{ "id": 1073618, "name": "THE COUNTY OF DE WITT, Plaintiff-Appellee, v. AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 31, Defendant-Appellant", "name_abbreviation": "County of De Witt v. American Federation of State, County & Municipal Employees", "decision_date": "1998-08-11", "docket_number": "No. 4-98-0104", "first_page": "634", "last_page": "640", "citations": [ { "type": "official", "cite": "298 Ill. App. 3d 634" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "386 N.E.2d 47", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "52" }, { "page": "52" } ], "opinion_index": 0 }, { "cite": "74 Ill. 2d 412", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2993660 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "424" }, { "page": "424" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0412-01" ] }, { "cite": "808 F.2d 76", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1369114, 4329350 ], "year": 1987, "pin_cites": [ { "parenthetical": "reinstatement of pilot who flew commercial airliner while drunk upheld because reinstatement conditioned upon the pilot's recertification by the Federal Aviation Administration" } ], "opinion_index": 0, "case_paths": [ "/f2d/808/0076-01", "/us-app-dc/257/0181-01" ] }, { "cite": "632 N.E.2d 66", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "70" } ], "opinion_index": 0 }, { "cite": "259 Ill. App. 3d 1027", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2869652 ], "year": 1994, "pin_cites": [ { "page": "1033" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/259/1027-01" ] }, { "cite": "529 N.E.2d 534", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1988, "pin_cites": [ { "page": "540", "parenthetical": "Howe Developmental Center grievance" }, { "page": "541", "parenthetical": "reinstatement upheld because arbitrator found employees were exemplary, punishment had been imposed, and conduct did not threaten patient safety" }, { "page": "538" } ], "opinion_index": 0 }, { "cite": "124 Ill. 2d 246", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3218018 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "261", "parenthetical": "Howe Developmental Center grievance" }, { "page": "263" }, { "page": "255" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/124/0246-01" ] }, { "cite": "671 N.E.2d 668", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 6, "year": 1996, "pin_cites": [ { "page": "672", "parenthetical": "DuBose, grievant" }, { "page": "672" }, { "page": "674" }, { "page": "680" }, { "page": "678" }, { "page": "683-84" } ], "opinion_index": 0 }, { "cite": "173 Ill. 2d 299", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 147633 ], "weight": 6, "year": 1996, "pin_cites": [ { "page": "304", "parenthetical": "DuBose, grievant" }, { "page": "305" }, { "page": "307" }, { "page": "322" }, { "page": "317" }, { "page": "329" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/173/0299-01" ] } ], "analysis": { "cardinality": 741, "char_count": 15012, "ocr_confidence": 0.735, "pagerank": { "raw": 1.993543141203632e-07, "percentile": 0.7420756963050742 }, "sha256": "357ab9a77e652f24853ab889368d1ddeac1b8a1e31d794f992c7e4fabdf1d3db", "simhash": "1:aef7d86a3be5825a", "word_count": 2449 }, "last_updated": "2023-07-14T16:29:38.148323+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE COUNTY OF DE WITT, Plaintiff-Appellee, v. AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 31, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE COOK\ndelivered the opinion of the court:\nIn September 1995, plaintiff De Witt County terminated Susan Winstead, a certified nurse\u2019s aide (CNA), from her employment at the De Witt County Nursing Home (Home). She was terminated for allegedly striking Esther Tatham, a senior citizen resident, in the head. Winstead was a union member of defendant American Federation of State, County and Municipal Employees, Council 31 (AF'SCME). According to the collective-bargaining agreement (Agreement) between AFSCME and the County, an employee could only be disciplined for \u201cjust cause.\u201d The Agreement also provides that \u201cemployees shall be immediately subject to discharge for resident abuse.\u201d\nPursuant to the Agreement, plaintiff and defendant submitted to arbitration the issue of whether the County had \u201cjust cause\u201d to terminate Winstead and, if not, what was the proper remedy. Evidentiary hearings were held before the arbitrator in January and February 1997.