American Federation of State, County & Municipal Employees v. Department of Central Management Services

NOTICE: Under Supreme Court Rule 367 a party has 21 days after

the filing of the opinion to request a rehearing. Also, opinions

are subject to modification, correction or withdrawal at anytime

prior to issuance of the mandate by the Clerk of the Court.

Therefore, because the following slip opinion is being made

available prior to the Court's final action in this matter, it

cannot be considered the final decision of the Court. The

official copy of the following opinion will be published by the

Supreme Court's Reporter of Decisions in the Official Reports

advance sheets following final action by the Court.

               Docket No. 79376--Agenda 10--March 1996.

     AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES,

      AFL-CIO, Appellee, v. THE DEPARTMENT OF CENTRAL MANAGEMENT

                     SERVICES et al., Appellants.

                   Opinion filed September 19, 1996.

    JUSTICE FREEMAN delivered the opinion of the court:

    Plaintiff, the American Federation of State, County and

Municipal Employees, AFL-CIO (AFSCME), brought this action against

defendants, the Department of Central Management Services and the

Department of Children and Family Services (collectively, DCFS),

seeking to confirm an arbitration award and to vacate a

supplemental arbitration award. 710 ILCS 5/11, 12 (West 1992). The

circuit court of Sangamon County denied the requested relief, and

the appellate court reversed, with one justice dissenting. 272 Ill.

App. 3d 814 (1995). We granted leave to appeal (155 Ill. 2d R. 315)

and now reverse the judgment of appellate court.

                               BACKGROUND

    In December 1985, DCFS Child Welfare Specialist II Vera DuBose

was assigned the case file of three minor children in DCFS's

custody. In February 1990, DuBose stated in a written "uniform

progress report" that she had seen the three children in February

1990 and that they were "doing fine." Unfortunately, the children

had, in fact, perished in an accidental fire at their home on

January 16, 1990. DuBose thereafter transferred from her DCFS

regional office to another for unrelated reasons.

    When DuBose's replacement conducted a "follow-up" on the

children in August 1990, he learned of the children's deaths in the

fire. The matter was then assigned to an internal DCFS investigator

on August 22, 1990. During the internal investigation, DCFS also

discovered that DuBose had failed to submit case plans for the

family for the years 1988, 1989, and 1990.

    The investigator completed his inquiries and submitted a

written report to his superiors on December 13, 1990. No further

action was taken in the matter until June 20, 1991, when DCFS

informed DuBose that a "predisciplinary" meeting was scheduled for

June 24, 1991. Pursuant to the terms of the collective-bargaining

agreement, AFSCME was given an opportunity to rebut DCFS's

presentation. In the rebuttal, AFSCME maintained that a complete

and detailed statement was not possible without certain requested

documentation. Moreover, AFSCME argued that disciplinary action

could not be taken against DuBose in view of the "extreme time

delay." After submission of the rebuttal, AFSCME received a copy of

the investigator's summary report. AFSCME thereafter filed an

addendum to its rebuttal, reiterating its position that any

disciplinary action taken against DuBose would be untimely. On

September 2, 1991, a predisciplinary report was issued, containing

a recommendation that DuBose receive a 60-day suspension.

    Contrary to the recommendation, DCFS notified DuBose nine days

later that she was being placed on a 30-day suspension, pending a

final determination of discharge. AFSCME then filed a grievance on

DuBose's behalf. On October 1, 1991, DCFS notified DuBose that she

was being discharged within three days for falsification of the

uniform progress report and failure to prepare service plans for

the children for three years as required by DCFS's internal rules.

The matter then proceeded to arbitration.

    At arbitration, AFSCME argued that DCFS failed to impose

discipline in a timely manner, and that even if it did, DCFS did

not have just cause to discharge the employee. After conducting a

hearing, the arbitrator sustained the grievance and reinstated

DuBose. The arbitrator ruled that DCFS had breached the parties'

collective-bargaining agreement by failing to timely discipline

DuBose. Moreover, the arbitrator concluded that the failure to

impose discipline in a timely fashion prevented him from

"address[ing] the merits of this dispute."

    Rather than reinstating DuBose, DCFS applied to the circuit

court of Sangamon County, seeking vacatur of the arbitrator's

reinstatement award. In granting the relief, the circuit court

agreed with DCFS that the reinstatement violated public policy

established in the Abused and Neglected Child Reporting Act (325

ILCS 5/1 et seq. (West 1994)). The court remanded the matter to the

arbitrator for a decision on the merits. The circuit court also

denied AFSCME's request for certification of the issue for appeal.

See 134 Ill. 2d R. 308.

    On remand, AFSCME "demurred," electing to stand on the

arbitrator's initial decision that the disciplinary action was

untimely. As a result, the arbitrator denied the grievance, noting

that AFSCME's "demurral" prevented him from hearing the merits of

the case as directed by the circuit court.

    AFSCME then filed a petition in the circuit court of Cook

County, seeking to vacate the subsequent arbitration order and to

confirm the arbitrator's initial award. Venue was subsequently

transferred to the circuit court of Sangamon County, which, as

noted, denied AFSCME's petition.

    On appeal, the appellate court reversed the judgment of the

circuit court, holding that the time provisions contained in the

collective-bargaining agreement could not be relaxed in favor of

public policy. The court noted the well-recognized policy of

establishing time frames within which various types of actions must

be commenced. The effects of such policy, the court reasoned, often

produced harsh consequences--the "guilty" may go free or those

tortiously injured may be uncompensated. 272 Ill. App. 3d at 818.

The court concluded that the initial arbitral award, DuBose's

reinstatement, merely upheld the "essence" of the collective-

bargaining agreement and, as such, could not be vacated in favor of

public policy.

    The dissent, although acknowledging the collective-bargaining

agreement's express language regarding time limits, questioned the

majority's disregard of the paramount considerations of public

policy. Specifically, the dissent focused upon the result created

by the majority's analysis, i.e., that "DCFS must be forced to hire

back some social worker no matter how egregious" the conduct. 272

Ill. App. 3d at 821 (Steigmann, J., dissenting).

    For reasons that follow, we reverse the judgment of the

appellate court.

                               DISCUSSION

    Resolution of this appeal requires that we consider whether

public policy concerns may be used to override an arbitral award.

DCFS argues that public policy dictates that the arbitrator's award

of reinstatement be vacated because of the severity of DuBose's

alleged conduct. AFSCME responds that the arbitrator's award

reflects a proper interpretation of the collective-bargaining

agreement, an agreement which contains certain procedures which

must be followed in order for discipline to be imposed.

                         The Standard of Review

    This court has consistently recognized that the 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 (1988); Board of Trustees of

Community College District No. 508 v. Cook County College Teachers

Union, Local 1600, 74 Ill. 2d 412, 418 (1979). This standard

reflects the legislature's intent in enacting the Illinois Uniform

Arbitration Act--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 (1981). Thus, a court is duty bound to 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. Board of Trustees, 74 Ill. 2d at

421.

    To this end, any question regarding the interpretation of a

collective-bargaining agreement is to be answered by the

arbitrator. Because the parties have contracted to have their

disputes settled by an arbitrator, rather than by a judge, it is

the arbitrator's view of the meaning of the contract that the

parties have agreed to accept. We will not overrule that

construction merely because our own interpretation differs from

that of the arbitrator. American Federation of State, County &

Municipal Employees, 124 Ill. 2d at 254.

                  Application of the Standard of Review

    In this case, the arbitrator based his award of reinstatement

upon the fact that DCFS breached the collective-bargaining

agreement by failing to discharge DuBose seasonably. Article IX,

section 1, of the parties' collective-bargaining agreement, which

governs discipline, states 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 OR

         TIME TO INVESTIGATE THE MATTER.

              In any event, the actual date upon which discipline

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

         completion of the predisciplinary meeting." (Emphasis

         added.)

    In the present case, DCFS offered no explanation to the

arbitrator for the seven-month interval between the conclusion of

the investigation and the commencement of disciplinary proceedings.

As a result, the arbitrator concluded that the delay was

unreasonable and that DCFS had violated the contractual time

provision. The arbitrator further ruled that the entire

disciplinary proceeding was "procedurally defective" and that the

only remedy appropriate under the circumstances would be

reinstatement. The arbitrator rejected DCFS's argument that DuBose

suffered no prejudice from the delay because the contract made

timeliness a condition precedent to the imposition of discipline.

    As noted, we will disturb an arbitral award only if it fails

to derive its essence from the collective-bargaining agreement at

issue. Significantly, the parties' agreement here does not

delineate the precise time frames within which disciplinary action

must be commenced. Similarly, the agreement is silent as to what

remedies are available once an infraction is found. Thus, these

matters were left for the determination of the arbitrator. In

addition, when an agreement contemplates that the arbitrator will

determine remedies for the contractual violations, courts have no

authority to disagree with his honest judgment in that respect. See

United Paperworkers International Union v. Misco, Inc., 484 U.S.

29, 38, 98 L. Ed. 2d 286, 299, 108 S. Ct. 364, 371 (1987). Given

the limited nature of our review, we simply may not substitute our

interpretation of the time provision clause for that of the

arbitrator when the arbitrator's interpretation is clearly drawn

from the essence of the collective-bargaining agreement. Indeed,

DCFS does not dispute the arbitrator's contractual interpretation

and even concedes that it violated the agreement's time provision.

