring safe and effective fire prevention services; and (3) the arbitrator's award

violated that public policy by reinstating the petitioners without holding a hearing on the

merits of the case.  On remand from the Illinois supreme court, we find that the United

States Supreme Court case of Eastern Associated Coal Corp. v. United Mine Workers, 121  S. Ct. 462 (November 28, 2000), has not bearing upon our decision.

	Vacated and remanded.

	REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT

	(Front Sheet to be Attached to Each Case)

___________________________________________________________________________

			CHICAGO FIRE FIGHTERS UNION LOCAL NO. 2,

								Plaintiff-Appellee,

CASE NAME:	v.

			CITY OF CHICAGO,

								Defendant-Appellant.

___________________________________________________________________________

	No.  1-99-2647   

	Appellate Court of Illinois

	First District, Sixth Division

	JUNE 1, 2001

	JUSTICE CAMPBELL delivered the opinion of the court:

	BUCKLEY, J., and O'BRIEN, J., concur.

___________________________________________________________________________

	Appeal from the Circuit Court of Cook County

	The Honorable  Thomas A. Hett  , Judge Presiding.

___________________________________________________________________________

				   For APPELLANT, Mara S. Georges, Corporation Counsel of the City of Chicago (Lawrence Rosenthal, Deputy Corporation Counsel;

Benna Ruth Solomon, Chief Assistant Corporation Counsel; and

Mardell Nereim, Assistant Corporation Counsel; of counsel).

				   For APPELLEE, Sugarman & Horwitz, of Chicago (Robert S. Sugarman and Stephen B. Horwitz, of counsel).