\nJulie Ann Zook testified she was an intern in the Bogard Specialized Service Program (Program) of the De Witt County Resource Center and was at the Home tending to her clients on the date of the incident. She had just entered the cafeteria and was speaking with Donna Kivlehan, another employee of the Program, when she witnessed the incident. Zook looked over and heard a male nurse yell something like \u201c[y]ou need to get that out of her hand.\u201d The nurse was speaking to Winstead and referring to Tatham, who had just grabbed a glass of milk from a resident sitting next to her at the table. Zook testified that Winstead grabbed the glass from Tatham\u2019s hand, hit her on the side of-her head, and slammed the glass down in front of the other resident. The hit caused Tatham\u2019s head to move a little bit, but Zook did not think the hit was hard enough to leave a mark. Zook claimed that Tatham seemed to shrug it off \u201clike it happened to her all of the time\u201d and \u201cshe didn\u2019t think it was any big deal to be hit.\u201d\nKivlehan testified she was a rehabilitation technician for the De Witt County Resource Center and was tending to one of her clients in the cafeteria when she witnessed the incident. She heard a male nurse ask Winstead to \u201cget the milk from Esther.\u201d Then she saw Winstead walk over and backhand Tatham on the side of the head and take the milk from her. Kivlehan testified she was very disturbed by Tatham\u2019s response to the hit. She claimed that Tatham \u201cjust did nothing, and almost as though that was part of the program here, and it was O.K. that it happened to her.\u201d\nAt the time of the incident, Winstead had worked at the Home for 10 years and had a flawless employment record. Winstead testified that at the time of the incident she was feeding another resident in the cafeteria. She could not remember anything out of the ordinary happening that day. Winstead denied that she hit Tatham and testified she had no recollection of going over to Tatham\u2019s table.\nKaren Mandrell testified she was employed at the nursing home and was working during the lunch period on the date of the incident. She did not hear any loud voices or other incidents out of the ordinary. Mandrell claimed she would have seen such an incident had it occurred. Mandrell admitted that Winstead was a good friend, but that she would still report her if she had struck a resident.\nJean Crispen, a certified nurse assistant, testified she was in the cafeteria that day feeding a resident and did not see anyone hit Tatham. Crispen claimed she would have seen such an incident if it had occurred. Crispen also admitted that Winstead was her personal friend, but she would not lie to protect her. During the investigation of the incident, the police asked Crispen to take a polygraph test. Crispen refused to take the test, claiming that she knew she was telling the truth and she did not need to prove anything.\nSergeant Dale Mario, a State Police officer, conducted the investigation of the incident. He testified he interviewed nine different employees of the Home, and none of them were aware of Tatham being struck by anyone at the Home. He also interviewed Winstead, who denied that she or any other employee had struck Tatham. Mario asked Winstead to submit to a polygraph test, but she refused to take it.\nNick Cetwinski, the Home\u2019s attorney, testified he spoke with Sergeant Mario after the incident and asked him whether, in his opinion, the striking had happened. Mario advised Cetwinski that, in his opinion, the striking had occurred because the Resource Center employees had no reason to fabricate the incident and he felt the employees of the Home felt intimidated by Winstead into not cooperating with him. Based on Mario\u2019s opinion and his own opinion, Cetwinski believed the striking had occurred and he felt the Home had no choice but to terminate Winstead.\nThe arbitrator found Winstead may have struck Tatham; however, even if she did, Tatham was not injured and it was \u201cjust as reasonable to conclude that Grievant just brushed the side of Tatham\u2019s head.\u201d The arbitrator also determined it was unlikely that Winstead would ever strike a resident again, based on her long service and exemplary record. The arbitrator recognized that the Agreement called for immediate discharge for those employees who commit-resident abuse; however, the arbitrator determined that one incident, which did not result in injury, was not \u201cabuse.\u201d The arbitrator ruled there was no just cause for Winstead\u2019s termination and ordered her to be reinstated to her former position and awarded all lost pay and seniority.