    What DCFS does urge, however, is that public policy dictates

that the award of reinstatement be vacated in light of the

circumstances of this case. AFSCME counters that public policy is

not violated in this instance because the enforcement of the

contract's time provisions do not violate any express public

policy.

                       The Public Policy Exception

    Courts have crafted a public policy exception to vacate

arbitral awards which otherwise derive their essence from a

collective-bargaining agreement. The historical context of the

exception is grounded in the common law. As with any contract, a

court will not enforce a collective-bargaining agreement that is

repugnant to established norms of public policy. Likewise, we may

not ignore the same public policy concerns when they are undermined

through the process of arbitration. Board of Trustees, 74 Ill. 2d

at 424.

    However, in order 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, 124 Ill. 2d at 261; W.R. Grace & Co.

v. Local Union No. 759, 461 U.S. 757, 766, 76 L. Ed. 2d 298, 307,

103 S. Ct. 2177, 2183 (1983). In this respect, the exception is a

narrow one and is invoked only when a contravention of public

policy is clearly shown. American Federation of State, County &

Municipal Employees, 124 Ill. 2d at 261, citing United Paperworkers

International Union v. Misco, Inc., 484 U.S. 29, 43, 98 L. Ed. 2d

286, 302, 108 S. Ct. 364, 373-74 (1987). Moreover, the public

policy must be "well-defined and dominant" and ascertainable "by

reference to the laws and legal precedents and not from generalized

considerations of supposed public interests." W.R. Grace, 461 U.S.

at 766, 76 L. Ed. 2d at 307, 103 S. Ct. at 2183. This court has

stated that it will look to our "constitution and *** statutes, and

when cases arise concerning matters upon which they are silent,

then in its judicial decisions and the constant practice of the

government officials" when determining questions regarding public

policy. Zeigler v. Illinois Trust & Savings Bank, 245 Ill. 180, 193

(1910).

    Thus, application of the public policy exception requires a

two-step analysis. The threshold question is whether a well-defined

and dominant public policy can be identified. If so, the court must

determine whether the arbitrator's award, as reflected in his

interpretation of the agreement, violated the public policy.

Applying these two steps, we find there is a well-defined public

policy in favor of truthful and accurate DCFS reporting and that

the arbitral award in this case violates that policy.

          Review of Cases Applying the Public Policy Exception

    The seminal case involving the exception is United

Paperworkers International Union v. Misco, Inc., 484 U.S. 29, 98 L.

Ed. 2d 286, 108 S. Ct. 364 (1987). There, the United States Supreme

Court examined the role of public policy in vacating an arbitral

award which reinstated an employee discharged for violation of the

employer's drug policy. The employee had been arrested on company

premises in another's car that was filled with marijuana smoke, and

traces of marijuana were found in his own car on the company lot.

The arbitrator found that there was no evidence that the employee

had used drugs during working hours. The district court vacated the

award on public policy grounds, and the circuit court of appeals

affirmed. The Supreme Court held the reversal of the arbitral award

improper because the award did not contravene public policy.

Specifically, the Court faulted the circuit court of appeals for

making "no attempt to review existing laws and legal precedents in

order to demonstrate that they establish a `well-defined and

dominant' policy." Misco, 484 U.S. at 44, 98 L. Ed. 2d at 302, 108

S. Ct. at 374. Moreover, the court of appeals inappropriately drew

factual inferences from evidence which had been rejected by the

arbitrator. Misco, 484 U.S. at 44, 98 L. Ed. 2d at 303, 108 S. Ct.

at 374.

    In Delta Airlines, Inc. v. Air Line Pilots Ass'n

International, 861 F.2d 665 (11th Cir. 1988), a pilot, while

intoxicated, flew a commercial airliner on its scheduled flight.

His employer discharged him after discovering the misconduct.

Pursuant to a collective-bargaining agreement, the pilot complained

that his conduct was insufficient to establish just cause for

discharge. The arbitrators in that case agreed and ordered his

reinstatement. A federal district court overturned the award as

violative of public policy. In affirming the decision, the court of

appeals noted:

         "[When a] person performs his employment duties and, IN

         DOING SO, violates standards, restraints and restrictions

         on conduct, clearly and explicitly established by the

         people in their laws, a requirement that the employer

         suffer that malperformance and not discharge the offender

         does itself violate the same well established public

         policy." (Emphasis in original.) Delta, 861 F.2d at 674.

The court of appeals stressed that the employer, Delta, was under

a duty to prevent the wrongdoing of which the employee was guilty

and it could not agree to arbitrate that issue. Thus, the

collective-bargaining agreement, as interpreted by the arbitrator,

violated public policy.

    Similarly, in Iowa Electric Light & Power Co. v. Local Union

204, 834 F.2d 1424 (8th Cir. 1987), a nuclear power plant employee-

-in a hurry to leave his work area to go to lunch--ordered a

foreman to disconnect a safety device on a doorway designed to

protect the public from harmful radiation. After being discharged

for this misconduct, an arbitrator ordered his reinstatement. The

district court overturned the award as incompatible with public

safety concerns. The court of appeals affirmed, noting that

Congress had established a strict nuclear regulatory scheme which

the worker willingly contravened. The court concluded that the

worker could "no longer *** be trusted to work in such a critical

environment when he shows no respect for the safety implications of

his actions and when he is willing to jeopardize the safety of the

public." Iowa Electric, 834 F.2d at 1429. See also United States

Postal Service v. American Postal Workers Union, 736 F.2d 822, 825

(1st Cir. 1984) (vacating, on public policy grounds, an award

reinstating postal worker convicted of embezzling postal funds

because the offense "went to the heart of the worker's

responsibilities," and because the employee "represented a branch

of the federal government and was imbued with the public trust. His

actions directed violated that trust").

    We have previously considered whether the public policy

exception may be used to vacate an arbitral award in American

Federation of State, County & Municipal Employees v. State of

Illinois. There, this court was presented with the case of two

mental health technicians who were away from their workplace, a

facility for the mentally disabled, for an unauthorized time. While

they were away, an unattended patient at the facility died. The

patient, however, was not assigned to the ward where the

technicians should have been on duty. For this reason, among

others, the arbitrator reduced their subsequent discharges for

conduct constituting mistreatment of a mental health recipient to

mere suspensions.

    In upholding the award, this court rejected the Department of

Mental Health's public policy argument, mainly because it could not

identify a well-defined and dominant public policy:         "Ther

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    In contrast, our appellate court has invoked the public policy

exception to vacate an arbitral award which reinstated a school bus

driver whose unsafe driving had caused her discharge. The court

identified a dominant and well-defined public policy favoring the

safe transportation of school children and held that the

reinstatement of an unsafe driver would contravene that policy.

Board of Education of School District U-46 v. Illinois Educational

Labor Relations Board, 216 Ill. App. 3d 990 (1991).

    Finally, the appellate court has vacated an arbitral award in

which a DCFS worker was discharged from and then reinstated to her

position after falsifying a case report concerning the veracity of

a report of child abuse, a factual situation somewhat akin to that

presented here for review. The arbitrator found that discharge

violated the collective-bargaining agreement's "progressive

discipline" provision. Finding that the safety and well-being of

children required "zealous" investigation and "honest" reporting,

the appellate court held that the worker's reinstatement to her

former position violated that explicit public policy. See

Department of Central Management Services v. American Federation of

State, County & Municipal Employees, 245 Ill. App. 3d 87, 98

(1993).

    The above cases demonstrate that although a rote recitation of

the exception's two-prong test can be easily made, the exception's

ultimate applicability to a case is necessarily fact dependant.

With these principles in mind, we turn to the facts of the present

case.

                      Statutes and Legal Precedents

    To be sure, the welfare and protection of minors has always

been considered one of the State's most fundamental interests. This

court long ago acknowledged the right and duty of the General

Assembly to legislate for the protection and welfare of its minors:

         "[I]t would be a sad commentary on our State government,

         if it is true, as is contended, there is no

         constitutional power in the legislature to provide, by

         suitable legislation, for [minors'] education, control

         and protection. It is the unquestioned right and

         imperative duty of every enlightened government, in its

         character of parens patriae, to protect and provide for

         the comfort and well-being of such of its citizens as, by

         reason of infancy, defective understanding, or other

         misfortune or infirmity, are unable to take care of

         themselves. The performance of this duty is justly

         regarded as one of the most important of governmental

         functions, and all constitutional limitations must be so

         understood and construed as not to interfere with its

         proper and legitimate exercise." County of McLean v.

         Humphreys, 104 Ill. 378, 383 (1882).

This public policy has led our courts to recognize that even

parents' rights are secondary to the State's strong interest in

protecting children when the potential for abuse or neglect exists.

See, e.g., Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92

S. Ct. 1208 (1972); In re Wheat, 68 Ill. App. 3d 471, 477 (1979).

Moreover, the legislature has the right to provide the "necessary

instrumentalities or agencies" for the accomplishment of its goals

in preventing abuse and neglect. Humphreys, 104 Ill. at 384.

    DCFS is one such created agency, and it plays a central role

in implementing this compelling state interest. The General

Assembly specifically charged it to protect and promote the welfare

of the children of this state. 20 ILCS 505/1 (West 1992); In re

C.J., 166 Ill. 2d 264, 270 (1995). Recognizing such protection and

promotion necessitates both investigation of and contact with those

children and families who need assistance, the legislature

empowered the agency to make any investigations it deems necessary

to perform its duties. 20 ILCS 505/21 (West 1992). To that end, the

agency employs "child welfare specialists" who are trained in (i)

detection of symptoms of child neglect and drug abuse; (ii) dealing

with families and children of drug abusers, and (iii) child

development, family dynamics and interview techniques. 20 ILCS

505/21 (West 1992). The legislature also gave the agency the power

to make any rules "necessary for the execution of its powers" and

expressly adopted the regulations it promulgates under the Illinois

Administrative Procedure Act as part of the Children and Family

Services Act. 20 ILCS 505/4 (West 1992).

