The Importance Of How A Grievance Procedure Is Worded

Often, the parties to collective bargaining agreements pay little attention to how a grievance procedure is worded, simply renewing the old version of the grievance procedure each time a new contract is negotiated. A recent case from the Illinois Court of Appeals illustrates why the specific wording of a grievance procedure can be critical in how a contract will be interpreted.

The case involved William Kovarik, a police officer for the City of Naperville. The City’s Department of Public Works (DPW) is responsible for snow removal from city streets and cul-de-sacs. Each snow season, the DPW hires employees from other City departments to drive snow plows and remove snow from cul-de-sacs. It is a voluntary program available to employees during their off-duty hours. The program is solely controlled and managed by DPW. The Police Department does not have a role in hiring, firing or managing snow plow drivers.

During the winter of 2009, Kovarik applied with the DPW to participate in the voluntary snow removal program. After he was not hired, he filed a grievance under the contract between the City and the Fraternal Order of Police (FOP), Kovarik’s labor organization, claiming that he had a contractual right to snow plow work and that he was wrongly denied the opportunity to plow snow. An arbitrator granted the grievance, and the City challenged the Arbitrator’s opinion on the grounds that the grievance was not subject to arbitration under the grievance procedure.

The Court of Appeals sided with the City. The Court reasoned that “here, the parties’ CBA indicated that only a grievance that involved an express provision would be subject to arbitration. This necessarily means that not every grievance a police officer had with the City would be subject to arbitration. Further, ‘express’ means that which is ‘clearly and unmistakably communicated; directly stated.’ There is no provision in the CBA that directly states that a police officer may seek to arbitrate the City’s failure to hire him to drive a snow plow while he was off duty. As the CBA indicates that the parties had the right to seek the inclusion of such an issue in the agreement, but none is included, there is an inference that the parties did not reach an agreement to arbitrate that issue. Pursuant to the plain language of the CBA, the City was not obligated to arbitrate the underlying dispute with the FOP.

“In so ruling, we reject the FOP’s argument that the section 4.1 of the CBA constituted an express provision that required the parties to arbitrate the underlying dispute. Section 4.1 refers to the City’s ability to make reasonable rules, regulations, and orders in determining the services and missions of the Police Department. That section does not specifically refer to the City’s ability to establish rules for other work that police officers do for the City while they are off duty. To interpret section 4.1 as broadly as the FOP asks that we do would essentially render meaningless the contract’s requirement that only a grievance involving an express provision of the CBA be subject to arbitration. That, of course, we decline to do.”

City of Naperville v. Illinois FOP, Labor Council, 2013 WL 3880127 (Ill. App. 2013).