\nIn July 1997, the County brought an action to vacate the arbitration award on the grounds that it violated the State of Illinois public policy of protecting the elderly. In January 1998, the trial court granted the motion to vacate. AFSCME appeals from that order, arguing that we should reverse the trial court and reinstate the arbitrator\u2019s award and Winstead to her employment at the Home.\nThe judicial review of an arbitral award is extremely limited, which reflects the legislature\u2019s intent in providing finality for labor disputes submitted to arbitration. American Federation of State, County & Municipal Employees v. Department of Central Management Services, 173 Ill. 2d 299, 304, 671 N.E.2d 668, 672 (1996) (DuBose, grievant) (hereinafter CMS). A court may not reverse an arbitrator\u2019s decision simply because it is contrary to the manifest weight of the evidence. See 710 ILCS 5/12, 13 (West 1996). Any question regarding the interpretation of a collective-bargaining agreement is to be answered by the arbitrator, and we will not overrule that construction merely because our interpretation differs from that of the arbitrator. CMS, 173 Ill. 2d at 305, 671 N.E.2d at 672. In this case, the arbitrator decided that the striking, even if it occurred, did not reach the level of just cause for termination. The arbitrator\u2019s decision was based on his interpretation of the Agreement and we will not reverse the award on those grounds.\nHowever, even if the arbitrator\u2019s award was properly based on his interpretation of the Agreement, we will vacate the award if it is repugnant to established norms of public policy. To vacate an arbitral award upon these grounds, the contract, as interpreted by the arbitrator, must violate some explicit public policy. American Federation of State, County & Municipal Employees v. State of Illinois, 124 Ill. 2d 246, 261, 529 N.E.2d 534, 540 (1988) (Howe Developmental Center grievance). The application of the public policy requires a two-step analysis. First, we must determine whether a well-defined and dominant public policy can be identified. If so, we must then determine whether the arbitrator\u2019s award, as reflected in his interpretation of the Agreement, violated the public policy. To ascertain the existence of public policy, we will look to our constitution, statutes, and relevant judicial opinions. CMS, 173 Ill. 2d at 307, 671 N.E.2d at 674.\nAn established public policy exists in Illinois to protect the elderly from abuse or harm. The Nursing Home Care Act (210 ILCS 45/1 \u2014 101 et seq. (West 1996)) and the Elder Abuse and Neglect Act (320 ILCS 20/1 et seq. (West 1996)) are clear examples of the legislature\u2019s intent to protect the elderly from neglect, abuse, and degrading treatment in nursing homes and domestic situations. Alden Nursing Center \u2014 Morrow, Inc. v. Lumpkin, 259 Ill. App. 3d 1027, 1033, 632 N.E.2d 66, 70 (1994). Further evidence of the public policy of protecting senior citizens can be found in criminal statutes that increase the classification and punishment for those crimes committed against victims over the age of 60. See 720 ILCS 5/12 \u2014 4.6 (West 1996) (the offense of battery is upgraded to an aggravated battery when defendant knowingly causes bodily harm to an individual of 60 years of age or older).\nThe arbitrator interpreted the Agreement to hold that one incident of striking, that causes no apparent injury, does not amount to \u201cresident abuse\u201d and the employee may not be terminated for that singular offense. Essentially, the arbitrator\u2019s interpretation creates a \u201cone free hit\u201d rule, where employees may strike a resident without fear of termination, so long as it is an isolated incident that does not produce a physical injury. We conclude such an interpretation violates the established public policy of protecting senior citizens from abusive and degrading treatment. 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 how infrequent or mild. Therefore, we cannot recognize or enforce an interpretation of a contract that prevents an employer from responding to such behavior.\nAFSCME argues that the award of reinstatement does not violate public policy because the arbitrator determined Winstead was unlikely to repeat the incident of abuse in the future. AFSCME argues that as long as 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 we would be obliged to affirm the award. CMS, 173 Ill. 2d at 322, 671 N.E.2d at 680; see also American Federation of State, County & Municipal Employees, 124 Ill. 2d at 263, 529 N.E.2d at 541 (reinstatement upheld because arbitrator found employees were exemplary, punishment had been imposed, and conduct did not threaten patient safety); Northwest Airlines, Inc. v. Air Line Pilots Ass\u2019n, International, 808 F.2d 76 (D.C. Cir. 1987) (reinstatement of pilot who flew commercial airliner while drunk upheld because reinstatement conditioned upon the pilot\u2019s recertification by the Federal Aviation Administration).