    In order to identify the "well-defined and dominant" public

policy implicated in the present case, we must examine DCFS's

specific duties as they related to the three children assigned to

DuBose at the time of the incident. DCFS became involved with the

family as a result of a report of abuse in the children's home made

under the Abused and Neglected Child Reporting Act (325 ILCS 5/1 et

seq. (West 1992)). The Abused and Neglected Child Reporting Act

contemplates that once grounds for temporary removal from the home

are indicated, all subsequent proceedings are to be made pursuant

to article II of the Juvenile Court Act. See 325 ILCS 5/7.14 (West

1992). Accordingly, DCFS is required by legislative fiat to "assist

a Circuit Court during all stages of the court proceedings in

accordance with the purposes of this Act and the Juvenile Court Act

of 1987." 325 ILCS 5/8.3 (West 1992). We note that the General

Assembly has amended this statute during the pendency of these

proceedings. See Pub. Act 88--310, §5, eff. January 1, 1994. The

section currently provides that DCFS assist the circuit court by

"providing FULL, COMPLETE, AND ACCURATE INFORMATION to the court"

and that the "[f]ailure to provide assistance requested by a court

shall be enforceable through proceedings for contempt of court."

(Emphasis added.) See 325 ILCS 5/8.3 (West 1994).

    DCFS subsequently classified the report of abuse initially

made in this case as "indicated" (see 325 ILCS 5/7.14 (West 1992)),

and pursuant to the Juvenile Court Act, the circuit court placed

the children in the agency's custody. 705 ILCS 405/2--10 (West

1992). In such circumstances, DCFS is then required to develop an

appropriate service plan for the family. 325 ILCS 5/8.2 (West

1992). Thereafter, the children's custody may be modified in a

number of ways, one of which includes placement with a relative.

705 ILCS 405/2--10 (West 1992). Here, custody of the children was

transferred to their maternal grandmother in accordance with their

mother's wishes. See 705 ILCS 405/2--27 (West 1992) (allowing

juvenile court to place a ward of the court with relative if

parents are unable to care for, protect, train, or discipline the

minor and family preservations services are unsuccessful). That

transfer resulted in the grandmother's being made the "legal

guardian" of the children. 705 ILCS 405/2--27(3) (West 1992).

    The creation of such a legal guardianship in this case,

however, ended neither the juvenile court's involvement with the

children nor that of DCFS. That is because the guardianship at this

stage is not considered permanent--it is always subject to

modification and review of the court. 705 ILCS 405/2--27(6), 2--28

(West 1992). In fact, DCFS is still required by law to "provide

appropriate services to, any family whose child has been placed in

substitute care." 20 ILCS 505/5(l) (West 1992). In response to the

General Assembly's requirement that DCFS "establish rules and

regulations concerning its operation of programs" with regard to

placement under section 2--27 of Juvenile Court Act (20 ILCS

505/5(g)(9) (West 1992)), the agency promulgated rules which

require service plans be made at least every six months for the

child and the family regardless of whether they are served directly

by DCFS. See 89 Ill. Adm. Code §305.5 (1989). In the context of

placement of abused or neglected children under the Juvenile Court

Act, the obligation to develop such case plans serves to fulfill

the legislative goal of moving the child "toward the most permanent

living arrangement and permanent legal status." 20 ILCS 505/6a

(West 1992). Thus, the plans are to be reviewed and updated every

six months. 20 ILCS 505/6a (West 1992).

    Moreover, to facilitate the juvenile court's review, the legal

guardian is also required by law to file case plans with the court

every six months. 705 ILCS 405/2--28(2) (West 1992). Specifically,

the General Assembly has mandated that DCFS:

              "shall review the forms *** returned by each ***

         guardian and supplement the information provided therein,

         where required, by such additional consultations with the

         *** guardian and such other INVESTIGATIONS as may be

         necessary and, applying the standard and regulations

         established by the Department, shall determine whether

         and the extent to which, the parent or guardian or

         together in any combination, are reasonably able to

         provide parental payment for care and training of their

         children." (Emphasis added.) 20 ILCS 505/9.4 (West 1992).

Once the child has been placed pursuant to section 2--27 of the

Juvenile Court Act, the next step in the proceedings is either a

termination of the parental rights with adoption to follow, or a

reunification with the biological parents. See 705 ILCS 405/2--

28(1) (West 1992). The court, however, will not discharge a minor

or officially "close" the case until it specifically finds that it

is in the best interests of the minor to do so and that the public

no longer has an interest in keeping the case in the system. 705

ILCS 405/2--30 (West 1992).

    It is worth pointing out at this point in our discussion that

these placement proceedings represent just a portion of the

comprehensive legislative scheme designed for the welfare and

protection of children found to be abused or neglected. We focus on

this stage only because it was in this context that DuBose reported

that she had seen the children and that they were "doing fine." Her

uniform progress report, intended for submission to the juvenile

court, also contained her statement that one of the minor children

had told her that she "liked" living with her grandmother and other

siblings. Although we recognize that there is less likelihood that

the child is still threatened with abuse or neglect because the

child has been removed from the harmful environment, the court's

concentration remains fixed upon that child's safety and welfare.

This is because the placement is only temporary in nature. The

decisions which the juvenile court is mandated by statute to render

in this area require accurate reporting, honest evaluation, and

personal observation of both child and guardian on the part of the

trained child welfare specialist assigned to the case. Indeed,

DCFS's continued involvement with the placed child at these

proceedings reveals the General Assembly's recognition of reality:

it is the specialist, not the trial judge, who is versed in the

areas of child development and family dynamics. Honesty and

zealousness are essential in order to guarantee that the permanent

placement with the guardian or the restoration of parental rights

is indeed in the best interests of a child whose life has already

been disrupted by abuse and/or neglect.

    We, therefore, have little difficulty in concluding that there

exists a "well-defined and dominant" public policy against DCFS's

employment of individuals whose dishonesty and neglect could

seriously undermine the welfare, safety, and protection of minors.

The statutes we have cited cannot, in any way, be viewed as mere

"general considerations of supposed public policy" concerning the

proper placement of children whose lives have already been

disrupted by abuse and/or neglect. That no harm apparently resulted

to the children from this inaccurate representation and the

apparent three-year neglect is hardly comforting. Nor should it be

the yardstick by which application of the public policy exception

is measured. Our identification of this public policy also augments

the appellate court's conclusion in Department of Central

Management Services v. American Federation of State, County &

Municipal Employees, 245 Ill. App. 3d 87, 97 (1993), that there

exists a public policy of both timely contact with the children and

accurate documentation of investigations necessary for DCFS to

fulfill its legislative mandate of investigating claims of

suspected child abuse and neglect.

                       Conflict with Public Policy

    Our inquiry must next focus upon whether the contract in this

case, as interpreted by the arbitrator, clearly violates that

policy. We are mindful of the fact that the foregoing public policy

conflicts with the policy inherent in providing for time limits

within which disciplinary charges or claims may be brought.

However, the State's interest in its children's welfare and

protection must override AFSCME's concerns for timeliness. In

certain cases, interpreting the time provisions as the arbitrator

did in this case and ordering reinstatement will not contravene the

public policy enunciated above. Mere charges of tardiness, standing

alone, would not contravene that public policy. 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.

    The arbitrator's remedy for the violation of  the contract's

time provision caused him to fully reinstate a DCFS child welfare

specialist--charged with both falsifying a uniform progress report

intended for submission to the Juvenile Court and neglecting to

compile required family service plans for three years--without any

determination that the welfare of the minors in the DCFS system

will not be compromised by such a reinstatement. Rather, he avoided

discussion of the charges against DuBose.  He did not take any

precautionary steps to ensure the misconduct at issue here will not

be repeated, and he neither considered nor respected the pertinent

public policy concerns that arose from them Thus, the remedy in

this case violates public policy in that it totally ignores any

legitimate public policy concerns.

    As with any contract, a court may not enforce a collective-

bargaining agreement in a manner that is contrary to public policy.

Accordingly, if an arbitrator construes such an agreement in a way

that violates public policy, an award based on that construction

may be vacated by a court. W.R. Grace, 461 U.S. at 766, 76 L. Ed.

2d at 307, 103 S. Ct. at 2183. Questions of public policy, of

course, are ultimately left for resolution by the courts. Board of

Trustees, 74 Ill. 2d at 424; see also W.R. Grace, 461 U.S. at 776,

76 L. Ed. 2d at 307, 103 S. Ct. at 2183. Even if the arbitrator had

considered issues of public policy, "we may not abdicate to him our

responsibility to protect the public interest at stake." Board of

Trustees, 74 Ill. 2d at 424. We believe the public policy

identified above is violated by the arbitral award in this case.

That award cannot be said to in any way promote the welfare and

protection of children. DCFS, in agreeing to a time provision that

does not allow for exigent disciplinary circumstances, has

compromised its ability to discharge its duties as expressed by the

General Assembly.

    Thus, we believe the appellate court's likening of the

parties' contractual time provision to our criminal statutes of

limitation is flawed. Such statutes, as enacted by the legislature,

embody the public's regard of the seriousness of the conduct in

issue. Although certain crimes do carry statutes of limitation

within which prosecution must be commenced, some crimes such as

treason, arson, forgery, first and second degree murder,

involuntary manslaughter, and reckless homicide do not. 720 ILCS

5/3--5(a) (West 1992). Therefore, the people of this State, through

the General Assembly, have recognized that certain conduct is never

subject to time limitations and may be prosecuted at any time, no

matter the "staleness." We cannot compare such statutory provisions

with the time provision contained in the collective-bargaining

agreement at issue here, particularly where the agreement applies

to employees of a State agency charged with particular

responsibilities which represent the will of the public with

respect to the welfare and protection of children.

    That said, we do not lightly disregard the right of the

parties to privately negotiate their contracts. Nor do we attempt

to restrain them in any way from so acting in the future. However,

where public employment is at issue and that employment concerns

the welfare and protection of minors, this court must balance these

competing, positive policies so that the two can co-exist

harmoniously and the public can reap the benefits from both.

    Likewise, we find the analogy to the statutes of limitation

governing civil actions between citizens unpersuasive because we

are not dealing with private claims here, but claims arising from

employment with an agency which represents the State and derives

its duties from the General Assembly. Case law teaches us that in

matters concerning child abuse and neglect, even a parent's rights

yield to the State's interest in protecting its children. Although

the timeliness provision of the contract is laudatory and espouses

the concepts inherent in our government's disapproval of "stale

claims," it, too, must yield to the public's interest in the

welfare and protection of abused and neglected children.

    Nevertheless, AFSCME contends that the award of reinstatement

here does not violate public policy because there is no positive

law which forbids DCFS from rehiring a worker in DuBose's

situation. We acknowledge that the United States Supreme Court left

unanswered the question of whether only a precise violation of a

positive law, caused by the award itself, is necessary before a

court may vacate the award on public policy grounds. As a result,

the federal circuit courts of appeals have taken different views on

the matter. Compare United States Postal Service v. National Ass'n

of Letter Carriers, 810 F.2d 1239 (D.C. Cir. 1987) (upholding

reinstatement of postal carrier convicted of unlawful delay of mail

because there was no legal proscription against reinstatement of

such employee), with United States Postal Service v. American

Postal Workers Union, 736 F.2d 822 (1st Cir. 1984) (vacating

reinstatement of postal employee who had been convicted of

embezzlement of postal funds on public policy grounds despite no

legal proscription against rehiring such employees). However, in

cases where the safety and welfare of third persons is compromised,

the results are more consistent. See Exxon Shipping Co. v. Exxon

Seamen's Union, 11 F.3d 1189 (3d Cir. 1993) (vacating arbitral

award which reinstated seaman discharged for intoxication while on

duty); Amalgamated Meat Cutters & Butcher Workmen of North America

AFL-CIO, Local Union 540 v. Great Western Food Co., 712 F.2d 122

(5th Cir. 1983) (vacating arbitral award which reinstated driver

who drove employer's truck while drunk). In this case, we need not

elaborate as to the potential tragedies which can result from even

one false DCFS case report.

    We believe that a bright-line test requiring that the award

itself violate an explicit law has the potential to swallow the

public policy exception. Indeed, this case illustrates why such a

narrow view is unworkable. None of the Acts enacted by the

legislature concerning DCFS contain any statute which explicitly

prohibits the agency from hiring "dishonest" workers or workers

previously disciplined for dishonesty. True, too, there is no

statute which expressly prohibits a DCFS worker from submitting a

false case report. Such prohibitions are absent because the very

essence of the Acts presupposes that only trustworthy workers will

be hired. The employment of any other type of worker defeats the

legislative purpose surrounding the entire statutory scheme. That

DCFS caseworkers be diligent and truthful is not a "general

consideration[ ] of supposed public interests." Given their

statutory mandates, truthfulness, diligence, and honesty are

implicit in their duties. For DCFS to employ an untrustworthy child

welfare specialist violates these implied mandates. For these

reasons, we decline AFSCME's invitation to adopt such a rigid rule

in cases where public policy is at issue.

    We also disagree with AFSCME's contention that the contractual

time provision at issue here protects "industrial due process" and,

as such, must be upheld. Courts have defined "industrial due

process" as merely requiring employers to give employees advance

notice of and an opportunity to respond to the charges against them

before discipline is imposed. See Stroehmann Bakeries, Inc. v.

Local 776, 969 F.2d 1436 (3d Cir. 1992) (and cases cited therein).

DuBose received both notice and an opportunity to be heard;

therefore, industrial due process, as defined by our courts, has

been satisfied in this case. Moreover, some courts have recognized

that the "just cause" provisions found in many collective

bargaining agreements also trigger analyses in terms of industrial

due process. See, e.g., Chauffeurs Local Union No. 878 v. Coca Cola

Bottling Co., 613 F.2d 716, 718 (8th Cir. 1980). Indeed, "just

cause," like the time provision at issue here, is a "condition

precedent" to discipline. However, that has not prevented courts

from vacating, on public policy grounds, reinstatements based upon

the lack of "just cause." We stress that our decision should not be

interpreted as denigrating either the notion or importance of

industrial due process in the day-to-day administration of labor

contracts in the workplace. We simply fail to see any violation of

the concept in the present case.

    Finally, AFSCME submits that if we were to overturn the

arbitral award, we would be encouraging employers to ignore the

bargained-for rights that employees have earned through the

collective-bargaining agreement. We disagree. Nothing in our

decision restrains an arbitrator from imposing sanctions against

employers who violate a contractual provision. The arbitrator

remains free to determine appropriate remedies within the confines

of the collective-bargaining agreement. As the Eighth Circuit Court

of Appeals has stated:

         "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 rehabilitation 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." Union

         Pacific R.R. Co. v. United Transportation Union, 3 F.3d

         255, 263 (8th Cir. 1993).

In fact, 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. See American

Federation of State, County & Municipal Employees, 124 Ill. 2d at

263 (upholding arbitrator's reinstatement despite public policy

arguments because arbitrator found employees were "exemplary," some

punishment had been imposed, and the conduct at issue did not

threaten patient safety). Accord Northwest Airlines v. Air Lines

Pilots Ass'n, International, 808 F.2d 76 (D.C. Cir. 1987)

(upholding reinstatement of pilot who flew commercial airliner

while drunk because reinstatement was conditioned upon the pilot's

recertification by the Federal Aviation Administration); E.I.

DuPont de Nemours & Co. v. Grasselli Employees Independent Ass'n of

East Chicago, Inc., 790 F.2d 611 (7th Cir. 1986) (upholding

reinstatement of employee discharged after mental breakdown at work

because arbitrator specifically found that recurrence of mental

illness was unlikely so that worker safety was not comprised).

However, the arbitrator's freedom in fashioning an appropriate

remedy is not without limitation, as this case amply demonstrates.

Where, as here, an arbitrator awards full reinstatement as a remedy

for the contractual violation without any findings that the worker

poses no risk to the welfare and protection of DCFS's children and

their families, the award simply cannot stand. For the reasons

stated earlier in this opinion, the full measure of the

arbitrator's discretion must always yield to public policy.

    Accordingly, we must decide the proper disposition of this

case given our conclusions as to the public policy identified and

the arbitral award of reinstatement. AFSCME's demurrer at the

second arbitration hearing has complicated our review of the case

in that AFSCME contends throughout its brief that the employee has

never been found guilty of any of the conduct alleged by DCFS.

Specifically, AFSCME argues that "in the absence of a finding by

the[a]rbitrator that the employee was guilty of misconduct, there

is no basis for an argument predicated on public policy." Although

such an argument may be justified in the name of zealous advocacy,

we find it to be a perversion of the record. The procedural history

of this case reveals that AFSCME, by its own actions, prevented the

arbitrator from making any such findings.

    The original circuit court order in this case stated the

following:

              "Plaintiff's Petition to Vacate the Arbitrator's

         Award and Remand to the Arbitrator for a HEARING ON THE

         MERITS is granted as the Arbitrator's Award is contrary

         to public policy of this State as set forth in the Abused

         and Neglected Child Reporting Act." (Emphasis added.)

AFSCME then requested the circuit court to certify the issue

regarding public policy and the timeliness provision under Supreme

Court Rule 308 for purposes of an interlocutory appeal. The circuit

court denied the request. Thus, because the court found that the

case did not involve a question of law as to which there was a

substantial ground for difference of opinion and that an immediate

appeal would not materially advance the ultimate termination of the

litigation, AFSCME was obligated to return to the arbitrator for a

hearing on the merits, as ordered by the circuit court.

    Notwithstanding the above order, AFSCME elected not to proceed

with a hearing on the merits. Rather, AFSCME submitted the

following to the arbitrator upon remand:

              "The Union has decided to interpose a demurrer on

         the basis of the time-limits provision in the contract as

         interpreted and applied in your vacated award. Rather

         than arguing the merits, we will stand on the first

         award.

              The time-limits provision was predicated upon the

         agreement of the parties that it would violate an

         employee's due process rights to require the employee to

         defend herself against State charges as in the present

         case. [The circuit court] in effect has found either that

         the State cannot agree to such a due process protection

         or that it cannot be applied to the instant case. His

         order fails to explicate his reasoning for applying the

         public policy doctrine.