\nInitially, we note that questions of public policy are left to the courts, not the arbitrator. Board of Trustees of Community College District No. 508 v. Cook County College Teachers Union, Local 1600, 74 Ill. 2d 412, 424, 386 N.E.2d 47, 52 (1979). The arbitrator\u2019s determination that public policy was satisfied by his opinion that Winstead would not commit abuse again was not pertinent to the interpretation of the Agreement and we are not bound to follow it. We are not bound by the arbitrator\u2019s consideration of public policy, and \u201cwe may not abdicate to him our responsibility to protect the public interest at stake.\u201d Board of Trustees, 74 Ill. 2d at 424, 386 N.E.2d at 52.\nIn this case, the arbitrator\u2019s determination that Winstead posed no threat for future abuse had no rational basis. In previous cases where an arbitrator found that the employees could be trusted to refrain from future misconduct, the employees did not deny their wrongdoing and were still punished in some way. Here, Winstead has stubbornly denied touching Tatham, even in the face of overwhelming evidence that she did, in fact, strike her. We are also concerned that some of the other Home employees may be covering up for her. Certainly, this is no clear indication that such an incident will not happen again.\nAlso, the arbitrator awarded complete reinstatement to Winstead, without the slightest reprimand for her behavior. Thus, he did not take any precautionary steps to deter future misconduct or to ensure it will not be repeated. See CMS, 173 Ill. 2d at 317, 671 N.E.2d at 678. If anything, the arbitrator\u2019s award encourages misconduct because it prevents nursing homes from terminating abusive employees unless it is proved the abuse is repetitive or results in physical injury. The arbitrator\u2019s award does not in any way promote the welfare and protection of the elderly and violates public policy.\nAFSCME also argues that we are bound by the fact-finding of the arbitrator and must defer to his determination that Winstead was not guilty of the charged misconduct. Generally, a court is bound by the arbitrator\u2019s view of the facts. American Federation of State, County & Municipal Employees, 124 Ill. 2d at 255, 529 N.E.2d at 538. However, the arbitrator never determined Winstead did not strike Tatham. Conversely, he seems to have determined that Winstead probably did hit Tatham, but just \u201cbrushed the side of her head.\u201d (Interestingly, this conclusion required the arbitrator to discount every witness, none of whom testified the striking was accidental or a \u201cbrushing.\u201d) None of the arbitrator\u2019s findings prevents us from recognizing the overwhelming evidence that the striking occurred and that Winstead\u2019s reinstatement violates public policy.\nWe recognize the importance of arbitration in settling labor disputes and the policy favoring freedom of contract. Ordinarily, we would not be concerned about even the most absurd interpretation of a collective-bargaining agreement or manifestly erroneous fact-finding by an arbitrator. It is the arbitrator\u2019s construction that was bargained for, and the courts have no business overruling him because their interpretation is different from his. CMS, 173 Ill. 2d at 329, 671 N.E.2d at 683-84. However, when an arbitrator\u2019s award infringes upon the welfare of senior citizens, who are not parties to the contract, the policy favoring arbitration and freedom of contract must yield to the public policy of protecting the elderly. Accordingly, we affirm the trial court\u2019s decision to vacate the arbitrator\u2019s award.\nAffirmed.\nGASMAN, EJ., and KNECHT, J., concur.", "type": "majority", "author": "JUSTICE COOK" } ], "attorneys": [ "Gilbert Feldman (argued), of Cornfield & Feldman, of Chicago, for appellant.", "Nick A. Cetwinski (argued), of Clarendon Hills, for appellee." ], "corrections": "", "head_matter": "THE COUNTY OF DE WITT, Plaintiff-Appellee, v. AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 31, Defendant-Appellant.\nFourth District\nNo. 4\u201498\u20140104\nOpinion filed August 11, 1998.\nGilbert Feldman (argued), of Cornfield & Feldman, of Chicago, for appellant.\nNick A. Cetwinski (argued), of Clarendon Hills, for appellee." }, "file_name": "0634-01", "first_page_order": 654, "last_page_order": 660 }