              ACCORDINGLY, THE UNION WILL NOT OFFER A DEFENSE TO

         THE STATE'S CHARGES AND ITS CLAIM THAT THEY WARRANT

         DISCHARGE. It is our position that, to do so, would

         severely prejudice Ms. DuBose's right to legally

         challenge [the circuit court's] order vacating your

         award.

              Under these circumstances, [the Union] submits that

         you have no authority under the Court order but to deny

         the grievance, recognizing that the Union has elected to

         stand on its rights under the earlier award." (Emphasis

         added.)

In the arbitrator's supplemental arbitral order following the

remand from the circuit court, he reasoned that AFSCME, by way of

its "demurrer," had withdrawn all of its remaining arguments to the

discharge, including the issue of just cause. This is an apt

conclusion given the fact that the demurrer states that AFSCME

specifically stood on "the time-limits provision of the contract,

as INTERPRETED AND APPLIED in [the arbitrator's] vacated award."

(Emphasis added.) The arbitrator concluded that "there is no longer

anything before me to decide. If a party chooses to no longer press

a position, I cannot compel it to do so." Thereafter, the

arbitrator denied the grievance in the following language:

              "Given [the circuit court's] order, the parties'

         positions prompted by the procedural posture of this

         matter, the Union's demurrer and notwithstanding my prior

         award sustaining the grievance, and recognizing that the

         Union has elected to stand on its rights under the

         earlier award, the grievance is now denied based upon the

         Union's demurrer."

The circuit court confirmed the supplemental arbitral order, and

AFSCME appealed to the appellate court, which reversed the court's

confirmation and reinstated the initial arbitral award.

    Thus, the case comes to us in a somewhat unusual procedural

posture--the common law "demurrer," as such, no longer exists in

Illinois, the General Assembly having abolished it over 60 years

ago. See Ill. Ann. Stat., ch. 110, par. 2--615, Joint Committee

Comments [1955], at 407 (Smith-Hurd 1983). After the enactment of

the Civil Practice Act, the demurrer evolved into what is now

recognized as a motion to dismiss under section 2--615(e) of the

Code of Civil Procedure (735 ILCS 5/2--615(e) (West 1992)). Such a

motion raises the question of the sufficiency of the pleadings, as

a matter of law, and admits the pleadings solely for purposes of

deciding the legal question. However, once that legal question has

been answered and rejected, and a circuit court orders the case to

be heard on the merits, the time to demur on the pleadings has

passed. See generally 735 ILCS 5/2--1301(b) (West 1992).

    Here, AFSCME requested the arbitrator, and later the circuit

court, to rule on DCFS's failure to impose discipline in a timely

fashion. Although the arbitrator agreed with AFSCME that the

discipline was not imposed "as soon as possible," the circuit court

rejected that contention and ordered the case to be heard on the

merits. Thus, in the absence of some other defensive pleading

attacking DCFS's allegations, the case was no longer at the

pleading stage, and AFSCME was not entitled to reiterate its

previously rejected position by way of a demurrer. In this context,

AFSCME's demurrer served only as a withdrawal of all of its other

challenges to the discharge. Put another way, those challenges were

abandoned.

    We further note that AFSCME's contention that it had to

"preserve" its argument regarding the "as soon as possible"

language because the circuit court had denied its request for Rule

308 certification is disingenuous. Although, the circuit court's

order was nonfinal for purposes of appeal, an appeal from a

subsequent final judgment " `draws in question all prior non-final

orders and rulings which produced the judgment.' " Burtell v. First

Charter Service Corp., 76 Ill. 2d 427, 433 (1979), quoting Elfman

Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1253 (3d Cir. 1977).

The denial of Rule 308 certification does not render the issue

nonappealable after a subsequent entry of a final judgment.

Accordingly, there was no danger that the issue of timeliness would

not be preserved for later appellate review.

    AFSCME's abandonment of its remaining challenges to the

discharge leaves this court with the sole issue of whether the

arbitrator's remedy for the violation of the "as soon as possible"

contractual language--a "blanket" reinstatement--violates public

policy. We have found that it does. Because AFSCME has stood on the

arbitrator's application of the "as soon as possible" language, all

of its remaining contentions have been waived, and a full hearing

as to those contentions is no longer appropriate. AFSCME had the

opportunity to make a record before the arbitrator on these

remaining contentions in order to preserve them, but willingly

chose not to do so. It cannot now change its stance. See Leffler v.

Browning, 14 Ill. 2d 225, 228 (1958).

    AFSCME further maintains that this court must remand the case

to the arbitrator on a limited basis for reconsideration of a

remedy for DCFS's violation of the "as soon as possible" language.

In other words, if a remand for a hearing on the merits is not

possible, then this court should nevertheless remand the matter for

a redetermination of the appropriate remedy. We find this request

to be tenuous at best.

    First, AFSCME is now asking this court for reconsideration of

the appropriate remedy despite the fact that it had previously

indicated to the arbitrator that it was prepared to "stand on the

[arbitrator's] first award." Second, nothing in this case

prohibited AFSCME from trying the case on the merits, and then,

once the arbitrator determined all of the factual questions,

requesting that an appropriate remedy be fashioned. Finally, the

possibility of a remand for redetermination of a different remedy

based solely on the failure to impose timely discipline has already

been precluded by the arbitrator's interpretation of the "as soon

as possible" language, an interpretation AFSCME specifically

"stood" on.

    Indeed, in construing the contractual provision at issue,

i.e., "[d]iscipline 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 or time to investigate the

matter," the arbitrator discussed various remedies which he could

utilize to give effect to the provision. The arbitrator reviewed

other arbitral decisions in which delay was found and discipline

nonetheless was imposed. He rejected, however, the notion that any

other remedy absent a blanket reinstatement was appropriate.

Specifically, the arbitrator stated at length:

              "The answer to the remedy question in this case

         comes from the parties' negotiated words. *** If

         discipline is not imposed `as soon as possible', the

         merits of the discipline cannot be addressed--no matter

         how egregious the alleged misconduct may be. ***

              ***

              *** The result of my conclusion is simple and

         provides stability. Most importantly, my conclusion

         follows the clear language of the Agreement and is what

         the parties agreed to.

               *** Given that the discipline has been found to be

         invalid, THE ONLY REMEDY is that Grievant must be

         reinstated to her former position without loss of

         seniority and other rights and benefits and she shall be

         made whole for all lost compensation." (Emphasis added.)

Thus, the arbitrator specifically adopted an "all or nothing"

approach as a remedy for a violation of the timeliness provision,

to the exclusion of all other remedies. This approach is analogous

to that taken by courts when ruling on motions to dismiss based

upon statutes of limitations. If an action is not timely filed, the

only remedy is dismissal of the entire cause of action without any

determination of the merits. Here, the arbitrator reasonably

interpreted the timeliness provision to admit of no other remedies

but a blanket reinstatement without reaching the merits of the

case. He, rightly or wrongly, explicitly rejected imposing any

other remedy.

    Accordingly, we cannot order a remand even if we were to

disagree with the arbitrator's honest judgment as to the

unavailability of other remedies. See Misco, 484 U.S. at 38, 98 L.

Ed. 2d at 299, 108 S. Ct. at 371. Indeed, such action on our part

would severely undermine the role of judicial review in the

arbitral process. As the United States Supreme Court has stated:

              "The question of interpretation of the collective

         bargaining agreement is a question for the arbitrator. It

         is the arbitrator's construction which was bargained for;

         and so far as the arbitrator's decision concerns

         construction of the contract, the courts have no business

         overruling him because their interpretation of the

         contract is different from his." United Steelworkers of

         America v. Enterprise Wheel & Car Corp., 363 U.S. 593,

         599, 4 L. Ed. 2d 1424, 1429, 80 S. Ct. 1358, 1362 (1960).

The Supreme Court has also advised courts not to be "suspicious" of

an arbitrator's interpretation merely because an arbitrator's

actions might not track those that courts would take when faced

with analogous situations. United Steelworkers of America v.

Warrior & Gulf Navigation Co., 363 U.S. 574, 580-81, 4 L. Ed. 2d

1409, 1416-17, 80 S. Ct. 1347, 1351-52 (1960). In Misco, the Court

again cautioned that the deference to an arbitrator's determination

is high "even though the parties may allege that the award rests on

errors of fact or on misinterpretation of the contract." Misco, 484

U.S. at 36, 98 L. Ed. 2d at 298, 108 S. Ct. at 370.

    Therefore, even if we were to interpret the collective-

bargaining agreement to permit other remedies which would not

violate public policy in this case, our interpretation of the

contract is irrelevant in the face of the arbitrator's specific

conclusion that no other remedy existed. The arbitrator's factual

determinations and legal conclusions generally receive deferential

review as long as they derive their essence from the collective-

bargaining agreement, notwithstanding the error of those factual or

legal conclusions. Thus, we do not have the license to order a

remand for the imposition of some other remedy when the arbitrator

has specifically rejected the possibility of other remedies. We

simply lack the authority to so act.

    We are mindful that the public policy exception has become "a

favorite pretext for those less than favorably disposed to the

awards of labor arbitrators." Stead Motors v. Automotive Machinists

Lodge No. 1173, 886 F.2d 1200, 1210 (9th Cir. 1989). We believe

that our opinion, however, strikes the proper balance between the

public's interest in protecting its children, the utilization of

arbitration as a means for settling labor disputes, and the proper

role of the judiciary in the arbitral process. Unfortunately, the

dissenting justices fail to appreciate this fact. We believe that

Justice Harrison's remarks have little to do with the legal issues

in this case. We further believe, with respect, the criticisms of

Justices Heiple and Nickels reflect a serious misunderstanding of

our opinion.

    In arguing that the deaths of the three children in this case

were wholly unrelated to anything Vera DuBose may have done wrong,

Justice Harrison states that he "could not forget[ ] that dead

children figure into this case." Slip op. at 33. However, this case

is not about dead children. The case is about children who are

alive today and under DCFS protection. It is those children who

depend upon child welfare specialists like Vera DuBose to monitor

their cases and to speak for them in the court proceedings where

their neglect, abuse, and dependency are at issue and where their

futures are decided. The case illustrates what happens, or could

happen, if false reports are made by DCFS child welfare

specialists--reports which are submitted to our circuit judges in

difficult and emotional proceedings where child placement decisions

are made. Serious consequences may follow if Vera DuBose fails to

fulfil her statutory duty. In our view, it was DuBose's

falsification of the progress report and her failure to make

service plans which is the harm suffered in this case, not the fact

that three children have tragically died.

    Justice Harrison also chides us for waiting until now to

"debut" our "compassion" for the children of this State. Slip op.

at 33. Even if he were correct in his assessment of our previous

decisions, which he is not, what would he have us do in this case?

Perpetuate our indifference? He then insists that the only

distinction between DuBose's case and that of the two mental health

technicians in AFSCME v. State of Illinois is "that the person who

died in [that case] was a profoundly mentally retarded patient ***

and not a child, as was the case here." Slip op. at 34. He suggests

that we view the life of a mental patient "as somehow less worthy

of our concern and protection than the life of a child" and hastens

to remind us that we "are duty bound to place such prejudices

behind [us] when acting as justices of this court [where we] are

obliged to follow the law, and under the law of Illinois, all

people are equal." Slip op. at 34. These accusations are not only

unfounded, but they have no place in a judicial opinion and do not

deserve the dignity of a response.

    Returning to the legal issues in this case, we note that

although Justices Heiple and Nickels omit the rancor, they, too,

view AFSCME v. State of Illinois as analogous to the case before

us. However, DuBose's situation is not analogous to that of the two

mental health technicians. As we have explained, the arbitrator

there reinstated the workers by reducing their dismissals to

suspensions. We upheld the arbitral decision because the arbitrator

expressly found that the employees "were exemplary mental health

employees, *** punishment ha[s] been imposed, and *** no nexis

[sic] exist[ed] between the infraction and the *** death." AFSCME

v. State of Illinois, 124 Ill. 2d at 262-63. That holding

specifically recognized the long-standing principle that an

employee's amenability to discipline is a factual determination

which cannot be questioned or rejected by a reviewing court. See

Misco, 484 U.S. at 44-45, 98 L. Ed. 2d at 303, 108 S. Ct. at 374.

In other words, this court's decision then reflected the

understanding that

              "[o]rdinarily, a court would be hard-pressed to find

         a public policy barring reinstatement in a case in which

         an arbitrator has, expressly or by implication,

         determined that the employee is subject to rehabilitation

         and therefore not likely to commit an act which violates

         public policy in the future." Stead, 886 F.2d at 1213.

Of course, such an express or implied determination from the

arbitrator is totally lacking in this case. And that, of course, is

why AFSCME v. State of Illinois is of little assistance in

resolving the issues presented in this case.

    In addition, Justice Heiple stresses that, in this case, no

"nexus" exists between DuBose's conduct and the unfortunate deaths

of the children. He states that our previous decisions have

required a nexus between the misconduct and the harm suffered in

order for the public policy exception to apply. Slip op. at 32.

However, this court has never ruled that such a nexus must exist

and to suggest otherwise oversimplifies the holding of AFSCME v.

State of Illinois. This court's decision there did not turn solely

on whether a nexus existed. The court, in fact, identified two

other factors which were equally important: whether the arbitral

award sanctioned violations of the law (it did not because the

misconduct did not go unpunished) and whether the arbitral decision

posed a threat of harm to third persons (it did not based upon the

arbitrator's factual findings). See AFSCME v. State of Illinois,

124 Ill. 2d at 463-65. Justice Heiple does not consider these two

other elements and does not discuss how they would apply to the

facts in this case.

     The arbitral award here fails to safeguard DCFS, the courts,

and the public from any possible future falsifications and neglect

on DuBose's part. This shortcoming, in the eyes of the dissenting

justices, is insufficient to warrant the invocation of the public

policy exception. Instead, the dissenting justices are confident

that the next children who would come under DuBose's supervision

would receive from her all that the legislature demands. They

apparently trust that the next uniform progress report prepared by

DuBose for use at a placement hearing in the circuit court would be

accurate. We, however, cannot take the risk which attends to such

confidence. In this respect, Justices Nickels and Harrison suggest

that we are improperly speculating or assuming that DuBose will be

derelict in the future. Nothing is further from the truth. We are

merely mindful that DuBose's past performance has called into

question her dedication to and her ability to perform a job which

impacts on the safety and welfare of others. As we have stated,

when 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. Likewise, courts

will step in to insure that the hungry nuclear power plant employee

will not contaminate an entire population the next time he is in a

hurry to eat lunch.

    Justice Nickels states that we have removed an "important

bargained-for due process consideration from the collective-

bargaining agreement" (slip op. at 41), and Justice Harrison

denounces us for reducing industrial due process to a "sham" (slip

op. at 36). In fact, Justice Harrison's polemic leaves one with the

misimpression that our decision sounds the death knell for

organized labor in this state because an employer can now take away

an employee's job without ever having to substantiate its charges

of misconduct. None of these points are very well-taken and, in

fact, fall wide of the mark.

    First, our opinion in no way enables DCFS to take away

DuBose's job without substantiating its allegations. Justice

Harrison forgets that it was AFSCME, by its own procedural

posturing, that insured that result by filing its ill-advised

"demurrer" after the circuit court specifically ordered the case to

be heard on its merits. At that time, AFSCME elected not to offer

a defense to the charges. Therefore, like the arbitrator before us

did at the conclusion of the second hearing, we, too, must conclude

that just cause did, in fact, exist for DuBose's dismissal. See

Ramonas v. Kerelis, 102 Ill. App. 2d 262 (1968) (holding that a

party's default at arbitration hearing results in a complete,

final, and binding determination of the controversy). Once AFSCME

removed the issue of just cause from its grievance, DCFS's charges

became "substantiated." Our opinion today did not compel that

result nor should the blame for it rest upon our shoulders.

    Second, our opinion in no way holds that the timeliness

provision in the collective-bargaining agreement can never be

invoked. Rather, our opinion merely recognizes the fact that in

certain cases, a mechanical application of the provision may, as it

did here, collide with public policy. Indeed, DCFS employees who

occupy sensitive positions concerning the safety and welfare of the

people DCFS is legislatively designed to protect are more

susceptible to a public policy challenge than those workers who do

not. Simply stated, a DCFS child welfare specialist is not in the

same league as a DCFS janitor. The public policy concerns

implicated in the case of the former are notably absent in the case

of the latter. Our opinion acknowledges this reality. Moreover, our

recognition of the possibility of other remedies, short of a

blanket reinstatement, belies any intimation on the part of the

dissent that we have ignored the language of the collective-

bargaining agreement at issue. We note that it is in this context

that Justice Harrison accuses us of "union busting." Slip op. at

37. Like his other accusation regarding our impartiality, this

charge, too, lacks merit, is without any basis or support, and does

not deserve the dignity of a response.

    The dissenting justices would have the highest court of this

state play the part of an ostrich by putting its head in the sand

and pretending that the potential for tragedy does not exist or,

even worse, by waiting until some tragedy actually befalls a child.

Although our concern for the children and families served by DCFS

is cause enough for us to invoke public policy, we feel compelled

to offer some observations, which, in our opinion, would seem

superfluous but for the opprobrium utilized by some of our

dissenting brethren. The ramifications of permitting the type of

reinstatement ordered here would undoubtedly be felt by more than

just the children and families served by DCFS. The resulting

perception of a tolerance of dishonesty and neglect in DCFS workers

would undermine the public's confidence in the system as a whole

and would do little to enhance the public image of our unions and

their workers. More important, such a reinstatement would leave our

circuit judges in the unenviable position of having to "second-

guess" the reports submitted by DuBose and her peers, reports

which, as we have pointed out, are essential in carrying out the

legislature's mandate regarding abused and neglected children.

Their jobs, already arduous because of the nature of these

proceedings, would be made even more onerous. We will not put our

imprimatur on such a disaster. We do not believe that deference to

arbitration, a concept with which we wholeheartedly agree, suffers

at all if the judiciary retains the right to keep arbitrators

within the bounds of public policy. Nor do we believe that the

United States Supreme Court's decision in Misco compels the "hands-

off" approach espoused in the dissents.

                               CONCLUSION

    The initial arbitral award in this case violates public

policy. Therefore, the judgment of the appellate court is reversed,

and the order of the circuit court, which confirmed the

supplemental arbitral award, is affirmed.

                                        Appellate court judgment reversed;

                                          circuit court judgment affirmed.

    JUSTICE HEIPLE, dissenting:

    Courts are duty bound to enforce labor-arbitration awards

premised upon the parties' collective-bargaining agreements absent

fraud, corruption, partiality, misconduct, mistake or failure to

submit the question to arbitration. Board of Trustees of Community

College District No. 508 v. Cook County College Teachers Union,

Local 1600, 74 Ill. 2d 412, 421 (1979). As the majority correctly

opines, an exception to this rule exists where enforcement of a

contract is repugnant to the public policy favoring the welfare,

safety and protection of minors. Slip op. at 14. However, the mere

identification of a relevant public policy is insufficient to

warrant circumventing a collective-bargaining agreement. Rather,

our decisions have held that for such public policy exceptions to

apply, there must be a nexus between the misconduct of the employee

and the harm suffered. See, e.g., American Federation of State,

County & Municipal Employees v. State of Illinois, 124 Ill. 2d 246,

260-65 (1988) (holding that reinstatement of mental health workers

did not violate public policy favoring the competent care of the

mentally disabled where, inter alia, no nexus existed between the

mistreatment and the patient's death). In the instant case it is

uncontroverted that the DCFS worker's failure to fulfill her duties

was wholly unrelated to the unfortunate deaths of the children at

issue. Accordingly, the application of a public policy exception to

circumvent the collective-bargaining agreement constitutes an

unwarranted application of the public policy exception and I

respectfully dissent.

    JUSTICE HARRISON, also dissenting:

    My colleagues have persuaded themselves that they have struck

"the proper balance between the public's interest in protecting its

children, the utilization of arbitration as a means for settling

labor disputes, and the proper role of the judiciary in the

arbitral process." In fact, their decision does nothing to aid

children, ignores the basic protections guaranteed to State

employees by the Illinois Public Labor Relations Act (5 ILCS 315/1

et seq. (West 1992)), and converts the courts into agents for

subverting industrial due process.

    To cynics familiar with this court's recent decisions in

Barnett v. Zion Park District, 171 Ill. 2d 378 (1996), and Mt. Zion

State Bank & Trust v. Consolidated Communications, Inc., 169 Ill.

2d 110 (1995), the majority's professed concern for the welfare of

children may seem more than a little disingenuous. In both of those

cases, the court had an opportunity to provide meaningful redress

where children were actually injured or killed due to the

negligence of others. Instead, when compassion would have made a

real difference, it was nowhere to be found. The court refused to

help.

    Here, by contrast, the court's compassion appears boundless,

but it has waited to debut until a time when it is of no immediate

benefit to anyone but a governmental bureaucracy that is unhappy

with the obligations imposed by the Illinois Public Labor Relations

Act and by the terms of the collective-bargaining agreement it

negotiated with its employees' union.

    I have certainly not forgotten, I could not forget, that dead

children figure into this case. But their deaths are wholly

unrelated to anything Vera DuBose may have done wrong in her

capacity as a DCFS child welfare specialist. The charges against

her have never been addressed on the merits, but even if DuBose did

falsify a case report and even if she did fail to prepare all of

the service plans she should have, those transgressions were wholly

unrelated to what happened to the children. The children perished

because their house burned down, not because their case worker

failed to do her job properly.

     The situation here is analogous to the one we considered in

American Federation of State, County & Municipal Employees v. State

of Illinois, 124 Ill. 2d 246 (1988), where a patient at a mental

health facility died while two employees of the facility were away

from their work site without permission. The Department of Mental

Health discharged the employees, but the arbitrator reduced the

discipline to suspensions and reinstatement without back pay or

other benefits. The circuit court subsequently vacated the

arbitration award on the grounds that "it represented a severe and

extreme departure from the public policy of Illinois, which is to

protect not to endanger mental patients." American Federation of

State, County & Municipal Employees, 124 Ill. 2d at 252. The

appellate court reversed, and this court affirmed the appellate

court's judgment, remanding the cause with directions to order

enforcement of the arbitrator's award. In so doing, this court

specifically rejected the circuit court's reasoning and held that

public policy did not mandate discharge where, as here, there was

no nexus between the employees' infraction and the patient's death.

    While the misconduct Dubose allegedly committed may be

reprehensible, it is certainly no worse than the conduct of the

mental health workers this court allowed to be reinstated in

American Federation of State, County & Municipal Employees. More

importantly, reinstatement of DuBose poses no more threat of harm

or danger to third persons than did reinstatement of the mental

health workers in that case. To the contrary, reinstatement of

DuBose presents a far lower risk, for her job is simply to monitor

and make reports about the care provided by others. In contrast to

the employees disciplined in American Federation of State, County

& Municipal Employees, she has no direct responsibility for client

care herself.

    If reinstatement did not offend public policy in American

Federation of State, County & Municipal Employees, it surely does

not do so in this case either. The only thing that distinguishes

the cases is that the person who died in American Federation of

State, County & Municipal Employees was a profoundly mentally

retarded patient tied to a toilet by state workers and not a child,

as was the case here. That distinction, however, should be of no

consequence to my colleagues. They may believe that the life of a

helpless state mental patient is somehow less worthy of our concern

and protection than the life of a child, but they are duty bound to

place such prejudices behind them when acting as justices of this

court. Here they are obliged to follow the law, and under the law

of Illinois, all people are equal.

    In making these remarks, I do not mean to suggest that sloth

or dishonesty by public employees is ever acceptable. The people of

this state are entitled to expect public workers to be

conscientious and diligent, and when workers do not fulfill their

obligations, the State must have the power to terminate or

discipline them. The State had that power here. The problem is that

the power was not exercised properly.

    If DCFS really believed that continued employment of Vera

DuBose posed the terrible threat depicted by my colleagues, it

could have taken remedial action promptly, as the collective-

bargaining agreement and the Illinois Public Labor Relations Act

required. It failed to do so. Instead, it inexplicably allowed

seven months to pass before it initiated predisciplinary measures.

Where, I wonder, was the agency's concern for Vera DuBose' clients

during all that time?

    Considering the lengthy delay before DCFS finally took action,

it seems apparent that the agency was not, in fact, worried that

her work might actually endanger any children. Instead, the notion

of protecting minors appears to be nothing more than an expedient

the agency has employed to circumvent its statutory and contractual

obligations to its employees. Contrary to my colleagues, I do not

believe we should aid DCFS in this effort.

    Whatever DuBose allegedly did or failed to do, she did not

break the law. Her only offense, if she committed one, was failure

to perform the requirements of her job. This is not an

insignificant matter, especially where the protection and welfare

of minors may be involved, but it is no reason to negate the

provisions of the collective-bargaining agreement. Most public

employees provide important services that affect public health and

safety one way or another, and by the logic employed by my

colleagues, public policy would be violated and the terms of the

collective-bargaining agreements could be ignored anytime such an

employee failed to perform his job properly. If that were the case,

the protection afforded public employees by collective-bargaining

agreements would be rendered meaningless.

    In his dissent from the appellate court's opinion, Justice

Steigmann acknowledged that the circuit court's ruling could not be

affirmed without disregarding the express terms of the collective-

bargaining agreement, but he dismissed this problem with a cavalier

"So what?" I winced when I read this, and I think anyone who

understands organized labor and the law of Illinois will have the

same response. Collective-bargaining agreements are the cornerstone

of our labor policy. Without them, the benefits of union

representation would be impossible. Organized labor would collapse.

    Justice Steigmann and the majority on this court may believe

that life without unions would be a good thing, but they are wrong.

Unions help improve working conditions, wages, and job security,

and provide employees with a voice in work place matters that they

would otherwise lack. At the same time, they tend to increase the

employer's productivity by reducing employee turnover and fostering

more rational management policies.

    While critics of the labor movement may take issue with some

of these claims, the matter is not for us to judge. Any debate as

to the advantages of allowing public employees to organize and

bargain collectively was settled by the General Assembly when it

enacted the Illinois Public Labor Relations Act. That statute

specifically declares that it is the public policy of this state to

grant public employees the right to organize for the purpose of

negotiating wages, hours, and other conditions of employment. 5

ILCS 315/2 (West 1994). To effectuate this policy, the statute

provides that public employees have the right and public employers

have the duty to bargain collectively (5 ILCS 315/6, 315/7 (West

1994)) and that, with certain exceptions not relevant here,

              "any collective bargaining contract *** executed

         pursuant to th[e] Act shall supersede any contrary

         statutes, charters, ordinances, rules or regulations

         relating to wages, hours and conditions of employment and

         employment relations adopted by the public employer or

         its agents" (5 ILCS 315/15(b) (West 1994)).

    In holding that the collective-bargaining agreement at issue

here must yield to "public policy," the majority fails to see that

the foregoing statutory provisions evince a second and separate

"public policy" requiring that the collective-bargaining agreement

be enforced as written. Considering the critical importance of

collective bargaining, on the one hand, and the absence of any

demonstrable harm or threat of harm to any actual children, on the

other, it is this second "public policy" which should take

precedence under the particular facts of this case.

    The majority's decision today enables DCFS to take Vera

DuBose's job away from her without ever having to substantiate its

allegations and without even having to follow the procedural

requirements specified by the collective-bargaining agreement. To

claim that this somehow satisfies industrial due process reduces

the concept to a sham. When all is said and done, this opinion

amounts to nothing more than an attempt to exploit the specter of

helpless children as a means to rationalize judicial union busting.

This effort is totally misguided. If my colleagues are truly

concerned with protecting young children, they should stand in

defense of collective bargaining and uphold the requirements of the

Illinois Public Labor Relations Act so that DCFS workers can obtain

the resources they need to keep up with their crushing caseloads

and perform their jobs properly.

    For the foregoing reasons, I would affirm the judgment of the

appellate court upholding the arbitrator's award in favor of

DuBose. I therefore dissent.

    JUSTICE NICKELS, also dissenting:

    Public policy "is a very unruly horse, and *** once you get

astride it you never know where it will carry you." Richard v.

Mellish, 2 Bing. 229, 252, 130 Eng. Rep. 294, 303 (1824). In its

decision today, the majority grabs the reigns of that unruly horse

and embarks on a journey that will serve only to frustrate the

goals of collective bargaining and sacrifice the efficiency of

binding arbitration as a means of resolving labor disputes. I

cannot join the majority on this journey. Therefore, I respectfully

dissent.

    The majority recognizes that the review of an arbitral award

is very limited. Indeed, a court must construe an award as valid if

at all possible. Board of Education v. Chicago Teachers Union,

Local No. 1, 86 Ill. 2d 469, 477 (1981). Such a deferential

judicial review is necessary to promote the efficient private

settlement of labor disputes. A reviewing court is therefore duty

bound to follow the decision of an arbitrator that draws its

essence from a collective-bargaining agreement, regardless of its

view of the wrongfulness of the conduct at issue or the

appropriateness of the punishment. Board of Trustees of Community

College District No. 508 v. Cook County College Teachers Union,

Local 1600, 74 Ill. 2d 412, 421 (1979).

    I recognize that a court will not enforce an arbitral award

made pursuant to a collective-bargaining agreement where that award

violates public policy. American Federation of State, County &

Municipal Employees v. State of Illinois, 124 Ill. 2d 246, 260

(1988). The doctrine is based on the common law notion that courts

will not lend judicial power to the enforcement of private

agreements that are immoral or illegal. United Paperworkers

International Union v. Misco, Inc., 484 U.S. 29, 44, 98 L. Ed. 2d

286, 302, 108 S. Ct. 364, 374 (1987). However, the public policy

exception is an extremely narrow one and should "not otherwise

sanction a broad judicial power to set aside arbitration awards."

Misco, 484 U.S. at 43, 98 L. Ed. 2d at 302, 108 S. Ct. at 373.

    In the past, this court has followed the United States Supreme

Court in carefully limiting the public policy exception to the

enforcement of arbitral awards. In order to overturn an award, the

public policy involved "must be well defined and dominant, and is

to be ascertained `by reference to the laws and legal precedents

and not from general considerations of supposed public

interests.' " W.R. Grace & Co. v. Local Union 759, 461 U.S. 757,

766, 76 L. Ed. 2d 298, 307, 103 S. Ct. 2177, 2183 (1983), quoting

Muschany v. United States, 324 U.S. 49, 66, 89 L. Ed. 744, 756, 65

S. Ct. 442, 451 (1945). Although leaving open the question of

whether an award must actually violate positive law to violate

public policy, the Supreme Court has noted that the decision to

overturn an arbitral award on public policy grounds should turn on

"whether the award created any explicit conflict with other `laws

and legal precedents.' " Misco, 484 U.S. at 43, 98 L. Ed. 2d at

302, 108 S. Ct. at 374, quoting W.R. Grace & Co. v. Local Union

759, 461 U.S. 757, 766, 76 L. Ed. 2d 298, 307, 103 S. Ct. 2177,

2183 (1983).

    Applying these principles, this court has refused to overturn

an arbitral award in a case with strong similarities to the present

case. In American Federation of State, County & Municipal Employees

v. State of Illinois, 124 Ill. 2d 246 (1988), this court considered

whether an arbitrator violated public policy in awarding the

reinstatement of two mental health technicians. The technicians had

made an unauthorized trip to a flea market during their shift.

During their absence, an unattended patient at the facility died,

although the patient was not assigned to the ward where the

technicians were supposed to be on duty. The technicians were

discharged for conduct constituting mistreatment of a service

recipient and the union filed a grievance. The arbitrator

reinstated the technicians, finding that the absence did not

constitute just cause for termination.

    On review, this court refused to vacate the arbitral award of

reinstatement on public policy grounds. This court acknowledged

that the compassionate care of the mentally disabled is an

important public policy. American Federation of State, County &

Municipal Employees, 124 Ill. 2d at 262. However, the arbitral

award reinstating the technicians did not conflict with any laws or

legal precedent relating to this public interest. The court stated

that "[t]here is simply no policy that mandates the discharge of

all employees found guilty of mistreatment of a service recipient."

American Federation of State, County & Municipal Employees, 124

Ill. 2d at 263.

    I believe that this case calls for the same judicial

restraint. I recognize that there exists a general public policy

favoring the diligent protection of minors, similar to the general

public policy favoring the protection of the mentally disabled.

However, there exists no policy that mandates the discharge of

every DCFS employee that files a false report, regardless of the

circumstances. The majority does not identify a "well defined and

dominant" public policy that is in explicit conflict with the

reinstatement of DuBose.

    In an effort to obscure this point, the majority first

manufactures a public policy that can hardly be considered well

defined. After reviewing the statutory framework set up for the

protection of minors, the majority declares that it violates public

policy for DCFS to employ "individuals whose dishonesty and neglect

could seriously undermine the welfare, safety, and protection of

minors." Slip op. at 14. How dishonest? How neglectful? Presumably,

any employee's misconduct can be framed in these generic terms.

With such a broad articulation of public policy, courts are now

free to substitute their judgment for that of the arbitrator

regarding the discipline of DCFS employees under the guise of

public policy. In addition, such a broad articulation of public

policy completely usurps an arbitrator's power to determine whether

any such misconduct constitutes "just cause" for termination. In

this opinion, the limited public policy exception to the

enforcement of arbitration awards has evolved into a basis for the

judicial review of all DCFS employment decisions.

    Even if I were to accept the existence of such a nebulous

public policy as a basis to overturn an award, the reinstatement of

DuBose does not necessarily violate such a policy. The statutory

scheme put in place for the protection of minors does not evince a

public policy that would demand the firing of every individual

found to be dishonest or neglectful in regard to his or her

statutory duties. The majority tacitly acknowledges this fact in

stating that this court would be obligated to affirm the

reinstatement if the arbitrator were to make a rational finding

that the employee can be trusted to refrain from the misconduct in

the future. Slip op. at 19. Even without such a finding, there is

simply no explicit conflict with these laws or any legal precedent

posed by the reinstatement of a DCFS worker who has filed a false

report.

    In its effort to find a violation of the public policy it has

identified, the majority also invades the exclusive province of the

arbitrator by engaging in inappropriate fact finding. In United

Paperworkers International Union v. Misco, Inc., 484 U.S. 29, 98 L.

Ed. 2d 286, 108 S. Ct. 364 (1987), the Supreme Court chastised the

lower court for drawing an inference that because an employee was

discovered in another employee's car with a lit marijuana cigarette

and had drugs in his own car in the company parking lot, he was

using drugs at work. The Supreme Court noted that such fact finding

is the exclusive province of the arbitrator chosen by the parties

and the "refusal to enforce an award must rest on more than

speculation or assumption." Misco, 484 U.S. at 44, 98 L. Ed. 2d at

303, 108 S. Ct. at 374. In the instant case, the majority

speculates that DuBose put children in danger by filing the false

reports and assumes that such conduct will continue if she is

reinstated. The arbitrator did not find these facts and the

majority is in error to assume them.

    Moreover, I cannot accept the majority's conclusion that the

arbitrator violated public policy in the process of enforcing the

contractual provision requiring discipline be timely. The supposed

public policy identified by the majority requiring DCFS employ only

the most diligent and truthful people is not "dominant" in relation

to the general public policy favoring the timely imposition of

discipline. Timeliness is required for the imposition of almost all

civil and criminal liability, including that involving children.

The majority provides no meaningful basis for its distinction

between the timeliness provisions at issue here and those imposed

by the legislature. Such provisions impose a burden upon those

seeking sanctions to respect the rights of the individual, and all

impose corresponding costs on society. In refusing to enforce the

provision requiring discipline be timely, the majority has removed

an important bargained-for due process consideration from the

collective-bargaining agreement.

    Even accepting the majority's conclusion that the award of

reinstatement violated public policy, the proper resolution of the

matter is to return this case to the arbitrator for an alternate

remedy. The formulation of remedies is a matter for the arbitrator,

not the courts. United Steelworkers of America v. Enterprise Wheel

& Car Corp., 363 U.S. 593, 597, 4 L. Ed. 2d 1424, 1428, 80 S. Ct.

1358, 1361 (1960). There is no dispute that DCFS violated the

collective-bargaining agreement in failing to impose timely

discipline. The majority's conclusion that the arbitrator adopted

an "all or nothing approach" that rejected any other remedy for the

contractual violation is simply absurd. In leaving the violation of

the timeliness provision without a remedy, the majority invites

DCFS to ignore it in the future.

    In conclusion, I question how an arbitrator in the next case

can avoid the folly that this case has become. When faced with a

disciplinary action not timely taken, an arbitrator may no longer

find that the action is untimely and enforce the collective-

bargaining agreement as written. The arbitrator must now take proof

on the merits in order to determine if the misconduct actually

occurred, and if it did, then determine if it is gross enough to

negate the operation of the limitations provision. Whatever the

arbitrator's decision, it is certain to spawn an appeal thereby

sacrificing the efficiency of "binding" arbitration as a means of

resolving labor disputes. This is the legacy of the majority's ride

on that unruly horse.

    JUSTICE HEIPLE joins in this dissent.